Administering Danger in the Workplace: The Law and Politics of Occupational Health and Safety Regulation in Ontario 1850–1914 9781487574970

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Administering Danger in the Workplace: The Law and Politics of Occupational Health and Safety Regulation in Ontario, 1850-1914 For Ontario workers during the industrial revolution the workplace was often an environment of terrible danger. Injuries and illnesses from unsafe working conditions were commonplace. Over time these conditions spurred efforts for reform from activists, legislators, and the courts. But change was slow in coming. To understand the impact of the industrial revolution .on the health and safety of workers generally, and on women and children in particular, Tucker uses their testimony before various commissions, newspapers, and reported court cases. Initial efforts to effect change were made through the courts; they were largely unsuccessful. When the judiciary refused to regulate the riskcreating conduct of employers, through either the civil or the criminal law, workers and Victorian reformers found common ground in successfully promoting factory legislation. By prescribing and enforcing minimum standards, a measure of regulatory responsibility for the health of workers generally and women and children in particular was shifted from the market to the state. Class interest and gender ideology played a substantial role in this process. But the legislation's implementation belied its promise. The government was unwilling to provide adequate enforcement resources, and inspectors accepted the conventional wisdom that workers had to adjust to the 'normal' hazards of industry, which were reasonable and, therefore, legal. Even when the accident rate began to soar as a result of the 'second industrial revolution,' the authorities remained complacent. Tucker says that in industrial capitalist social formation, the nature and degree of hazards to which workers are exposed are determined largely by the employer-worker balance of power. Their respective power resources both shape and are shaped by the ideological, legal, political, and administrative environment in which they are deployed. Throughout the last half of .the nineteenth century and up to the First World War, state regulation of occupational health and safety was substantially subordinated to market-driven forces; it still is today. ERIC TUCKER

versity.

is Associate Professor, Osgoode Hall Law School, York Uni-

ERIC TUCKER

Administering Danger in the Workplace: The Law and Politics of Occupational Health and Safety Regulation in Ontario, 1850-1914

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

©

University of Toronto Press 1990 Toronto Buffalo London Printed in Canada Reprinted in 2018

ISBN 0-8020-5855-8 (cloth) ISBN 978-0-8020-6765-4 (paper)

Printed on acid-free paper

Canadian Cataloguing in Publication Data

Tucker, Eric Administering danger in the workplace ISBN 0-8020-5855-8 (bound) ISBN 978-0-8020-6765-4 (paper)

Industrial hygiene - Ontario - History. Industrial hygiene - Law and legislation Ontario - History. 3. Industrial safety - Ontario - History. 4. Industrial safety - Law and legislation - Ontario - History. 5. Factory laws and legislation - Ontario - History. I. Title 1.

2.

363.11'09713

c90-093479-4

For my parents, William and Selma, and to Zelda, Myka, and Zack

Contents

AC K NOW L E D G ME NT S

ix

1 Introduction 3 2 Paying the 'Butcher Bill': Industrialization and Workers' Health Introduction 9 The Rise of Industrial Capitalism in Ontario 13 The Health and Safety Consequences of Industrial Capitalism 3 Courting Risk: The Establishment of Market Regulation 38 The Early Development of Employers' Liability Law 41 Judicial Administration of the Law in Ontario, 1866-86 46 Workers and the Courts: Why the Working Class Lost 50 Were Killing and Injuring at Work Crimes? 66 4 The Politics of Ontario's Factory Legislation: Part I Early Conflicts, 1836-79 77 The Politics of Factory Legislation, 1879-84 82 A Constitutional Sideshow, 1884-86 101 5 The Politics of Ontario's Factory Legislation: Part II What Workers Got: The Ontario Factories' Act, 1884 Why Ontario Workers Got the Act They Got 114 Winning as Workers? 131

76

111 111

9

15

viii Contents 6 The Implementation of Ontario's Factory Legislation, 1886-1900 137 Setting up the Enforcement Apparatus 138 The Inspectors Take to the Field 144 7 Factory Regulation in the Second Industrial Revolution Monopoly Capitalism Comes to Canada 177 The Second Industrial Revolution and Workers' Health The State Responds 187 8 Conclusion 209 Looking Backwards Backwards Looking

177 180

209

216

APPENDICES A

B

Occupational Health and Safety Statutes, Ontario, 1874-1914 Reports of the Ontario Inspectors of Factories, 1888-1914, Publication Information 228 A B B R E V I AT IONS NOTES

231

IN DEX

303

229

223

Acknowledgments

Numerous people have contributed to the creation of this book, and I would like to take this opportunity to thank them. The work of my research assistants, Jerry Raso, Nancy Kleer, Rocco Galati, David McRobert, Leanne MacMillan, and Jimmy Levy, has been invaluable. Many friends and colleagues (Harry Glasbeek, Doug Hay, Judy Fudge, Andy Ranachan, Neil Cunningham, Craig Heron, Paul Craven, Daniel Drache, Connie Backhouse, William Westfall, Peter Oliver, Antoinette Hetzler, Janice Newton, and members of the Labour Studies Research Group) have read and commented on all or part of various drafts of the manuscript. They have made many useful suggestions and have helped me improve the text. Of course, responsibility for the contents of the manuscript,· especially for whatever mistakes may remain, rests entirely with me. I am also indebted to my colleagues Reuben Hasson and Michael Mandel for their support and encouragement over the years. Librarians at Osgoode Hall Law School and the Archives of Ontario have been most helpful. In particular, I would like to thank Norma Eakin for tracking down and obtaining copies of obscure materials I requested. Lorraine Hislop's excellent and meticulous secretarial assistance helped me through the final stages of the manuscript. A substantial portion of this book was written during my sabbatical in 1987-8, and I would like to thank Osgoode Hall Law School and York University for providing me with this opportunity. An earlier version of chapter 6, entitled 'Making the Workplace "Safe" in Capitalism: The Enforcement of Factory Legislation in Nineteenth-Century Ontario,' was published in Labour/Le Travail 21 (1988) 45.

x Acknowledgments This book has been published with the help of a grant from the Social Science Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada.

ADMINISTERING DANGER IN THE WORKPLACE

1 Introduction

In September 1871, an eleven-year-old boy whose family name was Vicary began working for Mr Keith in his flax mill. 1 There were, at the time, about 40 boys employed in the mill. Initially, Vicary was assigned to hand bundles of flax to the threshers and sometimes to spread the flax. He had nothing to do with the machinery directly. One morning in November of that year, Vicary was assigned to pull away the flax after it had been through the scutching machine. Two other boys helped him, but they were later sent away and he was left alone. There was a wooden roller on the machine which was frequently thrown out of place. Ten minutes after Vicary was left alone, the roller came out. Vicary got the roller and attempted to reach up and put it back in the machine. While doing so, his coat became caught in some unguarded cog-wheels and he was pulled into the machine. His arm was severely lacerated and permanently disabled. In some ways, however, Vicary was lucky. First of all, he survived. Many other workers who became entangled in machinery did not. Second, when he sued his employer for compensation for his injury, the court ruled that the jury should be allowed to determine whether or not his employer, Keith, was liable, and juries almost invariably found for worker plaintiffs. Most workers who sued their employers were denied access to the popular justice meted out by the jury. The reason for this lay with the substance of the common law and its administration by the courts. In Vicary's case, Chief Justice Richards cited ample precedent to establish that' ... at common law servants had no right to complain of the want of the fencing of machinery. If they chose to engage themselves to work at a machine, the work itself being of a dangerous character, that was a part of the bargain, and the ser-

4 Administering Danger vant, if injured in doing the work which he engaged to do, and the mode of doing it and the machine by which it was done was such as he and the master both understood would be the case, then he cannot, in case of injury, recover damages from the master, in case he sustained injury in doing this dangerous work.'2 Put more simply, the judge was saying that the court was not prepared to hold that employers owed their workers a legal duty to provide them with minimally safe and healthy working conditions. Rather, the matter was to be resolved through the individual contract of employment. Workers and capitalists should bargain over the terms and conditions of employment without interference from the state and the market would aggregate these individual preferences to produce an efficient level of workplace safety. In sum, the common law embraced a system of market regulation of occupational health and safety. Further, there was no legislation in force at the time which altered the common law in this regard. Vicary was lucky, then, not because the law protected workers, but rather because the court, in view of Vicary's age, was willing to let the jury hear his claim, knowing that in all likelihood the jury would not apply the common law in reaching its verdict, regardless of the judge's instructions to them. Had Vicary been injured in the same circumstances in 1915, he and his employer would have faced a very different regulatory regime. First, with respect to compensation, Vicary would not have turned to the courts for his remedy. Rather, he would have applied for compensation to the Ontario Workmen's Compensation Board, an administrative agency created by statute with authority to levy assessments on employers and to disburse payments to workers injured at work without regard to their 'voluntary' contractual assumption of risk or the issue of fault . Moreover, employers and employees could not contract out of this compensation regime. Second, Vicary's employer might have been prosecuted for violating standards established by legislation regarding the employment of child labour and the fencing of dangerous machinery in factories. At law, employers were now under a public duty to provide workplaces that complied with publicly established standards. Clearly, health and safety at the workplace was no longer considered a private matter to be dealt with exclusively through the individual contract of employment. Market regulation had been, at least to some extent, supplanted by direct state regulation. Yet, despite this shift, it is not clear that the work environment improved for most industrial workers between 1871 and 1915. Indeed, it very likely deteriorated for

Introduction 5 many workers. The questions of why the system for regulating occupational risks was transformed and why this transformation had so little effect are the focus of this book. Production entails risk to the health and safety of direct producers whether they be slaves, serfs, independent producers, or proletarians. The nature and degree of the risks posed by production, however, vary considerably. Differences in the risks faced by direct producers are not just a function of their class position. Within a social formation, the risks generated by a mode of production do not confront all members of a class of direct producers uniformly. Nor can it be said with any certainty that occupational health and safety conditions under which direct producers labour have improved or, for that matter, deteriorated as a result of transitions from one mode of production to another. Nevertheless, it is clear that the risks faced by direct producers are closely related to the political economy of their social formation . In particular, the development of industrial capitalism in the nineteenth century resulted in the death and injury of numerous workers. It was this human cost which was referred to as the 'butcher bill' of industrialization. Changes in the mode of production not only produce health and safety effects; they also generate conflicts over the way decisions are made about the exposure of direct producers to occupational hazards. This book examines the development and operation of the system for regulating occupational health and safety for a small group of workers - factory workers - in one jurisdiction - Ontario during a relatively brief period of time - 1850 to 1914. The narrow focus of this book has both drawbacks and advantages. Obviously, it is not possible to assume that the experience of Ontario factory workers was typical of the experience of factory workers in other places, although accounts of factory regulation in other common law jurisdictions suggest great similarities.3 Therefore, the extent to which the data presented here can be used to support or assail some general theorization of the development and operation of regulatory systems in industrial capitalist social formations is limited. Nevertheless, if progress is going to be made in the theorization of regulation in the capitalist-welfare state, it must be built on historically situated, contextually rich case studies. 4 This book is an effort in that direction. Furthermore, despite the seemingly narrow subject-matter, the investigation crosses the boundaries of numerous academic disciplines and engages important debates in the social sciences on the develop-

6 Administering Danger ment and impact of industrial capitalism. In part, this is necessitated by the diverse institutional settings in which decision-making about health and safety regulation took place. At different times, courts, legislatures, and the bureaucracies all played leading roles in the development and administration of occupational health and safety regulation. It was necessary, therefore, to consider the particular characteristics of these institutional settings in order to appreciate how their internal dynamics and their relation to external political, economic, and social forces influenced the outcome of their processes. In this regard, the book responds to the recent call to 'bring the state back in' 5 to the analysis of social change and policy formation and implementation. Two caveats, however, are in order. First, in bringing the state back in, it is important to treat the state not as a monolithic entity, but rather as a set of sub-systems, each with its own particular internal dynamics and relations to other sub-systems and social actors. Theories about, and practices of, legal, legislative, and bureaucratic organizations must be examined to appreciate the nuances of the development of occupational health and safety regulation. Second, and more important, it must be asked, into what is the state being brought back? There is a tendency, expressed most clearly by Theda Skocpol, not just to bring the state back in, but to give it the leading role. That is, state-centred explanations of the development of social policy are substituted for socio-economic ones.6 The autonomy of the state appears, in this account, to be so great that its actions can best be understood by studying it as an organization of officials seeking to pursue its own distinctive goals and to control its own environment. This book rejects the state-centred approach.7 Rather, it builds on the very approach that state-centred theory seeks to displace. That is, it is firmly rooted in Marxist or neo-Marxist theorizations which begin from the premise that in capitalist social formations capital holds a structurally privileged position in its relations with the state and its sub-systems. That structural privilege is founded on capital's control over the economy arising out of the private ownership and control of the means of production. State policies which seriously threaten to undermine processes of private capital accumulation likely will be met by a withdrawal of private investment and severe economic dislocations. Furthermore, the state itself is economically dependent on the system of private accumulation, and any serious decline in economic activity will erode the state's tax base and impede its ability to deliver services. The state will be held politically accountable for these conse-

Introduction 7 quences and pressure will arise on the state to provide inducements to capital to end its strike. It is this structural advantage which privileges capital and not any particular instrumental linkage between the capitalist class and state officials, although those linkages may, at times, be present. However, this structural advantage is only that: an advantage. It is not a guarantee of successful domination. Conflict and contradictions in the private accumulation process will often be displaced into the political-administrative system where they are mediated in complex ways. It is precisely because no single resolution is structurally determined that the specific characteristics of state institutions and their contingent relations to social forces at any particular moment must be taken very seriously in any study which wants to do more than explore the grand sweep of history.8 The approach taken here also rejects overly structural accounts of the development of industrial capitalism. Classes and individuals cannot be understood as passive agents carrying out the task assigned to them by larger historical processes. In this regard, the book greatly benefits from the new Canadian working-class and labour history. Inspired by work of English social historians such as E.P. Thompson and E.J. Hobsbawm, 9 Canadian historians such as Bryan Palmer and Gregory Kealey 10 have produced a body of work which stresses the importance of examining the working-class experience of, and response to the development of, industrial capitalism. Their approach rejects the view that workers passively accepted the capitalist transformation of the social formation or that history can be understood as the unfolding of forces largely beyond the reach of human agency. Rather, they have emphasized the need to appreciate and take account of the way class struggles both shaped and were shaped by the contours of capitalist accumulation. In other words, the call to 'bring workers back in' 11 has also been heeded. A third intellectual current has also influenced this book: feminism. Numerous scholars have driven home the point that the working class cannot be considered as a homogeneous group, some of whom just happened to be women.12 The situation and experience of workingclass women must be recognized as being significantly different from that of working-class men, notwithstanding their common class position and the similarities that entails. As well, we should not universalize the experience and consciousness of women regardless of their class position. The relation of working-class women to the processes of social production and reproduction was conditioned both by their gender

8 Administering Danger and by their class.13 The gender dimension is especially salient in a history of occupational health and safety regulation because legislation embraced gender-based protective measures. Women were treated differently than men not only by their employers, but also by the legislature and, as we shall see, by the law's enforcers, the factory inspectors. Whether the effort to bring all these themes 'back in' has succeeded can be judged from the analysis that follows . Chapter 2 examines the development of industrial capitalism in mid- to late-nineteenth-century Ontario and its impact on the health of railway workers, factory workers, and women and children entering the industrial labour force. Chapter 3 traces the development of market regulation of health and safety through judicial decision-making, and seeks to show how the official justice system confronted and sought to suppress an alternative vision of justice which was expressed by civil, criminal, and coroner's juries. The political movement leading to the enactment of protective legislation in Ontario for factory workers is examined in chapters 4 and 5. Chapter 4 is largely a narrative of events while chapter 5 reviews numerous theorizations of the politics of factory legislation and tries to develop an approach which is compatible with the Ontario data . Chapter 6 examines the implementation of that legislation. In particular, it seeks to explain the selection of an enforcement strategy which avoided the use of coercive and punitive techniques and which accepted the exposure of workers to levels of risk that seriously endangered their lives and health. Chapter 7 looks at the development of occupational health and safety regulation during the early period of monopoly capital, 1900 to 1914. Chapter 8 tries to pull together the major themes of the book and suggest some connections between the developments in the late nineteenth and early twentieth century and the current approach to occupational health and safety.

2 Paying the 'Butcher Bill': Industrialization and Workers' Health

Statistics don't bleed; it is the detail which counts. We are unable to embrace the total process with our awareness; we can only focus on little lumps of reality.'

Introduction Risks to health may be inherent in productive activity, but the level of risk and its distribution are variable. One way of conceptualizing the relationship between work and health emphasizes the technical aspects of production. The objects, means, and products of labour are studied for their hazardous properties, and their development is seen to account for changes in the level of risk. From this perspective, the industrial revolution may have increased the health risks associated with production because it introduced hazardous materials and technologies into the workplace. A second conceptualization focuses on the physical ~nd psychological attributes of the people who suffer adverse health consequences from their participation in production. In its more regressive manifestations, the emphasis is on the 'risk proneness' of the individual. That is, the people who suffer the harm are seen to be the authors of their own misfortune. 2 However, there is also a more progressive variant which does not 'blame the victim'3 but rather examines group characteristics such as age and education to explain variations in accident rates. For example, younger, less-experienced workers will experience higher rates of injury.4 In varying degrees, these perspectives capture some dimensions of the relation between work and health, but they also obscure the extent to which the determinants of the level and distribution of risk are embedded in the social

10

Administering Danger

relations of productions. 5 From this perspective, changes in the labour process are not seen as technogically determined, but rather as dialectically related to the development of the political economy. Class formation and class struggles play a central role in shaping the total work environment, which includes organization of and control over the production process. 6 Similarly, changes in the age and gender composition of the workforce must also be examined in relation to the impact of the development of social relations of production on social relations of reproduction. The political-economic perspective informs the following examination of the impact of the development of industrial capitalism on the health of factory workers and on the participation of women and children in industrial wage labour. In addition, however, we will also consider the development of railways and the hazardous conditions to which railway workers were exposed. The inclusion of railways in a study largely about factory regulation is justified on a number of grounds. Industrialization and the development of railways are historically linked in Ontario in a variety of ways. By reducing transportation costs, the railways opened up local markets to large-scale enterprises concentrated in diversified urban industrial centres. As well, the railways, through their own consumption, created a demand for industrial products that could be supplied more cheaply by local industry. Indeed, in order to supply their diverse needs, the railways developed, owned, and operated some of the largest manufacturing establishments in the period before the National Policy.7 As well, the railway operations themselves employed thousands of workers by the mid185os. As a result, the railways were a leader in the development and perfection of capitalist relations of production in large-scale economic enterprises, 8 even though those relations had distinctive characteristics. However, for our purposes, the most important linkage between the railways and the development of factory legislation is that the initial judge-made common law regulating occupational health and safety for all workers largely developed out of employer liability actions brought by railways workers and their families against the railway companies. We must, therefore, understand the social background to this important legal development. It may strike many as odd that a study of occupational health and safety in late-nineteenth- and early-twentieth-century Ontario focuses on factories and railways while largely ignoring staple production and extraction and subsistence production. After all, it has been argued

Paying the 'Butcher Bill'

11

that staples were not only the engine that drove industrial development, but that they have been and continue to be the predominant force shaping the Canadian economy. 9 More recently, Marjorie Griffen Cohen has forcefully argued that subsistence production was integrally related to capital accumul~tion in staple production by lowering the cost to employers of maintaining the worker and his family. 10 Our focus on factories and railways does not reflect a judgment about the economic importance of industrial production relative to these other sectors of the economy. Nor is it based on a failure to appreciate that the majority of workers in Ontario were not involved in factory production and railways. Indeed, it is clear that the majority of workers in Ontario were employed in non-industrial settings. By 1871, only 19 per cent of the gainfully employed in Ontario worked in manufacturing . Even by 1891, only 23 per cent worked in manufacturing.11 Further, it has been estimated that three-fifths of the population of Ontario resided on farms in 1870.12 Even by 1911, industrial workers made up a little over one-quarter of the workforce and agricultural workers slightly over one-third. As well, most Ontarians lived in rural communities until the first decade of the twentieth century.13 Further, our lack of attention to staple and subsistence production is not based on the view that work in these sectors was safe or that it was performed exclusively by adult men. This was clearly not the case. In the period of settlement the great majority of immigrants lived and worked in family units engaged in independent commodity production. Labour was physically demanding and was performed by all members of the family unit, even though there was a sexual division of labour. Men principally worked in the fields and artisanal workshops while women raised the children and, with their help worked as a production unit which 'looked after livestock, tended the garden, picked and preserved fruit and vegetables, spun yarn, wove cloth, made clothing, prepared meals and did the thousand-and-one tasks which existed around the home.' 14 In short, they were principally engaged in subsistence production to supply the immediate needs of their families. The increased use of mechanical reapers and threshers after the 1850s reduced the labour requirements of farming and facilitated the production of surpluses for market sale. However, mechanization also introduced new occupational hazards to farmers and increased the risk of serious injury. 15 For women, higher incomes and the penetration of the market facilitated the introduction of manufactured products into the domestic farm economy, thereby easing some-

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Administering Danger

what the burden of domestic labour.16 However, this did not necessarily lead to a reduction of hours of work. Rather, women often shifted their efforts into production for the market.17 Other areas of staple production were even more hazardous, and tended to employ male labour exclusively. In the logging industry, shantymen and particularly raftsmen worked in harsh conditions and faced significant risks to life and limb arising from their work. 18 Similarly, mining was an extremely hazardous occupation from which women were excluded by law.19 · · In addition to omitting the hazards of staple production and resource extraction, this study will not consider the occupational hazards of shipping and construction and their regulation. Again, the reason is not that these activities were economically marginal or that they did not expose workers to significant risks. With respect to shipping, the Royal Commission on the Relations between Labour and Capital heard complaints about the use of unseaworthy vessels, overloading, and understaffing. Both commission reports urged that the government appoint inspectors to ensure that minimum standards were maintained for the protection of sailors. 2 Construction, then as now, was also one of the more hazardous occupations. The conditions of the contract workers who built the canals and railways were horrific. 21 Conditions for workers in the building trades were better, but still hazardous. Inadequate scaffolding and poorly secured hoists were two of the more common causes of fatalities. 22 Indeed, of the 73 occupationally related deaths reported on by the York County coroner between 1877 and 1899, 24 involved construction accidents. 23 The reason for not examining these sectors in greater detail is that they had a marginal impact on the development of occupational health and safety regulation during the period being studied. Although the first occupational health and safety legislation in Ontario was enacted in response to the introduction of steam-powered threshing machines, the act did not set a trend for further regulation of health hazards in farming. Nor did it establish a model for regulating hazards in other areas of work. 24 Health and safety in the logging industry was not regulated in Ontario until the 1960s, despite the fact that it historically has had one of the highest injury rates, if not the highest, of any occupation in Ontario. Occupational health and safety in mining in Ontario was not regulated until late in the nineteenth century, well after regulation in the factories .25 The question of why health and safety regulation in the resource sector developed so slowly in Ontario

°

Paying the 'Butcher Bill' 13 is intriguing, but will not be answered by this study. Dominion legislation aimed specifically at protecting the health and safety of sailors was enacted in the 1870s; however it had little impact on occupational health regulation in other areas if only because sailors have always been subject to a rather different legal regime than other workers. 26 Finally, construction was first regulated provincially in 1911; again, well after factory legislation had been enacted.27 The Rise of Industrial Capitalism in Ontario

Despite rather substantial disagreements about the overall significance· of industrial capitalism in Canada's political economy, there is general agreement that an industrial capitalist sector of the economy did emerge in the second half of the nineteenth century. The dimensions and contours of the growth of the railways and manufacturing during this period have been well documented by others, 28 and so we will only review some limited aspects of that growth, particularly as it related to the health and safety of railway and industrial workers generally and to the participation of child and female labour in industrial wage labour. In 1850 Ontario had no railways. By 1861 it had 1352 miles of track, most of which had been constructed between 1853 and 1856, and by 1871 it had 1441 miles. 29 This growth in the railways was accompanied by a corresponding growth in the workforce. According to Craven and Traves, the Grand Trunk was the largest employer in Canada by the middle of the decade with 2600 workers in its service, while the Great Western was the second largest. 30 Establishing managerial discipline and control over railway employees was of particular importance because of the need to co-ordinate a widely dispersed workforce in order to ensure safe and timely operation of the system. Initially this was achieved by a mixture of punitive sanctions, backed by the state, and managerial paternalism. Later, paternalism gave way to class antagonism and confrontation as railway workers formed unions to protect their interests.31 The growth of manufacturing in Ontario was much less dramatic and far more uneven than was the growth of railways. Although wage labour existed prior to 1840, it was often temporary and of relatively minor significance in the economy as a whole. Industrial development in Ontario in the period from 1840 to 1870 was, with some exceptions, on a relatively small scale and was widely dispersed throughout the province. 32 The most significant period of growth was after 1870, in

14

Administering Danger

particular after the National Policy of 1879. Bertram has calculated that the annual average growth in the value of Canadian manufacturing output between 1870 and 1890 was 4.6 per cent, a rate that approaches that of the buoyant post-Second World War period.33 In Ontario, the number of manufacturing establishments increased from 19,118 in 1871 to 32,151 in 1891 - an increase of 68 per cent. The number of employees in manufacturing rose from 87,281 to 166,326 during the same period. This represented an increase of 90 per cent. These figures also indicate that the average number of employees per manufacturing firm was also increasing. As well, the capital invested in manufacturing increased from about 38 million dollars in 1871 to 176 million dollars in 1891 - an increase of 463 per cent. This rate of growth in capitalization indicates that the capitalization of the average firm was increasing as was the amount of capital invested per worker employed. These increases in the number of firms, employees, and the amount of capital invested are reflected in a 109 per cent increase in the total value of manufactured products and a 123 per cent increase in the value added by manufacturing in Ontario between 1871 and 1891. 34 The average increases in the size and capitalization of firms revealed by the above data probably understate the even more spectacular growth of large firms in various industrial sectors. This is because the census data for these years included all manufacturing firms regardless of size. Bertram suggests that if the data are disaggregated we would find 'particular manufacturing industries had firms of considerable and growing size in the period 1870-90.'35 Further evidence of the emergence of large manufacturing establishments is provided by Kealey, who examined the census manuscripts of 1871 for Toronto and found that 67 per cent of employees in manufacturing worked in factories that employed 30 or more workers.'36 It can safely be assumed that the significance of large manufacturers increased during the ensuing period of industrial growth. Growth in the size of firms and their capitalization was also accompanied by an increasing concentration of firms in large urban centresY For example, by 1881 Toronto and Hamilton each accounted for 20 per cent of industrial employment in southern Ontario even though they only contained 6.5 per cent of the region's population. 38 Although the above statistics do point toward significant levels of industrial development between 1870 and 1890, it is important to keep in mind the unevenness of this process. For example, the proportion of

Paying the 'Butcher Bill' 15 the Ontario workforce engaged in manufacturing only increased from 19 to 23 per cent during this period. As well, in 1901 when the manufacturing census was restricted to firms employing more than five employees, the proportion of the workforce engaged in manufacturing dropped to 20 per cent, indicating the persistence of the small manufacturer.39 Support for the unevenness of industrialism can also be drawn from data on the energy sources utilized by Ontario manufacturers. In 1901, there were still 1172 water-wheels being used to supply power to manufacturing establishments in Ontario. These waterwheels were producing a little over 27 per cent of all horsepower employed.40 Despite these limitations, industrial capitalism emerged as an important force that affected the lives of many of Ontario's workers. Not only were working men, women, and children exposed to new physical hazards, they were also subjected to new ways of controlling and organizing production. The combination of the two proved to be detrimental to their health and safety. The Health and Safety Consequences of Industrial Capitalism

The Railways The railway boom of the 1850s necessitated the creation of a large, diverse workforce engaged in manufacturing, administration, and the direct operation of the trains. The last group is of most interest for our purposes because of the hazardous conditions these workers confronted and because of their role in the development of the common law regulating occupational injuries and deaths. 41 In particular, we will consider the train crew, consisting of engineers, firemen, conductors, and brakesmen, and yardmen and switchmen who were responsible for making up the train and switching it onto sidings to permit twoway traffic on single rail lines. 42 As a group, the train crew faced numerous hazards arising out of the operation of the railways. During the railway construction boom of 1853-6 there were numerous accidents caused as a result of hastily built lines opened prematurely without proper fencing or ballasting. Indeed, a commission of inquiry appointed to look into the causes of accidents on the Great Western Railway in 1854 found : that [alt the opening of the road, the embankments and the cuttings were in a

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Administering Danger

dangerous state, that the ties and the sleepers were laid without the stay or support of gravel on the surface; at Subgrade; the road-crossings and farm crossings and cattle guards were unfinished. The trestle-works in some cases substituted for embankments, were notoriously insecure, and in fact, neither grading nor superstruction were in a fit state to hazard the prosecution of traffic in the face of the contingencies of the coming winter and spring in this climate and country. ◄3

Indeed, they also found that the Great Western had opened its lines over the formal objection of its chief engineer; 44 that the company lacked a proper system of management; and that the lack of co-ordination and discipline of employees also contributed to the occurrence of accidents, particularly collisions and derailments. 45 Danger to the crew persisted even after some of the early problems were resolved. Defective rolling stock, including broken axles, defective brakes, and poorly constructed or inadequately maintained boilers, posed ongoing hazards for both train crews and passengers. Of course, in retrospect it is, and was, often difficult to identify the immediate cause of accidents. While, in part, this reflected the limits of forensic science, the problem was also exacerbated by the impact of such determinations on the legal liability of the railway company to compensate the victims. It was in the interest of the railway companies to deny that accidents were caused by the defective design of their equipment, and instead argue that accidents were caused by a failure of some railway employees properly to inspect, repair, maintain, or operate the rolling stock. Thus, when James Bracken, a fireman on the Grand Trunk Railway, was killed when the boiler he was tending exploded, the company contended that it was the result of Bracken's failure to maintain the water level. The coroner's jury found otherwise. 'This jury exonerates the driver from all blame in this matter and are of the opinion that the giving way of the crown sheet was due to some defect in the construction of the engine.' 46 The most endangered person on the crew was the brakesman. He was required to go onto the tops or decks of freight cars and to jump from car to car in order to operate the brakes. As a result, the brakesman was liable to lose his balance or slip on the running boards on top of the cars and fall between them. This danger was exacerbated by the fact that the running boards were of different widths and lengths and that the freight cars were of different heights. As well, there was usual-

Paying the 'Butcher Bill' 17 ly no guard-rail for the brakesman to grab to catch himself if he lost his balance. Further, there was a serious danger that the brakesman would be struck by low overhead bridges and knocked to his death. The problem was perceived to be quite serious and in 1875 Mr Wills introduced a private member's bill entitled An Act for the protection of Brakesmen of Railway Trains, but the bill was defeated on second reading.47 No action was taken by the railway companies and in 1879 coroner's inquiries were conducted in York County into the deaths of three different brakesmen. In the case of Robert Sproule, the jury found that his death was the result of 'the culpable neglect of the Grand Trunk in not having their bridges of a proper height.'48 That year the dominion Parliament enacted legislation establishing a minimum seven-foot clearance between the bottoms of bridges and railway cars.49 In 1880 the Ontario Legislative Assembly established a select committee to inquire into railway accidents which heard testimony from railway officials and workers. One anonymous brakesman described the terror he experienced on the job. 'I have been a sailor and a soldier, and I have been a brakesman on railways in the old country, and I never knew what it was to be afraid of losing my life, till I got on top of a freight car going down Capetown grade, on a frosty night when the cars were covered with ice, and I had to take off my boots to get across them.'50 A conductor on the Great Western Railway also described the dangerous conditions brakesmen encountered. I have seen more difficulty in stopping our trains with all the brakes we have got than I ever saw in England; this did not arise from the steepness of the grades, but from other causes, namely, in frosty weather the brakesman was unable to get quickly from one car to another on his hands and knees; also, the brakes being in bad repair requiring the brakesman to crawl over perhaps ten or fifteen cars before he could get one brake to hold sufficiently. It is a lamentable fact that the rolling stock of railway companies is allowed to be kept in such bad repair, that it is not only dangerous to the employees but to the travelling public.51

The committee recommended that overhead bridges have higher clearances and that cars should be equipped with wider running boards extending over the ends of cars and handrails. 52 In 1881 a provincial statute was enacted which attempted to implement some of these recommendations. 53 For a variety of reasons, the

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act proved to be ineffective, 54 and when the matter was reviewed by the Royal Commission on the Relations of Labour and Capital, they commented: A perusal of the evidence of railway employees will clearly establish the fact that far too many accidents take place which are of a preventable character, that many lives are lost which would be spared by comparatively small outlay by the railway companies. It is surprising to notice that, notwithstanding these matters have frequently been brought to the attention of railway managers, so little should have been done in the direction of removing the causes complained of.55

Although train crews faced serious hazards, they were not the group of employees at greatest risk. This dubious distinction belonged to the yardmen and switchmen responsible for putting the trains together. The greatest danger arose in coupling and uncoupling cars.56 This operation frequently required the men to go between the cars - sometimes, apparently, while they were moving. Aside from the obvious hazards of such work, there was the additional danger that workers would get their feet stuck in 'frogs,' which were grooved pieces of iron placed at the junction of the rails where one track crossed another. Since yards contained numerous crossing tracks, there were a substantial number of frogs. 57 The coroner's reports and reported employerliability cases offer numerous instances of workers being killed or severely injured in this way. 58 As well, there was the danger that freight such as lumber would shift over the end of the car, striking the coupler. This apparently caused the death of Mr Farmer, a coupler on the Grand Trunk Railway who was found under the wheels of a freight car. 59 Indeed, so common were accidents from these causes that the Grand Trunk Railway issued a directive to its trainmen, shunters, and couplers with the following warning: 'All employees are earnestly requested, before attempting to couple, or before stepping in between cars and engines, to carefully examine the couplings, dead-woods, and loads. Rails and lumber on platform cars sometimes shift and extend beyond the ends of cars. Look sharply to this before you attempt to make a coupling, and, in moving about station yards, look out for rail frogs .'60 In addition, there was always the danger that a car would move unexpectedly and without warning. 61 Notwithstanding recommendations from the select committee that frogs should be packed with wood, and attempts by the Legislative

Paying the 'Butcher Bill' 19 Assembly to create an economic incentive to do so by making railway companies liable to their employees injured because of unpacked frogs, the Royal Commission on the Relations of Labour and Capital found in 1889 that conditions had not substantially improved, and that accidents from this and other causes continued to occur with great regularity.62 In sum, the hazardous conditions faced by these workers were not simply the result of unperfected new technologies and systems of control. They reflected decisions by the railway companies to reduce capital and operating expenditures even if this entailed building in hazardous conditions. To minimize the impact of these conditions, the companies attempted to establish and enforce operating rules for their employees. However, workers also faced pressures and were given incentives which encouraged them to take short cuts to 'get the job done.' 63

The Factories

Our discussion of the development of industrial capitalism indicated that an uneven transition from artisanal production techniques to machinofacture was taking place from the 1850s onward. 64 The former process was characterized by the presence of a small number of skilled employees, little division of labour, and reliance on handicraft production techniques. Output could be expanded by craftsmen employing more apprentices and journeymen, or by outwork. As well, there was the introduction of simple machinery. Machinofacture involved the employment of a large number of semi-skilled operatives, great division of labour, and extensive use of machine power. Output and productivity was expanded through a combination of technological and organizational innovations. In this section we will examine these changes in the labour process in greater detail and consider their impact on the health and safety of industrial workers in the late nineteenth century. A fundamental requirement for mechanized factory production is a centralized power source. The earliest textile factories, flour-mills, and sawmills relied on streams and rivers to turn water-wheels for power. However, this source of energy was limiting, both in terms of the number of possible locations and in terms of the power that could be derived from it. Large-scale industry, concentrated in urban areas, required an alternative, and this was fulfilled initially by the development of steam-power.65 For example, between 1864 and 1871, the

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number of steam-powered plants in Hamilton increased by 32 per cent.66 By late in the nineteenth century steam had became a major source of power for industry in Ontario, although by no means the exclusive one. 67 The development and dispersal of steam-power facilitated industrial development, but it also introduced a significant hazard into the workplace. The risks associated with steam generation were recognized by the middle of the nineteenth century and, in fact, legislation was enacted in 1851 regulating steam-boilers on vessels in order to protect the public. 68 The hazards associated with steam-power arose from the fact that it was necessary to produce steam under very high pressure. The boilers in which the steam was generated were often inadequately maintained, pushed beyond their capacity, and operated by engineers who lacked proper training and who were unlicensed. 69 Larger, more heavily capitalized firms were more likely to take proper care of their boilers, if only because they stood to suffer considerable damage to their property in the event of an explosion. Indeed, steam-boiler insurance could be obtained, and the companies that sold it conducted inspections of the steam-boilers they insured, thereby reducing the risk of accidents.70 However, these precautions were only taken by a small proportion of all firms using steam-power. Thus, the second report of the RCRLC stated: 'It appears from the evidence that the proportion of skilled mechanics who are in charge of engines and boilers is small, when compared with the number employed at this work.' The preference for unskilled workers was blamed on the 'keen competition in the labour market' and the fact that 'unskilled labour can be purchased cheaper than skilled ... ; no thought being given to the risk of accidents or explosions, being caused through ignorance of the ma:n in charge.'71 As a consequence, explosions were a disturbingly common occurrence, often resulting in death or serious injury to the engineer and other persons in the vicinity of the boiler. 72 The power generated by the energy source was distributed through the factory by a series of rotating shafts. These shafts either ran overhead or below the floor, and workers faced the risk that their hair or clothing might get caught in them. The consequences of such an encounter were severe. For example, Ms McCloherty, a laundry worker, was 'scalped' when her hair got caught in an overhead shaft when she climbed onto a bench to open a window. 73 Power was transmitted from the shafts to the machines by belts. These belts were an even more potent hazard insofar as they were in

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closer proximity to the employee and needed to be connected and disconnected on a regular basis. The results of getting caught in such a belt were vividly described in a newspaper account of one such accident: 'His right arm was torn completely out of the socket. Both his legs were also broken, and a hole made as if by a spike through one of them. His ribs were also broken, and, in fact, he was mashed to pieces.'74 Inspector Barber provided the following graphic account of a similar accident in his district. He was standing on one foot on the ladder with the other foot projecting out, the farmer allowed the belt to come off the pulley of the machine, it began to wind around the shaft above and in doing so the loop of the belt passed over the projecting foot of the man on the ladder, passed up between his legs, carried him many times around the fast revolving shaft striking his head and body every revolution against the floor and beams above. He was instantly killed and the floor was sprinkled with his blood right across the wide room.75

Once the power reached the machine it had to be converted into a usable form through gears, cogs, and other such mechanical means. These, too, posed dangers to workers, especially when appropriate guards and fencing were lacking, as was commonly the case. 76 As well, workers were frequently expected to adjust, clean, or oil the machinery while it was in motion, thereby increasing the chances of being caught in its transitive parts. The statement of facts by the court in the case of James Thompson is instructive in this regard. The plaintiff when injured was a lad of about seventeen years of age. He had been working at a stamp machine (off and on, as he says) for some six months before he was hurt. Part of his duty was to clean the upright part from oil which ran down from the oil holes over the shafting. There was a space of about twelve inches between the upright and the cogwheel, and to clean when the wheel was in motion was very dangerous ... On the occasion of the accident ... the plaintiff had wrapped this [bagging) about this hand, but one end flapped loose, and catching in the cogs drew in his hand, which was crushed ... No instructions were given to the plaintiff except that he was to clean the machine, and it had to be cleaned while the cogwheel was in motion ... 77

Finally there were the parts of the machinery that actually performed the operation on the material that the worker fed into it. This nexus between worker and machine was one of the most frequent

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sources of injury and death. One of the most hazardous industries was the processing of wood. The large number of injuries was in part a function of the size and importance of this industry in an economy dominated by staples. 78 However, the injury rate also appears to have been high relative to that of other industries.79 Not only were sharp saw-blades and planing knives inherently dangerous; they were also commonly unguarded. For example, John Rudd had his hand badly mangled when it was pulled into an unguarded buzz planer while he was feeding it short pieces of wood. Mr Hamilton, a 17-year-old at the time, had his left arm cut off when a pile of staves fell on him, causing him to fall backwards and come in contact with an unguarded circular saw.80 Although wood-working machinery was probably the greatest single source of accidents, there were other hazardous machines commonly in use. Power presses cut off the hands and fingers of workers who fed materials into them with alarming regularity. For example, in 1889 the Kemp Manufacturing Company of Toronto reported eight separate power press accidents involving the loss of all or part of 17 fingers.81 The use of steam-powered shears for cutting metal caused a variety of injuries and rapidly rotating emery wheels used for grinding sometimes burst, sending projectiles through the air.82 Mechanization was not the only source of change in the production process that introduced new hazards into the workplace. The development of new industrial processes and the expansion of the scale on which older ones were carried on also created risks. Workers in laundries and metal foundries were exposed to heat and noxious fumes, while workers in dye works faced dangers from open vats or dye boxes containing boiling-hot liquids. For example, the conditions under which Mr Dean worked were described in the evidence given in an action he brought against the Ontario Cotton Mills. In order to throw the cotton from the boxes on to the floor it was necessary for the persons throwing it to stand upon the top of these vats or kettles, and to enable them to do so loose boards were provided to be placed across the tops or mouths of these vats or kettles for them to stand on when so engaged .. . These boards, from the nature of the work carried on, were wet and slippery, and there were no cleats or stamps on them to prevent their sliding ... The plaintiff swore that .. . at the time of the injury complained of there were only three boards that he could get to put on the top of the vat or kettle, and that he

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was standing upon these and throwing the cotton from the box on to the floor when the board nearest to the steam pipe slipped toward the pipe and one end of it dropped into the vat, or kettle, causing him to fall in, by which one foot and one leg was badly scalded ."1

Another source of hazard was pressure vessels which were used not only to generate steam for power, but also directly in the manufacturing process. If improperly designed, manufactured, or operated, these vessels could explode, causing serious harm to those in the vicinity. It is interesting to note that the United States Supreme Court refused to grant a patent to one such device in part because it constantly exposed its operator to imminent danger from its explosive tendency. 84 High levels of dust were common in textile mills, metal shops, and wood-working shops. Phillips Thompson described conditions in Canadian textile mills in a series of articles he wrote for the Globe in 1882: 'Bright as the mill rooms are, their atmosphere is most unfavourable to physical well-being, and is especially conducive to diseases of the lungs. The ever roaring carding machines, spinning frames and looms, are constantly throwing off fibrous particles of cotton, which are inhaled in large quantities, no matter how clean the mill may be kept.' 115 In other cases, not only was the production process hazardous, but so too was the product being manufactured. One such hazardous product was gunpowder, which was in demand for construction and mining as well as for military use. The Hamilton Powder Company operated a powder-mill in Cumminsville, Ontario, which normally turned out 240 to 250 kegs a day on antiquated machinery.86 In the fall of 1884 the company received a large order from Canadian Pacific Railway which, in order to be filled on time, necessitated an increase in production to 360 barrels a day. The men began to complain. The machinery was overheating, too much dust was being emitted, and too little time was allowed for repairs and clean-up. Despite these complaints and warnings about the dangers being created, production levels were maintained. Then, on 9 October, 1884, one of the overheated machines emitted a spark which ignited the loose powder on the floor. Shortly thereafter, piled kegs of recently produced powder exploded, and then the storage room went up. Six workers were killed. New machines, new materials, and new processes were all important technical aspects of the industrial revolution . Equally important, however, were changes in the organization of production, including the

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concentration of production into larger, unified enterprises and changes in the organization and control of the workforce. The factory system, as its name implies, brought together a large group of workers on a single worksite. To a substantial extent, it replaced the outwork system in which workers would get materials from the employer, take them home, and return the finished product. The concentration of large numbers of workers in a single worksite created problems of ventilation, overcrowding, and sanitation. With respect to these matters the Commission on Mills and Factories (CMF) appointed in 1882 made the following findings: There is very little attention paid to the question of ventilation, and, as a consequence, no provision whatever is made, other than the doors and windows, the latter, of course, being always closed in cold weather ... The rule, apparently, which is observed by employers, is, not how many hands should occupy a certain room or building, but how many can be got into it. The practice is common also, of crowding too much machinery into a given space; this applies not only to old and inefficient buildings, but likewise some built more recently, and causes much inconvenience and more liability of accident to the operator ... That insufficient closet accommodation exists, as a rule, in factories and workshops employing over twenty-five hands, is beyond dispute. The evils arising from such inconveniences are not only superficial and temporary, but it is to be feared, are serious and permanent in their nature.87

Factory operations were moved into large multi-storeyed buildings. Frequently, these lacked adequate fire-escapes in the event rapid evacuation was required. The CMF found that 77 per cent of the multi-storey factory buildings it visited had only one stairway. Less than 5 per cent had fire-escapes. As well, close to 70 per cent had no means of extinguishing fires on the premises. 88 Production in multi-storeyed buildings also created another problem. Materials and products had to be moved from floor to floor as they went through different stages of the production process. Hoists and elevators were constructed for this purpose, but they created a variety of risks. Elevating mechanisms were sometimes defective and safety catches were not always provided . Even when they were, they did not always work.89 Elevators were not always fenced, so that if an occupant's toe or head stuck out over the edge of the cab, there was the danger of it being struck, caught, or crushed. For example, consider the experience of George O'Brien who was hired to operate an elevator for

Paying the 'Butcher Bill' 25 the W.E. Sanford Manufacturing Co. when he was under age.

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The elevator was worked by ropes on the outside of the cab or frame, which were handled by the person standing within, through a square opening cut in the frame work ... On the second day of his employment an emergency arose for which he was not prepared. After passing the second flat going upwards the elevator began to shake and then stopped short. The lad thereupon looked down through the hole to see what stopped it as he said, and as he looked, it started going up. His head was caught against a beam, but escaped with painful scalp injuries.'lll

Finally, the openings leading to elevator or hoist shafts were sometimes uncovered or unguarded, creating the danger that workers might fall through. For example, the CMF cited one factory in which two men had fallen through the opening of a hoist in two years and yet the proprietor still had taken no precautions to prevent future accidents of this kind. 91 It is obvious that these changes in the technology and physical setting created new sources of risk to workers' health and safety. Yet, it is important to remember that when we refer to the 'industrial revolution' we are not simply talking about technological changes, however important they may have been. We are concerned with a particular social form of this revolution, the development of industrial capitalism. The capitalist form of industrial development entailed a transformation of relations of production, including changes in the organization and control of the labour process. These changes were not simply dictated by the requirements of new technologies. Indeed, the development of new technologies, and more important, choices about which technologies would be introduced, were strongly influenced by the prevailing relations of production. Increasing profits and accumulating capital dictated how and when machine production would replace handicraft production. The pursuit of these goals also led to the introduction of new techniques for co-ordinating, supervising, and ultimately controlling the workforce. The combined impact of changes in the organization of the labour process and the introduction of new technologies of production on the health and safety of workers must be considered . Work in the pre-industrial, pre-capitalist Canadian social formation was organized and conducted quite differently from the way it came to be under industrial capitalism. We have already adverted to the life of

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the independent commodity-producing family in which each member performed diverse functions without the aid of much machinery and without a highly refined division of labour. Work was organized by the family, subject to gender and age hierarchies that existed within that structure. 92 The labour process was task-oriented, regulated by nature, custom, and the need to attend to observed necessities, rather than time-oriented, regulated by the clock which measures when the employer's time begins and when it ends. 93 Similar arrangements prevailed for the independent artisan. She, but mostly he, performed all operations in the production process, and determined when and how work would be done, often within the framework of a strong craft tradition. Even where artisans were not independent, but rather were employed as outworkers or in a manufactory, 94 they still were able to retain substantial control over the production process. Further, the conditions under which work was performed were, to a substantial extent, still determined by non-market criteria, including the timeworn traditions and regulations of the particular craft. The privileged position of artisans and their paternalistic relations with their employers were supported both by the scarcity of skilled workers and by the strong occupational identification and culture which obscured class boundaries. 95 The development of industrial capitalism radically altered these arrangements. For the capitalist, driven by competition and the need and desire to make a profit and accumulate capital, workers came to be seen as a production input or commodity - labour power - whose cost was to be reduced as much as possible. The ways in which the commodification and rationalization of labour power was achieved were varied but, as we shall see, they frequently impacted adversely on the health and safety of workers. In the early development of industrial capitalism, employers tried to increase their profits in many industries by lengthening the working day. The amount of the workers' time that was to be expended at the employers' service was increased. In Marxist terminology, this was a technique for extracting surplus value by requiring employees to work for more time than was socially necessary to reproduce their labour power. By increasing the length of the working day, the employer increased the amount of surplus labour performed and the amount of value produced. As the ratio of surplus labour to necessary labour increased, so too did the rate of exploitation. 96 As well, employers were able to maximize the return on their fixed capital investment in ma-

Paying the 'Butcher Bill' 27 chinery by keeping it in active production as long as possible. In earlynineteenth-century England the working day had been extended to up to 12 hours a day, six days a week in some industries. The effects of this system on the health of workers became one of the strongest arguments for legislative reform. After reviewing the evidence presented to numerous commissions investigating the conditions of the labouring class, Marx concluded: 97 'The capitalist mode of production .. . produces thus, with the extension of the working-day, not only the deterioration of human labour-power by robbing it of its normal, moral and physical, conditions of development and function. It produces also the premature exhaustion and death of this labour power itself. It extends the labourer's time of production during a given period by shortening his actual lifetime.' It is doubtful whether the length of the working day in industrial establishments in Ontario ever rivalled those in England during the early nineteenth century. Certainly by the 1870s the normal working time of employees was ten hours a day, six days a week, subject of course to overtime when the exigencies of the trade required it.98 While a 60-hour work week was obviously less detrimental to an employee's health than a 70-hour week, it still took its toll, especially when it was combined with new techniques for intensifying the labour process. For example, consider the following account of the death of Charles Kirkwood, an employee at a Hamilton rolling mill. No person witnessed the accident; but from the position in which he was last seen alive, and that in which his body was afterwards found, it is supposed, that when the whistle blew for the men to go to work, he got up from a bench on which he was asleep, and being in a dazed and almost unconscious state, fell into the ponderous fly-wheel, where his head was torn from his body and instantly ground into atoms. Why is it that men should be compelled to .. . work fourteen or sixteen hours out of the twenty-four .. . Six hours a day is long enough for any man at such hot and laborious work, as he is called upon to perform in a rolling mill.99

Scheduling of railway workers was quite different than that of industrial workers, but they also complained of the hours they were sometimes required to work and claimed that this was a cause of accidents. 100 To the extent that lengthening the working day ran into biological and social limits, employers were pressed to find new techniques for

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extracting surplus value. Intensification of labour can be seen as a substitute for the extension of its duration and has been defined as 'raising the productive power of the workman, so as to enable him to produce more in a given time with the same expenditure of labour.' 101 In other words, once employers established when their time began and when it ended, they set about getting as much labour power out of the worker during that time as they possibly could. Mechanization was one technique of intensifying the labour process and we have already examined its impact. Intensification, however, was also achieved through innovations in organization and control, with or without extensive mechanization. It is important to emphasize that the reorganization of the labour process was carried out in different ways and at different times depending on various factors. This unevenness was reflected in the great diversity of methods of production that were relied upon by employers to reduce labour costs at any given time.102 In some industries, such as cotton spinning, machinofacture was introduced with little or no resistance from workers. The reason for this was that in Canada, unlike England, there was not a substantial body of artisans whose craft and livelihood were being destroyed. A putting-out system of production never developed in Ontario.I03 In other cases craft workers resisted the introduction of machinery but, for various reasons, were relatively unsuccessful. For example, in Ontario the craft traditions of shoemakers and coopers were early victims of mechanization in the development of industrial capitalism.io 4 Once machinofacture was introduced, it allowed employers to reduce their dependence on skilled workers who controlled the production process. Unskilled workers, 105 frequently women and children, were hired to operate and tend machinery driven by water- or steam-power. Control over the labour process was exercised by supervisory personnel and the pace of production was maintained through the threat of discipline, 106 piece-rate payment systems, 107 and the speed of the machine.108 As well, the division of labour was typically well-developed. We have already noted many of the occupational hazards created by the introduction of powered machinery. However, it is also important to note the health and safety consequences of changes in the organization of the labour process that accompanied it. First of all, the loss of worker control over the labour process made it more difficult for workers to protect themselves. A foreman who ordered a worker to engage

Paying the 'Butcher Bill' 29 in a hazardous task could be defied, but the remedy for wrongful dismissal was not a powerful one. 109 The case of Madden v. Hamilton Iron Forging Co. illustrates this problem. Madden was injured as a result of following improper instructions given by his superintendent. The employee testified that he was afraid of an accident but did not refuse the order for fear of dismissal. Not only did the court find that his fear was a reasonable one, but it also found that the worker did not have full knowledge of the nature and degree of risk involved. 110 A second consequence of this organization of production was that workers were frequently required to spend long hours performing monotonous tasks at machines that demanded their full attention. Momentary lapses of concentration on unforgiving machinery frequently resulted in serious mishaps. Tin stamping was particularly hazardous in this regard and, according to Inspector Barber, 'show[ed) a much larger percentage of accidents in proportion to the number engaged in it, than any other [industry) in my district.' 111 In his report for the following year Inspector Barber explained the reasons for this phenomenon.112 Again there are some machines requiring such close and .c ontinued attention, such as metal stamping presses, fed by the fingers, that it is not possible to keep the attention always on the work being done, and the least inattention while feeding or removing is liable to be punished by a pinch or the loss of part of one or more fingers. I have seen guards put on some of these presses, but was informed by the proprietors that they reduced the quantity of work turned out by 20 per cent, and as the operatives, usually boys about 15 years old, were paid by piece work, they preferred to take the risk without guards rather than a reduction in earnings. It is possible that if this work were paid for by the day such accidents would not be so numerous.

As the above observation indicates, the intensification of labour through piece-work enhanced the risks faced by workers. Dr Bergin also emphasized the need to control this practice in order to protect workers. 113 Piece work should not be countenanced in the mills, at all events by young girls. In order to earn these wages, some of them run eight looms at one time. It is not in human nature that for ten hours, day after day, a young girl can work at eight looms without injuring herself, not alone seriously, but I may say

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fatally; and the great majority of those who have earned these large wages, in my experience, now sleep beneath the sod.

A further consequence of this form of work organization was the increasing danger that the activities of one employee would harm another. The creation of a more sophisticated division of labour required greater co-ordination between numerous workers, each performing a small, relatively simple operation in a larger, more complete production process. Because individual workers were now more likely to be operatives than artisans, it was also more likely that they did not understand the production process as a whole or how their particular jobs fit in. It was also unlikely that they received very much training from their employers, if only because their employers no longer perceived the jobs as ones requiring much skill. Further, the loss or absence of craft pride meant that many workers were alienated from their work and therefore less attentive. Finally, the workers no longer performed the co-ordinating function themselves. This was now clearly an employer function. The combined effects of these changes in the labour process first manifested themselves on the railways which, as we noted earlier, required a high level of co-ordination in order to ensure safe operations. Unfortunately, this was not always achieved. The death of Edward Deverill, an engineer on the Grand Trunk Railway, provides a good example of the effect of the form of labour organization we just described. Deverill was killed when the train he was driving collided with a freight train coming from the opposite direction. The accident was caused by the failure of Ryan, a switchman at the Stratford station, to raise a semaphore warning Deverill not to enter the station. Ryan had been employed by Grand Trunk Railway for three weeks at the time of the accident. He had no previous railroad experience and only received a week's training from Grand Trunk. The chief engineer of the Great Western Railway swore that 'with a man of ordinary intelligence the duties of a signal man and switchman were so simple that they could be learned in a day,' while a Mr Shanly testified that 'a man of the smallest capacity, from the class of labouring men, could learn the duties in two days.' 11 ~ After the accident, Grand Trunk increased the number of switchmen on duty. Injuries immediately caused by the acts of co-workers also became common in industrial settings. This was how a Mr Cox lost his left hand. He had been employed as a labourer by the Hamilton Sewer Pipe

Paying the 'Butcher Bill' 31 Company for a bit less than two months when the accident happened. Cox was required to fill a cylinder with clay. Chunks of clay were liable to catch against the shafts of the press and, in order to loosen them, Cox had to put his hands into the press. Artother employee, Sommers, had charge of the press. He could not see Cox from where he stood. When the clay was ready, Cox would call to Sommers, who would activate a steam-powered plunger. On the occasion of the accident, Cox had his hand in the press removing a chunk when Sommers activated the press without notice.us Of course, not all employees who worked in factories were subject to these kinds of controls. For example, moulders were able to retain a fairly high level of control over the production process in the nine teenth century, notwithstanding increasing concentration and capitalization within the industry.ll 6 As well, not all factories achieved high levels of mechanization. Many workers continued to be employed in settings that are sometimes called manufactories, where artisanal production techniques predominated even though there was the beginning of a division of labour and standardization of product. Where production techniques remained untransformed or partially transformed by the early development of industrial capitalism, workers were somewhat shielded from the health and safety consequences we have been describing. Before leaving this topic it is necessary to consider one other system of organizing the labour process that was brought about by the advent of industrial capitalism: the sweatshop. The terms 'sweating system' and 'sweatshop' were used to refer to a variety of ways of organizing production which were deemed to be inhumane.' 17 However, in this context we are referring to a system used largely in the clothing industry, in which a manufacturer or wholesaler would contract out part or all of the production work. The contractor would then hire labour to work in his or her own shop, or arrange for the work to be done at the employee's home. There was generally a low level of mechanization and the workforce was predominantly female. A piece-work system of wage payment prevailed, and workers were subjected to fines if their work failed to meet the standard. Because of the severe competition that existed at all levels of this industry, working conditions were generally poor. Not only were wages low, but where work was performed in the contractors' shops, conditions tended to be worse than in factories. 118 Although it does not appear that the sweating system in Ontario was as extensive or as abusive as it was in the United States 0

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and Great Britain during this period, the problems of overwork, overcrowding, poor lighting, poor ventilation, inadequate fire-escapes, and poor sanitation adversely affected the health and safety of the workers subject to it.119

Child and Female Labour A second effect of the development of industrial capitalism was that women and children took up waged labour in the factories. Because at the time it was widely believed that women and children were more vulnerable to the hazards of factory production and less able to fend for themselves than adult men, this development caused many reformminded individuals to become especially concerned. As well, fears were expressed that the social, economic, and moral health of the community would be negatively affected by their entry into the factory. As a result, special protection for child and female labour in factories became a major focus of factory regulation and therefore must be carefully considered. In this section we will not, however, examine the various attitudes toward child and female labour in the factories and the difficult questions that arise in trying to understand the roots of those concerns.12° Rather, here we examine the pattern of child and female labour in the factories and consider how that affected their exposure to health and safety hazards in the workplace. The transformation of a rural independent commodity-producing family unit into an urban working-class family entailed numerous changes and took place over time. The discussion that follows is oversimplified but does, nevertheless, capture some of the most important features of this change. Deprived of the ownership of a means of production that could support the family unit, the male head of the household, and consequently the family unit, became heavily dependent on wage labour. Building on the pre-existing sexual division of labour, men entered the labour market while their wives worked at home reproducing and caring for the family, transforming wages into consumable form, and supplementing the family's income in various ways that did not entail leaving the home. Similarly, children were expected to assist in domestic labour. Thus, although transplanted and transformed, the family still functioned as an economic unit to which its members contributed. 121 The ideal situation was that the male breadwinner would earn a 'family wage' which would be sufficient to keep the family without

Paying the 'Butcher Bill' 33 requiring the young children or the wife to perform wage labour. It is unlikely, however, that a large proportion of the working class was able to attain or maintain this ideal. Sickness, temporary unemployment, and other common events which interrupted wage earning, as well as low wages, necessitated that, at least at some points in a family's life, other members go out to work. Boys would probably be the first to go, both because their employment opportunities were better than those of their sisters, and because they were of less use in the domestic economy. Often for them their entry into the labour market was permanent. For girls, it was usually temporary. Most left wage labour to take up unpaid domestic work upon marriage. Married women usually returned to the labour market only as a result of the death or disablement of their husbands.122 Data from the Canada census indicates that as industrial capitalism developed in the latter part of the nineteenth century, women increased as a percentage of the manufacturing workforce from 13.6 per cent in 1871 to 19.7 per cent in 1891. However, it is also interesting to note that the percentage of children under 16 years of age in manufacturing declined over this period from 8.1 per cent to 6.2 per cent. 123 When women or girls entered the labour market, however, they did not do so on the same terms as men or boys. In many ways their opportunities were defined by their traditional roles in the home and constrained by the skills they had acquired there. The largest group of women wage-earners consisted of domestic servants. However, even when women entered the industrial workforce, they were concentrated in textiles, garment making, and food processing. 124 Their concentration in these fields, however, cannot be explained just on the basis that capitalist employers incorporated and perpetuated sexual divisions of labour which pre-existed industrial capitalism, although cultural factors were significant. In addition, the job opportunities of women were defined by the spread of mechanization, the ability of male artisans to resist the entry of women into their crafts, and, perhaps, the desire of families to control women's sexuality and procreative capacity. Mechanization impacted on the sexual division of labour in a variety of ways. First, the replacement of muscle power by machine power eliminated brute physical strength as a genuine job requirement for some occupations. Second, machine production reduced employers' dependence on artisanal labour. Jobs which previously had to be performed by workers who had received considerable training could now be performed by operatives who were competent after a relatively brief

34 Administering Danger stint on the job. Because men had performed most artisanal work and had limited women's access to such jobs, one of the benefits to employers of mechanization was that they could replace predominantly adult male artisans with operatives of any age or sex. Indeed, hiring women and children as operatives could be particularly advantageous to employers. Women and children could be paid less than adult men for performing the same work.125 Moreover, they were not heirs to a 'culture of control' which impaired the ability of employers to transform and rationalize production according to the dictates of competitive capitalism.126 Not surprisingly, male craft workers resisted the dilution or destruction of their skills and trades, and this sometimes involved efforts to limit the employment opportunities of women and children. Where craft traditions and organization were strong, men were able to resist mechanization and/or the entry of children and women into their occupations. This can be seen from a brief examination of a number of irtdustries. Textiles were one of the earliest industries to be mechanized. While in England mechanization was fiercely resisted by hand- · weavers, this was not the case in Canada.127 In the woollen industry, a flourishing cottage industry was in existence by the 1830s in eastern Ontario, created by experienced Scottish hand-loom weavers who had settled there. Factory systems of wool production were first established in the late 1830s, but did not really begin to expand until the 1860s. There is no record of the hand-loom weavers resisting these developments, and from an early stage women were employed in these mills. For example, in 1861 Rosamond's woollen mill at Almonte employed 15 men and 15 women. The men averaged $26 a month and the women $18.128 This pattern of equal numbers of men and women working in the woollen mills continued into the twentieth century, as did the wage differential. 129 In the cotton industry there was no cottage industry in Ontario to speak of and mechanized factory production was the rule from the outset. Women outnumbered men in the cotton mills, but men were paid more. 130 As well, within the mill there was a sexual division of labour. For example, at the mill at Valleyfield, Quebec, mule spinners were operated by men and boys, the loom fixers were all men, little girls, mostly between the ages of 9 and 12, were employed in the spinning room, and all the operatives in the spool room were women.n1 In other industries, mechanization paved the way for the entry of women into the workforce only when male artisans were unsuccessful

Paying the 'Butcher Bill' 35 in resisting the transformation of the production process. Boot- and shoe-making is a good example of this. The industry first arrived in Montreal in the 1820s and handicraft production based on male artisanal labour predominated. It was only in the 1850s with the development of sewing-machines that the industry began to be mechanized. Male shoemakers fought back in a variety of ways, including strikes and machine-breaking, but were unable to stop the destruction of their craft. With their loss of control, women were hired to take their place in at least some aspects of the production process. For example, when Sessions, Turner and Cooper opened a new factory in 1870, they employed 119 women to operate 78 sewing-machines and 391 men to perform the other steps in the production process. 132 Finally, restrictions on women's employment opportunities may also have been imposed in order to control their sexuality and procreative activity. In part, this control was rooted in a patriarchal system of dominance and subordination. Once women left the home to engage in wage labour and, therefore, could not be supervised directly, fathers, husbands and brothers still sought ways to control their sexuality. It is also possible, as Jane Humphries has recently argued, that the anxiety expressed in regard to unrelated men and women working side by side outside the home was not just an artefact of patriarchy, but stemmed from the material interest that working-class families had in avoiding unwanted pregnancies. Wage labour took young, unmarried women away from family supervision and thereby increased the chances of intimate liaisons which, given the limits of contraception, increased the risk of conception. In a world of scarcity, illegitimate children posed a threat to the economic well-being of the working-class family. If the family could not afford to withdraw young women from wage labour, then sexual control could be at least partially sustained through a sexual division of labour.133 Whatever its causes, the distinctive patterns and circumstances in which women entered the industrial workforce impacted on their occupational health and safety. Those women and children who entered the industrial workforce were frequently exposed to hazards similar to the ones we have described. However, labour market segmentation and a sexual division of labour within the factory undoubtedly resulted in some differences. For example, only a handful of women worked in sawmills and wood-working shops. As a result they were not exposed to the hazards associated with that work. In contrast, large numbers of women worked in clothing manufacturing, which was frequently con-

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ducted in overcrowded, poorly ventilated rooms lacking adequate fireescapes.134 Furthermore, because women tended to be introduced as operatives, they rarely enjoyed craft control over the production process and the terms and conditions of their employment. As well, they were less likely to be organized into early unions. Male craft-unions commonly excluded women, and women rarely organized their own unions. As a result, women were more likely than men to be subjected to higher levels of managerial control aimed at intensifying their labour and to experience the adverse health and safety consequences of such practices. A more controversial question with respect to the significance of the change in the composition of the workforce is the extent to which children and women were at special risk because of their intrinsic characteristics. With respect to children, it is quite likely that they were at greater risk than were adults. This is not just because long hours of factory labour from a young age probably had a negative impact on their physical and intellectual growth. Just as important was that young children lacked experience and frequently received little or no training before being placed in proximity to dangerous machinery. The consequences of these practices are reflected in stories we have already heard: of Vicary, an 11-year-old boy who lost his arm in a scutching machine, and O'Brien, a boy under 12 who almost had his head crushed while operating an elevator. As well, there were the stories told to the Royal Commission on Relations between Labour and Capital by John Gale who, at the age of 12, lost his arm while working in a sawmill; by Joseph Lefebvre who at the age of 12 lost an arm and a leg in a sawmill; and by an anonymous boy who lost the fingers of one hand while working in a match factory. 135 With respect to working women, there is no basis for assuming that women were either more or less vulnerable to the hazards of factory life than men. Scientific evidence supporting sex-based differentials in the susceptibility of employees to occupational hazards is highly controversial at best, and certainly does not lend support to broad categorical assertions of female vulnerability. 136 Women were, however, clearly more vulnerable to one hazard than were men: sexual harassment. 137 The extent of sexual harassment by employers, supervisors, and male co-workers is impossible to gauge, especially as it was embedded in a larger concern about morals in the factory. In that regard, there is no doubt that at the time there was, as a component of the dominant gender ideology, a widespread belief that factory work posed special

Paying the 'Butcher Bill' 37 hazards to the physical and moral health of women. 138 From a political perspective, therefore, the significance of changes in the age and sexual composition of the workforce had less to do with actual increases in risk to workers than with the impact of those changes on the public perception of the hazards of industrial capitalist development.

3

Courting Risk: The Establishment of Market Regulation

The development of industrial capitalism entailed changes in the technology and the social relations of production which, in combination, had a significant effect on the level of hazard present in the work environment. As we saw in the previous chapter, the increased use of machinery and the transformation of the labour process, including the concentration of large numbers of workers in a single worksite, the sophisticated division of labour, the extensive and intensive exploitation of labour, and the shift in the locus of control over the production process from the worker to the employer were all causes of the 'butcher bill' of industrialization. There was, however, one other determinant of the health and safety consequences of the developments of industrial capitalism which must be considered: the system of regulation. We have implicitly assumed that relations between industrial workers and employers, including the level of hazard present in the workplace, came to be regulated through the labour market. That is, we have assumed a legal regime in which the terms and conditions of employment were determined through individual bargaining between workers and employers, and that the market aggregated these choices. We shall soon examine the historical adequacy of this assumption. The point here is that the system of regulation may itself have an important impact on the level of risk present in the workplace. For example, if a society had decided to implement a regulatory regime which strictly controlled the risk-creating behaviour of employers, then the toll of industrialization on the lives and health of workers might have been significantly lower. The system of regulation is also important because it is both a contested and a mediating terrain. That is, at times the question of which

Courting Risk 39 regulatory system will govern or how the regulatory system should operate will, itself, be the object of struggle. At other times, or perhaps concurrently, the regulatory system in place will shape or contain actual and potential conflicts over the work environment. These points again reinforce the claim made earlier that risk exposure is not technologically determined, but rather is enmeshed in the complex web of relationships within a social formation. In the absence of legislation, the task of establishing a legal framework for the regulation of risk fell to the common law judges. The matter came before them when workers or their surviving family members claimed that employers were liable to pay compensation for the losses suffered as a result of workplace accidents. In order to determine this claim, a number of questions had to be answered. Did employers owe their employees an obligation to provide safe workplaces? If so, what was the source and scope of that obligation and could it be altered by contract? What defences were available to the employer? What if the injury was caused by the conduct of a co-worker? The courts' answers to these questions not only determined the employers' legal liabilities; they also established the first system for regulating health and safety conditions in the industrial capitalist workplace. As a preliminary matter, however, we might consider why injured workers turned to the courts in order to obtain compensation from their employers in the first place. The most obvious answer is that their employers were not voluntarily offering any compensation, or that the compensation offered was grossly inadequate. Although this was probably true for most workers most of the time, employer practices varied. Where a more paternalist model of labour relations prevailed, at least with respect to skilled workers whose relative scarcity in Canada encouraged employers to invest in their well-being, compensation was sometimes paid to injured workers or their survivors. For example, early Canadian railway companies offered discretionary compensation ranging from payment for medical treatment and funeral expenses to mourning grants of up to one year's wages. Later these practices were formalized, and by the 1870s insurance schemes were devised.1 Yet, despite these arrangements, railway workers still turned to the courts for compensation. We can only speculate on the reasons why. Perhaps the railways chose not to offer compensation to workers who were not felt to be completely loyal to the company, or perhaps workers found it degrading to apply for discretionary compensation which they felt was, in any event, inadequate. After all, for adult male workers becom-

40 Administering Danger ing dependent on charity from any source threatened to undermine their respectability and status within their communities and within their families.2 In any event, most workers could probably not even hope for gratuitous payments of the sort offered by the railways, especially as paternalism and its economic and cultural supports eroded in the latter part of the nineteenth century. The case of Joseph Gray is perhaps more typical of the situation confronting injured factory workers by the 1880s. He was employed as a dyer at the Canadian Cotton Mill in Cornwall when he lost four toes as a result of an accident in which a dye box fell on his foot. The injury occurred on a Wednesday and Gray was paid until the end of the week. The company did not pay his medical bills; nor did they pay him any additional compensation or wages for the time he was off work. When he returned to work his pay was reduced from $1-50 to $1.25.3 In some cases, workers had access to benefits from sources other than their employers. Some unions provided accident benefits for their members. Indeed, this was often an incentive for joining. For example, the Brotherhood of Locomotive Engineers and the Amalgamated Society of Engineers both organized insurance for their members. 4 In other cases, unions may have made ad hoc payments to injured members out of general union funds .5 But, on the whole, the use of accident insurance of any kind for factory workers was not very widespread. 6 As a result, often the most that a worker could hope for was that the employer would make a small contribution and that co-workers would take up a subscription. For example, when Joseph Lefebvre lost an arm and a leg in an accident at an Ottawa sawmill, his employer gave him $10 and his co-workers took up a collection which netted $25.7 In the absence of insurance or charity from employers and co-workers, injured workers and their families were likely to suffer greatly. The family's standard of living could be expected to drop as children or spouses would be forced into the labour market where they could only find jobs at wages substantially below those of adult male workers. 8 Social services to support the family were virtually non-existent and the availability of private charitable relief in the community was extremely limited. 9 Moreover, for the adult male worker, sending one's wife or children out to work or becoming dependent on charity was not only an economic calamity, but a moral one as well. For these and other reasons, 10 individual workers turned to the courts seeking to have the law recognize that they had a right to

Courting Risk 41 compensation from their employers. In the course of adjudicating these individual claims, the courts developed a body of common law which became known as employers' liability law. As we shall see, this is a bit of a misnomer, since employers were rarely found to be liable to their employees or their surviving families. Although the immediate focus of the cases was the question of whether workers were entitled to compensation from their employers, the judicial answer also established that the exposure of workers to health and safety hazards was to be governed by a market system of regulation. In this chapter we will examine the development of this system of compensating workers and regulating occupational health and safety risks. In particular, we will consider why the courts chose this system of legal regulation, and why they were unable, or unwilling, to change the law as it became increasingly apparent to many that, not only was the law causing great hardship to workers and their families, but that it was also completely unrealistic in its assumptions about the workplace and the relations between workers and their employers. In addition, we will consider the role of the criminal law in regulating the behaviour of workers and employers. The Early Development of Employers' Liability Law

The legal system of nineteenth-century Ontario was shaped by its colonial status. The English law governing property and civil rights as it stood on 15 October 1792 was introduced into Ontario by the first statute of the legislature of Upper Canada. 11 The fact that no body of English common law or statute law governing employers' liability had developed by that date, however, did not mean that Ontario's law could, or would, develop independently of England's. Although the local legislature was free to enact statutes governing the matter, subject to Imperial limitations such as reservation and disallowance, it did not do so until later in the century. In the absence of statute law, common law prevailed, and the common law of Ontario was derived from the common law of England. Unless there were local conditions which justified a departure from English common law, the courts considered themselves bound to follow English precedents, even though they were decided after the date of reception. This obligation was considered so clear that mid-nineteenth-century Ontario judges did not even find it necessary to comment on it. 12 Although there were a number of areas in which the local conditions of Ontario were found to

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justify a departure from English common law, employers' liability, as we shall see, was not one of them.13 Therefore, we must turn to England to discover the roots of employers' liability law in Ontario. Priestly v. Fowler is generally taken as the starting point for the development of employers' liability law.14 It might more appropriately be characterized as the starting point for the development of employers' defences to actions brought by their employees for injuries incurred in the course of employment. In that case, the worker was employed by a butcher. He was instructed to accompany a delivery of some meat on the employer's van. Because of the overloading of the van, it broke on the journey, causing the plaintiff to be thrown to the ground and injured. The worker's action for damages was dismissed, notwithstanding that Lord Abinger, in his judgment for the court, recognized that an employer was 'bound to provide for the safety of his servant in the course of his employment to the best of his judgment, information, and belief.' 15 Furthermore, the employer was not found to be liable despite the judicially recognized principle of respondeat superior under which an employer was held liable for the wrongdoing of his servants.16 The legal reasons for denying liability are not entirely clear from Lord Abinger's judgment, even though his attitudes and preferences are. In part, the court was apprehensive about expanding the master's liability 'to an alarming extent.'17 However, two other intertwined reasons proved more important. First, the court held that workers were under no obligation to risk their safety in the service of their employers and that they could refuse work which they reasonably apprehended posed the risk of injury. Second, the court presumed that in this type of employment the servant was more likely to be aware of the risk than was the employer, including risks created by the acts of fellow servants, and that, therefore, the servant was in a better position than the employer to protect himself.18 These reasons, taken together, suggested that the plaintiff voluntarily assumed the risk of injury because he knew, or ought to have known, of the hazard and did not refuse the work. The court, however, did not couch its judgment expressly in those terms. Although the decision in Priestly was a seminal one, it did not stir much controversy or, indeed, attract much attention at the time it was decided.19 In part, this might have been because workers were still not suing their employers in large numbers. As well, its significance for workers in the factory system was not yet clear. Because the accident took place in a merchant's shop where working conditions were more

Courting Risk 43 likely to have resembled those of an artisanal shop rather than a modern factory, and because the reasoning of the court was firmly rooted in a domestic context, the case might have seemed at the time to be of marginal relevance. Like the owl of Minerva, the consciousness and knowledge of the judiciary were derived from a paradigm of employment relations that was rapidly being superseded by development of industrial capitalism. This transformation involved a greater division of labour and a shift of knowledge about, and control over, the production process from workers to employers. Workers were increasingly finding themselves in situations in which it could no longer be said that they were 'in that sort of employment, especially,' in which they 'must have known as well as [their) master, and probably better,'20 the hazards present at work. The modern basis for restricting the liability of employers for injuries to their employees in an industrial capitalist setting was first articulated in Farwell v. Boston and Worcester Railroad. 21 As we noted in the previous chapter, railways were one of the first large-scale employers of labour and, from their inception, they sought to establish extensive managerial control over the labour process. In part, this was necessary because of the need to co-ordinate the activities of a large number of workers in a labour process characterized by a sophisticated division of labour. In particular, switchmen and signalmen had to co-ordinate train movements to avoid derailments and collisions. The very nature of this process suggests that many workers were no longer in a position in which it was reasonable to assume that they would be aware of the acts of fellow servants or, for that matter, that they understood the labour process as a whole. Certainly the enginemen could not be aware of the fact that a co-worker had failed properly to repair or inspect a locomotive, raise a signal, or leave a switch in its proper position. It was in circumstances just like these that Farwell was injured. Whitcomb, a signalman employed by the railway, failed to leave a switch in the proper position and, as a result, the train Farwell was driving left the tracks. Chief Justice Lemuel Shaw's judgment in the case is well known and has been commented on extensively. 22 Counsel for Farwell did not argue the case on the principle of respondeat superior, but rather on the theory that there was an implied term in the contract of employment that the master would provide for the servant's safety. The employer, it was argued, was liable in contract to one of its servants for the negligence of another unless they were both engaged in a common endea-

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vour such that each one had some ability to supervise and control the other. 23 Shaw agreed that the matter was to be dealt with on contract principles, but he rejected Farwell's lawyer's interpretation of the implied terms of the contract of employment. Instead, he held that: 'The general rule, resulting from considerations as well of justice as of policy, is, that he who engages in the employment of another for the performance of specified duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and in legal presumption, the compensation is adjusted accordingly.' 24 As a matter of policy, Shaw supported this view on the basis that it would improve workplace safety because employees would have an interest in observing the conduct of their coworkers and reporting any misbehaviour to the employer, who could then take appropriate action. However, when pressed on the point that it was impossible for employees such as Farwell to observe the conduct of fellow servants such as Whitcomb, Shaw responded with two arguments. First, he held that a rule that depended on the circumstances of each case would be too difficult to apply. His second response fell back on the basic contractual argument. The employer was exempt from liability not because employees were in a better position to protect themselves, but rather because the implied contract of employment did not make employers liable to their servants for the negligence of third parties.2s Employment relations were for Shaw purely a matter of contract, and the implied terms of the contract were to be derived from the model of the perfected capitalist labour market. Sellers of labour power - workers - met their juridical equals, the buyers of labour power - capitalists - on the labour market and negotiated with them the terms and conditions of employment. Workers were assumed to have perfect and costless information on the hazards they would encounter on the job, including the hazards that might be caused by the negligent conduct of other workers. As well, it was assumed that workers had knowledge of the conditions offered by other employers and could choose the mix of hazards and wage levels that suited their taste. Other things being equal, they would demand additional compensation in order to incur those hazards. The mere fact that workers accepted employment and were being paid was treated as conclusive evidence that they had voluntarily assumed the risks present in the workplace. As far as employers were concerned, they had paid their workers to incur risks and, therefore, were under no duty to reduce or eliminate hazardous condi-

Courting Risk 45 tions. Further, they were not liable to compensate their workers after an accident occurred because the risk of injury had been contractually assumed by the workers. The approach adopted by Shaw effectively banished from legal consideration the most important transformation that was taking place in the labour process under industrial capitalism: the shift of control over the labour process from workers to capitalists. In effect, the court was adopting a per se rule based on the view that workers were normally in the best position to control the technology and each other at the very moment when their ability to do so was being diminished. As a result, evidence of actual conditions under which labour was performed was not to be brought to the court's attention. It was deemed legally irrelevant. These defences to employer liability claims became known as the voluntary assumption of risk defence and the fellow servant rule. In essence, the fellow servant rule was an instance of the doctrine of voluntary assumption of risk, since the risk of injury from fellow servants was simply one of the risks voluntarily assumed by the worker. In addition, there was a third defence, the rule against contributory negligence, which held that if the worker's own conduct had in any way contributed to the accident, then the employer was completely relieved of liability, even if the employer's personal negligence had been the major cause of the injury. This was not a rule that was peculiar to employer liability actions, but rather one that governed all tort actions and had been developed in the context of highway and railway crossing accidents.26 In the act of constructing a set of rules governing employers' liability, the court simultaneously established a market system for regulating occupational health and safety. The state, or at least the judicial arm of the state, was not going to impose an obligation on employers to take reasonable care of their employees. Instead, the level of health and safety in the workplace was to be determined by the operation of the capitalist labour market. Individual employees facing hazards would demand risk premiums to incur the risk of injury and the market would aggregate these preferences. If the cost of reducing the risk was less than the cost of paying the risk premiums, then the workplace would be made safer. If not, then the risk would remain. The state was neutral as between these outcomes. English courts were not far behind in adopting this explicitly contractarian and market approach to the problem. In Hutchinson v. York,

46 Administering Danger

Newcastle & Berwick Railway Company, a case involving a fatal collision between two engines allegedly caused by the negligence of the deceased's co-workers, the court held that: 'The principle is, that a servant, when he engages to serve a master, undertakes, as between him and his master, to run all the ordinary risks of the service, and this includes the risk of negligence on the part of a fellow servant, whenever he is acting in discharge of his duty as servant of him who is the common master of both.'27 This approach was approved by the House of Lords in Bartonshill Coal Co. v. Reid, in which the reasoning of Shaw in Farwell was cited with approval. 28 Judicial Administration of the Law in Ontario, 1866-86 As we noted, common law courts considered themselves bound by decisions of English courts unless local conditions justified a departure. Thus, it was not surprising that when the first employers' liability claims were made in Ontario, the courts' starting point was the English case law. Although two earlier Ontario cases were decided in the shadow of these rules, it was in the action brought by the family of Edward Deverill against his employer, the Grand Trunk Railway, that the courts first demonstrated their strict adherence to the English precedent in this area of the law. 29 So far as we can tell, counsel for Deverill did not attempt to argue that the English law should not apply to Ontario. Rather, he attempted to bring the plaintiff's case within a principle of liability that survived the trilogy of defences. Such a principle was stated in Hutchinson where the court recognized that the employee 'has a right to understand that the master has taken reasonable care to protect him from such risks [the risk of injury from fellow servants) by associating him only with persons of ordinary skill and care.'3 Counsel for Deverill based his claim on the ground that the fellow worker who had caused the accident was incompetent, not merely negligent. The court accepted that the employer owed a duty to exercise reasonable care in selecting competent fellow servants, but found that the plaintiff failed to present reasonable proof that this duty had been broached. The fact that the switchman had negligently failed to raise a signal on the day in question was not evidence of incompetence. Further, the fact that the switchman had only been hired three weeks before the accident and had no previous experience was not treated as cogent evidence that he was incompetent because the court

°

Courting Risk 47 had heard testimony from railway officials that 'a man of the smallest capacity, from the class of labouring men, could learn the duties in two days.' 31 It is ironic that the transformation of the labour process, which increased the risk that one worker would be injured by another, simultaneously undermined the policy rationale for limiting employer liability and increased the difficulty of establishing a breach of the employer's duty to select competent fellow servants. If the skill requirements of many jobs were being reduced to the point that they could be learned in a few days, it would be difficult to prove incompetence as opposed to negligence. Indeed, there were no reported cases in Ontario in which an employee succeeded on this ground. The subsequent case law in Ontario, until 1886 when the law was modified by legislation, can, in one sense, be conceptualized as an extended chess match. Plaintiffs' lawyers probed the well-established legal defences of employers, seeking to create an opening through which a successful attack could be launched. However, the image of a chess game fails to capture the true nature of the situation confronted by workers and their legal representatives. First, chess is a game in which the rules do not give one player a consistent advantage over the other.32 Clearly the rules of employers' liability actions were heavily weighted in favour of employers. Second, the referee in a chess match does not have the authority to alter or modify the rules to permit a new variation or move. In employers' liability litigation, the common law judges, at least at the senior level, not only made up the rules as the game was being played, but had the authority to modify the rules at any time or vary the effect of a prior decision. In the context of employers' liability litigation, however, the courts were unwilling to do so, despite the strong and varied arguments made by lawyers representing injured workers. One strategy employed by workers was to plead that the employer was personally responsible for creating the hazard that resulted in the injury. For example, if an employer or his or her agents were working alongside the worker, the employer could be held liable for their personal negligence. Although there were some problems in establishing the legal character of wrongdoer, the major drawback to this strategy was that it could be used only in the context of the artisanal shop. Owners of factories were not on the shop floor actively participating in the production process. As well, supervisory and managerial personnel were characterized as employees, not agents. 33 A second litigation strategy was to claim that employers were under

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a duty to provide a safe system of work, and that their failure to do so had resulted in the injury. This was tried in a case arising out of the death of Mr Plant, a day-labourer on the Grand Trunk Railway who was killed when an incoming train failed to stop and struck him while he was clearing snow from the tracks. The lawyer acting for his widow alleged that the accident was caused by a defect in the brakes for which the railway was responsible. Although the case was lost on the ground that Mr Plant had been contributorily negligent in failing to get out of the way, the court also accepted the employer's claim that the defect was caused by the failure of another of its employees to tighten a bolt. Therefore, it was the negligence of a fellow servant, and not of the company, that caused the brake failure.34 This defence protected most employers from claims of this sort. A third strategy used by counsel for injured workers was to establish exceptions to the fellow servant doctrine. Indeed, one variation of this approach was attempted in Farwell, where counsel argued that the fellow servant doctrine should be limited to those situations where employees had some opportunity to observe each other. 35 Although initially rejected in that case, some American courts subsequently accepted a 'separate department' exception. 36 Although no attempt was made to raise that particular exception in Ontario, other variations were argued. One was the vice-principle rule under which employers were held vicariously liable for the negligence of persons to whom they had committed the entire charge of their business, including the power to hire, fire, and discipline employees. A number of American state courts accepted this limitation on the fellow servant rule, but the House of Lords had rejected it in Wilson v. Merry in 1868.37 When the theory was raised in Ontario in O'Sullivan v. Victoria Railway Company the court, relying on Wilson, rejected it, claiming that workers did not cease to be fellow servants merely because of differences in rank and authority. 38 The refusal to recognize any legal relevance arising out of differences in rank was taken to the extreme in Matthews v. Hamilton Powder Co. There the court held that the general manager of an explosives factory whose negligence had resulted in the deaths of several workers was merely a fellow servant. Because the company had exercised reasonable care in hiring a competent manager, they could not be held liable for the deaths of their workers caused by his wrongdoing. 39 Another theory limiting the fellow servant rule, the non-delegable duty doctrine, was also argued unsuccessfully in Ontario. Under this theory, some duties, such as the duty to appoint competent fellow

Courting Risk 49 servants and to provide a safe system of work, could not be delegated by an employer to supervisory personnel, no matter how competent. In the event that an employer delegated one of these duties to supervisory personnel, the employer would be held vicariously liable for their wrongdoing, even though they were technically only fellow servants of the injured worker. Again, this doctrine gained some acceptance in the United States, but was rejected in England. 40 When the theory was presented in Ontario, the court was aware of the divergence between English and American case law. However, it avoided any discussion of the alternatives, and instead decided the case on the basis that the worker knew that a supervisor was responsible for hiring fellow servants and therefore was deemed to have voluntarily accepted the risks this practice entailed. 41 Thus, even if the non-delegable doctrine had been accepted by the Ontario courts - which it wasn't - it would have been emasculated by the reassertion of the voluntary assumption of risk doctrine. Indeed, almost any case which was not caught by the fellow servant rule was caught by voluntary assumption of risk or contributory negligence. For example, when Mr Miller was injured while working on a machine from which the employer had personally removed the guard, he could not recover because he knew of this, and was deemed to have voluntarily accepted the risk. Alternatively, the court found that he had contributed to the occurrence of the accident by failing to replace the guard. 42 Similarly, when Ryan, a brakesman on the Canada Southern Railway, was killed when struck by a switch-stand placed dangerously close to the tracks, he was deemed to have assumed that risk because the switch-stand was in place prior to the time he was hired.43 In sum, the courts established a legal framework which made it extremely difficult for workers to obtain post-accident compensation as a legal entitlement. Although some courts in the United States were prepared to alleviate the harshness of the legal rules through the development of exceptions, the courts in England and Ontario remained steadfast. In Ontario the courts applied the law of employers' liability as rigorously and as unrelentingly as in any common law jurisdiction. In so doing, not only did they leave workers and their families uncompensated, but they also left the determination of occupational health and safety conditions entirely to the capitalist labour market. In effect, workers were told to go back to the labour market and negotiate with their employers if they wanted safer conditions or insurance. The courts were not going to interfere with their contracts; they were only

50 Administering Danger going to interpret and enforce them in light of the assumptions that participation in the labour market was voluntary, that workers had perfect information, and that transactions were costless. The fact that these rules and their application were producing hardship for injured workers and their families was legally irrelevant.

Workers and the Courts: Why the Working Class Lost Most commentators agree that the capitalist labour market regime of compensation and occupational health and safety regulation created by the courts in the nineteenth century favoured the interests of capital at the expense of labour. In Friedman and Ladinsky's view, the law socialized the cost of industrialization.44 However, it might be more accurate to say, following Horwitz, that rather than a general socialization of cost, one group, workers, was forced to subsidize capitalist economic growth.45 The view that workers fared badly under these laws is also shared by some conservative scholars who reject the subsidization hypothesis generally. They accept that in the area of employers' liability the courts erected unduly high barriers to recovery for worker plaintiffs. 46 There are, however, those who argue that the regu latory system was objectively beneficial for workers because the longterm benefits of this period of 'primitive accumulation' outweighed its short-term costs or because the legal rules, although imperfect, were better than the next best alternative. 47 Yet, even if one rejects the view that this legal regime was harmful to workers, it does not change the fact that in a contest between workers and employers over the nature of the regulatory regime, workers lost. The courts endorsed the legal position advocated by employers and rejected the rules workers believed would serve them best. The reason why workers lost in the Ontario courts can, in part, be explained by the fact that workers in England had already lost in their courts and that Ontario judges considered themselves constitutionally bound to follow English case law. While this answer has some merit, it does not bring the enquiry to an end . Rather, it forces us to move beyond national and provincial boundaries if we want to understand why common law jurisdictions selected the employer liability rules that they did. A large number of theories have been offered to explain the courts' behaviour. These will be briefly reviewed, 48 but our focus here will be on institutional factors which limited and skewed partici-

Courting Risk 51 pation in the legal process, and thereby tilted the balance towards the interests of employers. According to orthodox legal theory, judges do not make the common law, they find it. It exists in the decided cases and the underlying interdependent principles from which those decisions are derived. The development of employers' liability law in the nineteenth century was, according to this approach, not an exercise of judicial lawmaking, but rather the result of judicial elaboration or articulation of fundamental legal precepts. The basic problem with this discovery theory, especially when applied to employers' liability law, is that fundamental precepts may not always be consistent with each other and, even if they are, there may be a problem in determining the scope of different precepts and their applicability to different legal relations. For example, legal precepts rooted in status and legal precepts rooted in contract were present in nineteenth-century common law. Their application to relations between masters and servants would yield different results. In a status model of legal relations, rights and obligations between the parties come in more or less fixed packages. There is not much room for bargaining. For example, if the status relation between master and servant included a legal obligation on the master to provide the servant with reasonably safe working conditions, the master would have difficulty claiming that some servants had voluntarily agreed to relieve the master of that duty. In contrast, in a contractual regime, even if the legal starting point was that masters owed a duty of care to their servants, nothing would prevent the parties from agreeing to alter that obligation. The court has to choose which model of legal relations was to govern this particular relation. It would, I think, be difficult to argue that, in the early nineteenth century, the doctrine of voluntary assumption of risk was the only option that legal precepts could have supported. For example, Leonard Levy, in a generally favourable biography of Chief Justice Shaw, the judge in Farwell, argues that both a rule of no liability without personal fault and a rule of respondeat superior 'can be maintained by persuasive considerations of justice, and both were equally applicable to the case.'49 More recently, Christopher Tomlins discovered a Massachusetts case decided in favour of the plaintiff prior to Farwell which 'reveal[ed) the potential within the realm of legal discourse at the end of the 1830s for the development of an approach to industrial injuries predicated upon the assertion of a public interest in the safety of industrial workplaces.' 50

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The implausibility of the discover theory has led most to recognize some degree of judicial agency in developing the common law, even though there is substantial disagreement over the scope and determinants of judicial decision-making. Some seek to emphasize the extent to which legal reasoning is disciplined and contained by internal professional norms. It is conceded that judges bring their experience and knowledge of the world to bear on their decisions, but it is argued that this is not applied directly or instrumentally. Rather, it is mediated, shaped, and constrained by the 'taught tradition' and legal culture generally. 51 From this perspective, adjudication is usually seen as a process of incremental lawmaking in which external social, economic, and political forces are so heavily mediated by the internal perspectives of the law that it is the mediations that determine the shape and content of the law, not the external forces. Thus, according to this view, the selection of a contractarian framework premised on the principles of the capitalist labour market is not explained on the basis that the social formation was undergoing a transformation in which capitalist relations of production were becoming dominant, but rather on the basis that important changes were taking place in legal thought and legal culture at the time. This explanation is more appealing than the orthodox theory, but it leaves too many questions unexamined. In particular, it fails to articulate any theory about the relationship between legal culture and thought and developments in the social formation more generally. This may reflect the view that legal culture is so highly autonomous that there is little to be gained by tracing linkages which will be highly contingent and mediated in complex ways. However, my own view is that the autonomy of law and legal culture is relative, and that their relationships with society cannot be ignored, especially when the law is dealing with a relationship as fundamental as the employment relationship is to capitalism. 52 In developing and applying the law as they did, the courts spoke from a particular vantage point. They had an epistemology and a set of values which interacted to produce a particular world-view, or way of understanding. Moreover, their way of knowing the world implicitly and, at times, explicitly, rejected the validity of workers' knowledge and understanding of their situation as workers. Rather, it more closely resembled the viewpoint of employers. This is reflected not just by the fact that the courts chose a contractarian regime, but also in their characterization of the capitalist labour market as a realm of voluntary association in which workers knew of all

Courting Risk 53 the risks they faced and were free to choose between a range of jobs with different trade-offs between risk and wages, all at no real cost to themselves. The experience of workers in the labour market belied these assumptions. Thus, even if one points to legal culture as a way of understanding why the courts chose legal doctrines which were premised on, and supportive of, an ideal conception of capitalist labour market principles and practices, the question still remains, why did legal culture prefer the employers' point of view over that of workers and other citizens? In order to answer this question it is necessary to look at the legal system in its social context and to examine how and to what extent that system is articulated with the political economy of a social formation. No single explanation will fully illuminate that relationship, but a review of some of the leading theories, and their application to Ontario, will help clarify the reasons why workers fared so poorly before the courts in the nineteenth century. One approach to this problematic has been characterized as instrumentalist, insofar as it seeks to explain the compatibility of the law with industrial capitalism on the basis that judges self-consciously fashioned the law to achieve precisely this result. The reasons offered to explain why the judges behaved in this manner are varied, but tend to focus on the class backgrounds and affiliations of the judges and the impact of that background on their ideological orientation. For example, Morton Horwitz explains the instrumental transformation of American law by the judiciary in the early to mid nineteenth century on the basis of their affiliation and alliance with the entrepreneurial class. 53 Thus, it could be argued that leading judges such as Lemuel Shaw embraced the individualistic premises of laissez-faire capitalism and sought to emphasize and develop those aspects of the common law which were most compatible with those premises. 54 The adoption of his views by judges in other jurisdictions who were not formally bound by his decisions is evidence of the widespread sympathy for the approach he articulated. 55 This sympathy is, in turn, explained by close association between the elite of the legal profession, from which judges were most likely to be recruited, and the business class. Again, using Shaw as an example, although he did not come from a prominent or wealthy family, by the time he was appointed to the bench he had risen to the elite of his profession. He acted as chief counsel and director of the New England Bank from 1813 to 1830 and had become quite wealthy, holding a considerable amount of insurance company and

54 Administering Danger bank stock. 56 This kind of instrumentalist explanation can also be applied to England. For example, Lord Bramwell, a leading exponent of the fellow servant rule, was ideologically committed to laissez-faire principles and acted instrumentally to reshape the common law accordingly.57 His interpretations of the common law were widely accepted by his colleagues on the bench who, to a substantial degree, were also influenced by classical political economy and Benthamite liberalism. As well, Atiyah has noted that 'One of the great changes which came over the judicial scene with the arrival of the newer generation of judges in the 1830s and even more in the 1840s was that many of these judges had had substantial commercial experience at the Bar, unlike their predecessors.'58 When these considerations are combined with the fact that educational and financial requirements created substantial barriers to entry to the legal profession, it is not surprising that Max Weber sought to explain the compatibility of English common law with capitalist economic development on the basis that 'legal training has primarily been in the hands of the lawyers from among whom the judges are recruited, i.e., in the hands of a group which is active in the service of propertied, and particularly capitalistic, private interests and which has to gain their livelihood from them.' 59 The case of Canada is, in some respects, more difficult to establish. There is considerable disagreement over the extent to which judicial behaviour in the nineteenth century can be explained on the basis of formal adherence to English precedents rather than some more instrumental or, at least, ideological influence.60 The judgments in the employers' liability cases tended to be written in a rather formal style, but there was also no indication of judicial discomfort with their application of the law, other than the occasional expression of sympathy to the victims who were being denied compensation.61 Indeed, there is no evidence that judges took advantage of opportunities to avoid the harshness of the law without directly challenging it by, for example, letting cases go to the jury to determine liability. 62 The vigorous application of English precedent in this area of the law was probably supported by the combined influence of colonial constitutionalism, formalism, and ideological agreement. The work of transforming the common law had been performed in England, but met with approval in Ontario. Risk has argued that the dominant values which both shaped and were expressed in the law of Ontario were the values of individual autonomy and the benevolence and attainability of material progress. In particular, the belief in individual responsibility

Courting Risk 55 was reflected in the fact that the courts were unwilling to review the fairness of contracts, despite the inequality of economic power between the parties. 63 If the local courts viewed the market as a realm of freedom and choice whose operation would lead to material progress, then the received English common law of employers' liability presented them with no dilemma at all. Further support for the thesis that the courts sympathized with the law they applied and the values it embraced can be derived from the professional background of the local bar and the bench. Even if, as Baker argues, the legal profession in the first half of the nineteenth century offered an opportunity for upward mobility to Canadians of low and middling estate, their professional formation and socialization, at least in the early to mid nineteenth century, inscribed in them a conception of public order and normativity in which hierarchy, not equality, was dominant. 64 Moreover, there can be little doubt that a successful practice for most was spent in the service of the propertied and business classes. Appointments to the bench, however, were not necessarily made on the basis of a successful private law practice. A political career was more likely to lead to a judicial appointment than distinction at the bar. For example, all of the judges sitting on Queen's Bench and Common Pleas at the time Deverill was decided had held political office at one time prior to their appointment. Although it is not possible to sketch a collective portrait of the bench, a brief review of the backgrounds of four of the judges connected with employer liability litigation either as judges or as lawyers will provide some insight into their attitudes. John Hawkins Hagarty was born in Ireland in 1816. He attended private school in Dublin and began studies at Trinity College. He emigrated to Canada in 1834 and studied law in Toronto in the office of George Duggan who was subsequently appointed county court judge for York. He began practice on his own, but shortly thereafter entered into a partnership with John Crawford, who subsequently served as lieutenant-governor of Ontario. 65 He entered municipal politics in the mid-184os and was elected as alderman for the ward of St Lawrence. He found the experience thoroughly distasteful and resigned in 1847. In his letter of resignation he expressed the hope that his electors would 'obtain the services of an abler Representative and one endowed with more patience and endurance to bear a possible repetition of the very unpleasant scenes which it has been my painful duty to witness.' He went on to say that he felt 'the dignity of an Alderman is far too dearly

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purchased at the expense of continual altercations and useless personal contests.'66 He was appointed to the bench in 1856, where he decided more employer liability cases under the common law rules than any other Ontario judge. In every case the plaintiff lost. After his death in 1900 he was remembered as a man '(s)trongly conservative in his view' who 'took no pleasure in change or modern freaks, legislative or otherwise.' 67 Joseph Curran Morrison was a law partner with William Hume Blake and active in Reform politics. He was elected to the Legislative Assembly in 1848 and served as Solicitor General in the Hincks-Morin administration. Later, he joined the Conservatives and ran against Mowat in 1858. He combined political office with the promotion of the railways. He was a director and later president of the Ontario, Simcoe, and Huron Railway from 1852 to 1862 when he was appointed to the bench. He also acted as the parliamentary agent for the Great Western Railway in 1853. His links with one railway promoter, Samuel Zimmerman, were so close that one local paper referred to him as 'the member for Zimmerman.' 68 According to his biographer, Morrison played an important role as a link between the political leaders he served and the business community. His activities, however, demonstrated a conflict of interest which was increasingly discrediting him and his fellow politicians.69 As a judge, his business background and connections were appreciated by the bar. Upon his death in 1885, the Canada Law Journal summed up his judicial career: As a judge, though it cannot be said that Mr. Justice Morrison was a lawyer of the depth of learning, or of the intellectual calibre or power of expression of some of his associates, he had an intuitive perception of the rights of a case, strong common sense, a good knowledge of human nature and an intimacy with business affairs and commercial matters which made him a very valuable addition to the Bench; and, whether or not his reasons for his judgments were always sound, he was singularly correct in the result. 70

Although Morrison did not write any judgments in employer liability cases, he presided over three trials involving claims against railways. In Stoker he non-suited the plaintiff while in Sheerman and Graham, two cases arising out of a railway construction accident, he allowed the cases to go to the jury, only to have their verdicts for the plaintiff set aside. 71 Mathew Crooks Cameron came from an Upper Canadian family of

Courting Risk 57 some means and status. Shortly after being called to the bar in 1849, he was appointed as a co-commissioner to inquire into a series of railway accidents on the Great Western Railway. The Commission was critical of the railways, but also recommended more severe discipline against employees, including criminal prosecution.72 In 1859 he was elected to the Legislative Assembly. He was a strong Conservative who opposed the creation of an income franchise in 1868 and led the Conservative opposition to Mowat after 1872.73 While holding political office, Cameron continued to conduct his law practice. Indeed, he frequently represented railways in employer liability actions, appearing as counsel in Deverill, Alexander, Sheerman, and Graham.7 4 He was successful in all these cases. Appointed to the bench in 1878, Cameron presided at the trial of a suit brought by the widow of a brakesman who had been killed as the result of being hit by a switch-stand placed dangerously close to the tracks. He non-suited the plaintiff. He sat on a motion brought to set aside the non-suit, and concurred in upholding his action. It was, in his view, a clear case of voluntary assumption of risk. The switch-stand had been in place at the time the worker had been hired and therefore, having chosen to accept employment under those conditions, he must now be deemed to have assumed the risk.75 In another case, McLauchlin, Cameron set aside a jury verdict for the plaintiff. 76 A fourth judge, Robert Alexander Harrison, was a particularly interesting figure in that as a litigation lawyer he acted for workers in a variety of situations, including employer liability actions. However, in other respects, his career and political and social engagements were rather traditional. He completed his legal studies under Hagarty and was called to the bar in 1855. He served as chief clerk of the Crown Law Department under Ross and Macdonald and subsequently established a successful partnership with Featherstone Osler and Thomas Moss, both of whom were later appointed to the bench . Harrison was a Conservative who represented the riding of Toronto West in the Commons from 1867 to 1872. According to his biographer, he supported railway construction and was made a director of the Toronto, Grey & Bruce Railway Co. in 1869.77 Despite this connection, he acted as counsel for the plaintiffs in the employer liability cases of Deverill, Alexander, Sheerman, and Graham. It is interesting to note that in all of these cases he was opposed by M.C. Cameron acting as counsel for the railways. In the latter two cases, the defendant was the Toronto, Grey & Bruce Railway Co., and so we can assume he had severed his relationship

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with them some time earlier. As well, Harrison defended William Pelling, a locomotive engineer on the Grand Trunk Railway, charged with disobedience to orders resulting in a serious collision which occurred in Oshawa on 14 December 1873.78 Although he was obviously willing to take on cases for working-class clients, it is not clear to what extent Harrison would have identified himself with the interest of workers as a class. For example, he was retained by George Brown on behalf of the Master Printers' Association in their dispute with their employees in 1872 to provide his opiniion on the legality of strikes. Harrison adopted a particularly restrictive interpretation of the law and assisted in drafting the information supporting the criminal charges laid against the printers. 79 It was on the basis of his legal opinion that 13 members of the Toronto Typographical Society were charged and sent to trial for combining to reduce hours of work. 80 Indeed, Brown urged Harrison to conduct the prosecution but he refused because he would not, 'under any circumstances, agree to prosecute my own constituents for crime during a session of Parliament.'81 It is interesting to note, however, that on 30 March 1872, the day his legal opinion was published in the Globe, Harrison was approached at home by a deputation of journeymen printers who requested that he speak at a public meeting they were organizing. Harrison assured them that '[ w ]hat I had written I had written as a lawyer and that if as one of the Representatives of the City I was asked to address a public meeting of my fellow citizens I would do so fearlessly reserving to myself the honest expression of the views which I entertain on the question of Political Economy.'82 Given the role he played in the printers' strike, it is particularly interesting to note that Harrison and his partner Moss were retained by the Toronto Stonecutters Union to defend six of their members against criminal charges arising out of a trade dispute in 1875.83

Harrison was appointed to the bench in 1875. Although his commitments were ambiguous, his involvement as a plaintiff's lawyer in employer liability cases might have provided an interesting instance against which to test the hypothesis that judicial behaviour can be explained according to the judges' class and professional backgrounds and affiliations. Unfortunately, we will never know. Shortly after Harrison's appointment his health began to fail and he died in 1878, never having delivered an opinion in a reported employer liability case. An examination of the values and class and professional affiliations of the judges does not provide a complete explanation of the develop-

Courting Risk 59 ment of the law, or prove the strong, radical instrumentalist thesis that the law was against the workers because the judges favoured the business class, and that they did so because they had worked for them professionally and, in the case of Ontario, politically as lawyers. It does, however, suggest that the dominant values of the professional elite were influenced by their relations with, and the services they provided to, their predominantly business-class clientele and that it was not just coincidence that these values were supported and promoted in the common law. Certainly, at the time, labour reformers felt that the judiciary was insensitive to their point of view, in part because of their background. An article in the Palladium of Labor explained the difficulty in the following way: Who are the judges? Where do they come from? ... As a rule they are politicians, and the chance of elevation to the bench comes to them as a reward for party service. Can it reasonably be supposed that a man who for the best part of his life has been an energetic and often unscrupulous partizan, always ready to take to the stump and employ his talents to defend the grossest corruption, implicated himself, perhaps, in dirty political jobs, all of a sudden, in the twinkling of an eye by being transferred to the bench become miraculously as it were transfigured into a marvel of uprightness and purity ... The judges ought to be elected by the people, instead of being nominated by the government ... Then, perhaps, we should have less of that evident bias to the side of power and authority - less subserviency to the wealthy and influential than are now sometimes observable in the occupants of our judicial positions.84

If instrumentalism provides only a partial explanation of why workers fared so badly before the courts in this area of the law, then we must consider other theories of judicial behaviour. We have already mentioned colonialism and formalism as influences in Ontario, but we should also consider other institutional factors that constrained the ability of workers to have their interests advanced in the common law courts. Marc Galanter proposed a number of explanations as to why the 'haves' systematically come out ahead in litigation and adjudication before the courts, and these provide a useful starting point for this inquiry. 85 First of all, Galanter pointed to differences between the parties which influence the likelihood of their success. At one extreme, there is

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the repeat player, which is likely to be a large enterprise engaged in frequent litigation, but whose stake in any single case is likely to be low relative to its size. At the other extreme, there is the one-shotter who is likely to be a relatively small player who litigates rarely, but who has a high stake in the few cases he or she does litigate. Broadly speaking, we can say that most employers, and especially the railway companies who were the major defendants in employer liability litigation, fit the model of the repeat player while injured workers fit the model of the one-shotter. As repeat players, employers enjoyed numerous advantages. Their advance knowledge of the rules allowed them to structure transactions in ways which reduced the likelihood that successful actions could be brought against them. For example, while the interposition of supervisory personnel between workers and employers was not driven primarily by a desire to avoid liability, the fact that it did so may have acted as an added inducement to adopt this practice. Similarly, the railway companies issued to their employees detailed rules and procedures which they were bound to follow. Any deviation from these procedures would be relied upon by the railway companies to relieve themselves of liability by showing that the accident was caused by the neglect of its employees and not by systemic failures or lack of instruction. As repeat players, employers also had greater opportunities to develop informal, facilitative relations with the judges, especially since they shared more of a common background with them than did workers. As well, repeat players also had a greater opportunity to litigate strategically in order to influence the development of the litigation rules themselves. While one-shotters are primarily concerned about the outcome of their particular case, repeat players can afford to take the longer view. Cases with facts that are particularly sympathetic, or that might tempt the court to set a precedent in favour of plaintiffs, can be settled to avoid this outcome. 86 Secondly, Galanter pointed to the role of lawyers in the litigation process and their influence on the ability of parties to affect outcomes. In the context of nineteenth-century litigation, there was one obvious factor that worked to the benefit of employers, and that was their access to highly qualified lawyers. Employees who were injured, however, faced severe problems of accessibility. Litigation was an expensive process, and unless workers were aided in some way, it would have been quite unlikely that they could have afforded the outlay, given the rather slim chances of recovery. The expense of litigation was a com-

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plaint of labour reformers: 'In the first place, our legal procedure is notoriously costly in the extreme, harassing and dilatory ... And finally when years have rolled by and thousands of dollars have gone into the pockets of lawyers and court officials the parties to the writ will have the satisfaction of knowing that though they have been victimized and impoverished, the law on that particular point is definitely settled.'87 Undoubtedly, in some cases workers did receive legal aid, but we are largely left to speculate as to its sources. For example, when Vicary, a 12-year-old boy, was non-suited in an action against his employer for the loss of an arm, Christopher Robinson QC brought a motion to have the non-suit set aside.88 Robinson, the third son of John Beverly Robinson, was a leading member of the Ontario bar. We do not know whether Robinson did this case on a pro bono basis, or whether Vicary was financed by a local benefactor. It is unlikely, however, that Vicary and his family could have financed the litigation on their own. Similarly, when George Mathews was blown to bits in the Cumminsville gunpowder explosion, he left a wife and five children almost destitute.89 Yet somehow his widow was able to bring an action against his employer, the Hamilton Powder Company, and continue it through a trial, a subsequent motion for a non-suit, and an appeal. In that case, a community subscription might have sustained the action. 9 Finally, actions against railways by workers and their families may have been supported by their unions, although again we have no direct evidence that this was the case. In any event, workers were at a distinct disadvantage in accessing skilled legal services and this limited their ability to influence decision-making in the adjudicative processes of the courts. 91 A third set of factors which favour the haves, according to Galanter, relate to institutional characteristics of courts. First, the courts are passive and reactive. Not only must the injured party initiate the action, but the development of the case, the collection of evidence, and the presentation of proof are left entirely to the parties. In the context of inequality of resources, including greater employer access to information and expertise, this passivity operated to the disadvantage of workers. Furthermore, co-workers who might have witnessed the accident were vulnerable to retaliation in the event they testified for the injured worker.92 Indeed, injured workers who wished to return to their previous employment would unlikely be willing to bring actions against their employers. Second, the litigation process provides numerous avenues for extending the time between which the injury occurs

°

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and a final decision on liability is reached. For injured plalintiffs and their families, the prospect of delay at a time when they have few, if any, resources to fall back on creates a powerful incentive to settle cases quickly for a lot less than might be obtained through litigation . Indeed, Paul Craven has shown that the Great Western Railway adopted a two-pronged strategy to contain compensation costs arising from accidents involving members of the public. Victims were offered relatively small amounts of cash on the spot if they waived future claims. It was, however, the company's policy 'that claims for damages arising out of accidents of this nature should be resisted and adverse verdicts moved against to the utmost practicable extent of appeal.'93 Once the railroad's reputation for litigating was established, it could keep sympathetic cases out of the courts at relatively low cost to itself. Third, the spectre of overload hung over the courts, making them responsive to arguments about the dangers of choosing decision rules which would open the floodgates of litigation. Per se rules, such as the presumption of voluntary assumption of risk, or the fellow servant doctrine, discouraged litigation and when litigation occurred, it reduced the number of legally relevant issues. This influence can be seen in the way Shaw C.J. responded to the argument that the fellow servant rule should only be applied to workers in the same department: But we think this is founded upon a supposed distinction, on which it would be extremely difficult to establish a practical rule. When the object to be accomplished is one and the same, when the employers are the same, and the several persons employed derive their authority and their compensation from the same source, it would be extremely difficult to distinguish, what constitutes one department and what a distinct department of duty. It would vary with the circumstances of every case.94

And, of course, rules whose applications would vary with the circumstances of every case would also lead to more litigation requiring detailed fact-finding by the court. In addition to the institutional factors discussed by Galanter, we might also consider one other, and that relates to the individualistic basis of liability and the structure of litigation that it entailed. Workers who were injured and who wished to claim compensation from their employer had to demonstrate that in their particular case the employer was at fault. The model of corrective justice required workers to dem-

Courting Risk 63 onstrate that a particular individual had violated their legal rights. The litigation structure derived from that model consisted of a single worker suing a single employer with respect to a single incident. The focus of the inquiry almost inevitably became quite narrow. Evidence could be called with respect to the events leading up to the particular injury. Furthermore, the plaintiff bore the burden of proving that the defendant had objectively caused the injury. This structure made it especially difficult to demonstrate that the problem of workplace injuries was systemic. Employers made choices about what was to be produced, how it was to be produced, at what rate it was to be produced, etc., all of which affected the risks to which workers would be exposed, and inevitably led to some workers being disabled. The individualization of harm and the focus on the immediate cause of accidents, in some ways, served to obscure or suppress the systemic causes of the harms workers experienced from reaching the courts. Of course, the rules themselves, and not just the litigation structure, helped keep this truth out of judicial discourse. The doctrine of voluntary assumption of risk and the belief in individual responsibility rendered systemic causation legally irrelevant. After all, in legal theory, the worker accepted systemic risks voluntarily and, therefore, had to take responsibility for his or her choices. In this sense, then, rules, values, and institutional factors all had interacting, and in this case mutually reinforcing, characteristics. Further, at least some commentators were quite conscious of the importance of keeping the systemic causes of industrial accidents out of the legal landscape. For example, Francis Wharton, the author of a well-known American treatise on negligence, attacked the adoption of a systemic theory of causation because of 'the practical communism which this theory of the causal character of all antecedents promotes. Here is a capitalist among these antecedents; he shall be forced to pay. The capitalist, therefore, becomes liable for all the disasters of which he is in any sense the condition.'95 There was one further institutional characteristic of common law adjudication as a method of lawmaking that made it a disadvantageous terrain for workers to fight on, and that was its essentially undemocratic character. Judicial lawmaking was, as we have argued, a practice that was dominated by elites committed to a conception of the freewilled legal subject abstracted from class or history. Moreover, it occurred in an institutional framework disadvantageous to have-not groups such as workers. In addition to all this, however, the jury, which might have served as a popular, democratic check on judicial domina-

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tion of common law adjudication, was consciously suppressed by the judiciary. The role of the civil jury in Ontario was a matter of ongoing controversy from the time it was introduced by statute in 1792.96 At that time, trial by jury was the only form of trial recognized. Concern over jury trials focused initially on the ability of the Crown to pack the criminal jury, especially in the context of political cases. As well, there were attempts by judges to coerce juries in civil cases into bringing in the desired verdict. After the advent of responsible government, Robert Baldwin brought in a comprehensive jury law aimed at preventing abuses of the system.97 However, it did not take long for lawyers to begin attacking the jury system. In 1858, Mowat introduced a bill to eliminate juries from civil trials in county and superior courts unless one of the parties requested it. The bill did not pass, but the government did enact a law which increased the property qualification for jurors in order 'to obtain a better class of jurors than are now obtained.'98 Ten years later, Sanfield Macdonald's government abolished juries in civil trials in county and superior courts unless one of the parties requested one or, in the absence of a request, if ordered by the judge. 99 Then, in 1873, Mowat restored trial by jury as the norm in cases concerning persons rather than property, but in all other cases, the judge was given the discretion to refuse a party's request for a jury. 100 The judiciary was fully aware that if employer liability actions were allowed to go to the jury, there was a strong probability that the jury would find the employer liable. Thus, in Deverill, Hagarty J. noted, 'To leave such a case to the jury is, as has been remarked by English judges, simply to direct a verdict for the plaintiff, where a railway company are [sic) defendants. 101 The unreliability of the jury in these cases persisted, notwithstanding that those on the bottom half of a municipality's assessment role were disqualified from serving, and that only two-thirds of those qualified were selected by local officials to appear on the juror's books.102 Note further that not all adult residents of a municipality appeared on its assessment rolls. Rather, they were restricted largely to heads of owner-occupied or rented households. 103 As well, women were not eligible to serve on juries in Ontario until 1951. 104 Despite this filtering, the behaviour of juries is most likely explained on the grounds that jurors' sense of justice reflected a somewhat more democratic, popular view, distinctly at odds with the juridical principles developed by the courts.105 Jurors' natural sympathy for the victims of railway and industrial accidents made them a receptive

Courting Risk 65 audience to the appeals made by plaintiffs' lawyers. For example, in commenting on his address to the jury in the Deverill case, Robert Harrison, counsel for the plaintiff, noted that he '[s)poke for about an hour and made a speech which had a visible effect on everyone of the jury.'106 The judiciary was aware of the discrepancy between their views and those of juries, but they were resolute in maintaining the juridical as opposed to the democratic, rule of law .107 This was reflected in Hagarty J.'s judgment in Deverill: 'Very great compassion may be felt by the court, as sincerely as by the jury, for the family of the sufferer by his collision. Whatever the jurors may feel at liberty to do, we at least must not allow this feeling to sanction what we believe to be a violation of a well settled legal principle.' 108 Although judges had the power to deny a party's request for a civil jury, they did not exercise it in employer liability cases. Wholesale exclusions would have seriously undermined whatever legitimacy the common law courts enjoyed. Instead, they maintained judicial control through a more subtle technique, the non-suit. The court could decide that there was, in law, insufficient evidence to establish the defendant's liability and, on that basis, could withdraw the case from the jury and find for the defendant. This, of course, left the question of what should be considered sufficient evidence to let the case go to the jury. A variety of more or less restrictive formulations gave the judiciary the authority it needed to control the jury and, therefore, the adjudication process and its outcome. For example, in Deverill, Hagarty J. cited the following English formulation with approval: 'There is another rule of the law of evidence, which is of the first importance, and is fully established in all the courts, viz., that where the evidence is equally consistent with either view, - the existence or non-existence of negligence, it is not competent to the judge to leave the matter to the jury.' 109 As a result, non-suits were common. However, even if a jury verdict was obtained, it could be quashed if the judges felt it could not be supported in law. In sum, although there is no comprehensive and certain explanation of why the common law developed and was applied in the way that it was, the foregoing analysis supports a number of conclusions. First, the fact that the law was consistent with and reinforced the capitalist labour market model for regulating relations between workers and employers suggests that the articulation of law with the economy was well developed. Second, this articulation occurred or was achieved both as a result of conscious judicial action and as a result of the institutional

66 Administering Danger characteristics of the common law adjudication process. Furthermore, instrumental and institutional factors were mutually reinforcing and both operated to the detriment of workers. Finally, the behaviour of juries and the judicial expressions of sympathy for the victims suggest that the common law was only partially successful in legitimating market regulation of occupational health and safety and its corresponding compensation principles. Although for injured workers and their families there was no other realistic option to their immediate plight but to seek compensation through the courts, by the mid-188os, it was becoming increasingly clear that the terrain of the common law and the courts was an unfriendly one and that efforts to reform the law and the regulatory system it constituted and supported were best directed at more popular and democratic institutions. Workers' distrust of the legal system and the justice it meted was reflected in the following comments published in the Palladium of Labor: Parliaments and legislatures are supposed to make the laws, but under our legal system the judges have the power to twist the plain intention of the legislators into the very opposite ... Who are the judges? ... They have to be lawyers to begin with . Men whose minds are trained in a narrow groove - who, as a rule, the abler they are in their profession are the least capable of taking broad comprehensive views of any matter outside of it - who look at every subject through a cloud of technicalities and quibbles and formulae, who are accustomed to hire out their glib tongues to plead any case without regard to its justice and are ever ready for a counsel fee 'to make the worse appear the better reason.' 110

Were Killing and Injuring at Work Crimes? 111

To this point, we have considered only the civil liability of employers. There was, however, another avenue through which the courts could have become involved in regulating occupational health and safety: the criminal law. Of course, as in the case of employers' civil liability, the courts were passive and reactive. The judiciary could not initiate criminal proceedings any more than they could civil proceedings. There were, however, two important institutional differences between the criminal and civil law which affected their development. First, with respect to law creation, the legislature was more active at an earlier period in developing the criminal law. Second, state authorities played a major role in initiating criminal proceedings whereas civil proceed-

Courting Risk 67 ings were always commenced by the victim. Although private prosecutions could be conducted, they were becoming less and less common in the second half of the nineteenth century. Rather, it was the attorney general or the local crown law officers who were assuming control over the criminal justice system.112 Therefore, the question of how the criminal law was defined and administered cannot be answered just by examining judicial behaviour. We must also consider the legislative and administrative process. The general criminal law could have been used to regulate misconduct by employers which resulted in harm to workers. This consisted of a mixture of common law and statutory offences, including crimes against the person and property, which could, in theory, be committed by any individual, regardless of his or her class position. There were at least two offences which might have been applicable in relation to some workplace accidents. The first, manslaughter, was defined generally by the common law as 'the unlawful and felonious killing of another, without any malice either express or implied.' 113 Involuntary manslaughter occurred where 'a man, by culpable neglect of a duty imposed upon him is the cause of the death of another.' 114 The second offence was what now might be called criminal negligence. It was defined by statute as follows : 'Whoever, by any unlawful act, or by doing negligently or omitting to do any act, which it is his duty to do, causes grievous bodily injury to any other person, is guilty of a misdemeanour.'115 In addition to the general criminal law, there were other, more specific laws which created offences in relation to particular situations. However, in the nineteenth century, workers and not employers were far more likely to be the target of such laws. For instance, masterservant law made it a criminal offence, punishable by fine or imprisonment, for workers to breach their contracts of employment. By contrast, employers were only civilly liable for their breaches of the employment contract. 116 An even more pertinent instance was that railway workers were subjected to special criminal laws aimed to control their conduct. In 1854, legislation was enacted which made it a misdemeanour, punishable by a fine of up to 100 pounds sterling and five years' imprisonment, for railway workers wilfully or negligently to contravene company rules when that resulted in the endangerment of life or property.117 Later, in 1877, when the legislature generally de-criminalized employee breaches of the contract of employment, it continued to hold railway workers criminally liable for certain specific breaches of con-

68 Administering Danger tract. 118 Again, railway companies were not subjected to special criminal liability for their misdeeds. The decision to regulate railway accidents by criminalizing worker breaches of conduct followed the recommendations of the Accident Commission appointed to inquire into the Baptiste Creek disaster and other railway accidents.119 There was a strong belief, at least among officials, that workers were the principal risk creators and that special criminal laws were needed to protect the public against the consequences of worker misbehaviour. The existing mechanisms for punishing such workers were considered inadequate. For example, when discussing an accident at Lobo the commissioners noted: The driver is, in fact, while his train is in motion, the sole, and almost the irresponsible Arbiter of the fate of all those entrusted to his care. It is most important for the future safety of human life, on every possible occasion and in every legitimate way, to teach this class of men, that they cannot always elude responsibility and punishment, and that the Government is determined on all future occasions, as on this, to supply defects in the Administration of Justice, arising from the inadvertence or inexperience of Coroners Juries. 120

Although the commissioners conceded that the primary cause of this particular accident was the absence of fencing, for which the railway company was at fault, they did not recommend that criminal proceedings be brought against it or its managing director to teach them that they too could not elude responsibility and punishment for their misdeeds. The blatant inequality exhibited by the creation of crimes that could only be committed by workers was accompanied by an only slightly more subtle inequality in the application of the general criminal law. Railway workers were, on many occasions, charged and prosecuted for manslaughter as a result of their conduct. Paul Craven has suggested that there were perhaps 25 such prosecutions between 1856 and 1880. 121 A few examples will suffice. Mr Beamer, a foreman of a section gang, was charged for manslaughter in 1854 as a result of a derailment in which two passengers died and six were injured. He allegedly failed to follow orders when performing track repairs. 122 In 1860, Preston, an engineer employed by the Grand Trunk Railway, was charged with manslaughter arising out of an accident that killed Charles Ham while he was crossing the tracks. It was alleged that he had failed to sound the whistle. 123 Finally, in the accident which killed Deverill, the switch-

Courting Risk 69 man, Lawrence Ryan, was indicted for manslaughter, allegedly for failing to raise a signal. 124 The official view that it was appropriate to prosecute workers for their conduct in relation to accidents resulting in death to members of the public was, as in the case of civil liability, out of line with more popular views. 125 This was reflected in the accident commissioners' expressed dissatisfaction with the failure of the coroner's jury in the Lobo accident inquest to recommend that railway employees be prosecuted.126 There were, however, a number of occasions when coroner's juries were willing to indict workers. In contrast, grand juries were generally unwilling to convict workers charged for railway accidents. Among the 20 criminal cases for which Craven has identified the outcome there were only two convictions. In one case a small fine was imposed and in the other a 12-month jail sentence was handed down. In the case of Beamer, C.J. Brydges, the managing director of the Grand Trunk Railway, complained that the jury acquitted 'in the face of a very strong charge against him by Chief Justice Robinson.' 127 Indeed, the accident commissioners were so concerned about the refusal of local juries to convict railway workers that they recommended provision should be made to have cases involving railway companies removed to another jurisdiction upon proof by affidavit of one of the parties that a fair and impartial trial could not be had in the jurisdiction where the accident had taken place. 128 Preston, the engineer who was charged in relation to the death of Ham, was acquitted by the jury without hearing his counsel's case and without leaving their box. 129 Similarly, the grand jury in the Lawrence Ryan case acquitted him of criminal conduct. The presiding judge, John Wilson, however, 'could not allow Ryan to leave the Court with [sic) expressing his own view of his conduct,' and admonished Ryan that 'had he and others in the service of the railway company done their duty, the accident would have been impossible.' 130 Although the popular voice of the criminal jury was able to limit the official desire to respond to accidents by punishing workers, it was less successful in getting employers prosecuted for their misconduct. The managing director of the Grand Trunk Railway, C.J. Brydges, an advocate of the use of the criminal law against employees, was, himself, at least thrice the target of criminal charges, but each time he avoided a jury trial. The first instance arose out of the Baptiste Creek railway disaster of 1854 in which 57 people were killed. 131 A coroner's jury was immediately empanelled. In the meantime, one of the injured pas-

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sengers charged the directors of the railway with manslaughter for the death of his parents. The local magistrates in Chatham issued warrants and remanded Brydges into the custody of a bailiff pending the resumption of their investigation into the accident. At the same time, the Kent winter assizes were in session and on 30 October Chief Justice Macaulay delivered a charge to the jury as it embarked on its own investigation. In his address, Macaulay told the jurors that although a corporation could not be indicted for murder because it was unable to form the requisite intent, it, or at least its directors and managers, could be indicted for manslaughter if the means it provided its innocent agents were dangerous and insufficient. However, he did not see how the corporation could be held criminally liable if one of its employees had breached its rules. This was an important point because it focused the law's attention on the immediate cause of the accident and diverted attention from the systemic hazards resulting from choices made by the employer with respect to the railway's operations. Unsafe acts by employees constituted a shield behind which the employer who had created a hazardous operation could hide. This approach to causation in the criminal law mirrored the approach we have seen in regard to civil liability. On 3 November Brydges appeared before Chief Justice Macaulay seeking to be discharged from custody. Macaulay refused, but stated that he thought the magistrates should either proceed with their investigation immediately or release Brydges on bail. Brydges was 'held' as a 'prisoner on parole' pending the resumption of the magistrates' inquiry on 9 November. Later that day, the first coroner's jury was released after failing to agree on a verdict and a new jury was empanelled. It was also on 3 November that the government established a commission to inquire into the numerous accidents that had occurred on the Great Western Railway since its opening. The next day, the grand jury presented its verdict. Two employees, Twitchell and Kettlewell, were found responsible. Also on 4 November, following a number of irregularities, the second coroner's jury censured the company, but found two employees criminally responsible. When Brydges subsequently appeared before the magistrates they dismissed the charges against him on the ground that the appointment of a commission had relieved them of their duty to take any further proceedings. When Kettlewell appeared at the next criminal assizes, the grand jury refused to indict him and he was discharged without trial. The second instance in which Brydges was charged with man-

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slaughter arose out of the death of a fireman for the Grand Trunk Railway in 1867. A Quebec coroner's jury held Brydges responsible but it appears the charges were dropped after some procedural wrangling.132 The third charge arose out of the death of Pierre Cauchon, who was killed by a train of the Grand Trunk Railway at an unguarded level crossing in January 1874. 133 Prior to the death of Cauchon, numerous complaints had been made about the crossing and, as a result, C.J. Brydges had promised the attorney general that a watchman would be placed there. At the time of the accident this promise had not been fulfilled . A coroner's inquest was held in the District of Quebec and the jury found that Cauchon came to his death by the culpable negligence of Brydges. As a result, the coroner issued his warrant and Brydges was arrested and charged with manslaughter. Brydges's first legal response was to apply to a judge in Montreal to have the trial removed to the District of Montreal on the grounds that he could not get a fair trial in the District of Quebec. The order was granted. Brydges then petitioned before a judge in chambers for a writ of certiorari to have the inquest quashed. This was refused on technical grounds. One month later the court quashed the inquisition, thereby putting an end to the proceeding before it ever came to trial on the merits. There were two grounds for taking this action. The first was entirely formal. The indictment failed to use the necessary words. It did not contain the words 'feloniously' and 'slay' and, therefore, did not set forth an offence punishable by law. The second ground was substantive. Although Brydges had promised to place a watchman at the dangerous crossing, he was not, in the view of Ramsay J., under a legal obligation to do so. Alternatively, Sanborn J. held that in order to be guilty of manslaughter, there must be malice or gross negligence. While conceding that it was possible for company directors to expose themselves to an indictment for manslaughter by causing the company's operations to be conducted in ways that recklessly led to the loss of human life, he did not think that this was such a case.13 4 The difficulties encountered in prosecuting a company for the death of a member of the public suggest that it would have been even more difficult to prosecute successfully for the death of one of its employees. Because of the doctrine of voluntary assumption of risk, it would have been extremely difficult to show that the employer was under a legal duty to protect the worker and had culpably neglected to do so. This barrier, however, began to be removed by the enactment of health and safety legislation which imposed well-defined duties on employers.

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These legislative activities can, in part, be understood as a political response to the popular dissatisfaction with the juridically erected and enforced system of free market regulation and, to some extent, there is evidence that these popular views were also beginning to influence some officials with responsibility for the criminal justice system, if not the judges themselves. A good example comes from the chain of events that followed the death of Charles Platt. 135 Platt was employed as a brakesman by the Northern and North Western Railway Company. While decoupling cars on a side-track at the Allandale yard near Barrie, Platt went between the tender and a car to pull out the pin in the coupler. His foot got stuck in an unpacked frog and was run over by the train. It took several men prying with iron bars about five minutes to get Platt's foot out of the frog. Platt was taken to Toronto where he died several days later. The Railway Accidents Act, 1881 imposed a legal duty on railway companies to pack all frogs to prevent such accidents. 136 On 21 April 1883, F.A. Fenton, the York County crown attorney, requested Dr Arthur Johnson, the York County coroner, to hold an inquest. In his letter he noted that: 'The Northern Railway Co. or its employees - (Manager or Superintendent) whose duty it was to carry out this Railway Accidents Act ought to be held responsible and perhaps indicted for manslaughter - You ought to see that a good jury free from Railway influence is empanelled.' The inquest was held and the jury concluded that the accident was caused by 'culpable neglect by the servants of the Co. whose duty it was to look after and keep in repair the shunting yard.' On 30 April the coroner informed Fenton he decided not to issue any warrants of arrest 'as I was unable to obtain the names, in evidence, of the men whose duty it is to keep frogs and wing-rails packed.' Fenton was not satisfied. On 1 May he referred the matter to J.R. Cotter[?), the Barrie County crown attorney, 'in order that you may take the proper steps to have the wrongdoer arrested and tried for manslaughter if you think the law and facts warrant such a step - An example ought to be made of this criminal misconduct and negligence which causes the sacrifice of so many poor men's lives.' In a letter dated 1 August 1883, Cotter informed Fenton of his decision: 'I concluded not to proceed as it was an unfortunate subordinate was to blame. Had it been the Manager or Director some height [sic) up it might have done some good to proceed but in this case it would not have so I concluded not to proceed.' Despite this limited penetration of popular perspectives into at least

Courting Risk 73 the lower levels of the official legal system, no employer was convicted of a criminal offence as the result of the death or injury of an employee. Indeed, one final example will demonstrate both the discrepancy between popular and official views on the use of the criminal law, and the limited impact of the popular view on the administration of the criminal justice system. The explosion at the Hamilton Powder Company plant at Cumminsville killed five men. Initially, Dr Freeman, the local coroner, decided not to hold an inquest because 'the disaster was plainly an accident, caused by circumstances which could not have been foreseen.' 137 Local sentiment was strongly in favour of one, and apparently Dr Freeman reconsidered his decision, for on the following day a jury was empanelled. 138 The jury heard evidence intermittently over the next ten days, and on 21 October they returned their verdict. They found that the machinery was not in a safe state of repair and that the rate of production was inconsistent with safe operation. In conclusion, they blamed the company for the explosion. 139 On 25 October, the Palladium of Labor, a newspaper closely associated with the local district assembly of the Knights of Labor, published an editorial under the title 'Capitalistic Murder.' A more shameful instance of the villainy of corporations in exposing their employees to needless peril and sacrificing valuable lives to their heartless avarice was never recorded than that embodied in the proceedings before the coroner's jury which held an inquest on the bodies of the victims of the late powder mill explosion at Cumminsville. The five men who met their death on that occasion were the innocent sufferers by a crime no less heinous than those which are often expiated on the gallows. The evidence shows that the ordinary dangers of power manufacture were enhanced by the utmost negligence on the part of the management of the Hamilton Powder Company's Mills. Though the machinery was badly out of repair, the mills were worked at a highly dangerous rate of speed, and so intent were the company upon making money at all hazards that they would not stop machinery to remove a loose piece of iron, the presence of which made a catastrophe almost certain. It is wrong to call an explosion under such circumstances an accident - it was a murder. The company are morally and ought to be legally held guilty of the death of these unfortunate victims so suddenly hurled into eternity by their consuming greed.1411

Despite this outcry, no criminal prosecution was launched. While one could point to a variety of technical problems that might

74 Administering Danger have impeded successful prosecutions, the reasons for inequality in the definition and application of the criminal law as between workers and capitalists is better explained at a more fundamental level. 141 Basically, the explanation is that the criminal law, like other areas of the law, tended to constitute, reflect, and reinforce the class structure of the capitalist social formation and the power differentials rooted in that structure. Thus, according to Foucault, the criminal law is a system that determines which citizens need to be disciplined in order to perpetuate existing power differentials. 142 In the context of mid-nineteenth-century Ontario, it was workers, not employers, who needed to be disciplined and taught to accept their subordinate position within the capitalist social formation. The repressive and symbolic dimensions of the criminal law were mobilized for these purposes.143 The reasons why the criminal law fulfilled this function are not dissimilar to the reasons the common law constituted and supported market regulation of occupational health and safety. Ideological, class, and institutional factors all played a role. However, there were some important differences. The legislature played a greater role in formulating the criminal law than it did in the development of employers' liability law. As a result, the process was directly political. However, it must be remembered that the special legislation criminalizing worker misconduct was enacted at a time when the franchise was quite restricted, so that the polity could only be described as democratic in a very limited sense. 144 A second difference was that the executive branch of the state exercised much greater control over the use of the criminal law, especially in deciding who and when to prosecute, than they did in regard to the civil law. By and large, those officials were not prepared to condemn and stigmatize the profit-maximizing but riskcreating behaviour of members of the elite as criminal, and there was no mechanism readily available to force them to do so. It must also be emphasized that the criminal law was not an instrument under the complete control of judges or other state officials. As in the case of civil law, the institution of the jury provided a point of popular resistance to the official view of criminal law and justice. In that sense, criminal law was a contested terrain but not an even playing field. 145 Juries were well-entrenched and strategically located to frustrate the attempts of state officials to coerce and punish workers, but they could do little to force the state to denounce or control the behaviour of employers through the criminal law. It was a terrain that

Courting Risk 75 lent itself to defensive, but not offensive, struggles. Ultimately, it was only outside of the judicial system that popular dissatisfaction was translated into an effective vehicle able to force the state to take some action towards curbing and controlling the injurious behaviour of employers.

4 The Politics of Ontario's Factory Legislation: Part 1

While examining the legal development of market regulation of occupational health and safety, we sporadically heard a dissenting voice coming from the jurors' box. To the extent that jurors in civil cases were unwilling to go along with official policy, they were disempowered. Similarly, the local criminal jury could not be counted upon to discipline workers, but may have, if given the chance, punished neglectful employers. This behaviour frustrated efforts by officials to use the criminal law to reinforce the subordination of workers in the capitalist social formation . It did not, however, threaten to overturn that hierarchy by imprisoning leading capitalists for their profit-making activities. Also, there was the voice of the coroner's jury, frequently finding fault with the conduct of employers. This voice was largely ignored by officials who might have taken action in response to its findings. Finally, we heard the voice of the Knights of Labor denouncing the conduct of employers as murder, both morally and legally. These expressions of dissatisfaction with the existing framework for regulating risk-creating conduct of employers came from a wide spectrum of the community. They were not just confined to working-class malcontents and rabble-rousers. Moreover, the development of industrial capitalism had other consequence which raised widespread concern. The length of the working day was contentious, not just because it impaired the physical health of workers, but also because it limited their opportunities to develop themselves intellectually and culturally and to participate in their communities. Another concern was the entry of women into the paid workforce. Some feared this would result in a decline of the moral and physical health of society. And then, of course, there were the factory children. Was the factory system producing

The Politics of Factory Legislation,

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generations of physically and mentally stunted workers who would become a class dangerous to the community? It was difficult to articulate and vocalize these fears and concerns in the institutional framework of the common law. Judges, not surprisingly, did not allow themselves or the regulatory system they