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Michael Ashley Stein, Priestley v. Fowler (1837) and the Emerging Tort of Negligence, 44 B.C. L. Rev. 689 (2003).

Abstract: Although it may fairly be presumed that workmen have always been involved in accidents during the course of their employment, Priestley v. Fowler is the first known recorded decision of an employee having sued an employer for work-related injuries. Consequently, the case has become familiar to several generations of legal commentators, most of whom repeat by rote the accepted wisdom that the opinion originates the doctrine of common employment, and censure in often colourful terms, the ideology they deem displayed in Abinger C.B.'s ruling. More recently, a handful of studies have reassessed the decision within its historical context. Each of these treatments, however, works from the time-honoured premise that Priestley established the defence of common employment. Diverging from conventional scholarship, this article demonstrates that Priestley is better understood within the framework of the emerging independent tort of negligence as an unsuccessful attempt to fashion a duty of care on behalf of masters towards their servants. Specifically, it will argue that Charles Priestley's counsel sought to emulate the arguments (and hence the success) of two Assize verdicts that had extended the customary limitations of liability for negligence earlier that same year: Vaughan v. Menlove and, to a lesser extent, Langridge v. Levy. The article will then illustrate how some thirteen years later, Hutchinson v. York, Newcastle & Berwick Rly. Co. (and its companion decision Wigmore v. Jay), truly produced the doctrine of common employment. This is an assessment with which a plurality of Victorian jurists, as well as the vast majority of contemporary treatise writers agreed. Nevertheless, because of the character of the opinion that Abinger C.B. had issued, a revisionist interpretation developed over time and Priestley, rather than Hutchinson, came to stand for the source of the defence. The article concludes by evaluating more recent, reconsiderations of Priestley, and in revealing their general inaccuracy.