dissenting: The legislative history of RSA 281:12, II (Supp. 1983) would leave anyone reluctant to dissent from the majority who hold the statute unconstitutional. The conclusion is inescapable that at least some members of the legislature who voted to enact the 1978 amendments in question did so on the erroneous assumption that they would eliminate no cause of action that had been recognized prior to Ransmeier v. Camp Cody, Inc., 117 N.H. 736, 378 A.2d 752 (1977) or Stevens v. Lewis, 118 N.H. 367, 387 A.2d 637 (1978). The majority opinion in this constitutional decision, however, necessarily rests on more than legislative history, and it is from that opinion’s constitutional analysis that I must respectfully dissent.
The majority opinion has described in detail how the legislature enacted the provisions in question as amendments to the workers’ compensation act, RSA chapter 281. Laws 1978, 46:1. The amendments eliminated causes of action as between co-employees, or their representatives, for non-intentional torts arising out of employment. They also eliminated consortium actions against a co-employee by an employee’s spouse based on a work-related non-intentional tort.
The several plaintiffs in these cases have invoked two broad grounds for attacking the constitutionality of these statutory amendments: they claim that the amendments offend standards of due process under the State and National Constitutions (part I, article 14 and the fifth and fourteenth amendments, respectively) and that they result in a denial of equal protection (part I, article 12, and the fourteenth amendment, respectively).
Although the majority of this court see these cases as properly raising both due process and equal protection issues, the authority cited in their opinion leads me to doubt that the cases may properly be viewed as raising a question of due process under part I, article 14 of the State Constitution (every subject entitled to a certain remedy). See Opinion of the Justices, 113 N.H. 205, 210, 304 A.2d 881, 885 (1973); see also Oliver v. Travelers Ins. Co., 103 Wis. 2d 644, 309 N.W. 2d 383 (1981); cf. Opinion of the Justices supra (Duncan and Grimes, JJ., dissenting). And I do not understand the majority opinion to rest on a federal due process ground. I do agree with the majority, however, that the cases raise a common issue of equal protection, as the majority indicate by their reliance on Park v. Rockwell Int’l Corp., 121 N.H. 894, 436 A.2d 1136 (1981) and Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980).
When we view these as equal protection cases, however, there are *182facts that force us to ask whether the majority result follows from a sound constitutional analysis. The workers’ compensation statutes of the great majority of states have eliminated co-employee and consortium actions of the sort in issue here. 2A A. Larson, Law of Workmen’s Compensation §§ 66.20, 72.20 (1983). Cases upholding such statutes in the face of various constitutional challenges are numerous. See, e.g., Middleton v. Texas Power & Light Co., 249 U.S. 152 (1919); Carr v. United States, 422 F.2d 1007 (4th Cir. 1970); Nations v. Morris, 331 F. Supp. 771 (E.D. La. 1971), aff'd 483 F.2d 577 (5th Cir.), cert. denied, 414 U.S. 1071 (1973); Saala v. McFarland, 41 Cal. Rptr. 530 (Cal. App. 1964), rev’d on other grounds, 63 Cal. 2d 124, 45 Cal. Rptr. 144 (1965); Lowman v. Stafford, 226 Cal. App. 2d 31, 37 Cal. Rptr. 681 (1964); Kandt v. Evans, 645 P.2d 1300 (Colo. 1982); Keogh v. Bridgeport, 187 Conn. 53, 444 A.2d 225 (1982); Iglesia v. Floran, 394 So. 2d 994 (Fla. 1981); Mier v. Staley, 28 Ill. App. 3d 373, 329 N.E.2d 1 (1975); Seivert v. Resnick, 342 N.W.2d 484 (Iowa 1984); Boyd v. Barton Transfer & Storage, Inc., 580 P.2d 1366 (Kan. App. 1978); Bazley v. Tortorich, 397 So. 2d 475 (La. 1981); Perez v. Continental Cas. Co., 367 So. 2d 1284 (La. App. 1979); Jones v. Bouza, 7 Mich. App. 561, 152 N.W.2d 393 (1967); Fellows v. Seymour, 13 N.Y.S.2d 803 (1939); Jadosh v. Goeringer, 442 Pa. 451, 275 A.2d 58 (1971); Hand v. Greyhound Corp., 49 Wash. 2d 171, 299 P.2d 554 (1956); Crawford v. Parsons, 141 W. Va. 752, 92 S.E.2d 913 (1956); Oliver v. Travelers Insurance Co., 103 Wis. 2d 644, 309 N.W.2d 383 (1981); Meyer v. Kendig, 641 P.2d 1235 (Wyo. 1982).
These cases include instances in which the co-employee cause of action was eliminated by later amendment to the basic statute. See Meyer v. Kendig, 641 P.2d 1235 (Wyo. 1982); Perez v. Continental Cas. Co., 367 So. 2d 1284 (La. App. 1979). And only two State supreme courts have found the elimination of co-employee liability unconstitutional on any analysis. See Grantham v. Denke, 359 So. 2d 785 (Ala. 1978); Halenar v. Superior Court in & for Cty. of Maricopa, 109 Ariz. 27, 504 P.2d 928 (1972).
It is even more unsettling to recall the conclusion reached unanimously by this court in LaBounty v. American Insurance Co., 122 N.H. 738, 743-44, 451 A.2d 161, 164 (1982), that the rule prohibiting actions between co-employees is preferable to the rule permitting them. Thus, when the majority’s analysis leads the court to strike down as unconstitutional what it found desirable on the merits only three years ago, we should at least question that analysis.
The analysis rests upon the opinion for a majority of three justices in Park v. Rockwell Int’l Corp., 121 N.H. 894, 436 A.2d 1136 (1981). Like the matter before us, the issue in Park arose on an equal protection challenge to a feature of the 1978 amendments to the *183workers’ compensation act, eliminating wrongful death actions brought against an employer by the representatives of an employee decedent. See RSA 281:12, I (Supp. 1983), as amended by Laws 1978, 46:1. As a touchstone for applying the standards of reasonableness and fair and substantial relationship under the middle-tier equal protection test of Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980), the court in Park adopted what it called a quid pro quo test: the legislature may not eliminate a cause of action previously available to a class of potential plaintiffs without providing an adequately corresponding benefit to the members of that class in return. Park v. Rockwell Int’l Corp., supra at 897-98, 436 A.2d at 1138.
Since the accepted rationale for workers’ compensation statutes has been that they provide a quid pro quo for the restriction or elimination of common law rights, see 2A A. Larson, Law of Workmen’s Compensation at § 72.22, there is at first glance nothing remarkable about considering the adequacy of a supposed quid pro quo when asking whether the classification resulting from the provisions of such a statute is reasonable, or supportable on some rational basis. See Carson v. Maurer supra; Cargill v. City of Rochester, 119 N.H. 661, 406 A.2d 704 (1979). What was crucial about Park’s quid pro quo test, however, was the limitation that it placed on the benefit that could qualify as a legitimate quid pro quo for the elimination or limitation at issue. For the court restricted the quid pro quo to two possibilities: (a) a benefit conferred by the very amendment to the workers’ compensation act that abridged the preexisting right of action, or (b) a benefit conferred by the act before amendment, but provided as compensation for the specific harm that had been the subject of the cause of action eliminated or limited by the amendment. See Park v. Rockwell Int’l Corp., 121 N.H. at 897, 436 A.2d at 1138 (e.g., $1,200 burial expenses under RSA 281:22, IV (1977) for wrongful death). Since the amendment at issue in Park conferred no benefit and since the burial expense provided by the statute was in no sense equivalent in value even to a conservative plaintiff’s verdict in a death case, assuming the jury found liability, the court held that the elimination of the wrongful death action was unconstitutional.
Thus, what the court did not do in Park was to assess the adequacy of the quid pro quo for the restriction in question by considering that restriction in the context of the comprehensive statutory scheme of benefits and restrictions. In other words, the court did not weigh the merits of the restrictive classification by considering it as one of a number of restrictions placed on the common law rights of employees, their spouses, dependents and representatives, in return *184for which the statute provided a series of direct and indirect benefits to the same spectrum of people.
To be sure, the opinion in Park did not expressly state that the total benefits conferred generally by the workers’ compensation act must be ignored when considering an equal protection challenge to a specific amendment restricting a right of action. But in today’s opinion the court explicitly takes this step, although it takes the step subject to a qualification. The majority hold today that a new and adequate quid pro quo must be provided “at the time rights [of action] are extinguished” unless “there is a substantial and fundamental relationship between the rights affected” by the earlier act and those restricted by the later amendment. Where there is such a relationship, but only then, “will we analyze the quid pro quo requirement in the light of the entire statute.”
The majority then apply the quid pro quo test as so articulated by striking down the 1978 amendments in question. Since the pre-1978 act affected only the employee’s rights of action against his employer, and since the amendment affects his and his spouse’s rights of action against his fellow employee, the majority find no “substantial and fundamental relationship” between the rights affected by the earlier act and those eliminated by the later amendment. Therefore it follows for the majority that the 1978 amendments could not pass the quid pro quo test unless they provided new benefits to the affected employees and spouses. Since the amendments did not provide any such benefits, the majority hold that they are unconstitutional.
Before attempting to evaluate the analysis that underlies this quid pro quo test, it will be instructive to consider some of its other actual and anticipated applications. First we may look back to Park. Since the majority do not suggest that today’s decision would affect the result in that case, we have to assume that there was no substantial and fundamental relationship between the affected rights considered there. That was so presumably because the earlier act dealt with the rights of action of a living employee, whereas the amendment considered in Park dealt with his representative’s right of action to recover for the employee’s wrongful death.
On like reasoning, it is clear that the majority would find no fundamental relationship between the earlier act and the amendments enacted by Laws 1971, 539:5 and Laws 1973, 481:3, which barred consortium actions against a spouse’s employer for work-related injury. See RSA 281:12 (Supp. 1983); O’Keefe v. Associated Grocers, 117 N.H. 132, 370 A.2d 261 (1977); Archie v. Hampton, 112 N.H. 13, 287 A.2d 622 (1972); LaBonte v. Nat’l Gypsum Co., 110 N.H. 314, 269 A.2d 634 (1970). Consistently with the treatment of the consortium *185claims in today’s cases, the majority would reason that the earlier act dealt with the rights of action of an employee, not with the independent statutory right of a spouse to bring a consortium action. Since the 1971 amendment that barred consortium actions provided no new benefit to spouses, presumably the majority would find that amendment just as unconstitutional as they now find the bar to a consortium action against a spouse’s co-employee.
Indeed, on the majority’s view there is a question of the constitutionality of what I assume was the most significant of all amendments to the workers’ compensation act, the elimination of the employee’s right to elect between statutory benefits and the common law right of action against the employer. Laws 1959, 187:4. While the issue is not free from doubt, unconstitutionality would be a strong possibility under the majority’s quid pro quo test.
Although the 1959 amending act provided some increases in benefits, see Laws 1959, 187:3, :6, :12, :13, :14, it is questionable that the majority would find that they were generous enough to be an adequate substitute for the rights of action extinguished. Hence, Laws 1959, 187:4 may well be unconstitutional unless there is a “substantial and fundamental relationship between the rights affected” by the earlier act and those restricted by the amendment. The existence of such a relationship, however, is doubtful. The right “affected” by the amendment in 1959 was the employee’s common law right of action against the employer, which the amendment eliminated. But whether the prior law had “affected” that right within the meaning of the majority opinion is questionable. Laws 1947, 266:10 had required an employee to elect to retain his common law rights, but it had not eliminated them or restricted the scope of recovery if an employee did elect to proceed at common law. Thus there is a real question whether the “substantial and fundamental relationship” exception could apply at all for judging the adequacy of quid pro quo for the 1959 amendment.
The conclusion that emerges from these examples is that the majority’s quid pro quo analysis will always, or almost always, require a later restrictive amendment to the workers’ compensation act to be supported by a simultaneously enacted provision for a new benefit. The supposed exception to the rigor of this test, for cases in which there is a “substantial and fundamental relationship” between rights affected by the preexisting and amending acts, is only apparent. In practice the majority view will doom virtually all subsequent amendments unaccompanied by new benefits.
It is fair to say, therefore, that on the majority’s analysis the date on which a restrictive provision is enacted can be dispositive of its constitutionality. If a given restriction was enacted originally as *186part of a package of workers’ compensation benefits and restrictions, its constitutionality would be assessed by weighing it, along with the act’s other restrictions of common law rights of action, against all the statutory benefits. This approach would give substantial deference to the legislative judgment that the restriction properly belonged in the total statutory scheme. But if we assume the same set of statutory benefits and restrictions, the constitutionality of a restriction enacted as a later amendment will be judged in isolation from the rest of the act. This approach refuses in effect to accord any deference to the legislative judgment that the restriction belongs in the act. The constitutional result could be, and for our examples almost certainly would be, different. Thus, other things being equal, under the majority’s quid pro quo test legislative timing is not merely relevant but practically dispositive in dealing with an equal protection challenge.
What is basically objectionable about the majority’s position is that it provides no reason in principle for giving such dispositive significance to legislative timing and for setting up such disparate presumptions affecting constitutionality in the workers’ compensation context. Certainly there is no reason related to the merits of such an act’s provisions.
Rather, the majority’s position fractures a given level or tier of equal protection analysis by employing within it a double standard of reasonableness or rationality. This can only be seen as the reflection of a bias against the lessons of experience. For when the majority say that the legislature may not add a restrictive amendment without providing a new and adequate benefit, they in effect say that the legislature may not improve a statute in the light of experience, without requiring the employer to pay an added price for the improvement. The tendency of such a position can only be to discourage the legislature from profiting from experience. I say, on the contrary, that we should not place a tax on the very experience that Holmes called the life of the law. The anti-historical bias of the majority position has no warrant in the Constitution and should have no place in the law that interprets it.
The court should accordingly decline to make legislative timing dispositive of the present constitutional challenges, and should consider these amendments in the context of the entire workers’ compensation act. If the court were to do so, it is apparent that the combined benefits of the whole act provide fair recompense for the restrictions that include those at issue in these cases.
Briefly stated, the victim of harm caused by a co-employee is entitled to prompt benefits from his employer regardless of his co-employee’s fault and regardless of his own fault, in the absence of *187intoxication. See RSA 281:15 (Supp. 1983). Moreover, he will himself be immune from liability to a co-employee even when he and he alone is at fault. It is therefore not unreasonable to restrict his common law right of action against the co-employee. Since the spouse of a co-employee victim will be benefitted indirectly when the victim receives such statutory benefits even when the victim’s injury was not the result of a co-employee’s fault, and since the spouse will similarly be benefitted by the spousal employee’s immunity, it is equally reasonable to restrict the spouse’s consortium action in those cases where there is fault on the part of a co-employee.
These considerations indicate that there is no reason to reject the legislative judgment that the restrictions in question here are appropriate in the context of the entire act and result in no classifications that violate standards of equal protection. Indeed, taking this broader view, the result would be the same whether we judged these equal protection claims under the rational basis test, see Cargill v. City of Rochester, 119 N.H. 661, 406 A.2d 704 (1979); Belkner v. Preston, 115 N.H. 15, 332 A.2d 168 (1975), or under the middle tier test of Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980).
I therefore respectfully dissent from the application of the narrow Park analysis of quid pro quo, which leads the majority to strike down a provision that this court in LaBounty v. American Insurance Co., 122 N.H. 738, 451 A.2d 161 (1982), declared to be the better rule of substantive law.