Die Lunae, 19° Julii, 1937
Parliamentary
Archives,
HL/PO/JU/4/3/940
Lord
Atkin
Lord
Thanker-
ton
Lord
Macmillan
Lord
Wright
Lord
Maugham
WILSONS AND CLYDE COAL COMPANY,
LIMITED
v.
ENGLISH
Lord Atkin
MY LORDS,
I have had the opportunity of
reading and considering the
Opinions which are about to be
delivered by my noble and learned
friends Lord Thankerton, Lord
Wright and Lord Maugham. I
agree with them, and feel that it is
unnecessary to add my own
language to that which is used by them.
In particular, I wish
to state my concurrence in the views which
they have expressed
as to the valuable judgments pronounced by the
Lord President
in this case, and by the Lord Justice Clerk on the
English case
of Fanton v. Denville in Bain v. The
Fife Coal Company.
[2]
Lord Atkin
Lord
Thanker-
ton
Lord
Macmillan
Lord
Wright
Lord
Maugham
WILSONS AND CLYDE COAL COMPANY,
LIMITED
v.
ENGLISH.
Lord Thankerton
MY LORDS,
The Respondent, who is an
oncost workman in one of the
Appellants' coal mines, claims
damages at common law from the
Appellants in respect of personal
injuries sustained by him on the
27th March, 1933, while employed
at the Appellants' Glencraig
Colliery in Fife. The case was tried
before a jury, on a general
issue of fault, and, on the motion of
the Appellants, the trial Judge,
under Rules of Court II. 49, put
specific questions to the jury,
to which they returned answers.
The Judge directed the jury on
these questions, and no exception
was taken to his charge. Im-
portant questions of law were raised
before the learned Judge as
to the application of the special
verdict, and a reclaiming motion
was taken by the present
Appellants against the interlocutor of
Lord Jamieson, the trial
Judge, who applied the verdict in favour
of the Respondent. This
motion was heard by the Second Division
with three Judges of the
First Division, who were called into con-
sultation except on an
alternative argument of the present Re-
spondent. By a majority
of five to two the decision of the Lord
Ordinary was approved,
and, in accordance therewith, his inter-
locutor was affirmed by
the Second Division on the 17th July,
1936. The present Appeal is
taken against this last interlocutor.
The facts may be briefly stated
as follows. The Respondent,
on the date in question, was employed
underground on the work
of repairing an airway leading off the
Mine Jigger Brae, one of
the main haulage roads. When he was
proceeding, at the end of
the day shift, between 1.30 and 2 p.m.,
to the pit bottom by way
of the Mine Jigger Brae, the haulage
plant was put in motion,
and, before he could reach one of the
manholes provided, he was
caught by a rake of hutches and crushed
between it and the side
of the road. The Respondent's case was
that the time fixed by the
Appellants for raising the day shift
men up the pit was between
1.30 and 2 p.m., and that it was a
necessary part of a safe system
of working that the haulage
should be stopped on the main haulage
roads during this period,
and that this was in accordance with
usual and recognised mining
practice in Scotland. The Appellants
denied this averment and
stated that there was an alternative road
open for the
Respondent's return to the pit bottom, and that, in
any event,
he should have informed the man in charge of the
haulage
machinery, who was within easy call, of his emergence
into the
Mine Jigger Brae, and should not have proceeded along
the Brae
until he had ascertained that the haulage had stopped
for the
shift, or arranged that he could safely proceed. They
pleaded
contributory negligence on the Respondent's part. They
also
stated that the Respondent was in breach of Sections 43 (1)
and
74 of the Coal Mines Act, 1911.
The questions put to the jury
and their answers were as
follows: —
" Ques. 1.—Was
a reasonably safe system of working pro-
" vided for the men
on the day shift in the Butter's Section of
" the Glencraig
Colliery returning to the pit bottom at the end of
"the
shift?
" Ans.—No.
[3] 2
" Ques. 2.—Did
(1) the Defenders' Board of Directors
"or (2) the Agent know
of the said system of working in
" operation in the said
Section ?
" Ans.—(1)
No. (2) Yes.
" Ques. 3.—Did
(1) the Defenders' Board of Directors
"or (2) the Agent know
of any defect in the said system?
"Ans.—(1)No.
(2) Yes.
" Ques. 4.—Was
the provision of the said system of work-
" ing part of the
technical management of the Colliery ?
" Ans—Yes.
" Ques. 5.—Was
the accident to the pursuer caused by
" failure to provide a
reasonably safe system of working in the
" said Section ?
" Ans—Yes.
" Ques. 6.—Did
the pursuer fail to take reasonable care
" for his own
safety?
" Ans.—No.
" Ques. 7.—If
so, did he cause or materially contribute to
" the accident ?
" Ans.—No.
" Ques. 8.—Was
the pursuer in breach of (1) Section 43
" (1), or (2) Section
74 of the Coal Mines Act, 1911 ?
" Ans.—(1) No.
(2) No.
" Ques. 9.—On
the assumption that the pursuer is entitled
" to damages, at
what figure do you assess the damages?
" Ans.—£500."
The question in the Appeal
arises on the first five questions and
the answers of the jury. It
may be explained that the Appellants
own five collieries,
including Glencraig Colliery, and that the agent
referred to above
is appointed by their Board of Directors as their
representative
on the mining side in respect of all their collieries.
The agent
in turn selects a mine manager for each colliery, the
appointments
being approved by the Board of Directors. All the
subordinate
officials are selected and appointed by the mine
manager. The
agent and mine managers are appointed by the
Appellants to carry
put the safety provisions of the Coal Mines
Act and the
Regulations. The fourth question and answer refer
to section 2(4)
of the Coal Mines Act, 1911, which provides that
" The owner
or agent of a mine required to be under the control
" of a
manager shall not take any part in the technical manage-
"
ment of the mine unless he is qualified to be a manager."
The
Appellants maintain that they cannot be responsible for a
failure
in the technical management of the mine from which they
are
excluded by statute.
Counsel for the Appellants
admitted that primarily the master
has a duty to take due care to
provide and maintain a reasonably
safe system of working in the
mine, and he stated the question
in the Appeal as being whether a
master, who has delegated the
duty of taking due care in the
provision of a reasonably safe
system of working to a competent
servant, is responsible for a detect
in the system, of which he
had no knowledge; and he submitted the
following general
propositions in law: —
(First) If the master retains
control, he has a duty to see
that his servants do not suffer
through his personal negligence,
such as (1) failure to provide
proper and suitable plant, if he
knows, or ought to have known, of
such failure, (2) failure to
select fit and competent servants,
(3) failure to provide a proper
and safe system of working, and
(4) failure to observe statutory
regulations: but,
(Second) If he delegates his
duty to take care of the safety
of his servants to competent
subordinates, his responsibility
in respect of his primary common
law duty ceases, unless there
3 [4]
is proof of knowledge by him,
not acted upon. That the master's
liability in respect of his
common law duty may be said to
depend on the extent of his
interference.
The Appellants maintain that the
present case is covered by the
second proposition, in that they
have delegated to a competent
agent and manager the duty of
providing a reasonably safe system
of working, and that any
negligence in the provision of such a
system is the negligence of
these delegates, and, under the doctrine
of common employment,
that the Appellants are not liable therefor.
My Lords, it seems to me that
the fallacy in the Appellant's
argument lies in the view that the
master, being under a duty to
take due care in the provision of a
reasonably safe system of work-
ing, is absolved from that duty by
the appointment of a competent
person to perform the duty. In my
opinion the master cannot
" delegate " his duty in this
sense, though he may appoint some-
one as his agent in the
discharge of the duty, for whom he will
remain responsible under
the maxim respondent superior. It there-
fore becomes
necessary to examine the nature and limits of the
doctrine of
common employment.
In Johnson v. Lindsay &
Co. (1891) AC 371, at p. 382,
Lord Watson said, " I do
not agree with Baron Pollock, that the
'' rule which exempts a
master from liability to his servant for
'' injuries negligently
occasioned by a fellow-servant in the course
'' of their common
employment rests upon the absence of an implied
'' contract by the
master to recoup such damage. The master's
'' responsibility for
his servant's acts has its origin in the maxim
'' ' Qui facit per
alium facit per se.' which has been construed as in-
'' ferring
his liability for what is negligently done by the servant act-
''
ing within the scope of his employment. The immunity extended
''
to a master in the case of injuries caused to each other by his
''
servants whilst they are working for him to a common end is an
''
exception from the general rule, and rests upon an implied under-
''
taking by the servant to bear the risks arising from the possible
''
negligence of a fellow-servant who has been selected with due
''
care by his master The principle of the master's immunity
'' in
such cases, frequently termed the doctrine of collaborateur, is
''
of comparatively recent origin. In the law of England it can
''
hardly be traced further back than Priestly v. Fowler, (3
M. &
'' W. 1), which was decided in 1837. It was rejected by
the Courts
'' of Scotland until 1858, when, for the first time in
either country,
'' it was fully explained and reduced to its
proper limits by
'' Lord Cranworth, in the Scotch case of
Bartonshill Coal Company
'' v. Reid (3 Macq.
266). The doctrine had previously been formu-
'' lated by the
Supreme Court of Massachusetts, in a judgment
'' delivered by
Chief Justice Shaw, in Farwell v. Boston and
''
Worcester Rail Road Corporation, (4 Metcalf, 49.) which was
"
referred to with approval by Lord Cranworth."
In Bartonshill Coal Company
v. Reid, supra cit, the workman
had been killed through
the overturning of the cage, the engine-
man having failed to stop
the ascending cage at the platform and
having allowed it to be
sent with great force up against the scaffold-
ing. Clearly this
involved no question of safe system of working.
After dealing with
the maxim " respondeat superior", Lord Cran-
worth says
(p. 284), "But do the same principles apply to the
"
case of a workman injured by the want of care of a fellow-
"
workman engaged together in the same work? I think not.
'' When
the workman contracts to do work of any particular sort,
" he
knows, or ought to know, to what risks he is exposing himself;
"
he knows, if such be the nature of the risk, that want of care on
"
the part of a fellow-workman may be injurious or fatal to him.
"
and that against such want of care his employer cannot by pos-
"
sibility protect him. If such want of care should occur, and evil
"
is the result, he cannot say that he does not know whether the
[5] 4
" master or the servant was
to blame. He knows that the blame
" was wholly that of the
servant. He cannot say that the master
" need not have
engaged in the work at all, for he was party to
" its being
undertaken." This language is quite inappropriate, as
it
seems to me, to the risks involved in the conditions of safety
under
which the work is carried on, and for which it is the duty
of the
master to use due care in the provision of a reasonably safe
system.
That Lord Cranworth took this view, is clear from his
comments on
the earlier Scottish case of Sword v. Cameron (1839)
1
D. 493, in which a workman, employed in a stone quarry, re-
covered
damages from his employers for injuries received on the
explosion
of a shot in the quarry. Lord Cranworth says (p. 291),
" This
case may be justified without resorting to any such doctrine
"
as that a master is responsible for injuries to a workman in his
"
employ, occasioned by the negligence of a fellow-workman en-
"
gaged in a common work. The injury was evidently the result
"
of a defective system not adequately protecting the workman at
"
the time of the explosions .... The accident occurred, not from
"
any neglect of the man who fired the shot, but because the system
"
was one which did not enable the workmen at the crane to pro-
"
tect themselves by getting into a place of security." In the
case
of Bartonshill Coal Company v. McGuire (1858) 3 Macq 300, which
arose out of the same accident, and was decided
at the same time
as Reid's case, Lord Chelmsford L.C.,
said, " In Sword v. Cameron,
" the system of
blasting in the quarry which had been established
" had been
habitually defective, and therefore, the injury which
"
resulted might as much be attributed to the employers as if they
"
had supplied defective machinery, for which undoubtedly they
"
would have been answerable."
It appears clear, then, that
when the workman contracts to do
the work, he is not to be held as
having agreed to hold the master
immune from the latter's
liability for want of due care in the pro-
vision of a reasonably
safe system of working. But the Appellants
maintain that the
master absolves himself from the discharge of
that duty, if he
appoints a competent servant to discharge the duty,
and I will now
examine the authorities on which this contention is
sought to be
based.
In Wilson v. Merry and
Cunningham (1868) 6 M. (H.L.) 84,
the workman had been killed
by an explosion of firedamp in the
pit, which had accumulated
because of an obstruction of the system
of ventilation by a
platform which had been temporarily erected
on the side of the
pit-shaft under the direction of a pit-manager,
to enable a seam
to be opened. There was no suggestion that the
system of
ventilation was defective, but the temporary platform
interrupted
the free circulation of air. It was admitted that the
owners had
appointed competent persons for the work on which
they were
engaged. Lord Cairns L.C. said, in a well-known passage
(p. 89),
"The master is not, and cannot be, liable to his servant
"
unless there be negligence on the part of the master in that in
which
" he, the master, has contracted or undertaken with his
servant to
" do. The master has not contracted or undertaken
to execute in
" person the work connected with his business.
The result of an
" obligation on the master personally to
execute the work connected
" with his business, in place of
being beneficial, might be disastrous
" to his servants, for
the master might be incompetent personally to
" perform the
work connected with his business. At all events, a
" servant
may choose for himself between serving a master who does
"
and a master who does not attend in person to his business. But
"
what the master is, in my opinion, bound to his servant to do,
"
in the event of his not personally superintending and directing
"
the work, is to select proper and competent persons to do so, and
"
to furnish them with adequate materials and resources for the
5 [6]
" work. When he has done
this, he has, in my opinion, done all
" that he is bound to
do. And if the persons so selected are guilty
" of
negligence, this is not the negligence of the master."
The Appellants seek to apply
that passage to the masters' duty
as to provision of a reasonably
safe system, but it is clear, in my
opinion, that the Lord
Chancellor, who had already stated that
there was no question of a
defective system of ventilation, was
referring to the carrying out
of the operations in the mine, and not
to the provision of safe
and proper conditions under which the
operations were to be
carried on. This view is confirmed by the
speeches of the other
noble and learned Lords. Lord Chelmsford
(p. 91) says, "
Although the learned Judge in the course of his
" summing up
distinguished ' between keeping clear and in good
" ' working
order the ventilation arrangement or system, when com-
" '
pleted, and a defect or fault in the arrangement or system itself,'
"
yet he does not appear to have left it to the jury to decide
whether
" the accident occurred through faulty ventilation or
through casual
" obstruction in the ventilation, the latter
of which appears from
" the evidence to be more likely to
have been the case. But, sup-
" posing it to have been quite
clear that the ventilation itself was
" defective, yet, if it
occurred in the course of the operations in
" the pit, it
ought to have been distinguished from that ' system of
" '
ventilation and putting the mine into a safe and proper con-
"
' dition for working,' which, according to the opinion of the Lord
"
Justice-Clerk in Dixon v. Rankin (14 D. 420) ' it was
the duty of
" ' the master for whose benefit the work is
being carried on to
" ' provide.' In the course of working
the Haughead pit, it be-
" came necessary to arrange a system
of what, for distinction's
" sake, I may call local
ventilation. This must be considered as
" part of the mining
operations, and therefore, even if the accident
" happened in
consequence of the scaffold in the Pyotshaw seam
" having,
under Neish's orders, been constructed so as to obstruct
"
the necessary ventilation, it would have been the result of negli-
"
gence in the course of working the mine; and if Neish and the
"
deceased were fellow-workmen, it would have been one of the
"
risks incident to the employment in which the deceased was en-
"
gaged." Lord Colonsay says (p. 95), "I think that there
are
" duties incumbent on masters, with reference to the
safety of
" labourers in mines and factories, on the
fulfilment of which the
" labourers are entitled to rely, and
for the failure in which the
" master may be responsible. A
total neglect to provide any system
" of ventilation for the
mine may be of that character. Culpable
" negligence in
supervision, if the master takes the supervision on
"
himself, or where he devolves it on others; the heedless selection
"
of unskilful or incompetent persons for the duty, or the failure
"
to provide or supply the means of providing proper machinery
"
or materials, may furnish grounds of liability (and there may be
"
other duties, varying according to the nature of the employment)
"
wherein, if the master fails, he may be responsible. But, on the
"
other hand, there are risks incident to occupations more or less
"
hazardous, and of which the labourer who engages in any such
"
occupation takes his chance. It is eminently so in regard to
"
mining operations." There are perils of the pit as well as of
the
" other deep, and one of those perils is the risk of the
consequences
" that may, even in the best regulated pits,
result from the careless-
" ness or recklessness, or other
fault of one or more of those persons
" composing the
organised body engaged in working the mine ;
and, further (p. 96)
" Now, the direction of the learned Judge, with
"
reference to the circumstances of this case, appears to me to nave
"
been objectionable, for these reasons—(First) It deals
apparently
" with the alleged defect in the scaffold as if it
was a defect in the
" general arrangement or system of
ventilation of the pit, for which
"in certain views, the
defendant might be regarded as liable,
[7] 6
" whereas it was a defect
in the construction of a temporary struc-
" ture, erected by
order of Neish for certain working operations,
" whereby the
free action of a good system of ventilation was tem-
"
porarily interfered with, which raised a totally different question
"
for the consideration of the jury in reference to the liability of
"
the defendant for the fault of Neish."
I agree with the observations of
the Lord President, in his ad-
mirable and lucid opinion in the
present case, on these opinions
in Wilson v. Merry and
Cunningham and I need not repeat them.
In particular, Lord
Chelmsford and Lord Colonsay clearly distinguish
between duties
relating to the actual working or operation of the
mine and those
which relate to the conditions of safety provided
by the system
under which such working or operation is carried
on. The workman,
under his contract of employment, is not to
be held impliedly to
have taken the risk of want of due care in
the provision of a
reasonably safe system of working, and the
master cannot transfer
the duty onto the shoulders of a subordinate.
If he appoints a
servant to attend to the discharge of such duty,
such servant, in
this respect, is merely the agent or hand of the
master, and the
maxim qui facit per alium facit per se renders
the master
liable for such servant's negligence as being, in the view
of the
law, the master's own negligence. The same servant may
have other
duties relative to the working or operation of the mine,
as to
which the doctrine of common employment might apply, but
that
doctrine is not applicable to the provision of reasonably
safe
conditions under which the working or operation of the mine
is to
be carried on.
My Lords, I do not find it
necessary to deal in detail with the
passages from the judgments
in the cases of Smith v. Charles
Baker 6- Sons,
(1891) AC 325, Connell v. James Nimmo &
Co.,
1924, S.C. (H.L.) 84, Monaghan v. W. H. Rhodes
6- Son,
(1920) 1 K.B. 487, and Macmillan v. Barclay,
Curie & Co.,
1912 S.C. 263, which are referred to by the
learned Lord President,
with whose comments thereon I agree. They
afford no assist-
ance to the argument of the Appellants, and are
in conformity
with the views I have expressed. But I will cite one
sentence
from the opinion of Lord Watson in Smith v.
Charles Baker &
Sons, at p. 353, vizt., " But, as
I understand the law, it
" was also held by this House, long
before the passing of the
" Employers Liability Act (43 &
44 Viet. c. 42) that a master is no
" less responsible to his
workmen for personal injuries occasioned
" by a defective
system of using machinery than for injuries caused
" by a
defect in the machinery itself." I agree with the Lord
Presi-
dent that the principle of vicarious liability of the
master has been
uniformly applied to defective plant and defective
premises, and is
equally applicable in the case of defective
systems. I may add a
reference to the case in the Privy Council of
Toronto Power Com-
pany Limited v. Paskwan, (1915) AC 734, in which it was held
that the duty towards an employee to
provide proper plant, as distin-
guished from its subsequent care,
falls upon the employer himself, and
cannot be delegated to his
servants. Sir Arthur Channell, who de-
livered the judgment of the
Board, says (at p. 738), " It is, of course,
" true that
a master is not bound to give personal superintendence
" to
the conduct of the works, and that there are many things which
"
in general it is for the safety of the workman that the master
"
should not personally undertake. It is necessary, however, in
"
each case to consider the particular duty omitted, and the pro-
"
viding proper plant, as distinguished from its subsequent care, is
"
especially within the province of the master rather than of his
ser-
" vants. In Cribb v. Kynoch,(1907) 2 KB 548
and Young v. Hoffman
" Manufacturing Co., (1907) 2 KB 646, the question arose as to
" the duty of a master to have
inexperienced persons in his employ
" properly instructed in
the way to perform dangerous work, and
" that is a matter
which it is fairly obvious must in almost all cases
7 [8]
" be done for the master by
others. The supplying of that which
" in the opinion of a
jury is proper plant stands on rather a different
" footing.
It is true that the master does not warrant the plant, and
"
if there is a latent defect which could not be detected by
reasonable
" examination, or if in the course of working
plant becomes defec-
" tive and the defect is not brought to
the master's knowledge and
" could not by reasonable
diligence have been discovered by him,
" the master is not
liable, and further, a master is not bound at
"once to adopt
all the latest improvements and appliances. It
" is a
question of fact in each case, was it in the circumstances a
"want
of reasonable care not to have adopted them." In my
opinion
that passage equally states the law of this country, and I
do not
agree with the comments on this decision in the case of
Fanton
v. Denville, (1932) 2 K.B. 309, to which I will now refer.
As
I have had the privilege of reading the opinion of my noble
and
learned friend Lord Wright, who makes a detailed criticism of
the
decision in this case, in which I entirely concur, I will only
say
firstly, that the conclusion arrived at appears to me to be
justified
by the facts of the case, as accepted by the Court of
Appeal, in that
they do not disclose any defect in the materials
supplied by the
defendant but an error of judgment on the part of
his servants in
selection of the properties necessary on a
particular occasion for a
particular purpose; the extra baize was
there and available. There
was no suggestion that the mattress was
defective in itself, but
it was not by itself sufficient to break
the fall of the plaintiff. In
the case of a touring company such
as that in question, the selection
of the particular properties to
be used for a particular presentation
may well be said to be part
of the common work on which the
employees are engaged, and the
master, apart from knowledge
imputable to him, will not be liable
provided the properties have
been provided with due care. In the
second place, I am quite
unable to agree with the construction
placed by the learned Lord
Justices on the opinion of Cairns L.C.,
in Wilson v. Merry and Cun-
ningham, as to which I
have already expressed my opinion.
There remains the recent case of
Bain v. Fife Coal Co., 1935
S.C. 681, in which Fanton's
case came under the consideration of the
Second Division of
the Court of Session. I agree with the comments
of the Lord
Justice-Clerk on Fanton's case and will repeat them
and
adopt them, if I may: —" This appears to me to be a
startling
" whittling down of the duties which the law has
hitherto recognised,
" at any rate in Scotland, as attaching
to a master towards his
" servant. It ignores what has
always been regarded as a funda-
" mental doctrine of the law
of master and servant, viz., that there
" are certain duties
owed by a master to his servant so imperative
" and vital to
safety that the master cannot divest himself of respon-
"
suability by entrusting their performance to others, so as to avoid
"
liability in the event of injury arising to the servant through
"
neglect of any of these duties. The master's liability as for
" breach of these paramount duties is unaffected by the doctrine
of
" fellow-servant, for in the eye of the law they are
duties that cannot
" be delegated. If, in fact, they are
entrusted by the master to
" others, the maxim applies qui
facit per alium facit per se. The
" duty may not be
absolute, and may be only a duty to exercise
" due care, but
if, in fact, the master entrusts the duty to someone
" else
instead of performing it himself, he is liable for injury caused
" through the want of care of that someone else, as being, in
the eye
" of the law, his own negligence." That
admirable statement of
the law which, in my opinion, applies also
in England, involves the
rejection of the Appellants' contentions,
except the special conten-
tion that their exclusion from
interference in the technical manage-
ment by section 2(4) of the
Coal Mines Act 1911 relieves them from
responsibility, in view of
the fourth answer of the jury. I agree
with the opinion
expressed by the five learned Judges in the Court
of Session who
rejected this contention; neither of the learned
[9] 8
Judges who dissented, appears to
have expressed an opinion on this
point. . I agree with the Lord
President's statement, ' There is
" no reason in principle
that a compulsory delegation should dis-
" place the
vicarious responsibility of the employer, if a de facto
"
delegation, which is often unavoidable, has not this effect. I
"
hold that the responsibility is the same whether the employer
"
is himself qualified to act as manager or not, and whether, if
"
qualified, he chooses to act himself or to delegate to a qualified
"
servant as manager. In all these cases he is answerable either
"
directly for his own negligence or vicariously for his servant's
"
negligence, if the negligence affects the provision of a safe
system
" of working."
My Lords, it is always difficult
to define a principle of the law
so precisely that its application
to every combination of circum-
stances is beyond question, but I
may at least express the hope that
the decision in this Appeal has
narrowed the debatable area, with-
out being as optimistic as the
reporter in the Bartonshill cases (3
Macq. 301, footnote)
who said, nearly eighty years ago, " Reid and
" McGuire
were both victims of the same accident, which, though
"
melancholy, has settled the law."
In my opinion, the Appeal fails
and should be dismissed with
costs.
44492 A 5
[10]
Lord
Atkin
Lord
Thanker-
ton
Lord
Macmillan
Lord
Wright
Lord
Maugham
WILSONS & CLYDE COAL
COMPANY, LIMITED
v.
ENGLISH.
Lord Macmillan
MY LORDS,
In this appeal your Lordships
have to consider and accom-
modate the spheres of operation in
the law of master and servant
of two competing doctrines, the
doctrine of vicarious liability and
the doctrine of common
employment. According to the former,
a master is responsible for
the negligence of his servant acting
within the scope of his
employment; according to the latter a
master is not responsible
for the negligence of his servant causing
injury to a
fellow-servant. Both doctrines are well-established in
the law.
It is obvious that they may come into conflict. If a
servant is
injured by the negligence of a fellow-servant acting
within the
scope of their common employment, the former doctrine
would
impose liability on the master, while the latter doctrine
would
exculpate him. The question is, which of these two
principles is
applicable to the present case.
I do not rehearse the facts
already so fully and clearly set out by
my noble and learned
friend Lord Thankerton. But I emphasise the
findings of the jury
that on the occasion of the accident which
befell the respondent
there was not provided in the appellants'
colliery a reasonably
safe system of working; that the accident
was due to this failure
to provide a reasonably safe system of
working; and that the
defect in the system was known to the agent
employed by the
directors of the appellant company but not to
them personally.
The negligence, be it observed, lay in the failure
to provide a
safe system, not in the working of the system provided.
In these circumstances the
appellants say that they are not
responsible for the accident
because it was due to the negligence
of their agent. Their duty,
they say, was fulfilled when they
appointed a competent agent to
supervise the working of the
colliery, a task which they were
personally and indeed by statute
disqualified from performing,
and as the negligence was that of a
fellow employee of the
respondent they should be absolved.
Now I take it to be settled law
that the provision of a safe
system of working in a colliery is
an obligation of the owner of
the colliery. He cannot divest
himself of this duty, though he may
—and, if it involves
technical management and he is not himself
technically qualified,
must—perform it through the agency of an
employee. It
remains the owner's obligation and the agent whom
the owner
appoints to perform it, performs it on the owner's behalf.
The
owner remains vicariously responsible for the negligence of
the
person whom he has appointed to perform his obligation for
him,
and cannot escape liability by merely proving that he has
appointed
a competent agent. If the owner's duty has not been
performed, no
matter how competent the agent selected by the
owner to perform
it for him, the owner is responsible.
But then it is said that if the
person injured in consequence of
the non-performance of the
owner's duty by the owner's agent is
an employee of the owner
there is no redress because the agent is
engaged in a common
employment with the injured party and the
latter took the risk of
the negligence of his fellow-employees. To this
[11] 2
the conclusive answer is that
the agent engaged in discharging the
owner's duty of providing a
safe system of working in the mine
is not engaged in a common
employment with the ordinary work-
men in the mine. He is not
collaborating with them; he is
performing the duty of the owner
not the duty of an employee.
The doctrine of common employment
implies that the employment
must be common. The owner of a
colliery is not engaged in a
common employment with the miners who
work in the colliery,
and the agent carrying out the obligations
of the owner is not
collaborating with the workmen in the mine.
Consequently the
defence of common employment is not available to
the mine owner
where an accident occurs to an employee in the mine
through the
negligent performance of the owner's duty by the
person appointed
by the owner to perform that duty for him, for
such agent of the
owner and the injured workman are not in this
respect engaged
in a common employment.
My Lords, while adding these few
observations I desire to
express my concurrence in every respect
with the views of my noble
and learned friends whose opinions I
have had the advantage of
reading in print. In particular I should
like to associate myself
with Lord Thankerton's appreciation of
the admirable opinions
delivered by the Lord President in the
present case and by Lord
Justice-Clerk Aitchison in the
case of Bain v. Fife Coal Co., 1935,
S.C. 681.
[12]
WILSONS AND CLYDE COAL COMPANY,
LIMITED
v.
ENGLISH
Lord
Atkin
Lord
Thanker-
ton
Lord
Macmillan
Lord
Wright
Lord
Maugham
Lord Wright
MY LORDS,
I have had the advantage of
reading in print the opinion
which has just been delivered by my
noble and learned friend
Lord Thankerton and am in agreement with
it. The observations
which I go on to make, are directed to
considering certain recent
authorities in the Court of Appeal,
which it seems to me, contain
propositions of law which
contradict the settled authorities
binding on this House in
regard to the obligation of an employer
towards his employees, to
use the more modern terminology.
The Lord President has left to
your Lordships the task of
reconciling what the Court of Appeal
have laid down with the
authorities which he cites in his
admirable judgment. It is clear
as has been said in this House,
that on this branch of the law,
there is no difference between
the law in England and in Scotland.
The principal decision of the
Court of Appeal thus brought
into question is Fanton v.
Denville, 1932, 2 K.B. 309. The facts
of that case are
somewhat obscure. The answers of the jury are
inconclusive. The
Plaintiff does not appear to have established
a breach by the
employer of the duty owing by him to the
servant as I shall
define it hereafter. The result of the case
may be correct, but I
do not see that it was necessary for
the Court of Appeal to lay
down the propositions they aid in
regard to the precise extent of
the duty which rests on the
employer towards his employee. Greer
L.J. at p. 327 thus states,
in agreement with what Scrutton L.J.
said in the same case
that " even in cases where the
negligence relied on by the plain-
" tiff consists of
negligence in the supply or maintenance of plant
" or
machinery, the employer is only liable if personal negligence
"
is proved, and that if the failure to supply or maintain the plant
"
or machinery in a safe condition is due to the negligence of a
"
manager to whom the duty has been entrusted by the employer,
"
the employer is not responsible unless it can be shown that he
"
failed to use reasonable care to select a competent manager,
"
or that he has in some way been guilty of personal negligence
"
in connection with the instalment or maintenance of the
"
machinery or plant or in permitting the continuance of its use
"
after he became aware of its unsafe condition." Slesser
L.J.
agreed with Scrutton and Greer L.J.J. Similarly in Rudd
y. Elder
Dempster and Co. 1933, 1 K.B. 566, Scrutton
L.J. applying the
view he had expressed in Fanton's case
held that the employer
fulfilled his duty in regard to plant and
system by using reasonable
care to appoint competent foremen and
overseers, and if he fulfilled
that duty was not liable for the
negligence of such foremen or
overseers to their fellow workmen.
Similarly at p. 597 Greer L.J.
said " If the system has been
put into operation and is being
" carried out by his
servants on his behalf, he [the em-
" ployer] is not
responsible to his workpeople for injuries thereby
" caused.
He is free from liability unless it be proved that the
"
injuries complained of were caused by his own negligence or
"
wilful act." Lawrence L.J. agreed.
[13] 2
In my judgment these statements
are directly contrary to
opinions and decisions of this House and
of the Court of Appeal
over a long period of years. In Lochgelly
Iron and Coal Co. v,
M'Mullan, 1934, A.C. 1, this House
overruled the decision of the
Court of Appeal in Rudd's case
on the scope of the employer's
liability to his workpeople for
breach of a statutory duty. In Rudd's
case the Court of
Appeal, applying their general views which I have
just stated,
held that the employers could escape liability by showing
that
they had appointed competent servants to see that the duty
was
fulfilled. This House held that on the contrary the statutory
duty
was personal to the employer, in this sense that he was bound
to
perform it by himself or by his servants. The same principle in
my
opinion applies to those fundamental obligations of a contract
of
employment which lie outside the doctrine of common employ-
ment,
and for the performance of which employers are
absolutely
responsible. When I use the word absolutely, I do not
mean that
employers warrant the adequacy of plant, or the
competence of
fellow employees or the propriety of the system of
work. The
obligation is fulfilled by the exercise of due care
and skill. But it
is not fulfilled by entrusting its fulfilment
to employees, even
though selected with due care and skill. The
obligation is three-
fold, " the provision of a competent
staff of men, adequate material,
"and a proper system and
effective supervision"; I repeat the
statement of the duty
by Lord McLaren quoted with approval by
Lord Shaw in Black v.
Fife Coal Co., Ltd., 1912, A.C. 149, at p. 173
and again
approved in the Lochgelly Case at p. 28. The rule has
been
stated so often that I hesitate to multiply authorities. What
the
Court of Appeal have said amounts to reducing the three
heads
of duty to one only, that is, to engage competent employees
of the
higher grades and then everything else may be left to them.
If that is
done, the employers, it seems, will be free from
further responsibility.
Those whom they have engaged, if chosen
with due care and skill,
may appoint any other employee, may deal
with the provision
of plant and material, may determine the system
of work. How-
ever negligently they may act and however
dangerous the results
of what they do may be to the workpeople,
the employers on this
view will be free from liability. The
employee will have no remedy
against the employer. His only
remedy will be against his fellow
employee which will be difficult
to establish and in all probability
worthless.
The well established, but
illogical doctrine of common em-
ployment is certainly one not to
be extended and indeed has never
in its long career been pushed so
far as the Court of Appeal sought
to push it. Even in Farwell
v. Boston Railroad Co., 4 Metcalf,
(Mass) 49, the fons
et origo (I almost add "mali") Shaw
C.J.
reserved the question of an employer's obligations in respect
of
adequacy of plant and competence of fellow workmen.
In Hutchinson v. York
Newcastle and Berwick Ry., 5 Ex. 343,
where the doctrine of
common employment was first laid down in
this country, Alderson B.
said that the doctrine must be taken with
the qualification that
the master shall have taken due care not to
expose his servant to
unreasonable risks. I do not read this as
limited merely to the
selection of competent servants. In William
V. Birmingham
Battery Co., 1899, 2 Q.B. 339, in a judgment con-
curred in by
Vaughan Williams L.J., A. L. Smith L.J. quotes and
applies the
words of Lord Herschell in Smith v. Charles Baker
& Sons,
1891, A.C. 325 at p. 362. ' It is quite clear that
" the
contract between employer and employed involves on
" the part
of the former the duty of taking reasonable care
" to provide
proper appliances, and to maintain them in a
" proper
condition, and so to carry on his operations as not
" to
subject those employed by him to unnecessary risk." In
Young
v. Hoffmann Manufacturing Co. 1907, 2 K.B. 646,
3 [14]
Kennedy L.J. states that the
employer vis-a-vis his employees
undertakes (inter alia) " to
use reasonable care (a) in the selection
" of
competent fellow servants; (6) in having and keeping his
"
machinery, the use of which might otherwise be dangerous to the
"
servant in his employment, in proper condition and free from
"
defect." I have chosen these few examples to show that
the
doctrine of common employment which was hinted at in
connection
with a butcher's cart and has roamed in its application
to colliers,
seamen, railwaymen, apprentices, chorus girls and
indeed every
sphere of activity, has always distinguished between
the employer's
duty to the employee and the fellow servant's duty
to the
employee. The rule is explained on the ground that the
employee
by his contract of employment agrees with his employer to
assume
the risk of his fellow servant's negligence. The principle
is stated,
with little regard to reality or to modern ideas of
economics or
industrial conditions, to be that this particular
risk is included in
the agreed remuneration. This result is
stated, rather as a
dogma, to flow logically from the relation of
master and servant.
Notwithstanding repeated expressions of
disapproval, the doctrine
has survived, largely because of
statutory remedies given to em-
ployees to minimise what to modern
ideas appears to be its
obvious injustice. But it has never been
carried to the extremity
of excluding all remedy against employers
or all duty in the em-
ployers so long as they have exercised care
in the selection of
managers or foremen. It is difficult to see
what that duty would
mean in the case of an absentee or infant or
inexpert employer, or
what it would mean in the case of a great
modern industrial
concern. But in truth the employer's obligation
as it has been
defined by this House is personal to the employer
and one to be
performed by the employer per se or per
alias. If I may take
an analogy or instance of a similar
personal obligation, I note
that the Carriage of Goods by Sea Act,
1924, requires a shipowner to
exercise due diligence or to take
reasonable care to provide a sea-
worthy ship. The ship-owner is
almost certainly not an expert
naval architect, engineer or
stevedore. So far as I know it has
never been claimed that this
obligation is fulfilled by the ship-
owner taking reasonable care
to appoint a competent expert: the
shipowner is absolutely held to
the fulfilment of the obligation. It is
the obligation which is
personal to him, and not the performance.
The extent of the employer's
obligation has several times been
stated by this House. Thus in
Wilson v. Merry, I Scot. Appeals, 326,
at p. 332, Lord
Cairns said: 'What the master is in my opinion
" bound to do,
in the event of his not personally superintending and
"
directing the work, is to select proper and competent persons to do
"
so, and to furnish them with adequate materials and resources for
"
the work." To this must be added a third head, viz., to provide
a
proper system of working, see per Lord Colonsay in Merry's
case
at p. 434. By this is meant not a warranty but a duty to
exercise
(by himself and his servant and agents) all reasonable
care. In
addition to Merry's case I may refer as
authorities to the same effect
to Brydon v. Stewart, 2 MacQ 30, Bartonshill Coal Co. v. McGuire,
3 MacQ 300, Weems v. Mathieson, 4 MacQ. 215, in which at p. 226
Lord
Wensleydale said, " the employer was responsible in law for
"
defect on his part in not providing good and sufficient apparatus
"
and in not seeing to it being properly used." -These latter
words"
I take to refer to system. It was the effect of these
and similar cases
in this House that was compendiously and
accurately expressed in
Smith v. Charles Baker &
Sons, 1891, A.C. 325, by Lord Halsbury,
Lord Watson and Lord
Herschell. Lord Herschell's language has
already been quoted by
me. Lord Watson at p. 353 says, " It
" does not appear
to me to admit of dispute that, at common law,
" a master who
employs a servant in work of a dangerous
" character is bound
to take all reasonable precautions for the
" workman's
safety. The rule has been so often laid down in
[15] 4
" this House by Lord
Cranworth, and other noble and learned
" Lords, that it is
needless to quote authorities in support of it." In
the
Court of Appeal these observations were put aside. It was said
they
were obiter dicta, which may in one sense be true, but,
though
the issue was concluded by what happened in the County
Court,
this House thought fit to explain the reason on which the
employers
could properly be held liable, viz., the defective
system of working.
It was said that the observations need not be
seriously considered,
because the relevant authorities were not
cited to their Lordships. It
would, however, be strange to imagine
that these three great lawyers
did not trouble to appreciate the
authorities relevant to the prin-
ciples which they were
enunciating. But Lord Watson does actually
refer to and
quote from Bartonshill Coal Co. v.
McGuire,
Bartonshill Coal Co. v. Reid and
Weems v. Mathieson and
explain Sword v.
Cameron, 1 D. 493). I venture with
all
respect to say that in my opinion it was the failure of the
Court
of Appeal to appreciate the effect of these authorities
which
led them to lay down the rules which they did, and to fall
into the
fallacy of not distinguishing between what has been
called the
master's province of duty and what has
been called the
servant's province of duty to his fellow
servants. When it is said
that the workman takes the risk of his
fellow workman's negligence,
it must be added that he does not
take the risk of his master's
negligence. The distinction
between these provinces of duty was
fully discussed in,
among other places, Merry's case. The
workman
succeeded there because it was held that the actual
defect in the
ventilation of the pit was not a defect in the system of
ventilation
for which the employers were liable, but a defect caused
by a
temporary structure erected in the actual conduct of the opera-
tions
owing to error of judgment on the part of the mine's manager,
who
was a fellow workman within the rule of common employment.
It may
often be difficult to draw the line in any particular case
between
these two categories. But the Court of Appeal seem to
base
their conclusion on a number of cases in which the negligence
was
that of those who were fellow servants, however exalted
their
grade. Wigmore v. Jay, 5 Ex. 354, which was
strongly
relied on by Scrutton L.J. at p. 320, was I think such a
case.
The use of the defective scaffold pole may well have been
merely
an act of negligence on the part of the foreman, the master
having
taken due care to provide a proper supply of scaffold
poles. I think
the same observation applies to the other cases
cited by Scrutton
and Greer L.JJ. Thus Cribb v. Kynoch,
Ltd., 1907, 2 K.B. 548, and
Young v. Hoffmann, 1907,
2 K.B. 646, are cases in which the fore-
man being generally
competent was negligent in the instruction of
the young person or
apprentice, a particular duty which was
reasonably held to
appertain to the fellow servants' and not to the
employers'
province. If in any of these cases the principles which I
have
stated as to the extent of the master's duty are not
correctly
applied to the facts, such decisions cannot stand
against the authori-
ties in this House to which I have referred.
But 1 doubt if there is
any such case. In Toronto Power Co.
v. Paskwan, 1915, A.C. 734,
Sir Arthur Channell,
delivering the judgment of the Privy Council,
aptly observed, "
It is, of course, true that a master is not bound to
" give
personal superintendence to the conduct of the works, and
"
that there are many things which in general it is for the safety of
"
the workman that the master should not personally undertake.
"
It is necessary, however, in each case to consider the particular
"
duty omitted, and the providing proper plant, as distinguished
"
from its subsequent care is especially within the province of the
" master rather than of his servants." I think that the
decision was
correct and that its effect was accurately stated in
the headnote.
There is perhaps a risk of
confusion if we speak of the
duty as one which can, or cannot, be
delegated, The true question
is what is the extent of the duty
attaching to the employer. Such a
5 [16]
duty is the employer's personal
duty, whether he performs or can
perform it himself, or whether he
does not perform it or cannot
perform it save by servants or
agents. A failure to perform such
a duty is the employer's
personal negligence. This was held to be
the case where the duty
was statutory and it is equally so when the
duty is one attaching
at common law. A statutory duty differs from
a common law duty in
certain respects, but in this respect it stands
on the same
footing. As Lord Macmillan said in the Lochgelly case,
with
reference to a duty to take care, at p. 18, "It appears
to me quite
" immaterial whether the duty to take care arises
at common law or
" is imposed by statute. It is equally
imperative in either case, and
" in either case it is a duty
imposed by law." To the same effect
Lord Atkin at p. 9 says,
"Where the duty to take care is expressly im-
" posed
upon the employer and not discharged, then in my opinion
"
the employer is guilty of negligence and of ' personal'
negligence."
The same opinion is expressed by the other
members of the House
who took part in that case. The House in
overruling Rudd's case
did I think inferentially overrule
Fanton's case.
It is not perhaps necessary to
add that the employers' duty at
Common Law in these matters is not
affected by the Workmen's
Compensation Act or by the Employers
Liability Act.
I think the whole course of
authority consistently recognises
a duty which rests on the
employer and which is personal to the
employer, to take reasonable
care for the safety of his workmen,
whether the employer be an
individual, a firm or a company and
whether or not the employer
takes any share in the conduct of
the operations. The obligation
is threefold, as I have explained.
The obligation to provide and
maintain proper plant and
appliances is a continuing obligation.
It is not however broken
by a mere misuse or failure to use proper
plant and appliances
due to the negligence of a fellow servant or
a merely temporary
failure to keep in order or adjust plant and
appliances or a casual
departure from the system of working, if
these matters can be
regarded as the casual negligence of the
managers, foremen or
other employees. It may be difficult in some
cases to distinguish
on the facts between the employers' failure
to provide and maintain
and the fellow servants' negligence in the
respects indicated. I have
already referred to Wilson v.
Merry: the same distinction was
discussed in Hedley v.
Pinkney, 1894 AC 222, where it was held
that there was no
fault of the employer but only negligence of the
fellow servant,
the shipmaster. Griffiths v. London and St.
Katherine's
Dock Co., 12 Q.B.D. 493, is, on the facts, as I think,
such a
case, though the judgments are unsatisfactory because
this
distinction was not clearly appreciated. The same failure
to
appreciate this distinction may be seen in some other cases
relied
upon by the Court of Appeal in Fanton's case and
indeed may
account for the conclusions enunciated by the Court of
Appeal.
In the result I am of opinion
that the true rule of law (common
both to English and Scots Law)
on the subject has been stated by
the Lord President and those of
his learned brethren who formed
the majority of the Court. I agree
that the appeal should be dis-
missed.
[17]
Lord
Atkin
Lord
Thanker-
ton
Lord
Macmillan
Lord
Wright
Lord
Maugham
WILSONS AND CLYDE COAL COMPANY,
LIMITED
v.
ENGLISH.
Lord Maugham
MY LORDS,
I agree with the opinions which
your Lordships have expressed,
and will add only a few
observations. I am induced to do so only
because the law in
England on this topic in my opinion is the
same as that in
Scotland, and the case is one of great general
importance.
The law now in force applicable
to this appeal depends on
authority. It was laid down before the
passing of the Employers'
Liability Act, 1850, and the Workmen's
Compensation Act, 1897
(a forerunner of the Act of 1906), by
which the hardship often
suffered by workmen by reason of
injuries suffered by them
in the course of their employment was
to a considerable extent
mitigated. The result of the cases
referred to by my noble and
learned friends may I think be stated
provisionally in the following
propositions.
The first proposition is that,
subject as next mentioned, the
employer is responsible to an
employee for an accident caused
by the negligence of any other
employee acting within the scope
of his authority. The maxim
respondeat superior applies. (Smith v.
Charles
Baker & Sons, 1891, A.C. 325).
The second, which is in the
nature of a proviso or exception to
the first, is that the
general principle does not apply when the
accident occurs through
the negligence of a fellow employee in the
course of the working
of the factory, mine or other business. This
doctrine, called
that of " common employment," rests according
to very
high authority on the implication in the contract of service
of
an undertaking by the employee to bear the risks arising from
the
possible negligence of a fellow employee selected with due care
by
the employer. (Bartonshill Coal Co. v. Reid (3 Macq.
266);
Johnson v. Lindsay and Co. (1891 AC 371, at
page 382).
The third, which is a kind of
limitation or explanation of the
second, is that in the case of
employments involving risk, that
rule applies only when the maxim
volenti non fit injuria can fairly
be invoked. In such
employments it was held that there was a duty
on the employer to
take reasonable care and to use reasonable skill,
first, to
provide and maintain proper machinery, plant, appliances
and
works; secondly, to select properly skilled persons to manage
and
superintend the business, and thirdly, to provide a proper
system
of working. In these cases it was held that it was contrary
to
all probability to assert or to assume that the employee
con-
tracted on the basis that he was aware of risks in respect
of these
matters or that he impliedly agreed to take them upon
himself.
These matters, therefore, were in the province of the
employer
and in the case of negligence in regard to them the
employee could
recover and the doctrine of common employment
could have no
application.
My Lords, so far as these
propositions are concerned I think
the authorities cited by your
Lordships are clear and decisive; and
I will add that I am in
complete agreement with the view which
has been expressed as
regards the true meaning of a passage in the
2 [18]
speech of Cairns L.C. in Wilson
v. Merry and Cunningham (1868)
6 M. (H.L.) 54. The
earlier English authorities are not so clear
as regards the real
point in the present case, which may be stated
thus:—Admitting
that the employer was liable to provide a reason-
ably safe system
of working the colliery, was not this a liability
which he could
delegate to skilled persons with the consequence
that his personal
liability would be discharged? It must I think
be admitted that in
England the early authorities on this point
were not very clear.
In Scotland it was not so. The admirable
opinions of the Lord
Justice-Clerk in Bain v. Fife Coal Co. (1935
S.C. 681) and
of the Lord President in the present case establish
in my view
that there has been a long and uniform practice in
Scotland,
repeatedly approved in this House, to the effect that an
employer
cannot divest himself of responsibility in regard to the
three
matters which are in his peculiar province.
My Lords, this view is decisive
of the present appeal; but
Counsel for the Appellant in his
persuasive argument relied so
strongly on the English case of
Fanton v. Denville (1932 2 K.B.
309) that it would
not be right to abstain from dealing with that
case. My learned
and noble friend Lord Wright has carefully
examined the decision,
and has stated the English authorities
(including the decision of
the Privy Council, Toronto Power Co. v.
Paskwan, 1915, A.C.
734), and I am in complete accord with that
he has said.
My Lords, it has already been
pointed out that the employers
liability is fulfilled by the
exercise of due care and skill; and I may
be allowed to point out
that it is this circumstance which has led
on occasion to a
misapprehension of the true position. An illus-
tration will
demonstrate the mistake. Suppose some new machinery
is necessary
in a factory, and the employer is absent or completely
unskilled
in such things. He necessarily leaves the matter to a
manager, let
us suppose a highly skilled person, who, however, is
negligent in
this case. An accident follows, due to a defect in the
machine. If
the liability of the employer is stated as being an
obligation to
use his best endeavours to supply and instal good
machinery, it
may well be said on his behalf that he left the matter
to a highly
skilled man, and it may be asked with force, what
more could he
do? I should reply, nothing; but I should add
that the premise is
incorrect. The possessive pronoun " his " is that
which
leads to the error. The proposition would be more correctly
stated
to be that his duty is to supply and instal proper machinery so
far
as care and skill can secure this result. He can, and often he
must,
perform this duty by the employment of an agent who acts
on his
behalf; but he then remains liable to the employees unless
the
agent has himself used due care and skill in carrying out
the
employer's duty. This has sometimes been expressed by
saying
that the duty is personal to the employer; but the
adjective if unex-
plained is apt to mislead, like the word "
absolute " and the word
" delegate." The employer
can, of course, and often must, delegate
the performance of any of
his duties to skilled agents; but it would
need an altogether new
implied term in the contract between
employer and employee before
a Court could properly hold that
this delegation has the result of
freeing the employer from his
liability. This becomes apparent if
we imagine the contract between
employer and workman to be written
out in full with all the implied
clauses. There would be for the
reasons given by the Lord Justice-
Clerk in Bain v. Fife Coal
Co. supra and by your Lordships, no
clause to the effect that
the employer was to be freed from his
special obligations to the
workmen if he delegated them to an
agent; and in the absence of
such a clause the employer would
plainly remain liable if the
agent was guilty of not using proper
care and skill, since in the
contract law of Scotland as in England,
it is impossible to
transfer a liability towards the other party to
[19 3
the contract without the consent
of that party. I will express my
opinion, agreeing with that of my
noble and learned friend Lord
Thankerton, that on the facts as
reported the decision in Fanton v.
Denville was
right. For the reasons already given by your Lord-
ships some of
the dicta in that case must be regarded as contrary
to authority
and in principle unsound.
My Lords, there remains for
consideration, only the special
circumstance that the Appellants
not being possessed of the
necessary technical qualifications were
prohibited from taking part
in the technical management of the
mine by section 2 (4) of the
Coal Mines Act, 1911. On this point
(as in others) I am in complete
agreement with the opinion of the
Lord President already cited by
my noble and learned friend Lord
Thankerton and have nothing
to add.
I agree with the opinions
already expressed that the Appeal fails,
and should be dismissed.
(444921—2) Wt. 8166-4
14 8/37 P. St. G 338
