Lochgelly Iron & Coal Co Ltd v M’Mullen

A statutory duty requiring an employer to take precautions for workers’ safety is a duty of care fixed by Parliament. Breach causing injury constitutes negligence where the duty is owed to the injured worker. If the duty rests personally upon the employer and cannot be delegated, its breach is the employer’s “personal negligence” for the purposes of section 29(1) of the Workmen’s Compensation Act 1925.

The employer cannot avoid liability by entrusting performance to competent servants or invoking common employment. The statutory precaution determines the required standard of care; a tribunal does not decide independently whether the precaution ought to have been taken.

A miner employed by Lochgelly Iron & Coal Co Ltd was killed when part of a mine roof fell. His father sought damages, alleging that the company had failed to secure the roof as required by section 49 of the Coal Mines Act 1911.

The Lord Ordinary dismissed the action. The Second Division of the Court of Session unanimously recalled that decision, held the action competent, and remitted it for issues and further procedure. The employer appealed.

The central questions were whether breach of the statutory safety duty amounted to “personal negligence” within section 29(1) of the Workmen’s Compensation Act 1925, whether the pleadings disclosed a relevant case under section 49, and whether the action could proceed to jury trial.

1. Appeal dismissed unanimously. The House affirmed the interlocutor of the Second Division and awarded the respondent his costs in the House.

2. Per Lord Atkin, Lord Warrington of Clyffe, Lord Macmillan and Lord Wright, a statutory provision requiring an employer to take a particular precaution for workers’ safety imposes a duty of care. Where breach causes injury to a worker protected by the provision, the elements of negligence are present. The statutory prescription conclusively fixes the required precaution; its reasonableness is not left for determination by the tribunal of fact.

3. Per Lord Atkin, Lord Warrington, Lord Macmillan and Lord Wright, the duty under section 49 of the Coal Mines Act 1911 rested personally upon the mineowner and could not be delegated. Its breach therefore constituted the employer’s “personal negligence” under section 29(1) of the Workmen’s Compensation Act 1925. A corporate employer may personally perform or neglect a legal duty through the natural persons acting for it.

4. Per Lord Atkin and Lord Wright, the same conclusion also followed where the immediate omission was that of a servant. The employer remained responsible because a statutory duty imposed upon the employer could not be shifted to another person. The doctrine of common employment did not apply. The contrary construction adopted in Rudd v Elder Dempster & Co [1933] 1 KB 566 was rejected.

5. Per Lord Thankerton and Lord Macmillan, section 52 of the Coal Mines Act 1911 was ancillary to, or a special case within, the general duty under section 49. A “working place” bore its ordinary meaning and included a place where a miner was set to work. The pursuer did not need to identify the individual who had failed to secure the roof because the complaint concerned the company’s personal statutory duty.

6. Per Lord Thankerton, Lord Macmillan and Lord Wright, the pleadings stated a relevant case. The Second Division was entitled to determine the mode of inquiry after recalling the Lord Ordinary’s dismissal, and there was no sufficient reason to withhold the case from jury trial.

1. House of Lords: Dismissed the employer’s appeal unanimously, affirmed the interlocutor of the Second Division, and awarded costs.

2. Second Division of the Court of Session: Unanimously recalled the Lord Ordinary’s dismissal, held the action competent and relevant, and remitted it for issues and further procedure.

3. Lord Ordinary: Dismissed the pursuer’s action as excluded by section 29(1) of the Workmen’s Compensation Act 1925.