Wilsons & Clyde Coal Co v English

An employer’s common law duty to take reasonable care for employees’ safety is personal in responsibility, although its performance may be entrusted to others. Appointing a competent agent does not discharge that duty or relieve the employer of liability for the agent’s negligence.

The duty extends to competent staff, adequate plant and materials, and a proper system of work with effective supervision. It requires reasonable care rather than a warranty of safety. The doctrine of common employment may cover casual negligence in operating an adequate system, but it does not cover failure to provide or maintain the safety conditions within the employer’s own province. A statutory requirement that technical management be entrusted to a qualified person does not transfer the employer’s responsibility.

The respondent was employed underground at the appellants’ colliery. While returning to the pit bottom at the end of his shift, he was crushed by moving haulage equipment before he could reach a manhole. A jury found that the appellants had failed to provide a reasonably safe system for the return journey, that their agent knew of the defect, and that the failure caused the accident. It rejected contributory negligence and assessed damages at £500.

Lord Jamieson applied the verdict in the respondent’s favour. The Court of Session affirmed his interlocutor by five votes to two. The employers appealed, arguing that they had discharged their duty by appointing a competent agent and mine manager. They also relied on section 2(4) of the Coal Mines Act 1911, which restricted their participation in technical management. The central issue was whether responsibility for providing a safe system could be delegated so as to relieve the employer of liability.

1. The appeal was unanimously dismissed with costs. The House upheld the application of the jury’s findings that no reasonably safe system had been provided and that this failure caused the respondent’s injury.

2. Per Lord Thankerton, whose reasoning Lord Atkin expressly accepted and with which the other Law Lords concurred, an employer cannot discharge the duty to take reasonable care in providing a safe system merely by appointing a competent person to perform it. The appointee acts as the employer’s agent in discharging that duty. The agent’s negligence is therefore treated in law as the employer’s own negligence.

3. Per Lord Wright and Lord Maugham, the employer’s safety obligation is threefold: the provision of competent staff, adequate material, and a proper system with effective supervision. The duty requires due care and skill; it is not a warranty that staff, plant or systems will always prove adequate. Delegating performance remains permissible and may be necessary, but responsibility for due performance remains with the employer.

4. Per Lord Macmillan, the doctrine of common employment did not apply. An agent performing the owner’s duty to provide a safe system was acting on the owner’s behalf, rather than collaborating with the ordinary workmen in their common employment. By contrast, casual negligence in operating an otherwise adequate system may remain within the fellow-servant rule.

5. Per Lord Thankerton and Lord Maugham, section 2(4) of the Coal Mines Act 1911 did not relieve the owners of responsibility. Compulsory delegation to a technically qualified manager had no greater exculpatory effect than voluntary delegation.

6. Per Lord Wright, the propositions stated in Fanton v Denville (1932) 2 K.B. 309, insofar as they treated careful selection of a manager as discharging the employer’s duties concerning plant and systems, contradicted binding authority and were unsound. The result in that case could nevertheless be supported because its facts disclosed an operational error in selecting available equipment rather than a failure to provide it. Wilson v Merry and Cunningham (1868) 6 M. (H.L.) 84 was explained as concerning a temporary obstruction arising during mining operations, not a defective system provided by the employer.

1. House of Lords — Unanimously dismissed the employers’ appeal with costs and left standing the interlocutor in the respondent’s favour.
2. Court of Session, Second Division — On 17 July 1936 affirmed the Lord Ordinary’s interlocutor. After three judges of the First Division had been consulted, the decision was approved by five votes to two.
3. Lord Ordinary — Lord Jamieson applied the jury’s special verdict in favour of the respondent. The jury found that an unsafe system had caused the accident, rejected contributory negligence and assessed damages at £500.