Wilsons & Clyde Co Ltd v English [1937] UKHL 2

Mr English, a mine worker, was injured on a haulage road when no reasonably safe system existed for men returning at shift end. The House of Lords held that an employer’s duty to provide a safe system of work is personal and non‑delegable, unaffected by common employment or statutory technical management arrangements.

Facts

The respondent, English, was an oncost workman employed underground in the appellants’ Glencraig Colliery in Fife. On 27 March 1933 he was repairing an airway leading off the Mine Jigger Brae, one of the main haulage roads. At the end of the day shift, between 1.30 and 2 p.m., while proceeding along the Mine Jigger Brae towards the pit bottom, the haulage plant was set in motion. Before he could reach a manhole, he was caught by a rake of hutches and crushed between it and the side of the road.

The respondent contended that the appellants had fixed the period between 1.30 and 2 p.m. for raising the day shift men and that a necessary part of a reasonably safe system of working required haulage on the main haulage roads to be stopped during that period, in accordance with usual mining practice in Scotland. The appellants denied this, asserted there was an alternative route, and argued that the respondent should have warned the haulage operator before entering the road. They pleaded contributory negligence and alleged breaches of sections 43(1) and 74 of the Coal Mines Act 1911.

The case was tried before a jury on a general issue of fault. At the appellants’ request, specific questions were put to the jury under Rules of Court II. 49. No exception was taken to the judge’s charge. The jury found, in particular, that a reasonably safe system of working for men returning at the end of the shift in the relevant section had not been provided, that the accident was caused by this failure, that the appellants’ board of directors did not know of the defective system but their agent did, and that provision of the system formed part of the technical management of the colliery. They rejected contributory negligence and any breach by the respondent of the Coal Mines Act, and assessed damages at £500.

On a reclaiming motion, a majority of the Court of Session (five to two) affirmed the trial judge’s application of the special verdict in favour of the respondent. The appellants then appealed to the House of Lords.

Issues

The appeal raised several interrelated issues:

• Whether the appellants’ common law duty to provide and maintain a reasonably safe system of working is discharged by delegating its performance to a competent agent or manager, absent personal knowledge of the defect.
• Whether any negligence in designing or maintaining the system of work is to be treated as the negligence of fellow employees within the doctrine of common employment, so as to exonerate the employer from liability to an injured workman.
• Whether, having regard to section 2(4) of the Coal Mines Act 1911, which precludes the owner or non‑qualified agent from taking part in the “technical management” of the mine, the owners could avoid liability for a defect in a system of working characterised as part of the technical management.
• The proper relationship between the doctrines of vicarious liability and common employment in the context of an employer’s foundational duties towards employees.

Judgment

Non‑delegable nature of the duty to provide a safe system of work

Lord Thankerton identified the appellants’ central contention as being that, having delegated to a competent agent and manager the duty of providing a reasonably safe system of working, they could not be liable for a defect in that system of which they had no knowledge. He rejected this analysis. The employer’s duty is to take due care to provide a reasonably safe system of working; he cannot free himself from that obligation by appointing another person to perform it. That person acts as the employer’s agent and the employer remains liable under the maxim qui facit per alium facit per se.

Lord Thankerton emphasised that the doctrine of common employment applies to risks inherent in the actual operations conducted by fellow workers, not to risks created by the conditions or system of safety under which the work is carried on. The worker does not, by contract, assume the risk that the employer will fail to exercise due care in providing a safe system of work.

Lord Macmillan similarly underlined that the provision of a safe system in a colliery is an obligation of the owner which cannot be divested, although it may and often must be performed through an agent. The negligence here lay in the failure to provide a safe system, not in the working of a proper system.

Vicarious liability versus common employment

Lord Macmillan framed the case as requiring reconciliation of two doctrines: vicarious liability, under which a master is responsible for the negligence of his servant acting within the scope of employment, and common employment, under which a master is not responsible for negligence of one servant causing injury to another in a common employment. He concluded that the agent responsible for discharging the owner’s duty to provide a safe system is not engaged in a common employment with ordinary workmen. That agent is performing the duty of the owner, not collaborating in the ordinary work. Accordingly, the defence of common employment was inapplicable where an employee was injured by the negligent performance of the owner’s own obligation.

Lord Wright undertook a detailed examination of English and Scottish authorities. He approved the well‑established analysis that an employer’s basic obligations to employees are threefold: to provide a competent staff of men, adequate plant and materials, and a proper system of working with effective supervision. These are core obligations of the employer which exist independently of the doctrine of common employment and are not satisfied merely by appointing competent managers or foremen. The employer’s duty is one of reasonable care and skill, not of warranty, but it is the employer’s duty, to be performed either personally or through servants and agents.

Lord Wright criticised Court of Appeal authority, particularly Fanton v Denville and Rudd v Elder Dempster & Co, insofar as they suggested that an employer’s responsibility for plant, premises or system of work is limited to exercising care in the selection of competent superiors, and that once such appointment is made the employer bears no further responsibility. Those propositions were held to be contrary to longstanding House of Lords decisions and to blur the necessary distinction between the “employer’s province of duty” and the “servant’s province of duty”.

“The obligation is threefold, ” the provision of a competent staff of men, adequate material,
“and a proper system and effective supervision”

Lord Wright endorsed this formulation (originally by Lord McLaren, approved in Black v Fife Coal Co. Ltd.) as accurately stating the employer’s core duties.

Effect of statutory exclusion from technical management

The appellants relied on section 2(4) of the Coal Mines Act 1911, which states 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.”

They argued that, since the jury had found that provision of the system of working formed part of the technical management, and the owners were excluded by statute from participating in technical management, they could not be held responsible for failures in that sphere.

This argument was unanimously rejected by the majority of the Court of Session and by the House of Lords. Lord Thankerton agreed with the Lord President’s view that compulsory statutory delegation does not displace the employer’s vicarious responsibility. Whether the employer is qualified or not, and whether delegation is voluntary or required by statute, the employer remains responsible either directly for his own negligence or vicariously for that of the qualified manager, where the negligence concerns provision of a safe system of working.

Summary of the governing principles

Lord Maugham distilled the authorities into a series of propositions: (1) an employer is, as a general rule, liable to an employee for accidents caused by the negligence of any employee acting within the scope of authority (respondeat superior); (2) an exception exists where the negligence is that of a fellow employee in the course of the ordinary working of the business (common employment), the employee being taken to have accepted such risks; but (3) in employments involving risk, the employer owes a duty of reasonable care and skill to provide and maintain proper plant and works, to appoint suitably skilled managers and superintendents, and to provide a proper system of working. As to these matters, it is not credible that the workman agreed to bear the risks; they remain in the employer’s province, and the doctrine of common employment has no application.

Lord Maugham explained that, although employers may and often must delegate performance of these duties to skilled agents, such delegation does not, without clear contractual agreement, free the employer from liability if the delegate fails to exercise due care and skill.

Implications

The House of Lords unanimously dismissed the appeal, affirming the respondent’s right to damages. The decision confirms that an employer’s fundamental duty to provide and maintain a reasonably safe system of work is personal and non‑delegable in the sense that, although it may be performed through servants or agents, the employer remains responsible for negligent non‑performance. It also clarifies that the doctrine of common employment does not shield an employer where the negligence lies in the performance of these core obligations, and that statutory requirements to appoint technically qualified managers do not displace the employer’s vicarious liability.

The judgment harmonises English and Scots law on employer’s liability, endorses the tripartite analysis of the employer’s obligations (competent staff, adequate plant, proper system and supervision), and restricts the reach of Court of Appeal authorities that had appeared to narrow employers’ responsibilities. It is a leading authority on safe systems of work and the non‑delegable nature of key employer duties in tort and employment contexts.

Verdict: Appeal dismissed with costs; the interlocutor in favour of the respondent was affirmed and the employer held liable in damages for failure to provide a reasonably safe system of working.

Source: Wilsons & Clyde Co Ltd v English [1937] UKHL 2