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M'Mullan Vs. Lochgelly Iron and Coal Co. - Court Judgment

LegalCrystal Citation
CourtHouse of Lords
Decided On
Case Number[1933] UKHL 4
Judge
AppellantM'Mullan
RespondentLochgelly Iron and Coal Co.
Excerpt:
lord atkin.—this is an appeal from the second division of the court of session, who, reversing the decision of the lord ordinary, held that the action was competent. the action is brought by the pursuer for damages, alleging that his son, a coal miner, while working in the employ of the defenders, was killed owing to the "fault and negligence" of the defenders in not making secure the roof of the place where the son was working. the objection made to the action is based on section 29 of the workmen's compensation act, 1925, which provides: "when the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible, nothing in this act shall affect any civil liability of the employer … but the.....
Judgment:

LORD ATKIN.—This is an appeal from the Second Division of the Court of Session, who, reversing the decision of the Lord Ordinary, held that the action was competent. The action is brought by the pursuer for damages, alleging that his son, a coal miner, while working in the employ of the defenders, was killed owing to the "fault and negligence" of the defenders in not making secure the roof of the place where the son was working. The objection made to the action is based on section 29 of the Workmen's Compensation Act, 1925, which provides:

"When the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible, nothing in this Act shall affect any civil liability of the employer … but the employer … shall not be liable to any proceedings independently of this Act, except in case of such personal negligence or wilful act as aforesaid."

The question is whether, taking the allegations in the condescendence pro veritate, the proceedings allege injury caused by personal negligence or wilful act as aforesaid. It will be noticed that the provisions of the section are not directed to forms of action. They deal with substance; and whatever the form of action, if it is based upon the fact that injury was caused by personal negligence, andc., as aforesaid, it is not affected by the section.

Now, the pleading expressly alleges fault and negligence of the employer. The fault and negligence complained of is failure to observe the provisions of the Coal Mines Act. For this purpose it is unnecessary to determine whether the breach alleged is of section 49 or of section 52. They both involve an obligation to support the roof; and, if it were necessary to show that they are designed to secure the safety of persons employed in the mine, it is only necessary to refer to the terms of the sections themselves, and to the fact that they are contained in Part II. of the Act which is entitled "Provisions as to Safety."

It is further beyond question that these provisions impose a special duty upon the employer towards those for whose safety they are designed; so that, unless section 29 intervenes, an action will lie against the employer by such a person if injured by a breach of such duty—Britannic Merthyr Coal Co. v. David [1910] AC 74 , Black v. Fife Coal Co 1912 SC (HL) 33 ., Watkins v. Naval Colliery Co. (1897), Limited, to cite only three cases decided by your Lordships' House. And in an action founded on a breach of such a duty the doctrine of common employment has no application, for the duty is imposed upon the employer, and it is irrelevant whether his servants had disregarded his instructions or whether he knew or not of the breach.

Having reached these conclusions, I find the result to be that the employer is alleged to have committed a breach of a duty owed by him to his servant to take a particular precaution (viz., support of the roof) for his servant's safety, whereby the servant was injured. In my opinion that state of facts constitutes negligence of the employer; and I am unable to conceive of any accurate definition of negligence which could exclude it. All that it is necessary to show is a duty to take care to avoid injuring; and, if the particular care to be taken is prescribed by statute, and the duty to the injured person to take the care is likewise imposed by statute, and the breach is proved, all the essentials of negligence are present. I cannot think that the true position is, as appears to be suggested, that in such cases negligence only exists where the tribunal of fact agrees with the Legislature that the precaution is one that ought to be taken. The very object of the legislation is to put that particular precaution beyond controversy.

The next question that arises is whether the breach of duty alleged is personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible. It was contended that the employer could not be liable unless he himself was guilty of the act or omission complained of, or had ordered it or in some way was privy to it. I cannot so read the section. The words "personal negligence" apply both to employer and to the person for whom he is responsible. They appear to denote no more than negligence, the word "personal" having special reference to the employer, in order to make clear that in ordinary cases where the employer would only be vicariously liable for the negligence of his servants, but might be excused by the doctrine of common employment, he is to remain liable if it is he himself who was negligent and not merely his servants. Where the duty to take care is expressly imposed upon the employer and not discharged, then, in my opinion, the employer is guilty of negligence and of "personal" negligence.

But there is another view of the section which I do not find discussed in the judgments below, but which appears to make unnecessary even the imputation of negligence to the employer. If in violation of the statute the roof was not made secure, the failure to perform the statutory duty was negligence either of the employer or of his servants. No one can, I think, doubt that, if the obligation to observe statutory precautions is imposed upon a servant, the servant's breach is negligence. The servant would be liable to his fellow-servant for injuries caused by such breach—See Lees v. Dunkerley Brothers .Indeed, except upon this footing, the discussion of the doctrine of common employment would appear to be irrelevant in such cases as Grovesv. Lord Wimborne . But the latter case expressly decides that, where the duty to observe the statute is imposed upon the employer, the employer is responsible for a breach committed by his servants. It can therefore be affirmed that, in such a case as the present, the injury was caused by the negligence of some person for whom the employer is responsible, which is all that is necessary to defeat the operation of the latter part of section 29, subsection (1). Subject therefore to appropriate pleading, there is no difficulty in establishing the employer's liability in such a case.

I am conscious that the result at which I have arrived is not in accord with the decision of the Court of Appeal in Rudd v. Elder Dempster and Co [1933] 1 KB 566 , a judgment given a few days before the decision of the Court of Session, but at that time not reported. But, after weighing the judgments in both cases, I prefer the reasoning in the present case. I venture to think that the judgments in the Court of Appeal have attached too much importance to forms of action. No doubt an action upon a statute may have nothing to do with negligence; the first case cited in Comyn's Digest is an action for false imprisonment based, it is said, on a breach of Magna Charta. All that has to be shown is a breach of the statutory duty causing injury. But it does not follow that the duty imposed may not be a duty the breach of which does in fact constitute negligence. If so, the injury is caused by that negligence, and the section therefore applies. I am not impressed by the challenge to point out from what "proceedings independently of this Act" the employer is intended to be relieved by the latter words of the section. It may be that the section merely meant to make clear that the Act did not intend to abolish the doctrine of common employment. It may be that there are obscure obligations in Acts, public or private, regulating the rights and duties of employers to their servants. But, whether the words now find any content or not, the meaning of the first part of the section appears clear. I venture to think that the most improbable of all constructions is that Parliament in 1880 deliberately meant to take away the right of a workman to sue for breach of express statutory provisions enacted for his safety, a right which had been enforced in numerous actions years before that date. It is remarkable that the section has been in one or other Workmen's Compensation Act since the first in 1897. Not only has the point never been raised until two years ago, but numerous decisions have been given, including at least three in the House of Lords, which would not have been given if the point were a good one. The section was re-enacted in 1925, when these House of Lords decisions, based on the Coal Mines Acts, held the field. Even if there was a doubt as to their correctness, I should have found great difficulty in the circumstances in coming to a conclusion that they were based on a misapprehension. It is true that the point was not discussed; but in an Act which has been so closely scrutinized by employers, insurance companies, and counsel, and not least by county court judges all over the Kingdom, I think it far more probable that the words of the section have been known to the parties and to the Court, and the present contention thought untenable, than that they have inadvertently escaped attention. It may, of course, be that by some mysterious dispensation the truth has been hid from the tribunals of a past generation and revealed to the present; but I cannot persuade myself that this is the case.

On the question of relevancy, I am satisfied, for the reasons which commend themselves to my noble and learned friends Lord Thankerton and Lord Macmillan, that the decision under appeal cannot be disturbed on this ground. I am of opinion that this appeal should be dismissed with costs.

LORD WARRINGTONOF CLYFFE (read by Lord Macmillan).—This is an appeal from an interlocutor dated 22nd December 1932, whereby the Second Division of the Court of Session (the Lord Justice-Clerk and Lord Hunter, Lord Anderson and Lord Murray) unanimously recalled an interlocutor, dated 10th November 1932, of the Lord Ordinary (Lord Mackay) dismissing the pursuer's action, and remitted the action to the Lord Ordinary to order issues and proceed in the cause.

Two questions arise for decision, (1) competency, or, as we should express it in terms of English law and practice, whether the pursuer's allegations if proved disclose a valid cause of action against the defenders, and (2) relevancy, viz., whether the pursuer's pleadings sufficiently allege the cause of action relied upon. The issue of competency involves the question whether the action is one which is open to the pursuer under section 29, subsection (1), of the Workmen's Compensation Act, 1925.

I will first deal with the question of competency. Speaking generally, but with sufficient accuracy for the present purpose, the pursuer's case is that his son Edward M'Mullan, a miner in the employment of the defenders, was set to work removing coal at a place of danger, inasmuch as the roof adjacent to his place of work was unsupported and fell, bringing down part of the roof near-by, which in its fall killed the pursuer's son, whereby he, the pursuer, suffered damage, and that the accident was the result of a breach by the defenders of the statutory obligations imposed upon them by the Coal Mines Act, 1911, section 49, which breach gave to the pursuer a right of action against the defenders, and that such action was admissible under the Workmen's Compensation Act, 1925, section 29, notwithstanding that the pursuer would, if he had chosen, have had a right to compensation under that Act.

The most important question is the nature of the right of action, if any, resulting from a breach by the employer of a statutory duty imposed upon him by the Legislature. Section 49 of the Coal Mines Act, 1911, is in the following terms:—

"The roof and sides of every travelling road and working place shall be made secure, and a person shall not, unless appointed for the purpose of exploring or repairing, travel on or work in any travelling road or working place which is not so made secure."

This involves, it will be noted, an absolute obligation on the owner to make secure the roof and sides referred to, and a further obligation that no person shall work in a travelling road or working place which is not so made secure.

As to the law on the subject of liability of owners for breach of obligations imposed by statute for the protection of those employed by them, I think the following propositions are supported by authority:—(1) If the obligation is to do or abstain from doing a particular thing, and on the construction of the statute the obligation is created for the protection of a particular class, e.g., workers in a mine or factory, then a member of that class injured by the non-performance of the obligation is entitled to sue the owner in an ordinary action founded on personal negligence. (2) The fact that the obligation has not been performed is in itself evidence of personal negligence on the part of the owner. (3) The owner cannot relieve himself of his obligation by saying that he has appointed reasonably competent persons, and that the breach is due to negligence on their part; nor was it open to him at common law to plead common employment. (4) There appears to be no material difference in this respect between the law of England and that of Scotland.

In the present case I have no doubt that the obligation in question was imposed for the protection of the particular class. Neither have I any doubt that it is imposed as a personal obligation on the owner not capable of delegation. It is true that, in the case of an abstraction such as a company, although the obligation may be imposed upon the legal entity so designated, it can only be performed or neglected by some person or persons acting on its behalf; still the neglect may properly be regarded as the personal neglect of the company itself. I agree with Lord Murray that "negligence consists of nothing more than a breach of the positive duty to take care imposed by law."

If, therefore, section 29, subsection (1), of the Workmen's Compensation Act, 1925, had not been passed, I should have been of opinion that the present action is plainly competent. I now come to the consideration of that section. It is in the following terms:—[His Lordship read the subsection]. The appellants rely on the exception contained in the last few words.

It follows, I think, from what I have said that the failure to render secure the roof adjacent to the place where the pursuer's son was working was "personal negligence of the employer" within the meaning of the Act. After all, personal negligence means nothing more than neglect on the part of the person concerned to perform the duty imposed upon him for the protection of the pursuer's son among others. The person concerned is here the Company; but, as I have said, the Company as a legal entity is capable of performing or neglecting a duty, although the action or the neglect concerned must be that of some physical person acting for it. In my opinion, therefore, the defenders' plea of incompetency fails, and the pursuer's pleadings (subject to the question as to relevancy) disclose a prima facie cause of action on the part of the pursuer.

As to relevancy I need say no more than that, in my opinion, the pursuer's allegations are sufficient to raise a case under section 49, and, if so, this plea on the part of the defenders also fails.

I should add, however, that it was contended by the appellants' counsel that it was not clear on the pleadings whether the pursuer alleged a breach of section 52 of the same Act. As to this, it seems to me that, on the true construction of section 52, it does not create a new obligation, but merely emphasises that created by section 49 "to secure the safety of the persons employed," even if the original supports had been removed under circumstances of necessity mentioned in the section.

As to the authorities cited, these were so thoroughly discussed in the judgments of the learned Lords in the Second Division that I find it superfluous to deal with them, except to say that I can find in them nothing inconsistent with the view I have expressed above as to the law on the subject in question. There are, however, two cases as to which it is necessary to say a few words. These are Rudd v. Elder Dempster and Co . and Higgins v. Harrison . As to Rudd'scase, I have had the advantage of reading the opinion of my noble and learned friend Lord Wright, and I agree with him in his dissent from the judgments of the learned judges in the Court of Appeal so far as they deal with the question of the construction of section 29. I also dissent from the views expressed by Slesser, L.J., in Higgins v. Harrison, which, as they go beyond what was necessary for the decision in that case, are obiter dicta.

On the whole I am of opinion that the appeal should be dismissed, and the interlocutor of the Second Division should be affirmed, with costs in this House.

LORD THANKERTON.—I agree that the action is not rendered incompetent by the provisions of section 29 of the Workmen's Compensation Act, 1925, and for the reasons stated by my noble and learned friend on the woolsack.

The pursuer confines his case of fault to a breach of the statutory duty imposed on the defenders by section 49 of the Coal Mines Act, 1911. The latter maintain that the pursuer's averments do not disclose a relevant case under section 49, as they set out that he was engaged in work which necessitated the removal of roof supports, which they maintain does not fall under section 49 but under section 52. In my opinion the latter section in no way supersedes section 49, but is ancillary to it.

The defenders further contend that the pursuer has not relevantly averred that he was in "a working place"; but, in the absence of any definition of the term in the statute, I see no reason against giving it the ordinary sense of a place where a miner is set to work by his employers, as is averred by the present pursuer. The defenders also commented on the pursuer's failure to condescend on the name of the person who in fact omitted to secure the roof, but the pursuer complains of a breach of personal statutory duty by the defenders, and that is sufficient. While the pursuer's averments are not a model of lucidity, I agree with the learned judges of the Second Division that he has stated a relevant case.

As regards the mode of trial, I see no adequate reason for withholding this case from trial by a jury. I would only add that I agree with the view of the majority of the learned judges of the Second Division that it was their province, on recall of the Lord Ordinary's dismissal of the action, to settle the mode of trial. Accordingly, I agree that the appeal should be dismissed with costs.

LORD MACMILLAN.—The pursuer in this action claims damages from the defenders in respect of the death of his son, who was killed while at work in the defenders' employment in a coal mine at Cowdenbeath. He avers that the death of his son "was due to the fault and negligence of the defenders," and his first plea in law is that, "having suffered loss, injury, and damage through the fault of the defenders as condescended on," he "is entitled to reparation therefor." The particular fault on the part of the defenders which the pursuer alleges is that they failed to perform the duty imposed on them by section 49 of the Coal Mines Act, 1911. Other failures in duty are mentioned, but it was agreed at your Lordships' bar that the pursuer's case rested on the alleged breach of section 49. That section requires in absolute terms that "the roof and sides of every travelling road and working place shall be made secure." The pursuer avers that the roof of the place where his son was set to work was in point of fact not made secure, and that in consequence it fell on his son and killed him. All this seems straightforward enough. The action is a common-form action of damages for negligence, and the negligence alleged is failure on the part of the defenders to perform a duty imposed on them by statute in the interests of the safety of their workmen, of whom the deceased was one.

But the defenders plead that the action is excluded by section 29, subsection (1), of the Workmen's Compensation Act, 1925, and your Lordships have had a full argument on this question, which is clearly one of much importance. The section has already been quoted. The material provision of the section, if I may expand it, enacts that an employer shall not be liable to any proceedings independently of the Workmen's Compensation Act in respect of injury to a workman arising out of and in the course of his employment, except in case of personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible. It was not disputed that the fatal injury which the deceased sustained arose out of and in the course of his employment. That being so, the defenders submitted that they were not liable to the present proceedings, because the pursuer had not alleged personal negligence on their part or on the part of some person for whose default they were responsible.

The question thus comes to be whether the defenders are right in so characterising the pursuer's allegations. Their argument is that all that has been alleged is a breach of a statutory obligation, and that such an allegation is not an allegation of negligence, or, at any rate, not of personal negligence. This argument is, in my opinion, untenable. It is plain, in the first place, that section 49 imposes an obligation on the defenders personally, for breach of which they are liable unless they can bring themselves within the protection of section 102, subsection (8). If the defenders do not comply with section 49, they are rendered by section 75 personally guilty of an offence against the Act, unless they establish the defence which the statute leaves open to them. In the next place, the duty to comply with section 49 is equally plainly imposed on the defenders in the interests of their workmen. The section occurs in Part II. of the Act, the heading of which is "Provisions as to Safety," and the purpose of section 49 is to ensure the safety of the workmen employed in the mine. Here then are the essential elements of a case of negligence. Where two persons stand in such a relation to each other that the law imposes on one of these persons a duty to take precautions for the safety of the other person, then, if the person on whom that duty is imposed fails to take the proper precautions and the other person is in consequence injured, a clear case of negligence arises. That is exactly the case here alleged. Such negligence is, in my opinion, "personal negligence" within the meaning of the Workmen's Compensation Act. 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. I am afraid I fail to understand the argument that an employer who is enjoined by statute to take particular precautions for the safety of his employees is not guilty of negligence, if one of his employees is injured through the employer's failure to take the precautions prescribed, merely because the duty to take those precautions has been imposed by statute, and does not, or may not, arise at common law. Such a doctrine is, in my opinion, no part of the law of Scotland. I accordingly agree with the learned judges of the Second Division of the Court of Session in holding that the defenders' plea founded on section 29, subsection (1), of the Workmen's Compensation Act, 1925, is not maintainable. So far as the English cases cited to your Lordships may countenance a contrary view, it would perhaps be enough to say that, in my opinion, they do not express the law of Scotland, but it is right that I should add that I find myself entirely in agreement with your Lordships' criticism of them.

The defenders further submitted that, even if the action were not incompetent, their second plea, which was directed to the relevancy of the action, should be sustained. The argument was that the pursuer's case was really self-contradictory, inasmuch as his averments showed that he was engaged on a job which necessitated the removal of roof supports, and therefore precluded the application of section 49, which requires the roof to be made secure, and that he had failed to make the necessary averments to set up a case of negligence under section 52, which prescribes the precautions to be taken when roof supports are being removed. It was also submitted that his averments showed that he was not in a "working place" within the meaning of section 49. Further, the defenders argued that there should be specification of the particular person who had on the occasion in question failed to take the proper precautions. The pursuer's averments are not a model of lucidity, but I think that they survive the attack made on them. The expression "working place" has no statutory definition, but I think it ought to be understood as referring to any place where a miner is set to work, and, in my opinion, section 52 is a special case within the generality of section 49 rather than an entirely independent provision. I see no reason to require that the pursuer should specify who it was who in fact omitted to take the prescribed precautions. The pursuer is complaining of the defenders' breach of the duty laid on them personally. I agree, therefore, that the plea to the relevancy was rightly repelled.

As regards further procedure, the learned Lord Justice-Clerk preferred that the case should go back to the Lord Ordinary in order that he might exercise his discretion as to whether the inquiry should be by proof or by jury trial, but his colleagues were of opinion that the case was one for jury trial, and that is the decision embodied in the interlocutor under appeal. In my view the Second Division quite rightly exercised the discretion which the Lord Ordinary, in view of his dismissal of the case, had not had occasion to exercise, and I see no ground for differing from their decision. I concur in the motion that the appeal be dismissed with costs.

LORD WRIGHT.—The first question in this appeal is that raised by the first plea in law of the appellants (defenders), which is that "the action, being excluded by section 29, subsection (1), of the Workmen's Compensation Act, 1925, is incompetent, and should be dismissed." That plea found favour with the Lord Ordinary, but was repelled by the Second Division of the Court of Session, from which decision this appeal is brought.

The respondent (pursuer) is the father of a miner who, while working in the employment of the appellants (a limited company), was killed by a fall of the roof in their colliery, and he brought his action for damages for the loss, injury, and damage sustained through the death of his son. He alleged as ground of complaint that the death was caused by a breach of the appellants' statutory duty under certain sections of the Coal Mines Act, 1911. It is enough for the purposes of this opinion to refer to section 49, on which reliance was particularly, though not exclusively, placed, and which is in these terms:

"The roof and sides of every travelling road and working place shall be made secure, and a person shall not, unless appointed for the purpose of exploring or repairing, travel on or work in any travelling road or working place which is not so made secure."

It is objected by the appellants that such a claim is excluded by section 29, subsection (1), of the Workmen's Compensation Act, 1925, which is in full before your Lordships, but the essential words of which are these:

"When the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible, nothing in this Act shall affect any civil liability of the employer … but the employer … shall not be liable to any proceedings independently of this Act, except in case of such personal negligence or wilful act as aforesaid."

It follows that this section must be fatal to the claim, unless the claim competently alleges "the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible," and hence it must be determined whether the breach of statutory obligation alleged comes within these words. This same section of the Workmen's Compensation Act has appeared in identical terms in the first Act of 1897, and in the amending Act of 1906; and in very many cases, some reported, many others not reported, claims such as the present have succeeded without this defence being raised; in some, to be later referred to, such claims have been upheld by this House. The question, however, is now raised.

It happened that, a few days before the Court of Session gave judgment in the present case, the same point was the subject of the judgment of the Court of Appeal in Rudd v. Elder Dempster and Co . That action, so far as relevant for present purposes, was based on breach of a statutory regulation, and the Court of Appeal held, on the construction of the relevant section of the Workmen's Compensation Act, that the claim was excluded. Your Lordships are therefore faced by two conflicting decisions on the matter in question, and have to discharge the difficult and delicate duty of deciding between them. The crucial question is, What is the meaning of the words as used in the section "the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible"? It might seem at first that the word "personal" is otiose, since to bring home liability for negligence the negligence must be "personal." The word may, however, have been used to exclude mere vicarious negligence, and to preserve the peculiar, but well-established, rule described as the doctrine of common employment. Thus an employer may be "personally" negligent in respect of the acts and omissions of himsel; but he may also, I think, be described as personally negligent in respect of breach of a duty imposed on him by law, and of such a character that he is debarred from avoiding responsibility by delegating its performance, or by invoking the doctrine of common employment. Hence, in my opinion, it is impossible to construe these words without a careful understanding of the nature and effect of a breach of a statutory obligation, such as that embodied in section 49 of the Coal Mines Act, 1911.

This obligation belongs to the familiar type of statutory requirements or prohibitions, imposed on employers subject to a penalty for the breach, and imposed for the protection of the workmen because they involve precautions for their safety. There is no provision in this as in similar cases for a civil remedy in favour of the injured workman or his dependants, the only sanction expressed being that of fine or other penalty. But it has long been held that, although such a statute creates a public wrong, the common law gives a cause of action for damages for the private injury flowing from the breach of the statute. Whether this is so or not in the case of any particular statute must (to quote the words of Lord Cairns, C., in Atkinson v. Newcastle Waterworks Co .) "depend on the purview of the Legislature in the particular statute, and the language which they have there employed." But it is not here in controversy that, in such a case as this, the common law gives a private cause of action in proper cases for breach of the statute. That this is so has been recognised in a number of authorities, some in this House, to some of which reference will be made hereafter. The provisions of section 49 of the Coal Mines Act clearly belong to the class which impose a duty on the employer to take certain precautions for the protection of his workmen. That section is absolute in its terms, save as modified by the later section 102, subsection (8), which is as follows:

"The owner of a mine shall not be liable to an action for damages as for breach of statutory duty in respect of any contravention of, or non-compliance with, any of the provisions of this Act, if it is shown that it was not reasonably practicable to avoid or prevent the breach."

This provision is not directly material in a proceeding such as this where the issue is as to the competency of the pursuer's allegations, since it deals with matter of defence, the onus of establishing which is on the employer; but, apart from that defence, and, it may be, apart from defences, in some cases based on a plea of contributory negligence or a plea of taking the risk, the cause of action is complete on proof of breach of the statutory duty, and, in any case, it is a duty which attaches to the employer personally, whether corporation or individual, since the employer cannot delegate the duty, and cannot escape liability by relying on the doctrine of common employment. In such a case as the present, the liability is something which goes beyond, and is on a different plane from, the liability for breach of a duty under the ordinary law apart from the statute, because, not only is the duty one which cannot be delegated, but, whereas at the ordinary law the standard of duty must be fixed by the verdict of a jury, the statutory duty is conclusively fixed by the statute. But the duty is the same in kind in this respect, that it is a duty to take precautions and care for the safety of the workman. It is a duty to take care which is owed to the workman, and which, if broken, constitutes negligent conduct, for which, if damage ensues to the workman affected, damages are recoverable. Hence the breach of such a duty as that in question has been, I think, correctly described as statutory negligence. In my judgment, therefore, such a claim as that in question can fairly and properly be described as based upon a case of negligence, and of personal negligence, since it attaches to the employer personally. That I take to be the view of the Court of Session, and I agree with them in the conclusion that the claim is a claim based on personal negligence of the employer within the meaning of section 29, subsection (1), of the Act.

On the other hand, the Court of Appeal found on what they regard as the natural meaning of the words of section 29, subsection (1)—although I find it hard to see how, in the case of so technical and complex a subject as the law of negligence, the view of the natural man can have any significance. They then distinguish the statutory liability as something different in essence from negligence, and they limit the meaning of the word "personal" to something which is actually done or omitted by the employer himself, applying the doctrine of common employment to exclude any responsibility for the acts of his servants or agents. No doubt such expressions as personal negligence or misconduct are in certain collocations used in that latter sense, but the meaning of the words in the section must, I think, be ascertained by having regard to the context in the sense I have stated. In the same way, in certain cases negligence, or common law negligence, has been contrasted as being different from statutory liability, although in each case the claim is a claim at common law. But again, I think, that contrast has been drawn secundum subjectum materiem, and in order to point such differences as the rule that the doctrine of common employment does not apply, and the fact that in other than in statutory negligence it is necessary to establish, to the satisfaction of the jury, the standard of care which has not been fulfilled, whereas in statutory negligence the standard is given by the statute itself. The Court of Appeal would limit what is saved by section 29, subsection (1), to actions under the Employers' Liability Act, 1880, which, in specially restricted cases, abolished the defence of common employment. But, as will appear when I summarise the course of the authorities, a right of action by a workman or his dependants for breach by his employer of a statutory duty was a well-known and most important right. To deprive the workman of such a right would, I think, only be competently effected by clear words. On any view, in my judgment, the words of section 29, subsection (1), are not sufficiently clear and unambiguous to effect so radical a change. A fairer interpretation is that they leave unaffected the workman's existing civil remedies, except in so far as he avails himself of the alternative rights given. A statute must not be construed as changing the common law unless a clear intention to do this is shown, and then only to the extent to which the intention to change is clearly shown.

It may be objected that the meaning I have given to the words "personal negligence or wilful act of the employer" is inconsistent with the following words, "or of some person for whose act or default the employer is responsible." I do not accept this view. No doubt the words, "some person for whose act or default the employer is responsible," were inserted to deal specifically with cases coming within the Employers' Liability Act, 1880, which was passed to limit, according to its provisions, the application of the doctrine of common employment, although they are also apt to cover the cases, not uncommon in practice, in which the breach of duty complained of is due to the fault of some employee for which the employer is liable, since the employer, in the event of a breach of statutory duty, cannot defend himself by recourse to the doctrine of common employment. But, in my opinion, the breach of the statutory duty does per se constitute the "personal negligence of the employer," quite independently of the following words, on which, in such a case, the workman has accordingly no need to rely. In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission; it properly connotes the complex concept of duty, breach, and damage thereby suffered by the person to whom the duty was owing; on all this the liability depends, and, if this liability is attached by law formally to the employer, as happens in the case of a breach of the statutory duty, the whole position is, I apprehend, correctly described as "personal negligence of the employer."

I think the position becomes clearer by an examination of the most important of the relevant authorities. Liability for damages for a breach of a statutory duty to take precautions and care for the protection of the individuals concerned was well recognised before the Workmen's Compensation Act, 1897. It is not inconvenient to begin by referring to the authoritative work of Bullen and Leake on Precedents of Pleading; I refer to the third edition published in 1868, the latest analysis before the Judicature Acts of forms of action. At page 375 I find under the general head of negligence a count "for negligence in not fencing machinery" under the Factory Act, 7 and 8 Vict. cap. 15, section 21, citing among other cases Caswell v. Worth, where an action for failure to fence as under the Factory Act failed on the ground that the plaintiff's injury was caused by want of ordinary care of the plaintiff himself. Coleridge, J., said:

"The statute makes the omission of a certain act illegal, and subjects the parties omitting it to penalties. But there can be no doubt that a party receiving bodily injury through such omission has the right of suing at common law."

I shall pass over other cases till I come to Britton v. Great Western Cotton Co ., where again failure to fence was held to constitute a default on the part of the employer. In Blamires v. Lancashire and Yorkshire Railway Co ., the action was by a passenger by railway for damages for injury alleged to be due to the absence of a communication cord required to be provided under penalties in such a train as that in question by the statute 31 and 32 Vict. cap 119, section 22; the plaintiff succeeded on the ground that the Legislature had directed a precaution to be taken for the protection of passengers; the defendants' failure to take that precaution was treated as evidence of negligence, although, apart from that failure, there was no sufficient evidence of negligence. In 1898, after the Workmen's Compensation Act, 1897, was enacted, but just before it came into force, in the case of Groves v. Lord Wimborne, the Court of Appeal decided that the action, which was for breach of a statutory duty to fence machinery under the Factory and Workshop Act, 1878, lay, and that the defence of common employment did not avail. A. L. Smith, L.J., said:

"In my judgment the defence of common employment only applies where the action is by a servant against the master and is founded upon the negligence or misconduct of his fellow servant. In such a case the doctrine of common employment attaches. In the present case, which is an action founded upon the statute, there is no resort to negligence on the part of a fellow servant or of anyone else. There being an unqualified statutory obligation imposed upon the defendant, what answer can it be to an action for breach of that duty to say that his servant was guilty of negligence and therefore he was not liable? The defendant cannot shift his responsibility for the performance of the statutory duty on to the shoulders of another person."

The above and similar passages in the other judgments in that case have been relied on as showing that breach of statutory duty cannot be described as negligence; but I think it is clear that the Lords Justices were having regard to the fact that Lord Wimborne took no part in the management of the factory, and hence could in one sense not be guilty of negligence, and they treat the negligence of an employee or stranger as not material to be alleged. The language must, I think, be construed with that fact in mind, and not as saying that the breach of the statute cannot properly, from another point of view, be described as negligence attaching by law to the defendant personally. What is being emphasised is that there is no need to prove negligence as an issue for the jury, because the statute itself is conclusive evidence of negligence, unless it contains in itself some qualification. But the Lords Justices are also pointing out that the duty cannot be delegated or the responsibility shifted to someone else. This is the view which I think emerges from the later cases. Vaughan Williams, L.J., adds some reservations as to contributory negligence or taking the risk. What he there says may need to be considered in some other case, but the mere contemplation of contributory negligence as a defence to the workman's claim seems to involve that the claim itself sounds in negligence. A few years earlier, and before the Workmen's Compensation Act, 1897, in the Scots case of Kelly v. Glebe Sugar Refining Co ., Lord Adam had said "the neglect of the statutory provisions creates a prima facie case of fault against the factory owners which will render them liable in damages to their employees." In 1895, in Ontario, in Thompson v. Wright, Boyd, C., described a failure to guard dangerous machinery as "per se evidence of negligence." I prefer the latter description (per se evidence of negligence) to the former (prima facie case of fault), but in either case the judges were in effect describing the breach of the statute as negligence.

The subsequent cases appear to me to confirm this way of envisaging the question. I shall briefly refer to some. In 1905, in Bett v. Dalmeny Oil Co ., a claim was brought and succeeded for breach of a statutory duty of support very similar to that in question in this appeal. It was contended that, apart from the Workmen's Compensation Act, the pursuers could not recover at common law, but that the sole remedy lay under the Employers' Liability Act, the accident having been caused through the fault of the manager or oversman as fellow employees. Lord M'Laren, delivering the judgment of the First' Division, consisting of himself, Lord Adam, and Lord Kinnear, used these words (at p. 790):

"It follows then that the verdict ought not to be disturbed unless the defenders are in a position to say that this is a case falling within the rule as to common employment. Now, the principle of that rule is that it is an implied term of the contract of service that the workman takes the risk of such misfortunes as may result from the negligence of persons who are engaged in the organisation of labour of which he is a member, and that the master is only responsible for the performance of such duties as he can reasonably be supposed to undertake in person—such as the provision of a competent staff of men, adequate material, a proper system, and effective supervision. But in the case under consideration, the duty of supporting the roof is a statutory duty, and stands on a different plane from those duties which a master undertakes as implied conditions of the contract of service. The duty is not merely to provide a competent underground manager, and to supply him with material for supporting the roof of the mine where necessary. The statutory duty of the mineowner is to give necessary support to the roof, and, in my opinion, it is not an answer to a case of neglect of that duty to say that the employer had delegated the performance of the duty to a competent manager."

This passage was quoted with approval by Lord Shaw in Black v. Fife Coal Co .; Lord Kinnear also gave judgment in the latter case in this House, and there is nothing to show that he had changed his mind, but rather the contrary. I think that Lord M'Laren has well expressed the true principle, and in a form which agrees with the language of the section of the Workmen's Compensation Act which was re-enacted in 1906. A neglect of duty which cannot in law be delegated, seems to me to be distinguishable from "personal negligence" only by quibbling with language.

The next case I shall refer to is David v. Britannic Merthyr Coal Co ., affirmed in this House in Britannic Merthyr Coal Co. v. David . In the Court of Appeal Fletcher Moulton, L.J., thus summed up the position:

"By embodying in the provisions of an Act, such as the one now under consideration, those precautions which it is advised should be observed in the management of these dangerous undertakings the Legislature erects a standard of carefulness and requires all who carry them on to come up to that standard. It is no longer left to the chance opinion of a jury to decide whether these precautions may properly be omitted. The Legislature decides the question for them, and accordingly non-compliance with the provisions of the statute carries with it the same civil consequences that a verdict of negligence would do. There is, however, one respect in which my interpretation of the Act increases the burden of the employer. It makes him liable for the consequence of this statutory negligence (if I may use such a phrase) even towards his own servants, whereas the doctrine of common employment would save him from this liability in a case of common law negligence."

The claim was for damages for breach of the Coal Mines Regulations. This House, in affirming the order of the Court of Appeal for a new trial, held that the burden of proving that the authorities of the mine had done their duty in taking proper care of the safety of the miners rested on them and not on the plaintiff. Their Lordships made some general reservations as to what was said in the Court of Appeal, but I do not find that the passage I have quoted from Fletcher Moulton, L.J., is out of accord with the other authorities; and it seems to me, as it did to Lord Shaw in Black v. Fife Coal Co ., to be in line with them in defining a liability for what may well be called "personal negligence" of the employer.

In 1911 the Act, in respect of which these proceedings are brought, was passed. It is a consolidating and amending Act. In view of the reported cases I have cited, the Legislature in referring, as it did in section 102, subsection (8), quoted above, to "an action for damages or for breach of a statutory duty," must, I think, have had in mind actions by a workman or his dependants, and cannot have contemplated that they were excluded by the Workmen's Compensation Act. The nature of such an action was again considered in Black v. Fife Coal Co . It was again held that the doctrine of common employment did not apply to a claim for breach of a statutory duty. Lord Kinnear said: That doctrine "goes no further than to relieve the master of liability to his servant unless there be negligence on his part in that which he personally undertakes, or is required by statute to do, for the benefit of the servant." Thus he answers the question whether the statute "imposes upon the mineowner personally" the duty on which the suit is based. Lord Shaw expressed his opinion:

"that the defence of common employment is out of the question where a statutory duty imperatively laid has been neglected."

The workman's claim was upheld, as also was the case in the later decision of Watkins v. Naval Colliery Co. (1897), Limited, where, on the terms of the regulation, it was held that an absolute obligation rested on the mineowners to provide adequate raising and lowering apparatus. The widow of a workman killed by the breach of this obligation accordingly recovered; the obligation was held to be absolute, so that no question of common employment or negligence was relevant. It is true that the breach was described as one to which it was no answer that the Colliery Company were not personally negligent. But these words so used alio intuitu do not, in my opinion, afford guidance on the construction of section 1 (2) (b) of the Workmen's Compensation Act, 1897, which, after all these cases and others not reported, was again re-enacted in the same words as section 29, subsection (1), of the Act of 1925.

I have so far discussed the question on the basis of the substantial meaning of the words as applied to the relevant circumstances, and have on that basis stated my conclusion that, in cases of a statutory regulation requiring care and precaution, positive or negative, to be taken for the safety of the workman, the breach of that statutory duty is within the meaning of "negligence" as used in the section, and is also "personal," because it cannot be delegated. That this is the true effect of these words "personal negligence" follows, I think, from the reasoning of all the authorities I have mentioned, even though at times such words as "personal negligence" or "personal misconduct" are used in contradistinction to negligence of servants, and although "negligence" is at times used as being different from absolute statutory obligation or duty. But the substance must be looked at, and it cannot be ignored that, although this point might have been raised in all the cases I have cited, and also in others, it was raised for the first time a year or two ago, first as a matter of certain dicta in the Court of Appeal in Higgins v. Harrison, and then as a decision in Rudd's case. I should not contest that in general the fact that under a statute decisions have been given on the true effect of the statute, without a point being taken by counsel or judges, does not necessarily constitute the matter a chose jugée, so that in the later cases the point cannot be taken. The circumstances of the case may have to be considered. But in the present case the Legislature has twice re-enacted the words after the decisions I have cited and others given in the appellate Courts, including this House. It is not merely that this course has gone on for about thirty-five years, but, having regard to the nature of the question, it is impossible to think that the very eminent judges were blind to the possibility of such a point under the relevant section of the Workmen's Compensation Acts. It seems a truer inference that the point was disregarded because not regarded as good. Indeed, the reasoning of the judges which I have quoted, e.g., that of Lord M'Laren in Bett's case, seems inferentially to answer in advance the appellants' arguments. If I had arrived at a different conclusion as to the meaning of the words in question, I do not see how I could, in the special circumstances, have set up my own opinion against what I cannot but regard as a tacit adjudication by the highest authorities. I have also pointed to what I regard as the significant language of section 102, subsection (8), of the Coal Mines Act, 1911, and the re-enactment in two Acts of the identical words when the course of decisions was well established and notorious. Both the decisions of Courts and the action of the Legislature seem consistent only with the meaning which I have attached as being, in my judgment, the true meaning of the words of the section.

I cannot derive any assistance from section 32 of the Workmen's Compensation Act, 1925 (reproducing a similar section in the earlier Acts). It seems to me to be too remote from section 29, subsection (1), which deals with civil liability, whereas section 32 deals with fines or criminal proceedings and the application of these fines. It may be that in a Workmen's Compensation Act it was thought worthy of special record that the discretion of the authorities as to the application of fines ins some cases for the benefit of the injured man (although it does not affect any civil action) was preserved. But I need not pursue this further.

On the question of competency, I am in agreement with the judgments of the Second Division of the Court of Session, and I think that the appeal from these judgments on this point should be dismissed. It follows that I dissent from the judgments of the Court of Appeal in Rudd's case, so far as they deal with this question of construction.

On the further question raised in this appeal, viz., that as to relevancy, Lord Wright. and also as to the mode of trial, I am in complete agreement with the opinions of my noble and learned friends Lord Thankerton and Lord Macmillan. The appeal ought, accordingly, in my judgment, to fail on all points.


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