The Respondent, who is an on cost 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. Important 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 consultation except on an alternative argument of the present Respondent. By a majority of five to two the decision of the Lord Ordinary was approved, and, in accordance therewith, his interlocutor 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 provided 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?
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 working part of the technical management of the Colliery?
Ques. 5.—Was the accident to the pursuer caused by failure to provide a reasonably safe system of working in the " said Section ?
Ques. 6.—Did the pursuer fail to take reasonable care for his own safety?
Ques. 7.—If so, did he cause or materially contribute to the accident ?
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?
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 management 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 thereis 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 working, 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 someone as his agent in the discharge of the duty, for whom he will remain responsible under the maxim respondent superior. It therefore becomes necessary to examine the nature and limits of the doctrine of common employment.
In Johnson v. Lindsay and Co. (1891) A.C. 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 inferring his liability for what is negligently done by the servant acting 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 Englandit can hardly be traced further back than Priestly v. Fowler, (3 M. and 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 formulated by the Supreme Court of Massachusetts, in a judgment delivered by Chief Justice Shaw, in Farwell v. Bostonand 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 engineman having failed to stop the ascending cage at the platform and having allowed it to be sent with great force up against the scaffolding. Clearly this involved no question of safe system of working. After dealing with the maxim respondeat superior, Lord Cranworth 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 possibility protect him. If such want of care should occur, and evil is the result, he cannot say that he does not know whether themaster 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, recovered 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 engaged 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 protect 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 provision 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 thework. 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 completed, 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, supposing 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 condition 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 negligence 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 engaged. 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 carelessness 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,whereas it was a defect in the construction of a temporary structure, erected by order of Neish for certain working operations, whereby the free action of a good system of ventilation was temporarily 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 admirable and lucid opinion in the present case, on these opinions in Wilsonv. 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) A.C. 325, Connell v. James Nimmo and Co., 1924, S.C. (H.L.) 84, Monaghan v. W. H. Rhodes 6- Son, (1920) 1 K.B. 487, and Macmillan v. Barclay, Curie and Co., 1912 S.C. 263, which are referred to by the learned Lord President, with whose comments thereon I agree. They afford no assistance 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 and 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 and 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 President 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 Company Limited v. Paskwan, (1915) A.C. 734, in which it was held that the duty towards an employee to provide proper plant, as distinguished from its subsequent care, falls upon the employer himself, and cannot be delegated to his servants. Sir Arthur Channell, who delivered 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 providing proper plant, as distinguished from its subsequent care, is especially within the province of the master rather than of his servants. In Cribb v. Kynoch,(1907) 2 K.B. 548and Young v. Hoffman " Manufacturing Co., (1907) 2 K.B. 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 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 defective 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 Cunningham, 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 fundamental 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 responsibility 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 ejection of the Appellants' contentions, except the special contention that their exclusion from interference in the technical management 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 learnedJudges 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 displace 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 circumstances is beyond question, but I may at least express the hope that the decision in this Appeal has narrowed the debatable area, without 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.
In this appeal your Lordships have to consider and accommodate 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 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 workmen 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 LordJustice-Clerk Aitchison in the case of Bain v. Fife Coal Co., 1935, S.C. 681.
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 plaintiff 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 employer] 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.
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 employment, 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 threefold, " 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. However 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 employment 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 concurred in by Vaughan Williams L.J., A. L. Smith L.J. quotes and applies the words of Lord Herschell in Smith v. Charles Baker and 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,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 employees 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 employers 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 Wilsonv. 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 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 and 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 inthis 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 principles 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, 1D. 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 operations 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 foreman 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 authorities 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 aduty 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 imposed 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 Wilsonv. Merry: the same distinction was discussed in Hedley v. Pinkney, 1894 A.C. 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 dismissed.
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 and 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 A.C. 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 contracted 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 thespeech 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 reasonably 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 illustration 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 unexplained 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 tothe 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 Lordships 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.