Common Employment
| DOI | http://doi.org/10.1111/j.1468-2230.1937.tb00019.x |
| Date | 01 December 1937 |
| Author | Joseph Gold,William A. Robson |
| Published date | 01 December 1937 |
224
MODERN LAW REVIEW Dec.,
1937
COMMON
EMPLOYMENT
REFLECTIONS
ON
THE DOCTRINE
IN
THE LIGHT
OF
WILSONS AND CLYDE COAL COMPANY,
LTD.,
v.
ENGLISH
I.
The House of Lords has in recent times shown a remarkable capacity
for taking a liberal view of some of the older and more inequitable
!egal doctrines. In
Walsons and Clyde Coal Company, Ltd.,
v.
English
(1g37), 53
T.L.R. p.
944,
the law lords manifested
a
far
higher
degree of legal statesmanship than the Court of Appeal has displayed in
similar cases.
A
study of the English judiciary in terms of the age of its
members might throw a surprising light on the assumption underlying
President Roosevelt’s recent proposals to reform the United States Supreme
Court.
In
Wilson’s
case a miner employed underground on repair work was
proceeding at the end of the day shift, between
1.30
p.m. and
z
p.m., to
the pit bottom by way
of
a
road known
as
Mine Jigger Brae, when the
haulage plant was put in motion, and before he could reach
a
place of
safety he was caught by
a
rake of hutches and injured. The jury found that
a reasonably safe system of working had not been provided; that the
defender’s board of directors were ignorant of the matter; that their
agent knew of the system and the defects inherent in it
;
that the system
related to the technical management of the colliery and was the cause of the
accident; that the workman did not fail to take reasonable care for his
own safety
;
and they awarded
L500
damages.
On appeal the Company sought to evade liability on the ground that
by
S.
2
(4)
of the Coal Mines Act,
1911
the owner 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 directors of the Company had appointed an agent to represent
them on the mining side of their five collieries. This agent selected a
manager for each mine, the appointments being approved by the directors.
The defenders argued that they could not be held responsible for a
failure in technical management, since they were excluded from taking
part in
it
by statute
;
and, further, that the agent was in common employ-
ment with the workmen and hence the Company was in any case not liable
for
his
negligence.
The House of Lords unanimously affirmed the decision of the
Court
of
Session in awarding damages to the pursuer
;
and in the course of doing
so
reviewed at length the law of common employment.
It
is necessary, said
Lord Thankerton, to distinguished clearly 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 the working
or operation is carried on. As regards the latter, the workman does not by
implication assume any risk due to want of care on the part of managers
or others, and the employer cannot rid himself of liability by transferring
responsibility on to the shoulders of a subordinate. There are certain
duties
so
vital to safety that the master cannot divest himself of liability
by pleading the doctrine of common employment.
If
he entrusts those
duties
to
another, the maxim applies
qua
facit per
alaum
facit per
se.
There
are thus, as Lord Macmillan observed, two competing doctrines, the
doctrine
of
vicarious liability and the doctrine of common employment.
The latter is relevant only where injury results from the actual working or
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