Lochgelly Iron and Coal Company v McMullan

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Atkin,Lord Warrington of Clyffe,Lord Thankerton,Lord Macmillan,Lord Wright
Judgment Date10 July 1933
Judgment citation (vLex)[1933] UKHL J0710-4
Docket NumberNo. 5.
Date10 July 1933

[1933] UKHL J0710-4

House of Lords

Lord Atkin.

Lord Warrington of Clyffe.

Lord Thankerton.

Lord Macmillan.

Lord Wright.

Lochgelly Iron and Coal Co., Ld.
(Appellants)
and
John McMullan
(Respondent).

After hearing Counsel for the Appellants, as well on Tuesday the 16th, as on Thursday the 18th and Friday the 19th, days of May last, upon the Petition and Appeal of Lochgelly Iron and Coal Company, Limited, whose registered office is at Lochgelly, Fife, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the Second Division, of the 22d of December 1932, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of John M'Mullan, lodged in answer to the said Appeal; and Counsel appearing for the Respondent, but not being called upon; and due consideration being had this day of what was offered for the said Appellants:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal, in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor, of the 22d day of December 1932, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay or cause to be paid to the said Respondent, the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within One Calendar Month from the date of the Certificate thereof, the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Lord Ordinary officiating on the Bills during the Vacation, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.

Lord Atkin .

My Lords,

1

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.

2

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 etc. as aforesaid, it is not affected by the section.

3

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 for Safety."

4

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, A.C. 94, Butler v. Fife Coal Co., Ltd., 1912, A.C. 149, Watkins v. Naval Colliery Co. (1897), Ltd., ibid. p. 693, 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.

5

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 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 other way was privy to it. My Lords, I cannot so read the section. The words "personal negligence" apply both to the 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.

6

But, my Lords, 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. Dunkerly, 1911 A.C. 5. Indeed except upon this footing the discussion of the doctrine of common employment would appear to be irrelevant in such cases as Groves v. Lord Wimborne, 1898, 2 Q.B. 402. 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 (1). Subject therefore to appropriate pleading there is no difficulty in establishing the employer's liability in such a case.

7

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 & Co., 1933, 1 K.B. 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 Carta. 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 pressed 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...

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85 cases
3 books & journal articles
  • Building and Construction Law
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2005, December 2005
    • 1 December 2005
    ...an action for breach of statutory duty has been described as an action for negligence (Lochgelly Iron and Coal Company, Limited v M”Mullan[1934] AC 1), it has also been clarified elsewhere that the action is not for ‘negligence in the strict or ordinary sense’, but ‘belongs to the category ......
  • NOTES OF CASES
    • United Kingdom
    • The Modern Law Review Nbr. 5-2, November 1941
    • 1 November 1941
    ...the present validity of the distinction between strict duty and negligence, a very doubtful question as illustrated by the Lochgelly case (1934, A.C.1) and discussed in previous contributions to this REVIEW (I M.L.R., 37 ssq.; 3M.L.R., 309; 4 M.L.R., 139 ssq.; 4 M.L.R., 308). Quite distinct......
  • Paul Mitchell, A History of Tort Law 1900–1950, Cambridge: Cambridge University Press, 2015, xviii + 366 pp, hb £75.00.
    • United Kingdom
    • The Modern Law Review Nbr. 78-4, July 2015
    • 1 July 2015
    ...the short-lived conceptof (non-culpable) ‘statutory negligence’ that was put forward in particular inLochgelly Iron & Coal Co vMcMullan [1934] AC 1 (226)). Tenth, the decisive roleplayed, mostly behind the scenes, by a few key academic figures – especiallyGutteridge and McNair – in the work ......

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