NOTES OF CASES
| Published date | 01 January 1954 |
| DOI | http://doi.org/10.1111/j.1468-2230.1954.tb02147.x |
| Date | 01 January 1954 |
NOTES
OF
CASES
THE Two NEGLIGENT SERVANTS
THE doctrine of common employment was
a
bad doctrine and was
rightly abolished. The doctrine of contributory .negligence, as an
absolute defence to an action, was also a bad doctrine and was
rightly abolished. But the combined effect of the two abolitions
is to raise a serious problem of justice which first fell to be con-
sidered in
Stapley
v.
G$psum
Mines, Ltd.
[1958]
8
W.L.R.
279.
In
its most abstract form the problem is this. Suppose that
two
servants in the course of their employment enter upon a dangerous
and negligent undertaking, without the authority of and against
the orders of the master, and one of them is injured. Had the
injured servant stood alone
in
wrongdoing, he would have had no
remedy against the master, for the master was not negligent
towards him. Can the injured servant, since the
two
Law Reform
Acts above referred to, claim to recover part of his damages from
his fellow-servant, and in consequence from his master under the
doctrine of vicarious responsibility
?
Before stating the way in which this question arose,
it
may
make matters clearer to mention a preliminary point. Generally
a
workman is under
no
duty to take positive action for the safety
of his fellow-workmen. But there may be exceptions to this, and
in
particular by the Metalliferous Mines Regulations, reg.
15
(I),
a workman must comply with safety directions given by his fore-
man, and
it
is implicit in the judgments in
Stapley’s
case that
a
breach of this duty by a workman would make him liable in
damages to an innocent fellow-workman who is injured by the
breach
;
in consequence his emyloyer would be vicariously liable
to such fellow-workman.
It
seems also from the speech of Lord
Tucker that the responsibility of the master can be reached by
another route. Even
if
the wrongdoing servant is not himself under
a duty of care to fellow-servants, his carelessness for their safety
will be imputed to the master and will constitute a breach by the
master of the master’s duty of care. The question for decision
was how far this liability of the master was affected where the
injured workman was not innocent but participated in the
negligence.
Two
miners of equal status, the deceased Stapley and one Dale,
were employed in the defendants’ gypsum mine, neither being in
charge of the other. At their working place they found that the
roof was dangerous and told the foreman, who instructed them to
fetch
it
down. After he had left them they tried unsuccessfully to
66
JAN.
lYD4
NOTES
OF
CASES
67
get the roof down and then jointly abandoned the effort and pro-
ceeded with their normal work. The roof fell and Stapley was
killed. Stapley’s widow sued his employers under the Fatal
Accidents Act, basing her claim on common law negligence and on
breach of statutory duty. Sellers
J.
found that there was no
negligence on the part of the foreman, who was justified in leaving
the men to carry out
his
orders
;
but the two men were each guilty
of negligence causing the accident, and he accordingly awarded the
widow damages against the employers reduced by
50
per cent.
The Court of Appeal unanimously reversed this judgment, holding
the defendants not liable
([1952]
2
Q.B.
575).
Singleton
L.J.
expressed the opinion that
if
Stapley had been injured and not
killed, and
if
he had sued Dale for damages at common law, Dale
would have had the defence that Stapley’s agreement with him
absolved him from any duty of care towards Stapley in regard to
the roof. This appears to have been intended as a reference to the
maxim
volenti non
fit
injuria.
If
Dale was under no duty of care,
his employers were under none either. Turning to the claim based
on breach of statutory duty, Singleton
L.J.
apparently favoured
the view that
it
failed by reason of the doctrine of
Smith
v.
Bavey-
stock
([1945]
1
All
E.R.
581)
that where the performance of a
statutory duty is properly delegated by the employer to the work-
man himself, and the workman fails to perform
it
and is injured,
the workman cannot take advantage of
his
own wrong. However,
he went on
to
say that even
if
the employers were in technical breach
of duty, their share of responsibility was not more than nominal.
Apparently he did not propose to give effect
to
this view by an
actual award of nominal damages, for he expressed the opinion
that judgment should be entered for the defendants.
Birkett
L.J.
rested his judgment first on the doctrine of
Smith
V.
Baveystock.
He pointed out that under the ruling of Sellers
J.
if
both men had been killed both their widows could have recovered
half damages; yet under
Smith
v.
Baveystock,
if
only one man is
involved his widow can recover nothing. In the view of the learned
Lord Justice, the fact that a duty is delegated to two men jointly
cannot give each a right to half damages, when such a duty delegated
to a single man would give him no right to damages. Birkett L.J.
then proceeded to give a second ground for his decision, namely that
the effective cause of Stapley’s death was his own negligence in
resuming work under the unsound roof when he had been ordered
not to do
so.
Morris L.J. considered the case under two heads:
(1)
the respon-
sibility of the defendants for breach of their own statutory duty, and
(2)
their vicarious responsibility for breach of the statutory duty
imposed on Dale. He held the defendants not liable under
(I),
apparently because of the doctrine of
Smith
v.
Baveystock,
though
he did not refer to that decision by name. Under
(2),
the defendants
were liable only
if
Dale was liable; but Dale was not liable because
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