Wilsons and Clyde Coal Company v English

JurisdictionUK Non-devolved
JudgeLord Atkin,Lord Thankerton,Lord Macmillan,Lord Wright,Lord Maugham
Judgment Date19 July 1937
Judgment citation (vLex)[1937] UKHL J0719-3
CourtHouse of Lords
Docket NumberNo. 6.
Date19 July 1937
Wilsons and Clyde Coal Company, Limited

[1937] UKHL J0719-3

Lord Atkin

Lord Thankerton

Lord Macmillan

Lord Wright

Lord Maugham

House of Lords

Lord Atkin

My Lords,


I have had the opportunity of reading and considering the Opinions which are about to be delivered by my noble and learned friends Lord Thankerton, Lord Wright and Lord Maugham. I agree with them, and feel that it is unnecessary to add my own language to that which is used by them. In particular, I wish to state my concurrence in the views which they have expressed as to the valuable judgments pronounced by the Lord President in this case, and by the Lord Justice Clerk on the English case of Fanton v. Denville in Bain v. The Fife Coal Company.

Lord Thankerton

My Lords,


The Respondent, who is an oncost 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 out 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 defect 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 there is 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 respondeat superior. It therefore becomes necessary to examine the nature and limits of the doctrine of common employment.


In Johnson v. Lindsay & 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 undertaking 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 England it can hardly be traced further back than Priestly v. Fowler, ( 3 M. & 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. Boston and Worcester Rail Road Corporation, ( 4 Metcalf, 49.) which was referred to with approval by Lord Cranworth."


In Bartonshill Coal Company v. Reid, supra...

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