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Estimated cost to the employer of “Management failure” was over £400,000.
Wilsons and Clyde Coal Co v English [1938] – extent of common law duty of care to
employee and non-delegable nature of duty owed
Wilsons and Clyde Coal Co Ltd -v- English;
The employer had entrusted the task of organising a safe system of work to an
employee as a result of whose negligence another employee was injured. The employer
could not have been held liable for its own negligence, since it had taken all reasonable
care in entrusting the job to a competent employee, nor could it have been held liable
vicariously since common employment would have been a defence.
Held: The desire to escape the consequences of the doctrine of common employment
might justify the courts imposing a non-delegable duty of care. The employer was liable
for breach of a personal duty to see that care was taken by the person whom it
appointed to organise the system of work. The employer’s failure to provide a safe
system of work was held to constitute a failure by it to discharge the personal non-
delegable duty to provide a safe system. Fundamental obligations of a contract of
employment, such as the duty to take reasonable care for the safety of an employee,
constitute rights under a contract of employment and not merely rights in connection
with it.
Lord Wright said that the obligation owed by an employer to his employee was not
discharged by entrusting its fulfillment to employees, even though selected with due
care and skill. The (non-delegable) obligation was threefold: “the provision of a
competent staff of men, adequate material and a proper system and effective
supervision”, and: “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
paint and material, and 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 character of the duty was personal to the defendant and therefore non-delegable.
Lord Macmillan said: “[The defendant] 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
