Wilsons and Clyde Coal Co Ltd -v- English; HL 1938

References: [1938] AC 57, [1937] UKHL 2
Links: Bailii
Coram: Lord Atkin, Lord Thankerton, Lord Macmillan, Lord Wright, and Lord Maugham
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 fulfilment 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, 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 performed, no matter how competent the agent selected by the owner to perform it for him, the owner is responsible.’
This case cites:

  • Cited – Bartonshill Coal Co -v- Reid HL ((1858) 3 Macqu 265)
    A workman had been killed through the overturning of the miners’ cage, the engineman having failed to stop the ascending cage at the platform and having allowed it to be sent with great force up against the scaffolding. An allegation was made that . .
  • Cited – Lochgelly Iron & Coal Co -v- McMullan HL (Bailii, [1933] UKHL 4, 1934 SLT 114, [1934] AC 1, 1933 SC (HL) 64)
    Lord Wright coined the term ‘statutory negligence’. He affirmed the need for ‘damage’ as an essential element of actionable negligence, saying: ‘In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission . .

This case is cited by:

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    Defendant employers appealed findings of liability for personal injuries consisting of an employee’s psychiatric illness caused by stress at work.
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  • Cited – A -v- Ministry of Defence and another QBD (Times 16-May-03, Gazette 03-Jul-03)
    The claimant’s father a member of the armed forces had been posted to Germany, and his wife, A’s mother had gone with him. A had been born in Germany, but suffered injury at birth through the negligence of the doctor’s appointed by the defendant . .
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  • Explained – Kondis -v- State Transport Authority (Austlii, [1984] HCA 61, (1984) 154 CLR 672, (1984) 55 ALR 225, (1984) 58 ALJR 531, (1984) Aust Torts Reports 80-311)
    (High Court of Australia) Mason J discussed the concept of the personal duty which Lord Wright expounded in Wilson and said that it made it impossible to draw a convincing distinction between the delegation of performance of the employer’s duty to . .
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    The claimant parents each carried a gene making any child they bore liable to suffer a serious condition. On a pregnancy the mother’s blood was sent for testing to the defendants who sent it on to the second defendants. The condition was missed, . .
  • Cited – British Telecommunications Plc -v- Royal Mail Group Ltd QBD (Bailii, [2010] EWHC 8 (QB))
    The court considered the liability of the claimant for injury claims by former members of the Post Office at the date of the transfer.
    Held: The obligations had been transferred: ‘section 10(2) of the Act, if read according to both its natural . .
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    The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
  • Cited – Woodland -v- Essex County Council CA (Bailii, [2012] EWCA Civ 239, [2013] 3 WLR 853, [2012] ELR 327, [2012] Med LR 419, [2012] PIQR P12, [2012] BLGR 879)
    The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .
  • Cited – Woodland -v- Essex County Council SC (Bailii, [2013] UKSC 66, WLRD, [2013] 3 WLR 1227, [2013] WLR(D) 403, Bailii Summary, UKSC 2012/0093, SC Summary, SC)
    The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .

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