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

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.”

Court: HL
Date: 01-Jan-1938
Judges: Lord Atkin, Lord Thankerton, Lord Macmillan, Lord Wright, and Lord Maugham
Links: Bailii,
References: [1938] AC 57, [1937] UKHL 2,
Cases Cited:
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Filed under Employment, Health and Safety, Negligence, Personal Injury, Vicarious Liability

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