Bartonshill Coal Company v Jane McGuire, Widow: HL 17 Jun 1858

Master’s Liability to the Public for Injury done by a Servant. – Per the Lord Chancellor: A master is liable for any injury or damage done to the public through the negligence or unskilfulness of servants acting in the master’s employ. The reason is, that every act done by the servant in the course of his duty is regarded as done by his master’s orders, and consequently is the same as if it were the master’s own act, according to the maxim, Qui facit per alium facit per se – Subject – Master’s Exemption from Liability to one Servant for Injury done to him by a Fellow-Servant. – When the injury caused by the negligence or unskilfulness of a servant is sustained, not by the public, but by another servant acting in the same employment under the same master, the master is not liable, unless there be proof of general incompetency on the part of the servant causing the injury, or of insufficiency or defectiveness in the machinery furnished by the master;
Per Lord Brougham: The two servants (the injurer and the injured) must be in the same common employment, and engaged in the same common work under that common employment
Lord Chelmsford LC said: ‘It is necessary to ascertain whether the servants are fellow-labourers in the same common work; because, although a servant may be taken to have engaged to encounter all risks which are incident to the service which he undertakes, he cannot be expected to anticipate those which may happen to him on occasions foreign to his employment’


Lord Chelmsford LC, Lord Brougham


(1858) 3 Macq 300, [1858] UKHL 3 – Macqueen – 300





Cited by:

CitedCox v Ministry of Justice SC 2-Mar-2016
The claimant was working in a prison supervising working prisoners. One of them dropped a bag of rice on her causing injury. At the County Curt, the prisoner was found negligence in the prisoner, but not the appellant for vicarious liability. The . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability

Updated: 06 April 2022; Ref: scu.606464