United Kingdom House of Lords Decisions

Lord Chancellor (Loreburn)—I think that this appeal must be dismissed. An indemnity is payable if it comes within the following words—“Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof.” Now here there was an “injury for which compensation was payable,” and it was “caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof”—at least that is so in my clear opinion. But it is said on behalf of the appellants — “No, there is no liability of one servant towards another in respect of negligence in a common employment.” No authority is quoted for that strange doctrine except a dictum, in one of two reports of a case, which is supposed to have been uttered by Pollock, C.B. I respectfully dissent from that opinion, if Pollock, C.B., ever expressed it. We are in fact asked to extend, or rather to distort, the doctrine of Priestley v. Fowler, 3 M. & W. 1. I have no desire to extend that doctrine; but I must point out that in that case the Court implied a term in a real contract, whereas in the present case we are asked to imply a contract where it is perfectly obvious that there is no contract at all, namely, in the relation between two fellow—servants. I can hardly imagine a more dangerous or mischievous principle than that which it is sought to set up here. It may be right or wrong to say, as Priestley v. Fowler says, that a man is not to be responsible for the negligence of his agents. That is decided law, and I make no comment upon it. But it is a very different proposition to say that a man is not to be responsible for his own negligence. That would mean a free hand to everybody to neglect his duty towards his fellow-servant, and escape with impunity from all liability for damages for the consequences of his own carelessness or neglect of duty. Everyone must have an interest in maintaining the law in a sense hostile to such a proposition, and I should think that of all classes in the community workmen who work together in many dangerous employments have the greatest interest of all in preventing the doctrine which has been put forward very carefully and reasonably from being accepted.

The Earl of Halsbury and Lord Atkinson concurred.

Lord Shaw — I concur, and I think it only necessary to add one observation in view of the ciration of a Scotch authority — Wright v. Roxburgh, 1864, 2 Macph. 748 — which it was said had decided the point now before your Lordships. It is reported in the following language. I read from the judgment of Lord Benholme — “An explosion of fire damp from a sudden introduction of the fresh air by its own downcast, so as to mix with the foul air accumulated during the stagnation in its own workings, was quite sufficient, as the scientific witnesses say, to occasion the explosion. Now it appears to me that Morris, the man by whom this operation was performed, was aware that Phillips and Wright were in the upper workings, and he says himself that he did not think it worth while to send them out. He was aware that this was a dangerous operation. He was told so by two persons at the time and he must have known that it was so. I think that his own experience in regard to the former explosion and accident which happened in the Ell seam ought to have made him cautious in venturing on such an operation, which all the scientific witnesses say was a dangerous one in a fiery pit such as this was. I think, therefore, that as against Morris there can be no doubt that this case is made out.” Accordingly there was no doubt then, and so far as I know there never has been any doubt on such a point in the law of Scotland until now. And when I look at the facts of the present case I find that the person against whom this action is brought for indemnification is a person who has been so negligent as to lay himself open to conviction under the criminal law as an offender against the statute. Under these circumstances I venture to agree respectfully but strongly with the Lord Chancellor that it would have the worst possible consequences to allow the ordinary liability to be escaped from as it is here sought to be.