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302 EMPLOYERS' LIABIUTY

the defendant employers were held liable in respect of an injury sustained by a miner because the system of working was not reasonably safe. The system had been devised by the manager of the minę, a fellow seryant ₀f the claimant, to whom the employers were obliged by statute to leave th_e matter, but yet, despite the existence of common employment and despit_e the fact that the employers personally had done everything they possibly could, they were held to be in breach of their duty to the claimant. Their duty was "the employer's personal duty, whether he performs or can perform it himself, or whether he does not perform it or cannot perform it save by servants or agents. A failure to perform such a duty is the employer's personal negligence."³⁹ The employer's liability, therefore, not being a vicarious liability, was not defeated by the doctrine of common employment.

Although the concept of the employer's personal duty was developed to avoid the now defunct doctrine of common employment, its practical effect goes beyond cases formerly covered by that doctrine because it involves the proposition that the employer's duty is not so much a duty to take care but a duty that care be taken and therefore the employer may be liable for damage caused by independent contractors. A person can only be vicariously liable for the torts of his servants committed in the course of employment, but a duty that care will be taken is not fulfilled if there is fault on the part of anyone to whom the employer entrusts its performance.⁴⁰ This view of the law is confirmed by McDermid v. Nash Dredging and Reclarnation Co. Ltd.⁴¹ The defendants were a wholly owned subsidiary of S, a Dutch company, and their function was to employ British Staff engaged in S's dredging work in Sweden. While the claimant, an employee of the defendants, was aboard a tug owned by S he was seriously injured as a result of the negligence of the skipper (an employee of S) in putting the engines astem without waming to the claimant. Tire defendants were liable because they had delegated the performance of their duty to take care for the claimant's safety to S and its employees on the tug and could not escape liability when that duty was not fulfilled.⁴² Given the close connection between the defendants and S the decision is not surprising,⁴³ for if the law were otherwise the claimant's rights would be at risk from the chances of corporate organisation.⁴⁴ One Court of

^w (19381 A.C. 57 at 83-84, per Lord Wright. See also ;vr Lord Thankerton at 64-65, per Lord Macmillan at 75, per Lord Maugham at 87-88 ; ;vr Lord Woolf in Spring r. Guardian Assurance pic (19951 2 A C. 296 at 354.

See para. 20.1, below.

*' (19871 A.C. 906. Weir, Casebook on Tort (9th ed.), p. 296.

⁴² It was not regarded as important whether the case was one o! failing to devise a safe system of work or faiiing to operate a safe system.

⁴¹ The tug was skippered turn and tum about by an employee of S and an employee of the defendants Had the accident occurred on the nexł shift there could have been no disputing the defendants liability.

⁴⁴ No proceedings were brought against S because of the difficulties of effecting service against a Dutch company in respect of a claim arising in Sweden and because of a practice of the legał aid authorit««> not to support claims against a foreign defendant in respect of a foreign tort. Had S bet*n sued, thc> might have been entitled to limit their liability under the merchant shipping legislation. In Johnów Couentry Churchill International Ltd, below, the persons on whose premises the claimant was workń'8 were not liable under German law unless there was a wilful act by them.

Ąppeal decision in which liability was not imposed upon the employer for injury suffered by an employee working in Saudi Arabia distin-goished Nash on the basis that it was confined to cases where there was some sort of "joint venture"⁴⁵ but this seems an unsatisfactory distinction and the principle of Nash has been applied at first instance⁴" and by the Court of Appeal⁴⁷ to cases where the employer was a "labour only" contractor and in one of which⁴* the injury took place abroad. Where no actual fault is attributable to the employer, that may justify awarding him a complete indemnity in contribution proceedings against the person at fault.⁴*' This does not, of course, mean that the employer is liable when-ever his employee is injured at work as a result of the negligence of a third party: the employer is only responsible if it can be fairly said that he has delegated the performance of his duty of care to the third party. Thus, if a lorry driver delivering goods to a factory were negligently to run down a worker, the worker's employer would not be liable—the negligence of the lorry driver (and the vicarious responsibility of his employer) does not negative the exercise of care in the employer's personal duty for it is unrelated to any aspect of that duty, and the employer has delegated nothing to him. Similarly, although the effect of the case has been reversed by the Employer's Liability (Defective Equipment) Act 1969,⁵⁰ the underlying ratio of Darie v. Nni’ Mertoti Board Mills,⁵' denying the liability of the employer for a latent defect in a tool, was that the employer had discharged rather than delegated his duty by buying from a reputable supplier. If, on the other hand, a gas fitter negligently installs a gas appliance at the employer's premises with the result that a worker is injured by an explosion, it is submitted that the employer's personal duty with regard to the safety of the place of work has not been fulfilled and he is liable, whether or not the worker is entitled to rely on the Act of 1969.⁵²

" Cook v. Scjwirr D LU 11992) I.C.R. 262. The accidenl arose from the defective stale of the premises but the condition of the premises is dearly something within the scope of the employer s duty under Wfcitn.- & Clyde Caal v. Englisli. It was accepted that in some cases it might be incumbent on the employer of someone working abroad to inspect the sile and satisfy himself that the occupiers were conscious of safety obligations.

^u Johnson v. Cennitty Churchill International Ud (1992) 3 Ali E R. 13.

Morris v. Brcairtfen l.td (1993) IR.LR. 350. This despite the fact that the court was pre pa red to accepł fhat the claimant was suffiriently under the control of the site occupiers for them to be vicanouslv (iable for damage he did to others.

Johnson v. Coirntry Churchill International Ud. above. cf. Square D. at 271: The suggestion that the homebased employers have any responsibility for the daily events of a site in Saudi Arabia has an air of unreality." This seems to ignore the essence of a non-delegable dutv. _v Neiluims v Smnlclls Maintenance Ltd, The Times, lunę 15. 1995.

See para. 8.11, above.

^ I1959J A.C. 604. para. 8.11, above.

In Knowh's v. hvcqwl C.C. 119931 1 W.L.R. 1428 Danie is givcn a broad interpretation so as to include materiał with which the employee is working. However. this is done for the purpose of justifying an Wjually wide meaning of "ecjuipment" in the I9t>9 Act. It is accepted in Colt ma n v. Bibby Tankers l.td 11988) A.C. 276 that the Act does not extend to the factory premises themselees.