English v Wilsons & Clyde Coal Co Ltd [1937] UKHL 2 (19 July 1937)

Parliamentary Archives,
HL/PO/JU/4/3/940

Lord
Atkin

Lord

Thanker-

ton

Lord
Macmillan

Lord
Wright

Lord
Maugham

WILSONS AND CLYDE COAL COMPANY, LIMITED

v.
ENGLISH

Lord Atkin

MY LORDS,

I have had the opportunity of reading and considering the
Opinions which are about to be delivered by my noble and learned
friends Lord Thankerton, Lord Wright and Lord Maugham. I
agree with them, and feel that it is unnecessary to add my own
language to that which is used by them. In particular, I wish
to state my concurrence in the views which they have expressed
as to the valuable judgments pronounced by the Lord President
in this case, and by the Lord Justice Clerk on the English case
of Fanton v. Denville in Bain v. The Fife Coal Company.

[2]

Lord Atkin

Lord

Thanker-

ton

Lord

Macmillan

Lord
Wright

Lord

Maugham

WILSONS AND CLYDE COAL COMPANY, LIMITED

v.
ENGLISH.

Lord Thankerton

MY LORDS,

The Respondent, who is an oncost workman in one of the
Appellants’ coal mines, claims damages at common law from the
Appellants in respect of personal injuries sustained by him on the
27th March, 1933, while employed at the Appellants’ Glencraig
Colliery in Fife. The case was tried before a jury, on a general
issue of fault, and, on the motion of the Appellants, the trial Judge,
under Rules of Court II. 49, put specific questions to the jury,
to which they returned answers. The Judge directed the jury on
these questions, and no exception was taken to his charge. Im-
portant questions of law were raised before the learned Judge as
to the application of the special verdict, and a reclaiming motion
was taken by the present Appellants against the interlocutor of
Lord Jamieson, the trial Judge, who applied the verdict in favour
of the Respondent. This motion was heard by the Second Division
with three Judges of the First Division, who were called into con-
sultation except on an alternative argument of the present Re-
spondent. By a majority of five to two the decision of the Lord
Ordinary was approved, and, in accordance therewith, his inter-
locutor was affirmed by the Second Division on the 17th July,
1936. The present Appeal is taken against this last interlocutor.

The facts may be briefly stated as follows. The Respondent,
on the date in question, was employed underground on the work
of repairing an airway leading off the Mine Jigger Brae, one of
the main haulage roads. When he was proceeding, at the end of
the day shift, between 1.30 and 2 p.m., to the pit bottom by way
of the Mine Jigger Brae, the haulage plant was put in motion,
and, before he could reach one of the manholes provided, he was
caught by a rake of hutches and crushed between it and the side
of the road. The Respondent’s case was that the time fixed by the
Appellants for raising the day shift men up the pit was between
1.30 and 2 p.m., and that it was a necessary part of a safe system
of working that the haulage should be stopped on the main haulage
roads during this period, and that this was in accordance with
usual and recognised mining practice in Scotland. The Appellants
denied this averment and stated that there was an alternative road
open for the Respondent’s return to the pit bottom, and that, in
any event, he should have informed the man in charge of the
haulage machinery, who was within easy call, of his emergence
into the Mine Jigger Brae, and should not have proceeded along
the Brae until he had ascertained that the haulage had stopped
for the shift, or arranged that he could safely proceed. They
pleaded contributory negligence on the Respondent’s part. They
also stated that the Respondent was in breach of Sections 43 (1)
and 74 of the Coal Mines Act, 1911.

The questions put to the jury and their answers were as
follows: —

” Ques. 1.—Was a reasonably safe system of working pro-
” vided for the men on the day shift in the Butter’s Section of
” the Glencraig Colliery returning to the pit bottom at the end of
“the shift?

” Ans.—No.

[3] 2

” Ques. 2.—Did (1) the Defenders’ Board of Directors
“or (2) the Agent know of the said system of working in
” operation in the said Section ?

” Ans.—(1) No. (2) Yes.

” Ques. 3.—Did (1) the Defenders’ Board of Directors
“or (2) the Agent know of any defect in the said system?

“Ans.—(1)No. (2) Yes.

” Ques. 4.—Was the provision of the said system of work-
” ing part of the technical management of the Colliery ?
” Ans—Yes.

” Ques. 5.—Was the accident to the pursuer caused by
” failure to provide a reasonably safe system of working in the
” said Section ?

” Ans—Yes.

” Ques. 6.—Did the pursuer fail to take reasonable care
” for his own safety?

” Ans.—No.

” Ques. 7.—If so, did he cause or materially contribute to
” the accident ?

” Ans.—No.

” Ques. 8.—Was the pursuer in breach of (1) Section 43
” (1), or (2) Section 74 of the Coal Mines Act, 1911 ?
” Ans.—(1) No. (2) No.

” Ques. 9.—On the assumption that the pursuer is entitled
” to damages, at what figure do you assess the damages?

” Ans.—£500.”

The question in the Appeal arises on the first five questions and
the answers of the jury. It may be explained that the Appellants
own five collieries, including Glencraig Colliery, and that the agent
referred to above is appointed by their Board of Directors as their
representative on the mining side in respect of all their collieries.
The agent in turn selects a mine manager for each colliery, the
appointments being approved by the Board of Directors. All the
subordinate officials are selected and appointed by the mine
manager. The agent and mine managers are appointed by the
Appellants to carry put the safety provisions of the Coal Mines
Act and the Regulations. The fourth question and answer refer
to section 2(4) of the Coal Mines Act, 1911, which provides that
” The owner or agent of a mine required to be under the control
” of a manager shall not take any part in the technical manage-
” ment of the mine unless he is qualified to be a manager.” The
Appellants maintain that they cannot be responsible for a failure
in the technical management of the mine from which they are
excluded by statute.

Counsel for the Appellants admitted that primarily the master
has a duty to take due care to provide and maintain a reasonably
safe system of working in the mine, and he stated the question
in the Appeal as being whether a master, who has delegated the
duty of taking due care in the provision of a reasonably safe
system of working to a competent servant, is responsible for a detect
in the system, of which he had no knowledge; and he submitted the
following general propositions in law: —

(First) If the master retains control, he has a duty to see
that his servants do not suffer through his personal negligence,
such as (1) failure to provide proper and suitable plant, if he
knows, or ought to have known, of such failure, (2) failure to
select fit and competent servants, (3) failure to provide a proper
and safe system of working, and (4) failure to observe statutory
regulations: but,

(Second) If he delegates his duty to take care of the safety
of his servants to competent subordinates, his responsibility
in respect of his primary common law duty ceases, unless there

3 [4]

is proof of knowledge by him, not acted upon. That the master’s
liability in respect of his common law duty may be said to
depend on the extent of his interference.

The Appellants maintain that the present case is covered by the
second proposition, in that they have delegated to a competent
agent and manager the duty of providing a reasonably safe system
of working, and that any negligence in the provision of such a
system is the negligence of these delegates, and, under the doctrine
of common employment, that the Appellants are not liable therefor.

My Lords, it seems to me that the fallacy in the Appellant’s
argument lies in the view that the master, being under a duty to
take due care in the provision of a reasonably safe system of work-
ing, is absolved from that duty by the appointment of a competent
person to perform the duty. In my opinion the master cannot
” delegate ” his duty in this sense, though he may appoint some-
one as his agent in the discharge of the duty, for whom he will
remain responsible under the maxim respondent superior. It there-
fore becomes necessary to examine the nature and limits of the
doctrine of common employment.

In Johnson v. Lindsay & Co. (1891) A.C. 371, at p. 382,
Lord Watson said, ” I do not agree with Baron Pollock, that the
” rule which exempts a master from liability to his servant for
” injuries negligently occasioned by a fellow-servant in the course
” of their common employment rests upon the absence of an implied
” contract by the master to recoup such damage. The master’s
” responsibility for his servant’s acts has its origin in the maxim
” ‘ Qui facit per alium facit per se.’ which has been construed as in-
” ferring his liability for what is negligently done by the servant act-
” ing within the scope of his employment. The immunity extended
” to a master in the case of injuries caused to each other by his
” servants whilst they are working for him to a common end is an
” exception from the general rule, and rests upon an implied under-
” taking by the servant to bear the risks arising from the possible
” negligence of a fellow-servant who has been selected with due
” care by his master The principle of the master’s immunity
” in such cases, frequently termed the doctrine of collaborateur, is
” of comparatively recent origin. In the law of England it can
” hardly be traced further back than Priestly v. Fowler, (3 M. &
” W. 1), which was decided in 1837. It was rejected by the Courts
” of Scotland until 1858, when, for the first time in either country,
” it was fully explained and reduced to its proper limits by
” Lord Cranworth, in the Scotch case of Bartonshill Coal Company
 v. Reid (3 Macq. 266). The doctrine had previously been formu-
” lated by the Supreme Court of Massachusetts, in a judgment
” delivered by Chief Justice Shaw, in Farwell v. Boston and
” Worcester Rail Road Corporation, (4 Metcalf, 49.) which was
” referred to with approval by Lord Cranworth.”

In Bartonshill Coal Company v. Reid, supra cit, the workman
had been killed through the overturning of the cage, the engine-
man having failed to stop the ascending cage at the platform and
having allowed it to be sent with great force up against the scaffold-
ing. Clearly this involved no question of safe system of working.
After dealing with the maxim ” respondeat superior”, Lord Cran-
worth says (p. 284), “But do the same principles apply to the
” case of a workman injured by the want of care of a fellow-
” workman engaged together in the same work? I think not.
” When the workman contracts to do work of any particular sort,
” he knows, or ought to know, to what risks he is exposing himself;
” he knows, if such be the nature of the risk, that want of care on
” the part of a fellow-workman may be injurious or fatal to him.
” and that against such want of care his employer cannot by pos-
” sibility protect him. If such want of care should occur, and evil
” is the result, he cannot say that he does not know whether the

[5] 4

” master or the servant was to blame. He knows that the blame
” was wholly that of the servant. He cannot say that the master
” need not have engaged in the work at all, for he was party to
” its being undertaken.” This language is quite inappropriate, as
it seems to me, to the risks involved in the conditions of safety
under which the work is carried on, and for which it is the duty
of the master to use due care in the provision of a reasonably safe
system. That Lord Cranworth took this view, is clear from his
comments on the earlier Scottish case of Sword v. Cameron (1839)
1 D. 493, in which a workman, employed in a stone quarry, re-
covered damages from his employers for injuries received on the
explosion of a shot in the quarry. Lord Cranworth says (p. 291),
” This case may be justified without resorting to any such doctrine
” as that a master is responsible for injuries to a workman in his
” employ, occasioned by the negligence of a fellow-workman en-
” gaged in a common work. The injury was evidently the result
” of a defective system not adequately protecting the workman at
” the time of the explosions …. The accident occurred, not from
” any neglect of the man who fired the shot, but because the system
” was one which did not enable the workmen at the crane to pro-
” tect themselves by getting into a place of security.” In the case
of Bartonshill Coal Company v. McGuire 
(1858) 3 Macq 300, which
arose out of the same accident, and was decided at the same time
as Reid’s case, Lord Chelmsford L.C., said, ” In Sword v. Cameron,
” 
the system of blasting in the quarry which had been established
” had been habitually defective, and therefore, the injury which
” resulted might as much be attributed to the employers as if they
” had supplied defective machinery, for which undoubtedly they
” would have been answerable.”

It appears clear, then, that when the workman contracts to do
the work, he is not to be held as having agreed to hold the master
immune from the latter’s liability for want of due care in the pro-
vision of a reasonably safe system of working. But the Appellants
maintain that the master absolves himself from the discharge of
that duty, if he appoints a competent servant to discharge the duty,
and I will now examine the authorities on which this contention is
sought to be based.

In Wilson v. Merry and Cunningham (1868) 6 M. (H.L.) 84,
the workman had been killed by an explosion of firedamp in the
pit, which had accumulated because of an obstruction of the system
of ventilation by a platform which had been temporarily erected
on the side of the pit-shaft under the direction of a pit-manager,
to enable a seam to be opened. There was no suggestion that the
system of ventilation was defective, but the temporary platform
interrupted the free circulation of air. It was admitted that the
owners had appointed competent persons for the work on which
they were engaged. Lord Cairns L.C. said, in a well-known passage
(p. 89), “The master is not, and cannot be, liable to his servant
” unless there be negligence on the part of the master in that in which
” he, the master, has contracted or undertaken with his servant to
” do. The master has not contracted or undertaken to execute in
” person the work connected with his business. The result of an
” obligation on the master personally to execute the work connected
” with his business, in place of being beneficial, might be disastrous
” to his servants, for the master might be incompetent personally to
” perform the work connected with his business. At all events, a
” servant may choose for himself between serving a master who does
” and a master who does not attend in person to his business. But
” what the master is, in my opinion, bound to his servant to do,
” in the event of his not personally superintending and directing
” the work, is to select proper and competent persons to do so, and
” to furnish them with adequate materials and resources for the

5 [6]

” work. When he has done this, he has, in my opinion, done all
” that he is bound to do. And if the persons so selected are guilty
” of negligence, this is not the negligence of the master.”

The Appellants seek to apply that passage to the masters’ duty
as to provision of a reasonably safe system, but it is clear, in my
opinion, that the Lord Chancellor, who had already stated that
there was no question of a defective system of ventilation, was
referring to the carrying out of the operations in the mine, and not
to the provision of safe and proper conditions under which the
operations were to be carried on. This view is confirmed by the
speeches of the other noble and learned Lords. Lord Chelmsford
(p. 91) says, ” Although the learned Judge in the course of his
” summing up distinguished ‘ between keeping clear and in good
” ‘ working order the ventilation arrangement or system, when com-
” ‘ pleted, and a defect or fault in the arrangement or system itself,’
” yet he does not appear to have left it to the jury to decide whether
” the accident occurred through faulty ventilation or through casual
” obstruction in the ventilation, the latter of which appears from
” the evidence to be more likely to have been the case. But, sup-
” posing it to have been quite clear that the ventilation itself was
” defective, yet, if it occurred in the course of the operations in
” the pit, it ought to have been distinguished from that ‘ system of
” ‘ ventilation and putting the mine into a safe and proper con-
” ‘ dition for working,’ which, according to the opinion of the Lord
” Justice-Clerk in Dixon v. Rankin (14 D. 420) ‘ it was the duty of
” ‘ the master for whose benefit the work is being carried on to
” ‘ provide.’ In the course of working the Haughead pit, it be-
” came necessary to arrange a system of what, for distinction’s
” sake, I may call local ventilation. This must be considered as
” part of the mining operations, and therefore, even if the accident
” happened in consequence of the scaffold in the Pyotshaw seam
” having, under Neish’s orders, been constructed so as to obstruct
” the necessary ventilation, it would have been the result of negli-
” gence in the course of working the mine; and if Neish and the
” deceased were fellow-workmen, it would have been one of the
” risks incident to the employment in which the deceased was en-
” gaged.” Lord Colonsay says (p. 95), “I think that there are
” duties incumbent on masters, with reference to the safety of
” labourers in mines and factories, on the fulfilment of which the
” labourers are entitled to rely, and for the failure in which the
” master may be responsible. A total neglect to provide any system
” of ventilation for the mine may be of that character. Culpable
” negligence in supervision, if the master takes the supervision on
” himself, or where he devolves it on others; the heedless selection
” of unskilful or incompetent persons for the duty, or the failure
” to provide or supply the means of providing proper machinery
” or materials, may furnish grounds of liability (and there may be
” other duties, varying according to the nature of the employment)
” wherein, if the master fails, he may be responsible. But, on the
” other hand, there are risks incident to occupations more or less
” hazardous, and of which the labourer who engages in any such
” occupation takes his chance. It is eminently so in regard to
” mining operations.” There are perils of the pit as well as of the
” other deep, and one of those perils is the risk of the consequences
” that may, even in the best regulated pits, result from the careless-
” ness or recklessness, or other fault of one or more of those persons
” composing the organised body engaged in working the mine ;
and, further (p. 96) ” Now, the direction of the learned Judge, with
” reference to the circumstances of this case, appears to me to nave
” been objectionable, for these reasons—(First) It deals apparently
” with the alleged defect in the scaffold as if it was a defect in the
” general arrangement or system of ventilation of the pit, for which
“in certain views, the defendant might be regarded as liable,

[7] 6

” whereas it was a defect in the construction of a temporary struc-
” ture, erected by order of Neish for certain working operations,
” whereby the free action of a good system of ventilation was tem-
” porarily interfered with, which raised a totally different question
” for the consideration of the jury in reference to the liability of
” the defendant for the fault of Neish.”

I agree with the observations of the Lord President, in his ad-
mirable and lucid opinion in the present case, on these opinions
in Wilson v. Merry and Cunningham and I need not repeat them.
In particular, Lord Chelmsford and Lord Colonsay clearly distinguish
between duties relating to the actual working or operation of the
mine and those which relate to the conditions of safety provided
by the system under which such working or operation is carried
on. The workman, under his contract of employment, is not to
be held impliedly to have taken the risk of want of due care in
the provision of a reasonably safe system of working, and the
master cannot transfer the duty onto the shoulders of a subordinate.
If he appoints a servant to attend to the discharge of such duty,
such servant, in this respect, is merely the agent or hand of the
master, and the maxim qui facit per alium facit per se renders
the master liable for such servant’s negligence as being, in the view
of the law, the master’s own negligence. The same servant may
have other duties relative to the working or operation of the mine,
as to which the doctrine of common employment might apply, but
that doctrine is not applicable to the provision of reasonably safe
conditions under which the working or operation of the mine is to
be carried on.

My Lords, I do not find it necessary to deal in detail with the
passages from the judgments in the cases of Smith v. Charles
Baker 
6- Sons, 
(1891) AC 325Connell v. James Nimmo & Co.,
1924, S.C. (H.L.) 84, Monaghan v. W. H. Rhodes 6- Son,
(1920) 1 K.B. 487, and Macmillan v. Barclay, Curie & Co.,
1912 S.C. 263, which are referred to by the learned Lord President,
with whose comments thereon I agree. They afford no assist-
ance to the argument of the Appellants, and are in conformity
with the views I have expressed. But I will cite one sentence
from the opinion of Lord Watson in Smith v. Charles Baker &
Sons, 
at p. 353, vizt., ” But, as I understand the law, it
” was also held by this House, long before the passing of the
” Employers Liability Act (43 & 44 Viet. c. 42) that a master is no
” less responsible to his workmen for personal injuries occasioned
” by a defective system of using machinery than for injuries caused
” by a defect in the machinery itself.” I agree with the Lord Presi-
dent that the principle of vicarious liability of the master has been
uniformly applied to defective plant and defective premises, and is
equally applicable in the case of defective systems. I may add a
reference to the case in the Privy Council of Toronto Power Com-
pany Limited v. Paskwan, 
(1915) AC 734, in which it was held
that the duty towards an employee to provide proper plant, as distin-
guished from its subsequent care, falls upon the employer himself, and
cannot be delegated to his servants. Sir Arthur Channell, who de-
livered the judgment of the Board, says (at p. 738), ” It is, of course,
” true that a master is not bound to give personal superintendence
” to the conduct of the works, and that there are many things which
” in general it is for the safety of the workman that the master
” should not personally undertake. It is necessary, however, in
” each case to consider the particular duty omitted, and the pro-
” viding proper plant, as distinguished from its subsequent care, is
” especially within the province of the master rather than of his ser-
” vants. In Cribb v. Kynoch,(1907) 2 K.B. 548 and Young v. Hoffman
” Manufacturing Co., 
(1907) 2 K.B. 646, the question arose as to
” the duty of a master to have inexperienced persons in his employ
” properly instructed in the way to perform dangerous work, and
” that is a matter which it is fairly obvious must in almost all cases

7 [8]

” be done for the master by others. The supplying of that which
” in the opinion of a jury is proper plant stands on rather a different
” footing. It is true that the master does not warrant the plant, and
” if there is a latent defect which could not be detected by reasonable
” examination, or if in the course of working plant becomes defec-
” tive and the defect is not brought to the master’s knowledge and
” could not by reasonable diligence have been discovered by him,
” the master is not liable, and further, a master is not bound at
“once to adopt all the latest improvements and appliances. It
” is a question of fact in each case, was it in the circumstances a
“want of reasonable care not to have adopted them.” In my
opinion that passage equally states the law of this country, and I
do not agree with the comments on this decision in the case of
Fanton v. Denville, (1932) 2 K.B. 309, to which I will now refer. As
I have had the privilege of reading the opinion of my noble and
learned friend Lord Wright, who makes a detailed criticism of the
decision in this case, in which I entirely concur, I will only say
firstly, that the conclusion arrived at appears to me to be justified
by the facts of the case, as accepted by the Court of Appeal, in that
they do not disclose any defect in the materials supplied by the
defendant but an error of judgment on the part of his servants in
selection of the properties necessary on a particular occasion for a
particular purpose; the extra baize was there and available. There
was no suggestion that the mattress was defective in itself, but
it was not by itself sufficient to break the fall of the plaintiff. In
the case of a touring company such as that in question, the selection
of the particular properties to be used for a particular presentation
may well be said to be part of the common work on which the
employees are engaged, and the master, apart from knowledge
imputable to him, will not be liable provided the properties have
been provided with due care. In the second place, I am quite
unable to agree with the construction placed by the learned Lord
Justices on the opinion of Cairns L.C., in Wilson v. Merry and Cun-
ningham, 
as to which I have already expressed my opinion.

There remains the recent case of Bain v. Fife Coal Co., 1935
S.C. 681, in which Fanton’s case came under the consideration of the
Second Division of the Court of Session. I agree with the comments
of the Lord Justice-Clerk on Fanton’s case and will repeat them
and adopt them, if I may: —” This appears to me to be a startling
” whittling down of the duties which the law has hitherto recognised,
” at any rate in Scotland, as attaching to a master towards his
” servant. It ignores what has always been regarded as a funda-
” mental doctrine of the law of master and servant, viz., that there
” are certain duties owed by a master to his servant so imperative
” and vital to safety that the master cannot divest himself of respon-
” suability by entrusting their performance to others, so as to avoid
” liability in the event of injury arising to the servant through
” neglect of any of these duties. The master’s liability as for
” breach of these paramount duties is unaffected by the doctrine of
” fellow-servant, for in the eye of the law they are duties that cannot
” be delegated. If, in fact, they are entrusted by the master to
” others, the maxim applies qui facit per alium facit per se. The
” duty may not be absolute, and may be only a duty to exercise
” due care, but if, in fact, the master entrusts the duty to someone
” else instead of performing it himself, he is liable for injury caused
” through the want of care of that someone else, as being, in the eye
” of the law, his own negligence.” That admirable statement of
the law which, in my opinion, applies also in England, involves the
rejection of the Appellants’ contentions, except the special conten-
tion that their exclusion from interference in the technical manage-
ment by section 2(4) of the Coal Mines Act 1911 relieves them from
responsibility, in view of the fourth answer of the jury. I agree
with the opinion expressed by the five learned Judges in the Court
of Session who rejected this contention; neither of the learned

[9] 8

Judges who dissented, appears to have expressed an opinion on this
point. . I agree with the Lord President’s statement, ‘ There is
” no reason in principle that a compulsory delegation should dis-
” place the vicarious responsibility of the employer, if a de facto
” 
delegation, which is often unavoidable, has not this effect. I
” hold that the responsibility is the same whether the employer
” is himself qualified to act as manager or not, and whether, if
” qualified, he chooses to act himself or to delegate to a qualified
” servant as manager. In all these cases he is answerable either
” directly for his own negligence or vicariously for his servant’s
” negligence, if the negligence affects the provision of a safe system
” of working.”

My Lords, it is always difficult to define a principle of the law
so precisely that its application to every combination of circum-
stances is beyond question, but I may at least express the hope that
the decision in this Appeal has narrowed the debatable area, with-
out being as optimistic as the reporter in the Bartonshill cases (3
Macq. 301, footnote) who said, nearly eighty years ago, ” Reid and
” McGuire were both victims of the same accident, which, though
” melancholy, has settled the law.”

In my opinion, the Appeal fails and should be dismissed with
costs.

44492 A 5

[10]

Lord
Atkin

Lord

Thanker-

ton

Lord
Macmillan

Lord
Wright

Lord
Maugham

WILSONS & CLYDE COAL COMPANY, LIMITED

v.
ENGLISH.

Lord Macmillan

MY LORDS,

In this appeal your Lordships have to consider and accom-
modate the spheres of operation in the law of master and servant
of two competing doctrines, the doctrine of vicarious liability and
the doctrine of common employment. According to the former,
a master is responsible for the negligence of his servant acting
within the scope of his employment; according to the latter a
master is not responsible for the negligence of his servant causing
injury to a fellow-servant. Both doctrines are well-established in
the law. It is obvious that they may come into conflict. If a
servant is injured by the negligence of a fellow-servant acting
within the scope of their common employment, the former doctrine
would impose liability on the master, while the latter doctrine would
exculpate him. The question is, which of these two principles is
applicable to the present case.

I do not rehearse the facts already so fully and clearly set out by
my noble and learned friend Lord Thankerton. But I emphasise the
findings of the jury that on the occasion of the accident which
befell the respondent there was not provided in the appellants’
colliery a reasonably safe system of working; that the accident
was due to this failure to provide a reasonably safe system of
working; and that the defect in the system was known to the agent
employed by the directors of the appellant company but not to
them personally. The negligence, be it observed, lay in the failure
to provide a safe system, not in the working of the system provided.

In these circumstances the appellants say that they are not
responsible for the accident because it was due to the negligence
of their agent. Their duty, they say, was fulfilled when they
appointed a competent agent to supervise the working of the
colliery, a task which they were personally and indeed by statute
disqualified from performing, and as the negligence was that of a
fellow employee of the respondent they should be absolved.

Now I take it to be settled law that the provision of a safe
system of working in a colliery is an obligation of the owner of
the colliery. He 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.

But then it is said that if the person injured in consequence of
the non-performance of the owner’s duty by the owner’s agent is
an employee of the owner there is no redress because the agent is
engaged in a common employment with the injured party and the
latter took the risk of the negligence of his fellow-employees. To this

[11] 2

the conclusive answer is that the agent engaged in discharging the
owner’s duty of providing a safe system of working in the mine
is not engaged in a common employment with the ordinary work-
men in the mine. He is not collaborating with them; he is
performing the duty of the owner not the duty of an employee.
The doctrine of common employment implies that the employment
must be common. The owner of a colliery is not engaged in a
common employment with the miners who work in the colliery,
and the agent carrying out the obligations of the owner is not
collaborating with the workmen in the mine. Consequently the
defence of common employment is not available to the mine owner
where an accident occurs to an employee in the mine through the
negligent performance of the owner’s duty by the person appointed
by the owner to perform that duty for him, for such agent of the
owner and the injured workman are not in this respect engaged
in a common employment.

My Lords, while adding these few observations I desire to
express my concurrence in every respect with the views of my noble
and learned friends whose opinions I have had the advantage of
reading in print. In particular I should like to associate myself
with Lord Thankerton’s appreciation of the admirable opinions
delivered by the Lord President in the present case and by Lord

Justice-Clerk Aitchison in the case of Bain v. Fife Coal Co., 1935,

S.C. 681.

[12]

WILSONS AND CLYDE COAL COMPANY, LIMITED

v.
ENGLISH

Lord
Atkin

Lord

Thanker-

ton

Lord
Macmillan

Lord
Wright

Lord
Maugham

Lord Wright

MY LORDS,

I have had the advantage of reading in print the opinion
which has just been delivered by my noble and learned friend
Lord Thankerton and am in agreement with it. The observations
which I go on to make, are directed to considering certain recent
authorities in the Court of Appeal, which it seems to me, contain
propositions of law which contradict the settled authorities
binding on this House in regard to the obligation of an employer
towards his employees, to use the more modern terminology.
The Lord President has left to your Lordships the task of
reconciling what the Court of Appeal have laid down with the
authorities which he cites in his admirable judgment. It is clear
as has been said in this House, that on this branch of the law,
there is no difference between the law in England and in Scotland.

The principal decision of the Court of Appeal thus brought
into question is Fanton v. Denville, 1932, 2 K.B. 309. The facts
of that case are somewhat obscure. The answers of the jury are
inconclusive. The Plaintiff does not appear to have established
a breach by the employer of the duty owing by him to the
servant as I shall define it hereafter. The result of the case
may be correct, but I do not see that it was necessary for
the Court of Appeal to lay down the propositions they aid in
regard to the precise extent of the duty which rests on the
employer towards his employee. Greer L.J. at p. 327 thus states,
in agreement with what Scrutton L.J. said in the same case
that ” even in cases where the negligence relied on by the plain-
” tiff consists of negligence in the supply or maintenance of plant
” or machinery, the employer is only liable if personal negligence
” is proved, and that if the failure to supply or maintain the plant
” or machinery in a safe condition is due to the negligence of a
” manager to whom the duty has been entrusted by the employer,
” the employer is not responsible unless it can be shown that he
” failed to use reasonable care to select a competent manager,
” or that he has in some way been guilty of personal negligence
” in connection with the instalment or maintenance of the
” machinery or plant or in permitting the continuance of its use
” after he became aware of its unsafe condition.” Slesser L.J.
agreed with Scrutton and Greer L.J.J. Similarly in Rudd y. Elder
Dempster and Co. 
1933, 1 K.B. 566, Scrutton L.J. applying the
view he had expressed in Fanton’s case held that the employer
fulfilled his duty in regard to plant and system by using reasonable
care to appoint competent foremen and overseers, and if he fulfilled
that duty was not liable for the negligence of such foremen or
overseers to their fellow workmen. Similarly at p. 597 Greer L.J.
said ” If the system has been put into operation and is being

” carried out by his servants on his behalf, he [the em-

” ployer] is not responsible to his workpeople for injuries thereby
” caused. He is free from liability unless it be proved that the
” injuries complained of were caused by his own negligence or
” wilful act.” Lawrence L.J. agreed.

[13] 2

In my judgment these statements are directly contrary to
opinions and decisions of this House and of the Court of Appeal
over a long period of years. In Lochgelly Iron and Coal Co. v,
M’Mullan, 1934, A.C. 1, this House overruled the decision of the
Court of Appeal in Rudd’s case on the scope of the employer’s
liability to his workpeople for breach of a statutory duty. In Rudd’s
case the Court of Appeal, applying their general views which I have
just stated, held that the employers could escape liability by showing
that they had appointed competent servants to see that the duty
was fulfilled. This House held that on the contrary the statutory
duty was personal to the employer, in this sense that he was bound
to perform it by himself or by his servants. The same principle in
my opinion applies to those fundamental obligations of a contract
of employment which lie outside the doctrine of common employ-
ment, and for the performance of which employers are absolutely
responsible. When I use the word absolutely, I do not mean that
employers warrant the adequacy of plant, or the competence of
fellow employees or the propriety of the system of work. The
obligation is fulfilled by the exercise of due care and skill. But it
is not fulfilled by entrusting its fulfilment to employees, even
though selected with due care and skill. The obligation is three-
fold, ” the provision of a competent staff of men, adequate material,
“and a proper system and effective supervision”; I repeat the
statement of the duty by Lord McLaren quoted with approval by
Lord Shaw in Black v. Fife Coal Co., Ltd., 1912, A.C. 149, at p. 173
and again approved in the Lochgelly Case at p. 28. The rule has
been stated so often that I hesitate to multiply authorities. 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 plant and material, may determine the system of work. How-
ever 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 well established, but illogical doctrine of common em-
ployment is certainly one not to be extended and indeed has never
in its long career been pushed so far as the Court of Appeal sought
to push it. Even in Farwell v. Boston Railroad Co., 4 Metcalf,
(Mass) 49, the fons et origo (I almost add “mali“) Shaw C.J.
reserved the question of an employer’s obligations in respect of
adequacy of plant and competence of fellow workmen.

In Hutchinson v. York Newcastle and Berwick Ry., 5 Ex. 343,
where the doctrine of common employment was first laid down in
this country, Alderson B. said that the doctrine must be taken with
the qualification that the master shall have taken due care not to
expose his servant to unreasonable risks. I do not read this as
limited merely to the selection of competent servants. In William
V. Birmingham Battery Co., 1899, 2 Q.B. 339, in a judgment con-
curred in by Vaughan Williams L.J., A. L. Smith L.J. quotes and
applies the words of Lord Herschell in Smith v. Charles Baker
& Sons, 
1891, A.C. 325 at p. 362. ‘ It is quite clear that
” the contract between employer and employed involves on
” the part of the former the duty of taking reasonable care
” to provide proper appliances, and to maintain them in a
” proper condition, and so to carry on his operations as not
” to subject those employed by him to unnecessary risk.” In
Young v. Hoffmann Manufacturing Co. 1907, 2 K.B. 646,

3 [14]

Kennedy L.J. states that the employer vis-a-vis his employees
undertakes (inter alia) ” to use reasonable care (a) in the selection
” of competent fellow servants; (6) in having and keeping his
” machinery, the use of which might otherwise be dangerous to the
” servant in his employment, in proper condition and free from
” defect.” I have chosen these few examples to show that the
doctrine of common employment which was hinted at in connection
with a butcher’s cart and has roamed in its application to colliers,
seamen, railwaymen, apprentices, chorus girls and indeed every
sphere of activity, has always distinguished between the employer’s
duty to the employee and the fellow servant’s duty to the
employee. The rule is explained on the ground that the employee
by his contract of employment agrees with his employer to assume
the risk of his fellow servant’s negligence. The principle is stated,
with little regard to reality or to modern ideas of economics or
industrial conditions, to be that this particular risk is included in
the agreed remuneration. This result is stated, rather as a
dogma, to flow logically from the relation of master and servant.
Notwithstanding repeated expressions of disapproval, the doctrine
has survived, largely because of statutory remedies given to em-
ployees to minimise what to modern ideas appears to be its
obvious injustice. But it has never been carried to the extremity
of excluding all remedy against employers or all duty in the em-
ployers so long as they have exercised care in the selection of
managers or foremen. It is difficult to see what that duty would
mean in the case of an absentee or infant or inexpert employer, or
what it would mean in the case of a great modern industrial
concern. But in truth the employer’s obligation as it has been
defined by this House is personal to the employer and one to be
performed by the employer per se or per alias. If I may take
an analogy or instance of a similar personal obligation, I note
that the Carriage of Goods by Sea Act, 1924, requires a shipowner to
exercise due diligence or to take reasonable care to provide a sea-
worthy ship. The ship-owner is almost certainly not an expert
naval architect, engineer or stevedore. So far as I know it has
never been claimed that this obligation is fulfilled by the ship-
owner taking reasonable care to appoint a competent expert: the
shipowner is absolutely held to the fulfilment of the obligation. It is
the obligation which is personal to him, and not the performance.

The extent of the employer’s obligation has several times been
stated by this House. Thus in Wilson v. Merry, I Scot. Appeals, 326,
at p. 332, Lord Cairns said: ‘What the master is in my opinion
” bound to do, in the event of his not personally superintending and
” directing the work, is to select proper and competent persons to do
” so, and to furnish them with adequate materials and resources for
” the work.” To this must be added a third head, viz., to provide a
proper system of working, see per Lord Colonsay in Merry’s case
at p. 434. By this is meant not a warranty but a duty to exercise
(by himself and his servant and agents) all reasonable care. In
addition to Merry’s case I may refer as authorities to the same effect
to Brydon v. Stewart, 
2 MacQ 30Bartonshill Coal Co. v. McGuire,
3 MacQ 300Weems v. Mathieson, 4 MacQ. 215, in which at p. 226
Lord Wensleydale said, ” the employer was responsible in law for
” defect on his part in not providing good and sufficient apparatus
” and in not seeing to it being properly used.” -These latter words”
I take to refer to system. It was the effect of these and similar cases
in this House that was compendiously and accurately expressed in
Smith v. Charles Baker & Sons, 1891, A.C. 325, by Lord Halsbury,
Lord Watson and Lord Herschell. Lord Herschell’s language has
already been quoted by me. Lord Watson at p. 353 says, ” It
” does not appear to me to admit of dispute that, at common law,
” a master who employs a servant in work of a dangerous
” character is bound to take all reasonable precautions for the
” workman’s safety. The rule has been so often laid down in

[15] 4

” this House by Lord Cranworth, and other noble and learned
” Lords, that it is needless to quote authorities in support of it.” In
the Court of Appeal these observations were put aside. It was said
they were obiter dicta, which may in one sense be true, but, though
the issue was concluded by what happened in the County Court,
this House thought fit to explain the reason on which the employers
could properly be held liable, viz., the defective system of working.
It was said that the observations need not be seriously considered,
because the relevant authorities were not cited to their Lordships. It
would, however, be strange to imagine that these three great lawyers
did not trouble to appreciate the authorities relevant to the prin-
ciples which they were enunciating. But Lord Watson does actually
refer to and quote from Bartonshill Coal Co. v. McGuire,
Bartonshill Coal Co. 
v. Reid and Weems v. Mathieson and
explain Sword v. Cameron, 1 D. 493). I venture with all
respect to say that in my opinion it was the failure of the Court
of Appeal to appreciate the effect of these authorities which
led them to lay down the rules which they did, and to fall into the
fallacy of not distinguishing between what has been called the
master’s province of duty and what has been called the
servant’s province of duty to his fellow servants. When it is said
that the workman takes the risk of his fellow workman’s negligence,
it must be added that he does not take the risk of his master’s
negligence. The distinction between these provinces of duty was
fully discussed in, among other places, Merry’s case. The
workman succeeded there because it was held that the actual
defect in the ventilation of the pit was not a defect in the system of
ventilation for which the employers were liable, but a defect caused
by a temporary structure erected in the actual conduct of the opera-
tions owing to error of judgment on the part of the mine’s manager,
who was a fellow workman within the rule of common employment.
It may often be difficult to draw the line in any particular case
between these two categories. But the Court of Appeal seem to
base their conclusion on a number of cases in which the negligence
was that of those who were fellow servants, however exalted
their grade. Wigmore v. Jay, 5 Ex. 354, which was strongly
relied on by Scrutton L.J. at p. 320, was I think such a case.
The use of the defective scaffold pole may well have been merely
an act of negligence on the part of the foreman, the master having
taken due care to provide a proper supply of scaffold poles. I think
the same observation applies to the other cases cited by Scrutton
and Greer L.JJ. Thus Cribb v. Kynoch, Ltd., 1907, 2 K.B. 548, and
Young v. Hoffmann, 1907, 2 K.B. 646, are cases in which the fore-
man being generally competent was negligent in the instruction of
the young person or apprentice, a particular duty which was
reasonably held to appertain to the fellow servants’ and not to the
employers’ province. If in any of these cases the principles which I
have stated as to the extent of the master’s duty are not correctly
applied to the facts, such decisions cannot stand against the authori-
ties in this House to which I have referred. But 1 doubt if there is
any such case. In Toronto Power Co. v. Paskwan, 1915, A.C. 734,
Sir Arthur Channell, delivering the judgment of the Privy Council,
aptly observed, ” It is, of course, true that a master is not bound to
” give personal superintendence to the conduct of the works, and
” that there are many things which in general it is for the safety of
” the workman that the master should not personally undertake.
” It is necessary, however, in each case to consider the particular
” duty omitted, and the providing proper plant, as distinguished
” from its subsequent care is especially within the province of the
” master rather than of his servants.” I think that the decision was
correct and that its effect was accurately stated in the headnote.

There is perhaps a risk of confusion if we speak of the
duty as one which can, or cannot, be delegated, The true question
is what is the extent of the duty attaching to the employer. Such a

5 [16]

duty is 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. This was held to be
the case where the duty was statutory and it is equally so when the
duty is one attaching at common law. A statutory duty differs from
a common law duty in certain respects, but in this respect it stands
on the same footing. As Lord Macmillan said in the Lochgelly case,
with reference to a duty to take care, at p. 18“It appears to me quite
” immaterial whether the duty to take care arises at common law or
” is imposed by statute. It is equally imperative in either case, and
” in either case it is a duty imposed by law.” To the same effect
Lord Atkin at p. 9 says, “Where the duty to take care is expressly im-
” posed upon the employer and not discharged, then in my opinion
” the employer is guilty of negligence and of ‘ personal’ negligence.”
The same opinion is expressed by the other members of the House
who took part in that case. The House in overruling Rudd’s case
did I think inferentially overrule Fanton’s case.

It is not perhaps necessary to add that the employers’ duty at
Common Law in these matters is not affected by the Workmen’s
Compensation Act or by the Employers Liability Act.

I think the whole course of authority consistently recognises
a duty which rests on the employer and which is personal to the
employer, to take reasonable care for the safety of his workmen,
whether the employer be an individual, a firm or a company and
whether or not the employer takes any share in the conduct of
the operations. The obligation is threefold, as I have explained.
The obligation to provide and maintain proper plant and
appliances is a continuing obligation. It is not however broken
by a mere misuse or failure to use proper plant and appliances
due to the negligence of a fellow servant or a merely temporary
failure to keep in order or adjust plant and appliances or a casual
departure from the system of working, if these matters can be
regarded as the casual negligence of the managers, foremen or
other employees. It may be difficult in some cases to distinguish
on the facts between the employers’ failure to provide and maintain
and the fellow servants’ negligence in the respects indicated. I have
already referred to Wilson v. Merry: the same distinction was
discussed in Hedley v. Pinkney, 1894 A.C. 222, where it was held
that there was no fault of the employer but only negligence of the
fellow servant, the shipmaster. Griffiths v. London and St.
Katherine’s Dock Co., 
12 Q.B.D. 493, is, on the facts, as I think,
such a case, though the judgments are unsatisfactory because this
distinction was not clearly appreciated. The same failure to
appreciate this distinction may be seen in some other cases relied
upon by the Court of Appeal in Fanton’s case and indeed may
account for the conclusions enunciated by the Court of Appeal.

In the result I am of opinion that the true rule of law (common
both to English and Scots Law) on the subject has been stated by
the Lord President and those of his learned brethren who formed
the majority of the Court. I agree that the appeal should be dis-
missed.

[17]

Lord
Atkin

Lord

Thanker-

ton

Lord
Macmillan

Lord
Wright

Lord
Maugham

WILSONS AND CLYDE COAL COMPANY, LIMITED

v.
ENGLISH.

Lord Maugham

MY LORDS,

I agree with the opinions which your Lordships have expressed,
and will add only a few observations. I am induced to do so only
because the law in England on this topic in my opinion is the
same as that in Scotland, and the case is one of great general
importance.

The law now in force applicable to this appeal depends on
authority. It was laid down before the passing of the Employers’
Liability Act, 1850, and the Workmen’s Compensation Act, 1897
(a forerunner of the Act of 1906), by which the hardship often
suffered by workmen by reason of injuries suffered by them
in the course of their employment was to a considerable extent
mitigated. The result of the cases referred to by my noble and
learned friends may I think be stated provisionally in the following
propositions.

The first proposition is that, subject as next mentioned, the
employer is responsible to an employee for an accident caused
by the negligence of any other employee acting within the scope
of his authority. The maxim respondeat superior applies. (Smith v.
Charles Baker & Sons, 1891, A.C. 325).

The second, which is in the nature of a proviso or exception to
the first, is that the general principle does not apply when the
accident occurs through the negligence of a fellow employee in the
course of the working of the factory, mine or other business. This
doctrine, called that of ” common employment,” rests according
to very high authority on the implication in the contract of service
of an undertaking by the employee to bear the risks arising from
the possible negligence of a fellow employee selected with due care
by the employer. (Bartonshill Coal Co. v. Reid (3 Macq. 266);
Johnson v. Lindsay and Co. (1891 A.C. 371, at page 382).

The third, which is a kind of limitation or explanation of the
second, is that in the case of employments involving risk, that
rule applies only when the maxim volenti non fit injuria can fairly
be invoked. In such employments it was held that there was a duty
on the employer to take reasonable care and to use reasonable skill,
first, to provide and maintain proper machinery, plant, appliances
and works; secondly, to select properly skilled persons to manage
and superintend the business, and thirdly, to provide a proper
system of working. In these cases it was held that it was contrary
to all probability to assert or to assume that the employee con-
tracted on the basis that he was aware of risks in respect of these
matters or that he impliedly agreed to take them upon himself.
These matters, therefore, were in the province of the employer
and in the case of negligence in regard to them the employee could
recover and the doctrine of common employment could have no
application.

My Lords, so far as these propositions are concerned I think
the authorities cited by your Lordships are clear and decisive; and
I will add that I am in complete agreement with the view which
has been expressed as regards the true meaning of a passage in the

2 [18]

speech of Cairns L.C. in Wilson v. Merry and Cunningham (1868)
6 M. (H.L.) 54. The earlier English authorities are not so clear
as regards the real point in the present case, which may be stated
thus:—Admitting that the employer was liable to provide a reason-
ably safe system of working the colliery, was not this a liability
which he could delegate to skilled persons with the consequence
that his personal liability would be discharged? It must I think
be admitted that in England the early authorities on this point
were not very clear. In Scotland it was not so. The admirable
opinions of the Lord Justice-Clerk in Bain v. Fife Coal Co. (1935
S.C. 681) and of the Lord President in the present case establish
in my view that there has been a long and uniform practice in
Scotland, repeatedly approved in this House, to the effect that an
employer cannot divest himself of responsibility in regard to the
three matters which are in his peculiar province.

My Lords, this view is decisive of the present appeal; but
Counsel for the Appellant in his persuasive argument relied so
strongly on the English case of Fanton v. Denville (1932 2 K.B.
309) that it would not be right to abstain from dealing with that
case. My learned and noble friend Lord Wright has carefully
examined the decision, and has stated the English authorities
(including the decision of the Privy Council, Toronto Power Co. v.
Paskwan, 
1915, A.C. 734), and I am in complete accord with that
he has said.

My Lords, it has already been pointed out that the employers
liability is fulfilled by the exercise of due care and skill; and I may
be allowed to point out that it is this circumstance which has led
on occasion to a misapprehension of the true position. An illus-
tration will demonstrate the mistake. Suppose some new machinery
is necessary in a factory, and the employer is absent or completely
unskilled in such things. He necessarily leaves the matter to a
manager, let us suppose a highly skilled person, who, however, is
negligent in this case. An accident follows, due to a defect in the
machine. If the liability of the employer is stated as being an
obligation to use his best endeavours to supply and instal good
machinery, it may well be said on his behalf that he left the matter
to a highly skilled man, and it may be asked with force, what
more could he do? I should reply, nothing; but I should add
that the premise is incorrect. The possessive pronoun ” his ” is that
which leads to the error. The proposition would be more correctly
stated to be that his duty is to supply and instal proper machinery so
far as care and skill can secure this result. He can, and often he
must, perform this duty by the employment of an agent who acts
on his behalf; but he then remains liable to the employees unless
the agent has himself used due care and skill in carrying out the
employer’s duty. This has sometimes been expressed by saying
that the duty is personal to the employer; but the adjective if unex-
plained is apt to mislead, like the word ” absolute ” and the word
” delegate.” The employer can, of course, and often must, delegate
the performance of any of his duties to skilled agents; but it would
need an altogether new implied term in the contract between
employer and employee before a Court could properly hold that
this delegation has the result of freeing the employer from his
liability. This becomes apparent if we imagine the contract between
employer and workman to be written out in full with all the implied
clauses. There would be for the reasons given by the Lord Justice-
Clerk in Bain v. Fife Coal Co. supra and by your Lordships, no
clause to the effect that the employer was to be freed from his
special obligations to the workmen if he delegated them to an
agent; and in the absence of such a clause the employer would
plainly remain liable if the agent was guilty of not using proper
care and skill, since in the contract law of Scotland as in England,
it is impossible to transfer a liability towards the other party to

[19 3

the contract without the consent of that party. I will express my
opinion, agreeing with that of my noble and learned friend Lord
Thankerton, that on the facts as reported the decision in Fanton v.
Denville was right. For the reasons already given by your Lord-
ships some of the dicta in that case must be regarded as contrary
to authority and in principle unsound.

My Lords, there remains for consideration, only the special
circumstance that the Appellants not being possessed of the
necessary technical qualifications were prohibited from taking part
in the technical management of the mine by section 2 (4) of the
Coal Mines Act, 1911. On this point (as in others) I am in complete
agreement with the opinion of the Lord President already cited by
my noble and learned friend Lord Thankerton and have nothing
to add.

I agree with the opinions already expressed that the Appeal fails,
and should be dismissed.

 

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