McDermid v Nash Dredging Co [1987] AC 906

• Plaintiff was employed by Defendant on a boat and suffered personal injury by the captain’s negligence. The captain was employed by a TP.

• HL held Defendant liable despite the captain being employed by a TP (NB not a case of defective equipment). 

Lord Brandon

• The captain was NOT a servant of Defendant and Defendant was not liable vicariously but was liable for failing to provide a safe system of working:

First, an employer owes to his employee a duty to exercise reasonable care to ensure that the system of work provided for him is a safe one.

Secondly, the provision of a safe system of work has two aspects: (a) the devising of such a system and (b) the operation of it.

Thirdly, the duty concerned has been described alternatively as either personal or non-delegable…The essential characteristic of the duty is that, if it is not performed, it is no defence for the employer to show that he delegated its performance to a person, whether his servant or not his servant, whom he reasonably believed to be competent to perform it.

Despite such delegation the employer is liable for the non-performance of the duty.