MERSEY DOCKS AND HARBOUR BOARD
v.
COGGINS AND GRIFFITHS (LIVERPOOL) LTD.
AND McFARLANE
Viscount Simon
MY LORDS,
In this Appeal the Mersey Docks and Harbour Board (hereinafter
called the board), against whom a Plaintiff named John McFarlane
has obtained judgment at Liverpool Assizes for £247 damages
with costs on the ground of negligence in the working of a mobile
crane belonging to the Board, seeks to have the judgment against
the Board discharged and to have substituted for it a judgment
in favour of McFarlane for the same amount against Coggins and
Griffiths (Liverpool) Ltd. who are master stevedores and who had
hired from the Board the use of the crane, together with its driver,
for the purpose of unloading a ship called the ” Port Chalmers ”
lying at the quay at the North Sandon Dock, Liverpool. The
question in the case is therefore whether Newall, the driver of
the crane, is to be regarded, for the purpose of McFarlane’s claim,
as employed by the Board or by Coggins & Griffiths. Both
the Trial Judge, Mr. Justice Croom-Johnson and the Court of
Appeal (Scott, du Parcq and Morton, L. JJ) held that the Board was
responsible to the Plaintiff for Newall’s negligence, but the Board
contends that Newall was not at the time of the accident and for
the purpose of the operation in which he was then engaged a servant
of the Appellant Board but was the servant of Coggins & Griffiths.
When the case was called on before the House it appeared that,
in an effort to simplify proceedings, the Board and Coggins &
Griffiths were the only parties before us, and it was pointed out
that McFarlane, who in the Action had sued both these parties in
the alternative, was indifferent as to which of them was pronounced
to be liable to him as, once he had established that his injuries
were due to Newall’s negligence, he was bound to get payment
from one or other. The House, however, felt that it could not
proceed to hear the appeal unless McFarlane was made a party
to it, since Your Lordships were being asked to reverse a judgment
which he had obtained. The Petition of Appeal was therefore
varied by adding McFarlane’s name as a Respondent and he
intimated through his solicitors that he did not desire to take part
in the argument but was ready to accept the decision of the House
on the question which of the two original defendants was liable
to him.
The further facts which raise the question to be decided can be
very briefly stated. The Board own a number of mobile cranes,
each driven by a skilled workman engaged and paid by it, for
the purpose of letting out the apparatus so driven to applicants
who have undertaken to load or unload cargo at Liverpool Docks.
The conditions upon which such cranes are supplied are contained
in Regulations, No. 6 of which runs as follows: —
” Applicants for the use of Cranes must provide all neces-
” sary slings, chains, and labour for preparing the article to be
” lifted, and for unshackling the same. They must also take
” all risks in connection with the matter. The Board do not
” provide any labour in connection with the Cranes except
” the services of the Crane Drivers for Power Cranes.
” The Drivers so provided shall be the servants of the
” Applicants.”
On the evening when the accident happened McFarlane, who was
a registered Checker employed by James Dowie & Co., was
engaged in checking goods which were in course of being trans-
ferred from shed to ship by means of this crane. McFarlane, it
2 [2]
will be observed, was not in the employ of Coggins & Griffiths; his
employers were the forwarding agents who had engaged Coggins
& Griffiths as stevedores to load the cargo on the ship. The crane,
which does not run on fixed lines but can be moved in any
direction by the crane-driver, had picked up under McFarlane’s
direction a case of which McFarlane had to note the number and
marks, but instead of further movement of the crane being stopped
by Newall till McFarlane could take the particulars, it was
negligently driven on, with the result that McFarlane was trapped
and injured.
What has now to be decided is whether, in applying the doctrine
of respondeat superior, liability attaches on these facts to the Board
as the regular employers of Newall or to Coggins & Griffiths as
the persons who were temporarily making use of the crane which
Newall was driving. As already stated, the Board had engaged
Newall, and it paid his wages: it alone had power to dismiss him.
On the other hand, Coggins & Griffiths had the immediate direction
and control of the operations to be executed by the crane-driver
with his crane, e.g., to pick up and move a piece of cargo from
shed to ship. Coggins & Griffiths, however, had no power to direct
how the crane-driver should work the crane. The manipulation
of the controls was a matter for the driver himself.
That this was the actual situation is plain from the evidence
given by Mr. Pullen, an official of Messrs. Coggins & Griffiths who
was called at the trial. Mr. Pullen, with reference to the extent
of control exercised by Coggins & Griffiths over the crane-driver,
said ” We have no control over the way he drives it. We can only
” tell him what we want and it is not up to us to tell him how to
” drive it or anything. If he did not do it to our satisfaction we
” would certainly send in a complaint to the Dock Board “; and
again, ” We leave it to the crane-driver to take it,” i.e., the moving
of a parcel of goods ” in his way. We do not interfere with the
” driver of the crane.” Similarly, Coggins & Griffiths’ Staff Fore-
man testified that the stevedores give orders to the crane-driver
to pick up goods and to lower them into a particular hold, but do
not give orders ” how he drives the crane, or when he puts his
” brake on.” In the present case the accident happened because
of the negligent way in which the crane-driver worked his crane,
and since Coggins & Griffiths had no control over how he worked
it, as distinguished from telling him what he was to do with the
crane, it seems to me to follow that Newall’s general employers
must be liable for this negligence and not the hirers of the apparatus.
Mr. Pritchard placed much reliance upon the language of Regula-
tion 6. But when the Plaintiff has proved injury caused by the
negligence of Newall, and the question arises who is answerable
as ” superior ” for such negligence, this question is not to be deter-
mined by any agreement between the owner and the hirer of the
crane, but depends on all the circumstances of the case. Even if
there were an agreement between the Board and Coggins &
Griffiths that in the event of the Board being held liable for negli-
gent driving of the crane while it is under hire to the latter, the
latter will indemnify the Board, this would not in the least affect
the right of the Plaintiff to recover damages from the Board as
long as the Board is properly to be regarded as the crane-driver’s
employer.
It is not disputed that the burden of proof rests upon the general
or permanent employer—in this case the Board—to shift the prima
facie responsibility for the negligence of servants engaged and paid
by such employer so that this burden in a particular case may
come to rest on the hirer who for the time being has the advantage
of the service rendered. And, in my opinion, this burden is a
heavy one and can only be discharged in quite exceptional
circumstances.
[3] 3
It is not easy to find a precise formula by which to determine
what these circumstances must be. In the century-old case of
Quarman v. Burnett (1840) 6 M. & W. 499, which has always been
treated as a guiding authority, the defendants owned a carriage,
but habitually hired from a jobmaster horses to draw it: the job-
master also supplied a regular driver who wore a livery provided
by the Defendants. It was decided that the Defendants were not
liable for the results of the driver’s negligence in handling the
horses. The ground of the decision is that the Defendants had no
control over the way in which the horses were driven, though they
could direct the driver where and when to drive. The test suggested
by Bowen L.J. in Donovan v. Laing Construction Syndicate [1893]
1 Q.B. 629 at p. 634 when he said ” by the employer is meant the
” person who has a right at the moment to control the doing of the
” act” can be understood in this sense, and in this sense I would
accept it: i.e. ” to control the doing of the act” would mean “to
” control the way in which the act involving negligence was done.”
I find it somewhat difficult, however, to fit the facts in Donovan’s
case into this proposition, and if that decision is upheld, it must
be on the basis found in the words of Lord Esher M.R. at p. 632,
when he said: ” The man was bound to work the crane according
” to the orders and under the entire and absolute control of ” the
hirers. But. as the House of Lords insisted in M’Cartan v.
Belfast Harbour Commissioners [1911] 2 I.R. 143 the value of an
earlier authority lies, not in the view which a particular Court took
of particular facts, but in the proposition of law involved in the
decision. In M’Cartan’s case Lord Dunedin referred to, and ex-
pressly approved, the judgment of Lord Trayner in Cairns v. Clyde
Navigation Trustees [1898] 25 Rettie 1,021, which, on facts closely
resembling the present, held that the Trustees as general employers
were in law liable for the negligent driving of a crane which they
had let out with its driver for discharging a ship. Notwithstanding
the dictum of Bowen L.J. in Donovan’s case at p. 634, the principle
of the carriage cases and the crane cases appears to me to be the
same: I would especially refer to what Lord Dunedin said at p. 151
of M’Cartan’s case.
The Court of Appeal in this case, following its own decision in the
case of Nicholas v. F. ]. Sparkes & Son [1945] 1 K.B. p. 309 note,
applied a test it had formulated, where a vehicle is lent with Us
driver to a hirer, by propounding the question ” In the doing of
” the negligent act, was the workman exercising the discretion
” given him by the general employer, or was he obeying (or dis-
” charging) a specific order of the party for whom, upon his
” employer’s direction, he was using the vehicle ? ” I would prefer
to make the test turn on where the authority lies to direct, or to
delegate to, the workman, the manner in which the vehicle is
driven. It is this authority which determines who is the workman’s
superior. In the ordinary case, the general employers exercise
this authority by delegating to their workman discretion in method
of driving, and so the Court of Appeal correctly points out that
in this case the driver Newall, in the doing of the negligent act,
” was exercising his own discretion as driver—a discretion which
” had been vested in him by his regular employers when he was
” sent out with the vehicle—and he made a mistake with which the
” hirers had nothing to do.”
If however the hirers intervene to give directions as to how to
drive which they have no authority to give, and the driver pro
hac vice complies with them, with the result that a third party is
negligently damaged, the hirers may be liable as joint tort-feasors.
I move that the Appeal be dismissed, with costs.
Viscount
Simon
Lord
Macmillan
Lord
Porter
Lord
Simonds
Lord
Uthwatt
[4]
THE MERSEY DOCKS AND HARBOUR BOARD
v.
COGGINS AND GRIFFITHS (LIVERPOOL) LIMITED
Lord Macmillan (READ BY LORD PORTER)
MY LORDS,
John McFarlane, the plaintiff in the action which has given rise
to this appeal, is a registered checker who in August 1943 was
employed by Messrs. Dowie & Co., forwarding agents, in checking
parcels of cargo which were in course of being loaded in the
s.s. ” Port Chalmers ” at the North Sandon Dock, one of the docks
of the appellants, the Mersey Docks and Harbour Board. The
stevedores who were engaged in loading the vessel were the
respondents Coggins & Griffiths (Liverpool) Limited. To assist
them in their work the stevedores hired from the Board a portable
travelling crane with its driver, Newall. On the night of 22nd
August, 1943, while the plaintiff was endeavouring to check the
marks on a parcel loaded on the crane which was standing in the
dock shed, Newall set the crane in motion with the result that the
plaintiff was struck by it and seriously injured. It is admitted
that Newall was negligent in starting the crane as he did and that
the injury to the plaintiff was due to his negligence.
The only question for your Lordships’ determination is whether,
on the principle of respondeat superior, the responsibility for the
negligence of the driver of the crane lies with the stevedores or
with the Board, whom the plaintiff sued alternatively. The answer
depends upon whether the driver was acting as the servant of the
stevedores or as the servant of the Board when he set the crane in
motion.
That the crane driver was in general the servant of the Board
is indisputable. The Board engaged him, paid him, prescribed the
jobs he should undertake and alone could dismiss him. The letting
out of cranes on hire to stevedores for the purpose of loading and
unloading vessels is a regular branch of the Board’s business. In
printed regulations and rates issued by the Board the cranes are
described as ” available for general use on the Dock Estate at
Liverpool and Birkenhead ” and as regards portable cranes the
stipulated rates vary according as they are provided ” with
Board’s driver ” or ” without Board’s driver.”
Prima facie therefore it was as the servant of the Board that
Newall was driving the crane when it struck the plaintiff. But
it is always open to an employer to show, if he can, that he has
for a particular purpose or on a particular occasion temporarily
transferred the services of one of his general servants to another
party so as to constitute him pro hac vice the servant of that other
party with consequent liability for his negligent acts. The burden
is on the general employer to establish that such a transference has
been effected.
Agreeing as I do with the trial judge and the Court of Appeal
I am of opinion that, on the facts of the present case, Newall was
never so transferred from the service and control of the Board to
the service and control of the stevedores as to render the stevedores
answerable for the manner in which he carried on his work of
driving the crane. The stevedores were entitled to tell him were
to go, what parcels to lift and where to take them, that is to
say, they could direct him as to what they wanted him to do;
but they had no authority to tell him how he was to handle the
crane in doing his work. In driving the crane, which was the
[5] 2
Board’s property confided to his charge, he was acting as the
servant of the Board, not as the servant of the stevedores. It was
not in consequence of any order of the stevedores that he negli-
gently ran down the plaintiff; it was in consequence of his
negligence in driving the crane, that is to say, in performing the
work which he was employed by the Board to do.
Mr. Pritchard, in his admirable argument on behalf of the Board,
sought to make out that the true view was that Newall was a
participant with the stevedores’ men in the common task or enter-
prise of loading the ship and that for this purpose he had become
temporarily the servant of the stevedores and subject to their
control. But I have already pointed out that Newall was never
subjected to the orders and control of the stevedores in the only
relevant matter of the driving of his crane, as to which the stevedores
had neither expert knowledge nor responsibility. Reference was
also made to article 6 of the Board’s regulations which states that
drivers provided by the Board ” shall be the servants of the
” applicants “, that is, of the parties to whom they are hired. But
this does not mean that the Board’s drivers cease to be the servants
of the Board when they accompany cranes which the Board lets
out on hire. Servants cannot be transferred from one service to
another without their consent and even where consent may be
implied there will always remain a question as to the extent and
effect of the transfer. Here the driver became the servant of the
stevedores only to the extent and effect of his taking directions
from them as to the utilisation of the crane in assisting their work,
not as to how he should drive it.
Many reported cases were cited to your Lordships, but where,
as all agree, the question in each case turns upon its own circum-
stances, decisions in other cases are rather illustrative than deter-
minative. So far as attempts have been made to formulate a
criterion of general application it cannot be said that these attempts
have been very successful. Counsel for the Board very naturally
placed much reliance on the case of Donovan v. Laing, Wharton
and Down Construction Syndicate Limited, [1893] 1 Q.B. 629,
where the facts bore a considerable resemblance to those in the
present case and where stevedores were held liable for the negli-
gence of the driver of a crane hired by them. The current of
subsequent authorities has set against this case and the opinions
of the learned Judges who have commented upon it have been
largely concerned with distinguishing and explaining it, if not
explaining it away. If the ground of judgment in Donovan’s case
is to be found in the words of Lord Esher M.R. at p. 632, where he
says that the crane driver ” was bound to work the crane according
” to the orders and under the entire and absolute control of Jones &
” Co.,” the wharfingers, then it is enough to say that in my opinion
the position of Newall vis-à-vis the stevedores in the present case
cannot be so described. More satisfactory guidance is to be found
in the opinions expressed in this House in McCartan v. Belfast
Harbour Commissioners [1911] 2 I.R. 143. There Lord Dunedin
found himself in entire agreement with Lord Trayner’s judgment
in Cairns v. Clyde Navigation Trustees, 1898, 25 R. 1021, and both
these cases were in turn followed in Ainslie v. Leith Dock Com-
missioners, 1919 S.C. 676, where Lord Mackenzie discusses the
matter fully and convincingly- The facts in those three cases were
in all material respects identical with the facts in the present case
and in each the same decision was reached, and the dock authority
held liable. I find ample warrant in them for my view, which
I understand all your Lordships share, that the appeal should be
dismissed.
5-=437 A 3
Viscount
Simon
Lord
Macmillan
Lord
Porter
Lord
Simonds
Lord
Uthwatt
[6]
MERSEY DOCKS AND HARBOUR BOARD
v.
COGGINS AND GRIFFITHS (LIVERPOOL) LTD.
AND ANOTHER.
Lord Porter
MY LORDS,
I need not repeat the facts giving rise to the question to be deter-
mined in this appeal. That question is, whose servant was the
crane driver, Francis Newall, at the time of the accident.
As to this matter I find myself in agreement with those members
of. Your Lordships’ House who sat to hear the appeal and only
desire to add a few observations as to the principles concerned.
In determining this question it has to be borne in mind that the
employee’s position is an important consideration. A contract of
service is made between master and man and an arrangement for
the transfer of his services from one master to another can only be
effected with the employee’s consent, expressed or implied. His
position is determined by his contract. No doubt by fiinding out
what his work is and how he does it and how he fulfils the task
when put to carry out the requirements of an employer other than
his own, one may go some way towards determining the capacity
in which he acts, but a change of employer must always be proved
in some way, not presumed. The need for a careful consideration
of the circumstances said to bring about the change of employment
has latterly been accentuated by the statutory provisions now in
force for compulsory health and accident insurance and, in the
case of many firms, by the existence of funds accumulated under a
trust for the benefit of employees, who will not lightly incur the risk
of losing such benefits by a transfer of their services from one
master to another. Nor is it legitimate to infer that a change of
masters has been effected because a contract has been made between
the two employers declaring whose servant the man employed shall
be at a particular moment in the course of his general employment
by one of the two. A contract of this kind may of course determine
the liability of the employers inter se, but it has only an indirect
bearing upon the question which of them is to be regarded as
master of the workman on a particular occasion.
The indicia from which the inference of a change is to be derived
have been stated in many different ways, notably in the words of
Bowen L. J. in Donovan v. Laing Wharton & Down [1893] 1 Q.B.
629 where he says at page 634: ” There are two ways in which a
” contractor may employ his men and his machines. He may
” contract to do the work and, the end being prescribed, the means
” of arriving at it may be left to him, or he may contract in a
” different manner and, not doing the work himself, may place his
” servants and plant under the control of another—that is, he may
” lend them—and in that case he does not retain control over the
” work.”
He adds, and Lord Esher M. R. uses words to the same effect:
” It is clear here that the defendants placed their man at the disposal
” of Jones and Company and did not have any control over the
” work he was to do.”
In that case, as in this, a crane driver was lent to a firm of
stevedores to enable them to load a ship and an employee of the
wharfingers whose duty it was to direct the working of the crane
was injured by the driver’s negligence. In these circumstances
it was held that his general employers were not liable as they had
parted with the power of controlling him.
[7] 2
The Appellants strongly relied upon both the inference drawn
from the facts and the statement of principle contained in that case.
If that statement means that the employer on whose work the
man was engaged controlled both the object to be achieved and
the method of performance, I should think a finding that that
employer was liable justified, but whether in view of the later
decision of M’Cartan v. Belfast Harbour Commissioners [1911]
2 Ir. Rep. 143 in your Lordships’ House the same inference would
now be drawn from the facts proved in evidence in Donovan’s case
may be doubted. The decision itself is justified upon the finding
of fact that all control had passed to the temporary master.
A number of other tests have been suggested as helping to deter-
mine in particular cases under which of two employers the man was
working at the relevant time. The Appellant quoted and relied
upon, amongst others, Rourke v. White Moss Colliery [1877] 2
C.P.D. 205 where the words were ” actually employed to do their
” work ” and Johnson v. Lindsay [1891] A.C. 371 where the phrase,
” working to a common end,” is used.
For myself I do not find much assistance in the circumstances
of the present case from such expressions, especially as they were
used with reference to men who had left their ordinary employ-
ment and taken on work for another employer as distinguished
from those who continued to do their ordinary work, though no
doubt from time to time subjected to the directions of a third party
as to the work they were to do.
Many factors have a bearing on the result. Who is paymaster,
who can dismiss, how long the alternative service lasts, what
machinery is employed, have all to be kept in mind. The
expressions used in any individual case must always be considered
in regard to the subject matter under discussion, but amongst the
many tests suggested I think that the most satisfactory by which
to ascertain who is the employer at any particular time is to ask
who is entitled to tell the employee the way in which he is to do
the work upon which he is engaged. If someone other than his
general employer is authorized to do this he will, as a rule, be the
person liable for the employee’s negligence. But it is not enough
that the task to be performed should be under his control, he must
also control the method of performing it.
It is true that in most cases no orders as to how a job should be
done are given or required: the man is left to do his own work
in his own way. But the ultimate question is not what specific
orders, or whether any specific orders, were given but who is entitled
to give the orders as to how the work should be done. Where a
man driving a mechanical device, such as a crane, is sent to perform
a task, it is easier to infer that the general employer continues to
control the method of performance since it is his crane and the
driver remains responsible to him for its safe keeping. In the
present case if the Appellant’s contention were to prevail, the crane
driver would change his employer each time he embarked on the
discharge of a fresh ship. Indeed he might change it from day to
day, without any say as to who his master should be and with
all the concomitant disadvantages of uncertainty as to who should
be responsible for his insurance in respect of health, unemployment
and accident.
I cannot think that such a conclusion is to be drawn from the facts
established.
I should dismiss the appeal.
Viscount
Simon
Lord
Macmillan
Lord
Porter
Lord
Simonds
Lord
Uthwatt
[8]
THE MERSEY DOCKS AND HARBOUR BOARD
v.
COGGINS & GRIFFITHS (LIVERPOOL) LTD.
AND ANOTHER.
Lord Simonds (READ BY LORD UTHWATT)
MY LORDS,
I agree that this appeal should be dismissed. The facts and the
somewhat unusual manner in which the case has been brought
before this House have already been stated. I will only emphasise
that the single question for your Lordships is whether the appellants
are answerable to the respondent McFarlane under the maxim
” respondeat superior ” for the tortious act of one Newall. The
question whether, if they are so answerable, they have any rights
against the respondents Coggins & Griffiths (Liverpool), Ltd.
(whom I will call ” the respondents “), is not here relevant.
It is not disputed that at the time when the respondents entered
into a contract with the appellants under which the latter were to
supply the former with the service of a crane and craneman, Newall
was the servant of the appellants. He was engaged and paid and
liable to be dismissed by them. So also, when the contract had
been performed, he was their servant. If then in the performance
of that contract he committed a tortious act, injuring McFarlane
by his negligence, they can only escape from liability, if they can
show that pro hac vice the relation of master and servant had been
temporarily constituted between the respondents and Newall and
temporarily abrogated between themselves and him. This they
can do only by proving, in the words of Lord Esher in Donovan’s
case (1893 1 Q.B. 629) that entire and absolute control over the
workman had passed to the respondents. In the cited case the
Court held upon the facts that the burden of proof had been dis-
charged and I do not question the decision. But it appears to
me that the test can only be satisfied if the temporary employer
(if to use the word ” employer ” is not to beg the question) can
direct not only what the workman is to do but also how he is to
do it.
In the case before your Lordships the negligence of the work-
man lay not in the performance of any act which the respondents
could and did direct and for which, because they procured it, they
would be responsible, but in the manner in which that act was
performed, a matter in which they could give no direction and
for which they can have no responsibility.
The doctrine of the vicarious responsibility of the ” superior,”
whatever its origin, is today justified by social necessity, but, if
the question is where that responsibility should lie, the answer
should surely point to that master in whose act some degree of
fault, though remote, may be found. Here the fault, if any, lay
with the appellants who, though they were not present to dictate
how directions given by another should be carried out, yet had
vested in their servant a discretion in the manner of carrying out
such directions. If an accident then occurred through his negli-
gence, that was because they had chosen him for the task, and
they cannot escape liability by saying that they were careful in
their choice. Suppose that the negligence of the craneman had
resulted in direct damage to the respondents, I do not see how
the appellants could escape liability. For the obligation to supply
a crane and a man to work it is an obligation to supply a crane
which is not defective and a man who is competent to work it.
It would be a strange twist of the law if, the negligence resulting
in damage not to the respondents but to a third party, the liability
shifted from the appellants to the respondents.
[9] 2
My Lords, I am conscious that in thus stating my view of the
law I leave little room for the application of that part of the rule
stated by Bowen L.J. in Donovan’s case which in certain circum-
stances throws vicarious responsibility upon the temporary em-
ployer. I must admit that I do not find it easy to reconcile all that
that learned Judge said with earlier and later authorities and 1
doubt whether any complete reconciliation is possible. But I would
recall the words used by Lord Esher that I have already cited and
the further fact that in that case the temporary employer was said
to have the power of dismissing the workman. It is in the context
of such facts, which enabled Lord Dunedin in McCartan’s case
1911 2 I.R. 143 to say he would have decided the case in the
same way, that the judgment of Bowen L.J. should be read. If
it were not so, the decision in Donovan’s case could not stand
with the recent decision in this House in Century Insurance Coy.
Ld. v. Northern Ireland Road Transport Board, (1942 AC 509),
and should be regarded as overruled.
The learned counsel for the appellants laid great stress upon
the terms of the contract between the appellants and respondents.
This contract incorporated the ” Regulations and Rates applying
to the fixed and moveable cranes on land available for general
use ” prescribed by the appellants and one of these regulations was
as follows; “6. … The Board do not provide any labour in
connection with the Cranes except the services of the Crane Drivers
for Power Cranes. The Drivers so provided shall be the servants
of the Applicants.” With this he linked up certain answers given
by Newall at the trial in which he said inter alia that it was his duty
” to take orders from the firm you are hired out to, go where you
are sent, do what you are told.” The argument was that this was
the best evidence that the service of Newall was pro hac vice
transferred from the appellants to the respondents and that the
transfer was recognised and acquiesced in by him, and reference
was made to the judgment of the Privy Council in Bain’s case, 1921
2 A.C. 412. But I do not think this argument is sound. Prima
facie the contract between the appellants and respondents is not
evidence against the plaintiff in determining the liability of either
of them to him, though he may if he thinks fit adduce it in evidence
for the purpose of showing what is the function of the workman in
relation to one employer or the other. In this sense it may be
the best evidence available against the employer. But the terms
of the bargain that the driver shall be the servant of one party or
the other cannot be used by either of them to contradict the fact,
if it is the fact, that the complete dominion and control over the
servant has not passed from one to the other. It is nothing else
than an incorrect inference of law which cannot affect the rights
of the plaintiff. It is vain to attempt to give to such an agreement
the effect of a tripartite bargain between e.g. two householders and
a jobbing gardener by which the latter agrees to serve each of them
for so many hours or days a week, in which case the gardener,
if indeed he does not remain his own master throughout, is now
the servant of one of them, now of the other. The observations in
Bain’s case when carefully read do not lead to any other con-
clusion. Nor can the answers of Newall himself displace the fact
that he did not, and was not expected to, take orders from the
respondents as to the way in which he should carry out their
directions. As to that he said, ” I take no orders from anybody,”
a sturdy answer which meant that he was a skilled man and knew
his job and would carry it out in his own way. Yet ultimately
he would decline to carry it out in the appellants’ way at his peril,
for in their hands lay the only sanction, the power of dismissal.
Since writing this opinion I have had the advantage of reading
that of my noble and learned friend Lord Macmillan. I am in-
debted to him for a reference to Ainslie y. Leith Dock Commis-
sioners (1919 S.C. 676) and I find in the judgment of Lord Mac-
kenzie in that case a wholly satisfactory explanation of the word
” control” in the context in which it has been used in the earlier
authorities on this subject and an analysis of those authorities with
which I am in full accord.
[10]
MERSEY DOCKS AND HARBOUR BOARD
Viscount
Simon
Lord
Macmillan
Lord
Porter
Lord
Simonds
Lord
Uthwatt
V.
COGGINS AND GRIFFITHS (LIVERPOOL) LTD.
AND ANOTHER
Lord Uthwatt
MY LORDS,
Arrangements for the supply by an employer of one of his
workmen to a third parry, whom I will call ” the hirer “, for the
purposes of a particular job are common and have given rise to
many disputes on the question whether, while engaged on the job,
the workman for the purposes of the maxim respondeat superior
is to be treated as the servant of the general employer or of the
hirer. The principles established by the authorities are clear
enough. The workman may remain the employee of his general
employer, but at the same time the result of the arrangements may
be that there is vested in the hirer a power of control over the work-
man’s activities sufficient to attach to the hirer responsibility for
the workman’s acts and defaults and to exempt the general
employer from that responsibility. The burden of proving the
existence of that power of control in the hirer rests upon the general
employer. The circumstance that it is the hirer who alone is
entitled to direct the particular work from time to time to be done
by the workman in the course of the hiring is clearly not sufficient
for that purpose. The hirer’s powers in this regard are directed
merely to control of the job and the part the workman is to play in
it. not to control of the workman, and the workman in carrying out
the behests of the hirer as to what is to be done is not doing more
than implementing the general employer’s bargain with the hirer
and his own obligations as a servant of his general employer. To
establish the power of control requisite to fasten responsibility
upon him, the hirer must in some reasonable sense have authority
to control the manner in which the workman does his work, the
reason being that it is the manner in which a particular operation
(assumed for this purpose to be in itself a proper operation) is
carried out that determines its lawful or wrongful character. Un-
less there be that authority the workman is not serving the hirer,
but merely serving the interests of the hirer, and service under
the hirer in the sense I have stated is essential. Whether there is
or is not such service in any particular case is a question of fact,
the object being to ascertain the broad effect of the arrangement
made. (See Century Insurance Co. v. Northern Ireland Transport
Board (1942), A.C. 509, at p. 518.)
It may be an express term of the bargain between the general
employer and the hirer, that the workman is to be the servant of
the hirer or is to be subject in all respects to his authority. That
in my opinion does not of itself determine the workman’s position.
The workman’s assent express or implied to such a term would
I think conclude the point one way : and his dissent conclude it
the other way. In cases where the point cannot be disposed of in
this fashion, the nature of the activities proper to be demanded of
the workman by the hirer and the relation of those activities to
the activities of the hirer’s own workmen, are of outstanding
importance in determining whether the hirer has in any reasonable
sense authority to control the manner of execution of the work-
man’s task. For instance the position under the hirer of a
craftsman entrusted for the hirer’s purposes with the management
of a machine belonging to his general employer, that machine de-
manding for its proper operation the exercise of technical skill and
II] 2
judgment, differs essentially from the position under the hirer of an
agricultural labourer hired out for a period of weeks for general
work. In the case of the craftsman the inference of fact may be
drawn that he was not the servant of the hirer even though the
bargain provided that he should be; and in the case of the agri-
cultural labourer the inference of fact may be that he became the
servant of the hirer, though the bargain provided that he should not
be. The realities of the matter have to be determined. The terms
of the bargain may colour the transaction; they do not necessarily
determine its real character.
The facts of this case have already been stated and I do not
propose to travel over them again. There is however one
matter in the evidence to which reference need be made.
The hiring agreement contained the following provision
” The driver so provided ” (i.e., the crane driver) ” shall be the
“servant of the applicants” (i.e., the Company). There is no
evidence that the workman agreed to this provision or was
indeed aware of it. Without his consent he could not be made the
servant of the Company. In light of the surrounding circum-
stances it is impossible to construe the provision as authorizing
the Company to direct the manner in which the workman should
do his work and for the purpose in hand I read the provision
merely as stating what the Board and the Company agreed should
be the legal result of an arrangement the operative terms of which
are to be found elsewhere. Their agreement on a matter of law
is immaterial. For the purposes of this case this point may be
left there.
Applying the general principles which I have stated to
this case the particular question to be determined is whether
or not Coggins and Griffiths (Liverpool) Ltd. had authority to give
directions as to the manner in which the crane was to be operated.
To my mind it is clear they were not intended to have and did not
have any such authority. The manner in which the crane was
to be operated was and remained exclusively the workman’s
affair as the servant of the Dock Board. The workman in saying
in his evidence ” I take no orders from anybody ” pithily asserted
what was involved in the hiring out of the crane committed to his
charge by the Dock Board and, so far as the Company was con-
cerned, gave an accurate legal picture of his relations to the
Company. The Company’s part was to supply him with work: he
would do that work, but he was going to do it for the Dock Board
as their servant in his own way
With respect to the authorities I find myself in complete agree-
ment with the observations made by the noble and learned Lord on
the Woolsack and I desire to refer to one matter only.
The test suggested in Nicholas’ case (1945 1 K.B. 309, note) was as
follows: ” One test in cases of a vehicle . . . lent with its service
” to a hirer is this question. ‘ In the doing of the negligent act
‘ was the workman exercising the discretion given him by the
‘ general employer or was he obeying a specific order of the party
‘ for whom upon his employer’s direction he was using the
vehicle . . . .”
The test is not, I think, correct, and to my mind the second ques-
tion contained in the test leads to confusion. The proper test
is whether or not the hirer had authority to control the manner of
execution of the act in question. Given the existence of that
authority its exercise or non-exercise on the occasion of the doing of
the act is irrelevant. The hirer is liable for the wrongful act
of the workman, whether he gave any specific order or not. Where
there is no such authority vested in the hirer, he may, by reason of
the giving of a specific order, be responsible for harm resulting
from the negligent execution of that order. But it is not every
3. [12]
order given by the hirer that will result in liability attaching, to
him. The nature and terms of the order have to be considered.
For instance an order given in the case under consideration to
unload cargo from a particular hold in the ship would not—assum-
ing that to be a proper operation—subject the hirer to liability for
damage resulting from any negligent driving of the crane in carry-
ing out the order. And lastly where liability does attach to the
hirer by reason of a specific order, that liability arises by the
reason that in the particular matter he was a joint tort feasor
with the workman. The general relation arising out of the contract
of hiring is in no way involved.
I would dismiss the appeal.
(52437) Wt. 8826- 24 25 8/46 D.L. G. 338
Source: https://www.bailii.org/
