Scottish Court of Session Decisions

It is instructive to see how the matter was dealt with in the judgments delivered in the House of Lords in M'Cartan's case. The Lord Chancellor commences by saying that he regards this case as purely one of fact in which no point of law is in dispute, and “the question on which the decision hinges is this—Was the man whose negligence caused this accident acting as servant of the defendants in doing what led to the mishap, or as servant of the master of the vessel which was being unloaded? For the man who is the general servant of one person may, if lent to some-one else for a particular employment, become his servant for anything done in that particular employment.”

One notices that all the noble and learned Lords are careful to say that they cast no doubt upon the conclusion reached in the case of Donovan although Lord Dunedin certainly expresses disagreement with the test which is applied by Lord Justice Bowen in these terms—“We have only to consider in whose employment the man was at the time when the acts complained of were done, in this sense, that by employer is meant the person who has a right at the moment to control the doing of the act.” Th at is expressly negativ ed by Lord Dunedin, who in a later part of his judgment says he prefers the test put by Bowen, L.J., in Moore v. Palmer ( 1886, 2 T.L.R. 781)—“The great test was this, whether the servant was transferred or only the use and benefit of his work.” The principle involved in Donovan's case and in M'Cartan's is stated by Lord Dunedin to be that “which is compendiously described by the brocard respondeat superior.” The question in M'Cartan's case was whether Duffy was controlled by the defendants, who gave him his orders every morning, paid him his wages, and could at any moment have dismissed him, and told him to leave his crane and the harbour premises. This, as Lord Dunedin points out, however, though uncontroverted is not conclusive—“As Lord Watson said … in the case of the Union Steamship Company v. Claridge ( [1894] AC 185), ‘that the servant of A may, on a particular occasion and for a particular purpose, become the servant of B notwithstanding that he continues in A's service and is paid by him, is a rule recognised by a series of decisions.’ . .” “Was this the case when, in Lord Watson's words, the servant of A became the servant of B? That is the question that was really before the jury. Now I agree that the precise form of the question as put was not very happy. On the other hand I think we had an intelligible and satisfactory account from the learned counsel who was at the trial of how the question came to be put in that form,” and then he puts the question left to the jury which I have already read. “Now,” Lord Dunedin goes on, “I read that as meaning, and I think it was intended to mean, that the general authority and control of the defendants over Duffy had not pro hac vice been surrendered by them and transferred to Chambers, but that the control given to Chambers was limited to the right to give directions to move the crane alongside the hold and to lower or raise the bucket. Any control, however limited, is not per se enough to transfer the service, and the jury has not held this control to be sufficient so to transfer it.” “If similarity of facts were a test—which, as I have already said, is, I think, fallacious—then the case of Cairns v. Clyde Navigation Trustees, decided by the Second Division of the Court of Session, is a case more on all fours with the present than Donovan's case. I refer to Lord Trayner's judgment in that case, with which I entirely agree.”

What the jury had to consider in the present case, and did consider, was exactly what the jury had to consider and decide in M'Cartan's case, and I can see nothing wrong in the principle that they applied, nor in the way in which they reached their conclusion consistently with the whole evidence in the case.

For these reasons I am of opinion that the verdict must stand.

Lord Skerrington—I really have nothing to add to the expositions which your Lordship has given as to the import of the evidence in the present case and as to the result of the authorities, with both of which I entirely agree.

The question which the jury had to decide was purely one of fact, namely, whether the defenders had made out their allegation that the services of this craneman had on the occasion in question been transferred to the stevedore in such a manner as to constitute the craneman the servant of the stevedore. There was, I think, ample evidence to entitle the jury to answer that question in the negative, and, for my part, I would go further and I would say that the verdict seems to me to have been the right and proper verdict for them to return upon the evidence which they had before them.

Lord Cullen—I am of the same opinion. I think the jury were quite entitled to hold that the power of control which the stevedore had was of that very limited kind which in the Irish case of M'Cartan ( [1911] 2 I.R. 143) was regarded as not making the craneman the servant of the hirer.

Lord Hunter—I concur. The question involved in this case appears to me to be a mixed question of fact and of law. On the assumption that the case of Cairns ( 1898, 25 R. 1021, 35 S.L.R. 808), to which there has been frequent reference, was well decided, I do not think it possible to take the view that the jury were not entitled to return the verdict which in point of fact they did.

In view, however, of the contrary verdict which was returned in the case of Connolly ( 1902, 5 F. 8, 40 S.L.R. 14), of certain expressions of opinion in that case, and also of the English decision of Donovan ( [1893] 1 QB 629), I confess that at one time I thought the law as laid down in Cairns ought to be more fully considered than by a bench of judges which could not overrule that decision. In the course of the

Page: 9↓