United Kingdom House of Lords Decisions

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Cite as: 49 ScotLR 618, [1911] UKHL 618

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SCOTTISH_SLR_House_of_Lords

Page: 618↓

House of Lords.

(On Appeal from the Court of Appeal in England.)

Monday, April 3, 1911.

(Before The Lord Chancellor (Loreburn), the Earl of Halsbury, Lords Ashbourne, Atkinson, Shaw, and Mersey.)

49 SLR 618

Smith

v.

General Motor Cab Company.

Subject_Master and Servant — Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) — Contract of Employment — Servant or Agent — Taxi-cab Driver.
Facts:

A taxi-cab driver was injured by an accident while engaged in his vocation. He claimed compensation from the cab owners, and maintained that they were his employers in the sense of the Workmen's Compensation Act 1906. Some of the proved facts were consistent with the driver's contention, the other facts indicated that the contract was one of hire by the driver from the cab owners. The County Court Judge found in fact that the driver hired the cab and was not a servant.

Held that there was evidence before the County Court Judge on which he could reasonably act to sustain his finding, and that therefore it could not be set aside.

Headnote:

The appellant was injured by accident while driving a taxi-cab, the property of the respondents. He claimed compensation from them as his employers. The proved incidents of the contract are set forth in the judgment of the County Court Judge as follows:—“The respondents are the owners of taxicabs which they let out to licensed drivers. These drivers ply for hire and pay for the cabs 75 per cent. of their takings. They compulsorily buy their ordinary supply of petrol from the respondent company, but on emergency are at liberty to purchase elsewhere. The drivers are compelled when driving to wear the livery cap as well as the leggings and breeches, which they purchase from the respondents, the latter lending them coats and mackintoshes. There are a certain number of regular drivers, that is to say, men who apply every day for a cab. In addition there are a number of ‘odd men,’ that is to say, men who attend at a certain hour each day on the chance that the regular drivers may not have attended, in which case the cab is let out to them. The applicant is an ‘oddman,’ and he states that sometimes a week has gone by without his getting a cab. The drivers are entirely free and uncontrolled. They may apply for a cab if it suits them, and may take it where they please. They may apply for hire diligently or the reverse as it suits them. The company exhibits the notices which are in evidence, but, in my opinion, these are regulations for the efficient carrying on of the company's business, and compliance with which is a condition of the contract between the company and the driver being entered into at all.… The company enforces these conditions and gets rid of an unprofitable or undesirable driver by refusing to let him have a cab. And as on the one hand there is no contractual obligation on the company to let any particular driver have a cab, so on the other there is no obligation on the drivers to attend and apply for one. In my opinion the contract between the respondents and the applicant lacks every incident of a contract of service. No wages are paid. No notice of termination on either side is given or is necessary. No control of the work is exercisable by the respondents. I should describe the drivers as clients of the company and bailees of the cabs.”

The County Court Judge accordingly refused the application and his decision was affirmed by the Court of Appeal ( Cozens-Hardy, M.R., Farwell and Kennedy, L.JJ.).

The driver appealed.

Their Lordships gave considered judgment as follows:—

Judgment:

Lord Atkinson—This is a most hopeless appeal. It would appear to me to be

Page: 619↓

founded on a disregard or forgetfulness of the fact that it is a well-established principle that the County Court Judge sitting as an arbitrator under the provisions of the Workmen's Compensation Act 1906, is as absolute a judge of fact as a jury in a trial at Nisi Prius, if indeed not more absolute, and that his decision can only be reviewed by the superior courts on questions of law. Whether there was any evidence before the arbitrator in any given case proper for his consideration and on which he could reasonably act to sustain his finding on an issue of fact is a question of law, and his findings on such issues have often been set aside on the ground that there was an absence of such evidence, as was done in Doggett v. Waterloo Taxicab Company, [1910] 2 KB 336. The point in controversy, on which the decision of this case turns, was, What was the true nature of the relation between the respondents and the appellant? Was it that of master and servant, or bailor and bailee of the taxicab of the respondents of which the appellant was the driver? It was not, it could not be, contended that all the terms of the contract entered into between the parties were embodied in a written document the proper construction of which was a matter of law. Neither could it be contended that the respondents expressly admitted that the appellant was their servant, nor, as it would appear to me, that they admitted any fact or facts from which such a conclusion must necessarily be drawn as a matter of law. On the contrary, the respondents at the hearing contended, rightly in my opinion, that the wording of the document signed by the appellant, the absence of all control over him when once he had driven the cab out of the garage, and the casual nature of his employment, were all pieces of evidence which went to show that the relation between the parties was that of bailor and bailee, while the appellant on the other side as resolutely contended that the wearing of livery, the percentage of the earnings retained, the mode of accounting for the receipts, the deposit of his licence, and the words “dismiss” and “discharge” used in certain notices were all persuasive pieces of evidence to show that the true relation between the parties was that of master and servant.

The facts relied upon by the respondents were undoubtedly evidence of a bailment of the cab, upon which the County Court Judge could properly act; those relied upon by the appellant may have been evidence, strong evidence if you will, that the driver was the respondents' servant; but, if so, the finding of the County Court Judge that the appellant was a bailee was a finding on conflicting evidence on an issue of fact. So that the appellant is driven to this position, that he must contend that had the case been tried before a judge and jury the judge would have been bound to direct the jury to find a verdict for the plaintiff, on whom the burden of proof of service lay, a contention absolutely unsustainable. It may be necessary to point out that the decision of your Lordships' House on this appeal does not in any way touch the question of the liability of the cab proprietor to third parties, passengers, wayfarers, or others, for the acts of the driver. It may well be that though the relation between the taxicab owner and his driver inter se be that of bailor and bailee, the driver may still, quoad third parties, be treated as the agent of the proprietor authorised to ply for hire in the streets for reward to the latter; and the proprietor be thereby rendered liable for those acts of the driver which were within the scope of the latter's authority. The general result of the cases of Fowler v. Lock, L.R., 7 C.P. 272; Venables v. Smith, 2 QBD 279; King v. London Improved Cab Company, 23 QBD 281; Smith v. Bailey, [1891] 2 QB 403 and 405; and Gates v. Bill, [1902] 2 KB 38, cited in Doggett's case, is, that in the case of horse-drawn cabs, where drivers were given them in charge under terms resembling those admitted to exist in the present case, the relation between the proprietor and driver was that of bailor and bailee, but that quoad third parties the drivers were, under the provisions of the Metropolitan Hackney Carriage Act 1843 (admittedly applicable to taxicabs), deemed to be the servants of the proprietors.

The decision appealed from was, in my opinion, absolutely right. Kennedy, L.J., in his short judgment puts the case in a nutshell. I should like, if I may, to adopt that judgment as my own. I think that the appeal should be dismissed with costs.

Lord Shaw—In this case I have only three propositions to state, each in a sentence. In my opinion, quoad the cab, the contract was an ordinary locatio rei. Quoad the public, the relation of the cab-driver to the cab owner was, in my opinion, one of agency; so that for negligence in the conduct of his business both principal and agent might naturally be responsible to the public. Quoad the employer himself, the question whether the relation of master and servant existed between the employer and the driver is one of fact. The fact has been found in this case that no such relation did exist. That point depends on many circumstances—the scope of the employment, the form of remuneration, the scope within which the person driving the cab has power to regulate his own times and seasons, or to drive or not to drive as he wishes. These are familiar illustrations of the variety of things to be considered. I think that there was ample evidence in this case to confirm the finding of the County Court Judge. I concur in the course proposed.

The Lord Chancellor (Loreburn), the Earl of Halsbury, and Lords Ashbourne and Mersey, concurred.

Appeal dismissed.

Counsel:

Counsel for Appellant— John O'Connor— Edmond Browne. Agents— Pattinson & Brewer, Solicitors.

Counsel for Respondents— C. A. Russell, K.C.— Gilbert Beyfus. Agents— Beyfus & Beyfus, Solicitors.
1911