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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Mersey Docks & Harbour Board v Coggins & Griffiths (Liverpool) Ltd [1946] UKHL 1 (26 July 1946)
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Cite as: [1947] AC 1, [1946] UKHL 1
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Die Veneris, 26° Julii, 1946
Parliamentary
Archives,
HL/PO/JU/4/3/981
Viscount
Simon
Lord
Macmillan
Lord
Porter
Lord
Simonds
Lord
Uthwatt
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.
[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,
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.
[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 QB 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."
[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] AC 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 QB 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