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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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JISCBAILII_CASE_TORT

    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.

    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 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."

    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] 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


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