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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance  EWHC QB 3 (08 December 1967)
Cite as:  2 QB 497,  EWHC QB 3
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[QUEEN'S BENCH DIVISION]
READY MIXED CONCRETE (SOUTH EAST) LTD. v. MINISTER OF PENSIONS AND NATIONAL INSURANCE
|1967 Oct. 4, 5, 6, 9, 10, 11;
in all the management and control of his own vehicle, in all the ways in which he used it for the purpose of carrying their goods, he should be subject to the commands of the respondents.
Appeal allowed with costs.
On references orders accordingly.
Costs against Minister.
Solicitors: Linklaters & Paines; McKenna & Co.; Solicitor, Ministry of Social Security.
The schedule to the contract, annexed to the case stated, provided:
“1. This agreement shall be operative as from the commencement date.
2. On or before the commencement date: (a) The company shall procure that the hire purchase company will effect all structural alterations and additions to the vehicle (including any power take off unit or front-end modification to the engine) necessary to the operation thereon of the equipment and shall paint the vehicle in the colour or colours and with the distinguishing signs and marks specified by the company and shall then offer the vehicle for sale to the owner-driver. (b) The owner-driver shall purchase the vehicle from the hire purchase company (c) The company shall ensure that credit facilities are available to the owner-driver for the purchase of the vehicle from the hire purchase company.
3. On or before the date of the purchase and sale referred to in the preceding clause the company shall at its own expense provide and fit the equipment to the vehicle. The equipment shall at all times remain the property of the company and shall not be removed from the vehicle except in accordance with the terms of this agreement.
4. The owner-driver shall forthwith upon the exchange of this agreement obtain an “A” contract licence based upon this agreement covering the use of the truck hereunder.
5. The owner-driver shall at all times of the day or night during the term of this agreement (excepting only in accordance with the terms hereof) make available the truck to the company for the purpose of collecting carrying and delivering the materials used for or in connection with the business of the company (not being a business of carrying or arranging for the carriage of goods) whenever and wherever so required by the company whether such requirement is notified to the owner-driver or to his servants or agents and shall duly and promptly collect carry and deliver such quantity or quantities of the materials as and when required in the manner at the time and to the destination directed by the company and it is further provided that the truck shall be used exclusively for the purposes set out in this agreement and for no other purpose. In furtherance of the terms of this clause the owner-driver shall if so required by the company at his own expense ensure that the company is able to contact him by telephone at his usual residence or residences.
6. The company may require the owner-driver to make the truck available to any associated company for the purpose of collecting, carrying and delivering the materials of such associated company and the owner-driver shall subject to his obtaining a “B” licence as hereinafter mentioned comply with such requirement in accordance with the terms of the preceding clause. If any such requirement is made by the company the owner-driver shall use his best endeavours to obtain in substitution for the “A” contract licence the grant of a “B” licence covering the use of the truck from any plants both of the company and of such associated company. The parties hereto hereby agree that unless a “B” licence is obtained by the owner-driver in accordance with this clause the truck will not be used for or in connection with the carriage of any goods of any parent or subsidiary company of the company.
7. The owner-driver shall at all times ensure that he holds a licence in accordance with clause 4 or clause 6 of this schedule and that the operation of the truck at all times falls within the provisions of such licence and shall further comply with all conditions, provisions, regulations and rules for the time being in force … in any way relating the vehicle or its use or operation and shall indemnify the company against all actions proceedings claims demands and expenses and other liabilities incurred by the company in respect of any breach of this provision.
8. The owner-driver shall not during the continuance of this agreement or within 14 days after its termination (howsoever caused) without the prior written consent of the company (except in the case of any hire purchase agreement with the hire purchase company) charge or sell or purport to charge or sell the vehicle or the equipment or in any manner permit or allow the same or purport to allow them to become subject to any lien charge or incumbrance.
9. Where the truck is not or will not be available to the company in accordance herewith for any reason whatsoever the owner-driver shall so notify the company by at least seven days' notice or by such shorter notice as in the circumstances be reasonable.
10. The owner-driver shall with the consent of the company be entitled (subject to clause 12 …) to appoint a competent and suitably qualified driver to operate the truck in place of him. lf any such other driver is so appointed the owner-driver shall ensure that such other driver complies with all the terms conditions and obligations of this agreement applicable to the operation and use of the truck. If the company has reasonable grounds for dissatisfaction with any driver appointed by the owner-driver it shall be entitled to give notice of this to the owner-driver and the owner-driver shall forthwith provide a suitable and acceptable driver in lieu of such driver and shall not permit such driver to operate the truck.
11. Any driver employed by the owner-driver to operate the truck shall be employed on conditions of employment and at rates of wages no less favourable to such driver than those for the time being laid down by the National Joint Council for the Ready Mixed Concrete Industry.
12. Notwithstanding the provisions of clause 10 … the company shall be entitled to require the owner-driver himself to operate the truck on every or any day up to the maximum number of hours permitted under section 73 of the Road Traffic Act, 1960, or any statutory amendment or re-enactment thereof and the owner-driver shall comply with such requirement unless he shall have a reason for not so doing which would have been valid had he been the employed driver of the company and shall have notified the company in advance of such reason and shall be able to produce and upon the request of the company in fact produce evidence to substantiate the same. The owner-driver shall not himself be obliged to operate the truck during such holiday times and periods (not extending for more than two weeks in any calendar year) as have been agreed by the company in writing.
13. If at any time the owner-driver shall fail both to operate and to cause any other driver to operate the truck in accordance herewith then without prejudice to any other rights of the company arising from such breach the company shall be entitled to appoint a driver or drivers to operate the truck in accordance with this agreement on behalf of the owner-driver for such period as the company may at the time of such appointment consider reasonable and to revoke any such appointment: and the owner-driver hereby irrevocably authorises the company to make or revoke any such appointment or appoints and undertakes to be responsible for all wages earnings and liabilities earned or incurred by any driver so appointed by the company and hereby agrees that for all purposes such driver or drivers shall be deemed to be in the exclusive employment of the owner-driver.
14. The owner-driver shall at all times while operating the truck:
(a) Wear a clean and presentable uniform of the pattern and colours prescribed by the company which shall be provided by and at the expense of the owner-driver. (b) Comply with all rules regulations or requirements of the company. (c) Ensure that no water or other substance is added to the materials unless the customer to whom the materials are being delivered or a responsible person on behalf of such customer insists upon such an addition and completes the appropriate part of the delivery docket. (d) Ensure that none of the details on any delivery docket is altered. (e) Carry out all reasonable orders from any competent servant of the company as if he were an employee of the company. (f) Where so requested by the company be responsible for the collection of and transmission to the company of any moneys to be paid to the company on the delivery of any of the materials. (g) By his conduct and appearance (including the speed and manner in which he operates the truck) use his best endeavours to further the good name of the company.
15. The owner-driver shall not do anything which might cause a contravention of the Road Traffic Act, 1960 (and especially of sections 4, 24 and 73 the provisions of which have been brought to the notice of the owner-driver), or of any statutory amendment or re-enactment thereof or of any rules or orders thereunder for the time being in force and he shall not accept or carry out any orders or instructions given to him which would result in any such contravention.
16. The owner-driver shall at all times hold a current driving licence valid for the class of vehicles into which the truck falls.
17. The owner-driver shall not carry out or permit to be carried out any alteration to the truck except with the written consent of the company.
18. (a) The owner-driver shall at all times to the satisfaction of the company: (i) Keep the truck well and freshly painted and signwritten in the colours and in the manner directed by the company. (ii) Wash cleanse oil grease and maintain the truck (including in particular the internal cleansing of the drum forming part of the equipment and the removal of all residual concrete and other solids therefrom) both mechanically and otherwise (including the replacement or reconditioning of all worn damaged or defective parts thereof) with the exception only of the replacement of the main drum and cradle (excluding accessories attached thereto and in particular excluding drum blades) of the equipment where the need for such replacement or reconditioning is due only to fair wear and tear. (iii) Generally keep the truck in good and substantial repair and condition.
(b) The works to be carried out by the owner-driver under (a) of this clause shall be carried out in such a manner that the truck shall cease to be available to the company for as short a time as possible and shall on each occasion that the truck will not be available to the company in accordance herewith notify the company as soon as possible specifying the precise nature of the works to be carried out and of any defect making necessary such works.
(c) Where the owner-driver is about to carry out any replacement or reconditioning of or any major repair on the vehicle of the equipment or any other works whose cost exceeds £50 or which would result in the truck being unavailable to the company in accordance herewith for more than twenty-four hours the company shall have the option to require that the work shall be carried out for and at the expense of the owner-driver by Readymix Transport Ltd. or by any other person firm or company nominated by the company.
(d) The owner-driver may with the consent of and shall upon the written requirement of the company without charge maintain wash down and garage the truck in the open air or otherwise at any plant from which it is operating Provided that the company may at any time and without assigning any reason therefor withdraw such consent or requirement And Provided Also that the owner-driver shall at no time be entitled as of right to use any of the company's facilities or equipment for such maintenance washing down or garaging.
(e) The owner-driver shall if so required by the company cause the truck to be available for inspection by the company or by any person firm or company and at any place nominated by it and if after such inspection or at any other time the company considers that the condition of the truck is such that the provisions of this agreement have not been complied with the company may thereupon require the owner-driver forthwith to put in hand and complete such works as may be specified by the company and the owner-driver shall comply with such requirement. If the owner-driver shall fail forthwith to put in hand or to complete such works as aforesaid the company shall without prejudice to any other right which it might have by reason of such breach be entitled forthwith to carry out such works or to nominate any person firm or company to carry out such works on its behalf and the owner-driver shall forthwith repay to the company the cost of such works.
(f) The company may at any time serve notice on the owner-driver that it wishes to replace the equipment or the main drum the cradle or any other part thereof and thereupon the owner-driver shall forthwith make the truck available for such purpose as when and where requested by the company and the company shall carry out or have carried out such replacement at its own expense with all reasonable speed.
19. The owner-driver shall in addition to the other obligations referred to in clause 18 … be responsible for the wear and tear on the equipment with the exception of fair wear and tear on the main drum and cradle thereof (excluding accessories attached thereto and in particular excluding drum blades) and upon any replacement thereof whether in accordance with clause 18 (f) … or otherwise or upon the termination of this agreement (howsoever caused) shall pay to the company such a sum calculated with reference to the expired portion of the estimated life of the equipment (other than as aforesaid) or of the separate component parts thereof as is certified by the company to be due in respect of such wear and tear.
20. (a) Subject as hereinafter mentioned the owner-driver shall be entitled to earnings for the services provided hereunder calculated as follows: (i) At (subject to (c) of this clause) the rates for each delivery of the materials on the basis that the quantity of the materials constituting each delivery was not less than the minimum delivery Provided that in the case of concrete which weighs less that 138 pounds per cubic foot (known as “Lightweight Concrete”) such calculation shall be on the basis that the quantity of the materials constituting each delivery was not more than the capacity of the equipment referred to in clause 2 (c) of this agreement. (ii) At the waiting period rate for all the time in excess of the waiting period during which the truck is while delivering the materials delayed on a site through no act or default of the owner-driver. Provided that a statement showing the length of such delay and signed by the customer to whom the materials are being delivered or by a responsible person on behalf of such customer or on behalf of the company is on the day of such delay passed to “shipper” at the plant from which the materials were dispatched.
(b) (i) The rates have been calculated on the basis that the truck will operate from the specified plants: during such time as the truck operates from any other plant than the specified plants then (a) of this clause shall be read as if the reference to “the rates” were a reference to “the current rates of payment from time to time paid by the company to new owner-drivers at the plant from which the truck is operating.” (ii) For the purpose of any calculation under (a) of this clause the number of radial miles in each delivery of the materials shall be taken from the radial mile map at the plant from which the delivery is made by the “shipper” or other employee of the company responsible for deliveries at the said plant. If any dispute shall arise as to the number of radial miles in any delivery notice thereof shall be given to the owner-driver or the company as the case may be within seven days of the day of the delivery concerned. Such dispute shall be referred to a senior executive of the company whose decision shall be final.
(c) (i) Within seven days from the end of each week the owner-driver shall submit to the company invoices in the form specified by the company showing in respect of that week the quantity of the materials delivered by the truck during that week and the amounts due in respect of such deliveries in accordance with the previous provisions of this clause.
(ii) Within seven days after the end of each calendar month the owner-driver shall render to the company a detailed statement of such invoices as relate to that month in the form specified by the company. (d) The company shall (subject to the right of the company to make any deductions retentions or to obtain reimbursement from the owner-driver under any other provision of this agreement) by the end of the month following that in respect of which the detailed monthly statement is rendered to the company make payment of the amount found to be owing in respect thereof and notice by the owner-driver of any dispute arising from any such payment shall be given to the company within seven days thereof.
21. The owner-driver shall be entitled to receive in respect of each minimum earnings period (having regard to all sums laid out by the company on behalf of the owner-driver) at least such a sum as is obtained from the calculation of minimum earnings. Minimum earnings are based on a working year of two hundred and eighty days and “y” represents the number of days (if any) in excess of 85 days in any minimum earnings period on which the truck and a driver to operate it were not available to the company for the carriage of the materials in accordance with this agreement (otherwise than as a result of any action on the part of the company) for a period in any one day of at least four hours. Calculations of minimum earnings shall be prepared by the owner-driver at his own expense and submitted to the company within six weeks after the end of any minimum earnings period and if the amount found to be owing under this clause is in excess of the amount actually earned by the owner-driver under this agreement during the minimum earnings period in question then the company shall within three months after the end of such minimum earnings period pay the deficit to the owner-driver.
22. Either party hereto shall be entitled to have the rates increased or decreased by the amount (to the nearest penny) appropriate to allow for any variations in the following expenses at the date hereof: (a) The cost at which the owner-driver is able to provide drivers for the truck (including for all times at which the truck is operated by the owner-driver the wages to which the owner-driver would have been entitled had he been an employee) in accordance with the conditions of employment and rates of wages laid down by the National Joint Council for the Ready Mixed Concrete Industry. (b) The cost at which the owner-driver is able to purchase fuel lubricating oils and tyres for use on the truck and it is further provided that the rates shall at the request of the owner-driver be subject to review in the event of any substantial reduction in the profitability of this Agreement to the owner-driver by reason of any levy or tax imposed by Parliament on carriers of goods by road transport generally.
23. (a) The company shall be entitled to pay (and until it shall have given to the owner-driver 14 days' notice in writing shall pay) any instalments due from the owner-driver under the terms of any hire purchase agreements between the hire purchase company and the owner-driver as the same fall due and to charge the same to the owner-driver. (b) Subject to (a) of this clause the owner-driver shall pay all debts and liabilities and perform all obligations in respect of the truck and any goods or materials supplied or work carried out in connection therewith (including where the company shall have given notice to the owner-driver in accordance with (a) of this clause all instalments due under any such hire purchase agreement and also including all debts and liabilities under any such hire purchase agreement) as the same fall due and shall not allow the vehicle or the equipment to become subject to any charge or alien (other than any such hire purchase agreement) and if the driver shall not after a reasonable time have remedied any breach of this sub-clause the company shall be entitled without prejudice to any other rights of the company arising from such breach to pay such debts or liabilities or meet such obligations on behalf of the owner-driver and to recover any moneys so expended by deduction from any payments from time to time due to the owner-driver from the company or from the reserve fund or otherwise.
24. The company from time to time shall notwithstanding anything else herein contained be entitled to retain from the earnings of the owner-driver for any month a sum not exceeding the sum resulting from the calculation of the deduction rate so that at any time it holds a balance up to but not exceeding the amount of the reserve fund and shall hold such moneys as security for the proper performance of all the obligations of the owner-driver hereunder. The company shall be entitled to retain the reserve fund free of interest and at any time to draw upon it to meet any debts liabilities or obligations of the owner-driver hereunder whether to the company or otherwise and shall account to the owner-driver for any such drawings made in any calendar month at the same time as it makes payment of his earnings for that month. After the termination of this agreement the company shall render its final account in respect of the reserve fund and any such drawings at the same time as making the last payment of earnings hereunder Provided that if the company has reasonable grounds for believing that any of the obligations of the owner-driver hereunder has not been performed it shall be entitled to continue to retain and if necessary to draw on a reasonable proportion of the reserve fund for a reasonable time thereafter.
25. The owner-driver shall at his own expense and to the satisfaction of the company cause to be maintained by a professional accountant or firm of accountants approved by the company in a form approved by the company profit and loss accounts for each period of three months ended on the last day of February May August and November in each year or for any shorter period commencing on the commencement date and ending on the next of such dates thereafter and balance-sheets as at the end of each of such periods relating to the business carried on by the owner-driver hereunder and the owner-driver shall in any manner specified by the company set aside any provision made in such accounts. The owner-driver shall submit such accounts and balance-sheets to the company by the end of the month following the period covered thereby.
26. (a) On or before the date of the purchase and sale referred to in clause 2 of this schedule the company shall negotiate for and use its best endeavours to effect on behalf of in the name of and at the expense of the owner-driver a policy (which expression shall in this clause include the plural) of motor insurance on the vehicle. The policy shall be in such form for such amounts through such insurance brokers with such insurance company and on such terms and conditions and subject to such limitations and exceptions as the company may require. Such policy shall have indorsed thereon the interest of the company as owners of the equipment and where applicable both the interest of the hire purchase company as owners of the vehicle under any hire purchase agreement with the owner-driver and the interest of the owners of the radio equipment. Where such policy is effected through insurance brokers the company shall not be entitled to any commission fee or other brokerage from the owner-driver for effecting or maintaining the same nor shall it be entitled to claim any reimbursement of its own administrative expenses from the owner-driver. The owner-driver hereby irrevocably authorises the company during the term of this agreement to effect or on the termination of this agreement to cancel such policy on his behalf and agrees that no alteration or amendment thereto shall be made without the written consent of the company. The owner-driver further irrevocably authorises the company during the terms of this agreement to pay on his behalf all premiums due under such policy as and when they fall due and to deduct the amount thereof from any payments from time to time due to the owner-driver from the company or from the reserve fund and to collect and in due course to account to the owner-driver for any return premium due on the cancellation of any policy as aforesaid. (b) The company shall negotiate and effect a policy of insurance on the equipment on the same terms as those contained in (a) of this clause relating to the vehicle save that the policy may at the option of the company be in the name of the company and save that if a policy is so effected in the name of the company it shall not bear the indorsements referred to in (a) of this clause. (c) The company shall at all times during the continuance of this agreement use its best endeavours to keep in force any policy effected in accordance with (a) and (b) of this clause or to effect and keep in force an alternative policy in accordance therewith. (d) In the event that the company is unable to effect or to keep in force a policy in accordance with (a) (b) and (c) of this clause whether by reason of the driving or claims record of the owner-driver or of any drivers appointed by him or otherwise the company shall forthwith notify the owner-driver accordingly and thereupon the owner-driver shall endeavour to negotiate for and to obtain at his own expense a policy on the insured goods through such insurance brokers such insurance company in such form and upon such terms and conditions and subject to such limitations and exceptions as the company may in their absolute discretion approve and in the event of the owner-driver failing to effect a policy so approved by the company within 14 days of such notification or at any time failing to keep such policy in force then this agreement shall thereupon terminate. Any policy effected by the owner-driver hereunder together with all renewal notes and receipts for premiums shall at all times be available to the company and the owner-driver shall produce the same to the company for inspection within three days of being required in writing so to do. (e) In the event either of the total loss of or any damage to the insured goods or any of them the owner-driver shall forthwith lay out any insurance moneys received by him in respect thereof on repairing reinstating or replacing the same Provided that the owner-driver shall if so required by the company forthwith and at his own expense assign to the company all rights claims and benefits under any such policy in his name And Provided Also that any moneys payable under any such policy in his name in respect of loss of or damage to the insured goods shall if so required by the company be paid by the insurance company to the company and the owner-driver hereby irrevocably authorises the company to give a good discharge for the receipt of such moneys. The company shall deal with any rights claims and benefits assigned to it or any moneys paid to it under the provisos aforesaid in accordance with the obligations of the owner-driver hereunder (f) The owner-driver shall comply with the terms and conditions of any policy effected hereunder and in particular in the event of any loss of or damage to the insured goods or of the insured goods being involved or concerned in any loss damage or accident the owner-driver shall forthwith give notice thereof in writing both to the company and to the insurance company or where applicable to the insurance brokers in the manner laid down therein.
27. The owner-driver at his own expense shall forthwith if required so to do by the company in writing provide and instal radio equipment on the vehicle and shall at all times at his own expense maintain the radio equipment in good and substantial repair and condition and shall pay a licence fee which may be required. The owner-driver shall operate the radio equipment in accordance with any rules regulations and laws appertaining thereto whether of the company or otherwise.
28. This agreement shall be personal to the owner-driver and the owner-driver shall not be entitled to assign the benefit hereof.
29. The owner-driver shall not without the written consent of the company at any time during the continuance of this agreement except as herein provided engage or be concerned in any employment business or trade as a haulier or carrier of any goods or materials of whatever description.
30. The owner-driver is hereby declared to be an independent contractor.
31. Any rule or regulation of the company referred to in this agreement shall be deemed to include any rule or regulation of any of the plants of the company or of any associated company from which the truck is operating … and any order or requirement of the company referred to in this agreement shall be deemed to include any order or requirement of any competent servant of the company or of any associated company (whether such requirement is in writing or otherwise).
32. (a) On the expiration or sooner determination of this agreement (howsoever caused) the company shall for seven days have the option to purchase the vehicle free from all liens charges or encumbrances at the market price thereof (as if the equipment were not mounted thereon) such price to be determined in default of agreement by an independent valuer. The owner-driver shall take any action or pay any sums necessary to release the vehicle from any such liens charges or encumbrances and in default of his so doing the owner-driver hereby irrevocably authorises the company to do so on his behalf. Such option shall be exercisable by the company by the service of notice in writing to that effect on the owner-driver and upon the service of such notice the property in the vehicle (whether or not it is subject to any charge) shall pass to the company. (b) If the company shall not exercise the option referred to in (a) of this clause, the owner-driver shall within eight days from the termination of this agreement (howsoever caused) or within 24 hours of such sooner time as the company shall inform the owner-driver that it does not intend to exercise such option make the vehicle available to the company for not less than three working days so that the company may remove the equipment from the vehicle. In default of the owner-driver making the vehicle available in accordance herewith the company in addition to any other rights arising as a result of such default shall be entitled to drive the vehicle and to take it away for up to six working days for the purpose aforesaid.
33. This agreement shall remain in force until determined by either party giving to the other not less than 28 days' previous notice in writing expiring on or at any time after the termination date Provided that this agreement shall be subject to termination by the company — (a) By not less than 28 days' notice in writing given at any time while the owner-driver shall have been incapacitated from driving the truck in accordance herewith by reason of ill health or accident for a total period of 60 days in the preceding six months. (b) By a summary notice in writing if the owner-driver shall have committed a breach of any of the covenants and conditions on his part herein contained or shall have been guilty of conduct tending to bring himself or the company or any associated company into disrepute or shall have committed an act of bankruptcy or entered into any arrangement or composition with his creditors or suffered execution to be levied on his property. (c) By a summary notice in writing if the owner-driver having been warned by the company of any grounds for dissatisfaction it may have in respect of the operation of the truck shall not within a reasonable time have removed the cause of such dissatisfaction.
34. The expiring agreement shall terminate on the commencement date and where the expiring agreement provided for the payment of any sum by way of minimum earnings in a similar manner to the provisions of clause 21 of this schedule minimum earnings hereunder shall be calculated as if the commencement date were the calculation date and as if his earnings under the expiring agreement from the calculation date to the commencement date had been earned under this agreement.
[Reported by MRS. JENNIFER WINCH, Barrister-at-Law.]
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