Mersey Docks & Harbour Board v Coggins & Griffiths (Liverpool) Ltd [1946] UKHL 1

House of Lords

Between

Mersey Docks & Harbour BoardAppellant

Coggins & Griffiths (Liverpool) LtdRespondent

Before

Lord Macmillan

Lord Porter

Lord Simonds

Lord Uthwatt

[1]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 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.

[2]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.

[3]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 "

[4]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.

[5]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.

[6]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.

[7]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.

[8]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

" 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."

[9]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."

[10]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

" 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 . . . ."