The Judgment of the Court was as follows:
P.N Mookerjee, J.:— A question, much debated in the English Courts and of lesser but by no means infrequent recurrence in this country, has come up for consideration in this appeal. It is important and difficult and, on it, judicial opinion is widely divergent. The law on the point has been stated or sought to be stated at different times by eminent judges and jurists but the apparent clarity at one stage melted away and faded into indistinctness before later examination and the statement and re-statement of the law again involved the mind in confusion and obscurity. Tests have varied and what appeared to be true, conclusive and exhaustive at one stage was rejected as faulty, unconvincing and insufficient on later occasions. In the latest authoritative pronouncements of the Supreme Court here and of the House of Lords in England we have some certainty which may suffice for our present purpose but still the need that was felt in an earlier decision of the House of Lords of a restatement of the law on the point, at least in one of its branches, has not altogether disappeared and, even with regard to the other part, the position cannot be said to be absolutely clear in that, even though the test or tests may be said to be somewhat settled, immense difficulties are felt in the matter of their application.
2. The point is one concerning the relationship of master and servant and pertaining to that branch of the law which deals with the question as to who, A or B, would be liable for a tort, committed by A's servant, sent to B for doing a particular work in the latter's behalf, in the course of execution or performance of that work. The point arises in the following way:
The appellant Company (defendant No. 2) was the owner of a motor launch Uma. It was chartered by Respondent No. 2 Company which waa defendant No. 1 in the trial court. The terms of the charter party (Ext. A) dated 14th August 1948, were as follows:
“(1) That we (Respondent No. 2) shall pay you (appellant) the monthly rent of Rs. 3,000 plus the crews' amounting to Rs. 516 per month, by the 5th of each month in advance at your office at Calcutta.
(2) We shall pay for the fuel diesel oil, lubricants and all other necessary stores that may be required for running the vessel.
(3) We shall maintain the vessel in good working order and condition as it is now.
(3A). In the event of any breakdown we will repair that debiting the cost to your account and we will also deduct the proportionate rent for those days the vessel remains out of commission.
(4) We shall operate the vessel in the navigable waters as permitted by the certificate of survey.
(5) If the vessel is damaged due to our instruction while with us, we undertake to repair the same at our cost.
(6) We shall charter the vessel for at least two months and thereafter may terminate this arrangement on giving one month's notice.
(7) If we keep the vessel on charter for a period of twelve (months, you have agreed to give us rebate of Rs. 50/- per month with retrospective effect from 15th August, 1948.
(8) We reserve the right to dismiss, penalize or change any crew when we think necessary on the spot. But intimations will be given to you for approval.”
3. Respondent No. 1 (who was the plaintiff in the Court below) was a merchant, carrying on wholesale business at Berhampore. He used to send various merchandise to Calcutta for sale.
4. On September 12, 1948, the said Respondent sent several bags of Mashur (Bhusimal) to his Aratdars at Calcutta by four country boats. In the course of the journey, while the boats were passing downstream along the river Bhagirathi, off Pilkhana Ghat, near Saktipur, the motor Launch Uma, working under the charter aforesaid and carrying two heavy barges on either side and coming up-stream by the river, dashed against one of the above country boats, laden with a consignment of 173 bags of Mashur (Bhusimal), and, as a result of the collision, the said country boat with its entire merchandise went down and it was lost in deep waters of the river Bhagirathi. The plaintiff Respondent duly served notices on both the defendants, namely, the appellant and the Respondent No. 2 claiming compensation or damages to the tune of Rs. 7,000/- which was stated to be the value of the goods lost. Both, the defendants denied liability. Thereupon, the present suit was brought on September 12, 1949, exactly one year after the collision incident, for the recovery of the said amount of damages, namely, Rs. 7,000/-.
5. The plaintiff's material allegation was that the damage had been caused by reason of rashness and negligence on the part of the Serang of the motor launch Uma, for which either one or the other of the defendants or both of them were liable.
6. The suit was contested by both the defendants and their defence was of the same nature and, indeed, the same except on one point where they raised a content inter se. The plaintiff's allegation of negligence and rashness on the part on the Serang of Uma was denied by both. They also took the common plea of contributory negligence and inevitable accident and denied the quantum of damage claimed. But, as to the other material defence, they differed, each of the defendants seeking exemption from liability under the terms of the contract or charter party (Ext. A) inter se. This was, strictly speaking, not a defence to the plaintiff's claim in the sense of denying his right to get a decree but, by this defence, each of the defendants tried to avert a decree against itself, pointing to the other as the party, responsible to the plaintiff. It is this defence, however, which eventually emerged as the principal point in the case and assumed the greatest importance, though, of course, the other defences were not given up.
7. The learned Subordinate Judge practically negatived all the common defences of the defendants. He rejected the defence denial of rashnss and negligence on the part of the serang of “Uma” and also the pleas of inevitable accident and contributory negligence and held that the sinking of the country boat was due to the rash and negligent act on the part of the said serang in the matter of driving of the motor launch “Uma” and was not the result of either inevitable accident or any contributory negligence on the part of the people in the country boat. He, how-ever, on the evidence, reduced the quantum of damages to Rs. 6,930 as the further amount oi Rs. 70 appeared to have been claimed by the plaintiff through mistake or mistaken calculation and he further found that, under and in view of the terms of the charter party (Ext. A) between the two defendants, the liability for the chartered vessel “Uma's” serang's act would not be shifted to the charterer defendant No. 1 but the owner of the vessel, namely, defendant No. 2, would be and would remain liable for the plaintiff's loss. He, accordingly, passed a decree in part for Rs. 6,930 against the said defendant No. 2 with corresponding cost's and dismissed the suit against defendant No. 1 without costs. Aggrieved by this decree, the defendant No. 2 has preferred the present appeal, in which the successful plaintiff is Respondent No. 1 and the charter defendant No. 1 is Respondent No. 2.
8. Before us, the quantum of damages, as found by the learned Subordinate Judge has not been challenged nor has the plea of inevitable accident been repeated. The finding of the learned Subordinate Judge that the country boat sank as a result of the motor launch “Uma's” dashing against it rashly and negligently or, in other words, the finding about rashness and negligence on the part of “Uma's” serang has not also been questioned. The plea of contributory negligence, however, has been pressed before us to secure a reversal of the decree of the trial court and a dismissal of the plaintiff's claim and, in this, both the defendants, the appellant and Respondent No. 2, have joined. The appellant has also striven for the shifting of the liability, if any, on Respondent No. 2 and corresponding variation of the decree of the trial court by urging that, under the charter party (Ext. A), the latter would, in law, be liable for the plaintiff's legitimate claim, if any, and, accordingly, the suit against the appellant should be dismissed and the decree, if any, should be made against Respondent No. 2. On this point, the defendants have joined issue and the fight has been really between them inter se, the plaintiff, being apparently a disinterested, although, by no means, a silent spectator, he having maintained in this court that the decree as passed by the learned Subordinate Judge is correct in law, though expressing, at the same time, that it did not matter to him as to which of the two defendants is made answerable for his decretal dues.
9. The defence plea of contributory negligence does not appear to us to be tenable in the facts of this case. The learned Subordinate Judge has rejected it as rather stale and an after-thought and also on the merits and we see no reason to differ from him in his said conclusions. In reply to-the plaintiff's notice (Ext. 5), defendant No. 1 who must have been aware of the details of the incident, simply denied liability on the ground that it (defendant No. 1) was the charterer and not the owner of Uma [vide Ext. 5(d)]. It did not raise any plea of contributory negligence and, when, at its instance, the plaintiff served the notice [Ext. 5(d)] on defendant No. 2, the latter denied liability, if any, in view of the charter party agreement (Ext. A) and referred the plaintiff to defendant No. 1 [vide Ext. 5(c)]. This was La the early part (February-March) of 1949 and the suit was filed about six months later, namely, on the 12th of September following.
10. It is true that, from the above, it does not necessarily follow that the defence plea of contributory negligence was an after-thought but, in the context of the facts and in view, particularly, of the absence of any evidence on the defendants' part on the point, the learned Subordinate Judge's finding that it was a stale defence or an after-thought cannot be said to be improper or unreasonable. Moreover, on the merits too, this defence appears to have been rightly rejected by the learned Subordinate Judge. As we have said above, the defendants did not adduce any evidence on the point and all that Mr. Jana was able to point out—and Mr. Roy Choudhury could not add to it—was to draw our attention to two passages in the cross-examination of the plaintiff's witnesses Nos. 4 and 5 which run as follows:
“…………. Boats going upstream will go by” the side of a river if there is bend. Those going down stream will go along the place where there is current………”
(P.W 4)
“……… The boat in the middle was sunk. I saw ihe motor boat coming. One boat passed by the left side of the motor boat. The boat in the middle was about 3 to 4 bighas behind the first boat. The right side of the motor boat collided with the boat. I saw the impact taking place. The impact was between one of the heavy boats on the right side of the motor boat and the boat that sank……………”
(P.W 5)
11. We do not think, however, that these two passages support the defendants' plea of contributory negligence. They are rather incomplete in themselves and certainly stop far short of the requisite purpose. Even accepting the rule of navigation, if it is really one, as appearing from the first of the above two passages, on its face value and without any qualification, there is nothing in the second to indicate the exact locations of the ill-fated country boat and the motor launch ‘Uma’ with reference to the current so as to enable the court to apply the above rule to hold that the plaintiff's men were guilty of contributory negligence. We hold, therefore, that the plea of contributory, negligence—the onus to establish which is undoubtedly on the defence, — has not been substantiated and the imperative onus has not been discharged. The plea, therefore, was rightly rejected by the learned Subordinate Judge and we affirm his finding on the point.
12. On the above findings, the plaintiff will be entitled to a decree for Rs. 6,930 and the only question now is against which of the two defendants that decree should be made. This takes us to the appellant's second point! in this appeal. On this, the two defendants differ and the plaintiff's attitude, as we have said above, is apparently one of indifference, though his learned Advocate Mr. Pal has greatly assisted us in the making of our decision by placing before us a number of authorities and by helping us in analysing the true legal position in the light of those authorities and the charter party agreement (Ext. A). He has no doubt supported the ultimate conclusion of the learned Subordinate Judge as the true view of the rights of the parties but, whether we accept his said submission or not there can be no gainsaying that his discussion of the various authorities before us has lightened our task to a considerable extent and has greatly facilitated our reaching the final conclusion. We have also received very useful assistance from the learned Advocates of the defendants Mr. Jana and Mr. Roy Choudhury to enable us to come to a workable decision on this very complicated question.
13. The point, as we have said above, is difficult but it has a growing and abiding importance. It concerns the law and the relationship of master and servant and bears on one—but a very important—aspect of it. Briefly stated, it stands as follows:
When A's servant is sent by A, whom we shall, for convenience of reference, call the general employer, to do a certain work for B, who may, for convenience and according to the usual practice, be designated “the hirer”, and commits a tort and causes damage to a third party in the course of execution or performance of that work, who, A (the general employer) or B (the hirer) would be liable to the injured third party for the damage done. The answer will obviously depend on the application of the maxim “Respondent Superior” or, in other words, upon the finding as to who, for the relevant purpose, should be considered to be the superior (master) of the servant at the relevant time. Before proceeding further, it is important to remember that law recognises that, in circumstances as above, a man, that is, a servant, may have two masters, one the general master and the other the temporary master, and the real question will be who, in the particular circumstances or facts before the court, should be regarded as the master for the application of the above maxim “Respondent superior”.
14. Some further preliminary observations are necessary here. It is settle ed law that, for applying the above maxim “Respondent superior” and ascertaining who is liable to the party injured we have to move from the servant (who has actually committed the tort and caused damage) higher up to the immediate superior or master and,’ once we get him, we need not proceed further although there may be a remote master. In determining, again, the liability between the masters inter se, where there is an immediate and a remote master too, we have to consider the relationship between them in the light of the facts of the particular case. Where all persons concerned are parties to the suit, both the above questions may at once arise for consideration but it is necessary to bear in mind the distinction between them for avoiding unnecessary complications and confusion. The arrangement or contract between the “general employer” and “the hirer” may require consideration in connection with both the above questions, though for different purposes, namely, for determining who, for purposes of liability to the party injured, is the master or the relevant master, in relation to the servant, and for ascertaining who, of the masters, where there are more than one, namely, immediate and remote, is liable inter se or between the masters themselves, in order to enable the court to pass a proper and comprehensive decree on the facts before it.
15. We may usefully quote here Underhill's definition of servant in his Law of Torts, 15th Edn. (1946), where, at page 324, the learned author makes the following statement under the heading “Respondent Superior”:
“A servant is a person employed by another, and subject to the commands of that other as to the way he shall do his work.”
16. This general definition is followed by a statement of the position in the particular case which is more relevant for our present purpose. That statement is in the following terms:
“A person who is in the general employment of one man may be the servant of another for a particular purpose, that other having control of him as to the manner in which he carries out his duties in connection with that particular purpose.” (Vide page 326).
17. The learned author then discusses the point in greater detail and lays down the relevant tests as follows under the heading “Explanation”:
“The test to be applied to ascertain whether a person doing work for another is or is not his servant, is to consider Whether the master has the right to control him as to the way he does his work. If he has, the person employed is a servant, even if the right so to control him is not in fact exercised, and the master is liable for the consequences, because he has made himself responsible not only for the act itself, but for the manner of doing it. Thus, the relation of master and servant is in each case a question of fact, depending not on the mode of payment for services, or the time for which the services are engaged, or the nature of those services, or on the power of dismissal (though each of those matters may be taken into consideration), but on the extent of control as to the way in which the work is done.” (Vide page 325).
18. The above passages, if I may say so with respect, sum up the law admirably and that it did even before the comprehensive authoritative pronouncement on the subject by the House of Lords in Mersey Docks and Harbour Board v. Coggins and Griffiths (Liverpool) Limited (1) (1947) A.C 1 which has practically been accepted and affirmed by the Supreme Court here in the case of Dharangadhra Chemical Works Ltd. v. State of Saurashtra (2) A.I.R 1957 (S.C) 264, as laying down the true principle, applicable to such cases.
19. In Salmond's Law of Torts, 11th Edition (1953), the relevant statement appears at pages 97 to 104. The learned author first defines ‘servant’ in the following manner:
“A servant may be defined as any person employed by another to do work for him on the terms that he, the servant, is to be subject to the control and directions of his employer in respect of the manner in which his work is to be done.” (Vide page 97).
20. He then distinguishes ‘servant’ from ‘independent contractor’ and observes as follows:
“………. The test is the existence of a right of control over the agent in respect of the manner in which his work is to be done ……….. (Vide page 98). This may be put in another way by drawing a distinction between one employed under a contract of service (a servant) and one employed under a contract for services (an independent contractor). ‘The distinction between a contract for services and a contract of service can be summarised in this way: In the one case the master can order or require what is to be done, while in the other case he can not only order or require what is to be done but how itself it shall be done’……….”(Vide page 99).
21. The learned author then considers the effect of lending a servant and his comments on the point are as follows (Vide pages 102-3):
“A servant may have two or more masters at the same time in respect of different employments. In particular, a master may lend his servant to another person for a certain transaction so that quoad that employment he becomes the servant of the person to whom he is so lent; though he remains for other purposes the servant of the lender. When a servant is sent by his employer to do work for another, it is a question of fact, depending on the nature of the arrangement and the degree of control exercised over the servant, whether he becomes quoad hoc the servant of the person for whom he is working or remains in all respects the! servant of his ordinary employer. When a servant has thus two masters, the responsibility for a tort committed by him lies exclusively upon the master for whom he was working when he did the act complained of.”
22. This is followed by an examination of the case of Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool), Ltd. (1) (1947) A.C 1, cited above, where, according to the learned author, “the question was fully discussed by the House of Lords” and the “earlier cases,” according to him, “are now of interest only so far as they show the view the court took of particular facts.” In Pollock on Torts, 15th Edition (1951), the relevant observations appear at pages 62 to 66. After posing the question “who is a servant?” the learned author says:
“………. it is quite possible to do work for a man in the popular sense, and even to be his agent for some purposes, without being his servant. The relation of master and servant exists only between persons of whom the one has the order and control of the work done by the other. A master is one who not only prescribes to the workman the end of his work, but directs or at any moment may direct the means also, or, as it has been put, ‘retains the power of controlling the work; a servant is a person subject to the command of his master as to the manner in which he shall do his work; and the master is liable for his acts, neglects and defaults, to the extent to be specified……….” (Vide pages 62-3).
23. And then he continues:
“‘In ascertaining who is liable for the act of a wrongdoer, you must look to the wrongdoer himself or to the first person in the ascending line who is the employer and has control over the work. You cannot go further back and make the employer of that person liable.’ He who controls the work is answerable for the workman; the remoter employer who does not control it is not answerable. This distinction is thoroughly settled in our law, the difficulties that may arise in applying it are difficulties of ascertaining the facts ……….” (Vide page 63).
24. The learned author recognises that.
“One material result of this principle is that a person who is habitually the servant of A may become, for a certain time and for the purpose of certain work, the servant of B; and this although the hand to pay him is still A's.”
25. (Vide page 64), but he carefully adds that “by the ‘Employer’ is meant the person who has a right at the moment to control the doing of the act” (vide page 65) and refers inter alia to the Mersey Docks case, cited by him as Coggins case (1) (1947) A.C 1 at page 11.
26. In Halsbury's Laws of England, Second Edition, Vol. 22, the discussion on the point is at pages 112-3 and 241-243 (Articles 191, 421 and 422). Article 191 at pages 112-3 contains a general statement of the principle, underlying the relationship of master and servant and it is enough to quote the following lines therefrom:
“Whether or not, in any given case, the relation of master and servant exists is a question of fact; but in all cases the relation imports the existence of power in the employer not only to direct what work the servant is to do, but also the manner in which the work is to be done. A person may be the servant of another although a third party has the power of appointing or dismissing him or of requiring his dismissal, or has powers of direction and control in regard to his work, or pays him his wages…. A person may be a servant to different masters at the same time.”
27. The distinctive principle is further discussed in Article 421 vis-a-vis ‘independent contractor’ and then the following observations are made on the particular case where a servant is lent:
“In accordance with the same principle a servant who is lent by his master to a third person for the purpose of being employed in a particular way is to be deemed whilst thus employed the servant of the person to whom he is lent, though for other purposes he remains the servant of his master. Such person will therefore be liable for torts committed by the servant in the course of his particular employment, provided that the servant is at the time when they are committed subject to his control and not to that of the master.” (Vide Article 422 at pages 243-3).
28. ‘Control’ is thus the keynote of the whole theory and, however obscure and divergent its meaning might have appeared in older decisions, it has now been authoritatively stated in the Mersey Docks case, although its proper application to a particular case may give rise to immense difficulties.
29. In Street's “The Law of Torts,” 1955 Edition, at pages 436, 437 and 439, there are observations to a similar effect. The learned author starts by defining a “servant” as a person “employed to perform services in connection with the affairs of the employer and over whom the employer has control in the performance of those services” in contradistinction to an “independent contractor” “who does work for another but who is not controlled by that other in his conduct in the performance of that work” and lays down the test of the distinction in the following terms:
“The formula regularly used by the courts to mark the distinction is ‘control,’ The final test lies in the nature and degree of detailed control over the person alleged to be a servant. A person is a servant where the employer retains the control of the actual performance of the work,”
30. Adding that “it would ordinarily be enough to say that the employer could tell the man not merely what task he was to perform but also how he should perform it; if the employer could do both these things the man was a servant.” The learned author then notices Short v. Henderson Ltd. (3) [(1946) 62 T.L.R 427], where the House of Lords appears to have doubted the adequacy of the above test under modern industrial conditions and indicated the necessity of a reexamination and restatement of the law, and he finally observed that “in decidmg whether enough control is exercised over another to make him a servant one must take into account several factors, no one of which is conclusive. That is a rule of law but the application of those factors to the circumstances of the case is a question of fact.’ Passing then to the particular question of “borrowed servants” Street referred to the Mersey Docks case (1) (supra) as the authoritative decision on the point holding inter alia that “there is a strong presumption that a man remains the servant of the general or permanent employer although another employer borrows his services” and that “in order to shift his responsibility the general employer would have to prove that the control of the manner of execution of the task had been transferred to the hirer”.
31. In England the leading judicial authority on the point, as now universally recognised, is the decision of the House of Lords in the Mersey Docks case (also known as the Coggins case) (1) (supra) where the whole law on the subject appears to have been very fully discussed and in this country we have the very recent Supreme Court pronouncement in the case of Dharan-gadhra Chemical Works Ltd. v. State of Saurashtra, (2) A.I.R 1957 (S.C) 264, which may be regarded as the settler on the point for our present purpose. We would, therefore, advert to these two decisions first for an understanding of the relevant principle and then proceed to the other authorities and, as between the two, we would start with the Supreme Court's statement of the law.
32. That statement appears at pages 267-268 of the Report and, in its relevant part, it stands as follows:
“The principles according to which the relationship as between employer and employee or master and servant has got to be determined are well settled. The test which is uniformly applied in order to determine the relationship is the existence of a right of control in respect of the manner in which the work is to be done. A distinction is also drawn between a contract for services and a contract of service and that distinction is put in this Way: ‘In the one case the master can order or require what is to be done while in the other case he can not only order or require what is to be done but how itself it shall be done’ The test is, however, not accepted as universally correct”
33. Their lordships then referred to the recent pronouncement of the House of Lords in Shon v. J. & W. Henderson Ltd., (3) (1946) 62 T.L.R 427 at page 429 where “Lord Thankerton recapitulated the four indicia of a contract of service,” and indicated that the statement of the “indicia” requires reconsideration and that, on a proper occasion, the House would restate the law. “Even in that case,” however as the Supreme Court observed, “the House of Lords considered the right of supervision and control, retained by the employer,… as sufficiently determinative of the relationship between the parties and affirmed that ‘the principal requirement of a contract of service is the right of master in some reasonable sense to control the method of doing the work and this factor of superintendence and control has frequently been treated as critical and decisive of the legal quality of relationship.’”
34. The Supreme Court then went on to state categorically that “until the position is re-stated as contemplated in Short v. J. & W. Henderson Ltd., (3) we may take it as the prima facie test for determining the relationship between master and servant.”
35. The net position which emerges from the above discussion, or, as the Supreme Court puts it, “the principle which emerges from the above authorities,” is that the prima facie test for the determination of the relationship of master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work, or, to borrow the words of Lord Uthwatt in Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool) Ltd., (1) (1947) A.C 1 at page 23, “the proper test is whether or not the hirer had authority to control the manner of execution of the act in question.” The test, however, has an important limitation in its practical application in that, as the Supreme Court very rightly added, “the nature or extent of control which is requisite to establish the relationship of employer and employee must necessarily vary from business to business and is by its very nature incapable of precise definition.”
36. To understand the full implica tions of the above statements it is necessary to quote in some detail from the classic observations of the Law Lords in the Mersey Docks case (1) which is now regarded and universally accepted as the fountain head of the relevant principles and which decision explains, if it does not really explain away, Donovan's case, (4) (1893) 1 Q.B 629, which apparently held the contrary.
37. In the Mersey Docks case, (1) (1947) A.C 1, as the report shows, the facts were as follows: The Respondent company [Coggins and Griffiths (Liverpool) Ltd.] who were master stevedores had hired from the appellant board (Mersey Docks and Harbour Board) the use of a portable travelling crane together with its driver Francis Newall, for the purpose of loading a ship, called the Pori Chalmers, lying at the quay at the North London Pock, Liverpool, one of the docks of the appellant board. On the right of August 22, 1943 John Macfarlane, a registered checker, employed by James Dowie & Co. the forwarding agents, who had engaged the Respondent company as stevedores to lead the cargo on the ship was engaged in checking goods which were in the course of being transferred from shed to ship by means of the crane which did not run on fixed rails but could be movers in any direction by the crane driver. The crane which was standing in the dock shed had picked up under Macfarlane's direction a case of which he had to note the number and marks. Whilst he was endeavouring to do so, instead of the further movement of the crane being stopped till he could take the particulars, it was get in motion and driven on by Newall. The result was that Macfarlane was trapped and struck by it and seriously injured. He brought an action for damages against the Respondent company and, in the alternative, against the appellant board which was tried at Liverpool Assizes by Croom-Johnson. J. From the evidence it appeared that the appellant board had engaged Newall, paid his wages, prescribed the jobs he should undertake and alone had power to dismiss him. ‘the Respondent company had the immediate direction and control of the operations tojj be executed by him with the crane, e.g to pick up and move a cargo from shed to ship, but had no power to direct how he should work the crane, the manipulation of the controls being a matter for him. One of the conditions, on which the crane was hired and which was incorporated in the contract of hiring as Regulation 6, provided as follows:
“Applicants for the use of cranes must provide all necessary slings, chains and labour for preparing the article to be lifted and for unshackling the same. They must also take all risks in the matter. The board do not provide any labour in connexion with the cranes except the services of the crane driver for power cranes.” The drivers so provided shall be servants of the applicants”
38. The trial judge awarded Macfarlane damages and costs against the appellant board holding inter alia that Newall was employed by them and Newail was negligent. The board's appeal was dismissed by the Court of Appeal. The appellant board then appealed to the House of Lords. This appeal also was dismissed and, in the course of delivering their opinions, the distinguished Law Lords discussed the principles and stated them under observations which may be quoted as hereunder:
Viscount Simon at pages 1.0-12:
“……….The appellant board had engaged Newail, and it paid his wages. It alone had power to dismiss him. On the other hand, the Respondent company (Coggins and Griffiths) had the immediate direction and control of the operationa to be executed by the crane driver with his crane,… The Respondent company (Coggins and 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. In the present case the accident happened because of the negligent way in which the crane driver worked his crane, and since the Respondent company (Coggins and 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.
Even if there Were an agreement between the appellant board and the Respondent company (Coggins & Griffiths) that, in the event of the appellant board being held liable for negligent driving of the crane while it is under hire to the latter, the latter will indemnify the appellant board, this would not in the least affect the right of the plaintiff to recover damages from the appellant board as long as the appellant board is properly to be regarded as the crane driver's employer. It is not disputed that the burden of proof rests on the general or permanent employer—in this case the appellant 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. It is not easy to find a precise formula by which to determine what these circumstances must be……… The test suggested by Bowen, L.J in Donovan v. Laing, Wharton & Down Construction Syndicate Ltd., (4) (1893) 1 Q.B 629, 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”.
The Court of Appeal in this case, following its own decision in Nicholas v. F.J Sparkes & Son (5) [(1945) K.B 309, 312] applied a test it had formulated where a vehicle is lent with its driver to a hirer, by propounding the question ‘In the doing of the negligent act was the workman exercising the discretion given him by his general employer, or was he obeying or discharging 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 [(1945) K.B 301 at page 307], 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 tortfeasors….”
Lord Macmillan at pages 12-14:
“…. The only question for your lordships' determination is whether, on the principle of respond eat superior, the responsibility for the negligence of the driver of the crane lies with the stevedores or with the appellant board, whom the plaintiff sued alternatively. The answer depends on whether the driver was acting as the servant of the stevedores or as the servant of the appellant board when he set the crane in motion. That the crane driver was “in general the servant of the appellant board is indisputable. The appellant board engaged him, paid him, prescribed the jobs he should undertake and alone could dismiss him……… Prima facie, there fore, it was as the servant of the appellant 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 ser vices of one of his general servants to another party so as to constitute him pro hoc 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…….. Servants cannot be transferred from one service to another without their consent and even when consent may be implied there will always remain a question as to the extent and effect of the transfer… Many reported cases were cited to your lordships but where, as all agree the question in each case turns on its own circumstances, decisions in other cases are rather illustrative than determinative. 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”
Lord Porter at pages 15 to 17:
“………..That question (the question to be determined) in this appeal, 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 seat to hear the appeal and only desire to odd 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, express or implied. His position is determined by his contract. No doubt, by finding out what his work is and how he does it and how he fulfils the task when put to carry cut 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 indicia from which the inference of a change is to be derived have been stated. In many different ways, notably in the words of Sowen, L.J in Donovan v. Laing, Wharton and Down Construction Syndicate Ltd., (4) (1893) 1 Q.B 629,634, where he says…….. and Lord Esher M.R uses words to the same effect: ‘It is clear here that the defend ants placed their man at the dis posal of Jones & Co. and did not have any control over the work he was to do. In these circum stances it was held that his gene ral employers were not liable as they had parted with the power of controlling him………..Whether in view of the later decision of M'Cartan v. Belfast Harbour Com missioners (6) (1911)? I.R 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 or other tests have been suggested as helping to determine in particular cases under which of two employers the man was working at the relevant time……
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 en titled 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 authorised 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 per formed 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.”
39. Lord Simonds at pages 17-19:
“… I will only emphasize that the single question for your lordships is whether the appellants are answerable to the Respondent Macfarlane under the maxim ‘Respondent superior’ for the tortious act of one Newall. The question whether, if they are so answerable, they have any rights against the Respondents Coggins and 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 crane-man., 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 Macfarlane by his negligence they can only escape from liability, if they can show that pro hac vic 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, M.R in Donovan v. Lavng, Wharton and Down Construction Syndicate Ltd., (4) (1893) I Q.B 629, 632, 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 discharged 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 workman 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.
40. 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 negligence, 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…”
Lord Uthwatt at pages 21-23:
“…………. 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 workman'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 on 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 doling 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 (degree) of control requisite to fasten responsibility on him, the hirer must in some reasonable sense (be shown to) 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. Unless 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. Ltd. v. Northern Iceland-Road Transport Board, (7) (1942) A.C 509, 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 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 proper test is whether or not the hirer had authority to control the manner of execution of the act in question………”
41. It is only necessary now to refer to some of the important cases decided earlier and to trace the development of the law in its present form, as stated above, in the light of diverse divergent conclusions in various decisions and on various occasions. Having regard to the intricacies of the point and the conflict of results, though apparently not of principles, we made no apology for reverting to these earlier cases even though the two leading decisions, quoted above, may be taken to have settled the law for our present purpose. A retrospect and a historical study may not be altogether useless and a collection of the authorities may aid future examination of the Wider aspects of the matter in the iight of later social developments and contemporaneous social conditions.
42. It is to be noted here that ail authorities agree that where the question is as to who of the two masters, the general master or the temporary master, as they are usually called, would be liable for the servant's torts, the enquiry shpuld be as to who of them had the right tc control the doing of the work, in the course of execution whereof, the tort in question was committed. The answer would, of course, depend on the facts of each particular case, but, as we have repeatedly said above, the meaning of this control was not clear and was apparently divergent and differently understood until the decision in the Mersey Docks case which led to widely varied applications of the same principle with apparently contradictory results and devastating uncertainties. This will be clear from a study of the earlier authorities beginning with Quarman v. Burnett, (8) (1840) 6 M. & W. 499 and it will be difficult to reconcile them except on the actual finding of control, made in each particular case on the facts before the court. Apparently, there is a great conflict of decisions and, in the light of that apparent conflict, the cases may be put under two groups which betray, in appearance at least, remarkably divergent conclusions.
43. Thus in Quarman v. Burnett, (8) (1340) 6 M. & W. 499; Dallyel v. Tyver, (9) (1858) E.B & E. 899 : (1858) 28 L.J.Q.B 52; Jones v. Corporation of Liverpool, (10) (1885) 14 Q.B.D 890; Waldock v. Winfield. (11) (1901) 2 K.B 596; M'Carter v. Belfast Harbour Commissioners, (6) (supra) (1911) 2 I.E 143; Ainslie v. Leith Harbour and Docks Commissioners, (12) (1919) S.C 676; Willarrl v. Whiteley Ltd., (18) (1938) 3 All E.R 779; and Century Insurance Co. Ltd. v. Northern Ireland Road Transport Board (7) (supra) (1942) A.C 509, the general master was held liable and, in the other group of cases, to take only a few illustrative ones, namely, Murray v. Currie, (14) (1870) L.R 6 C.P 24; Rourke v. White Colliery Co., (15) (1877) 36 L.T 49 : (1877) 2 C.P.D 205; Donovan v. Laing, Wharton and Down Constructions Ltd., (4) (supra) 1 Q.B 629; Jones v. Scul lard, (16) (1898) 2 Q.B 565: M'Fall v. Adams & Co., (17), (1907) S.C 367; Bain v. Central Vermont Ry, Co, (18) (1921) 2 A.C 412; A.H Bull & Co. v. W. African Shipping Co., (19) (1927) A.C 686 : (1927) 47 C.L.J 258 (P.C) and Leggot v. Normanton (20) (1928) 98 L.J.K.B 145, the temporary employer was held liable on the purported or express, though sometimes enigmatic, finding that he had the necessary or the “effective control” over the servant at the relevant time. The “effective control” has now been defined in England as the control of the manner of doing the particular act from which the particular tort resulted and that has been accepted, as we have seenabove, by the Supreme Court here. The mythical distinction between the ‘carriage cases’ and the, ‘crane cases’ has been exploded and the principle of ‘effective control,’ as defined above, has now been firmly laid as the determining factor of universal application.
44. It is true that, even after the Mersey Docks case (1) the application of the above principle has not always been attended with the same result and sometimes, the general, sometimes the temporary, master has been held liable, (vide Chowdhary v. Gillot, (21) (1947) 2 All E.R 541; O'Reilly v. Imperial Chemical Industries Ltd. (22) (1955) 3 All.E.R 382 and Garrard v. Southey & Co., Davey Estates Ltd. Third Parties, (23) (1952) 1 All E.R 597 and Gibb v. United Steel Companies Ltd., (24) (1957) 2 All E.R 110. But the possibility of this difference in the ultimate result was foreseen and recognised in the Mersey Docks case and, indeed, it follows inevitably from the statement of the principle itself and is inherent in that statement and the seat of the “effective control” which is the key-note of the principle and its essential ingredient has to be found on the facts before the court and is as much dependent on them, that is, on the facts of each particular case, as the ultimate result or consequence of its application.
45. Same would be the result of the application of the other test suggested, namely, whether the servant had been transferred or only his services or the use and benefit thereof if we remember that the master, relevant for our purpose, is one who has the control of the maimer, in which the particular work is or is to be done, so that such control being obviously in the temporary employer, where the servant and not merely his services are lent, the hirer or the temporary master should be regarded as the relevant master. Such transference of control, ordinarily, implies transfer of the servant, as distinguished from mere transfer of his services, in which latter case the general employer, retaining the relevant control in his hands, would remain liable.
46. Sometimes, as we have indicated above, a new approach is suggested and the matter is sought to be examined from the view-point of the distinction between contract of service and con-tract for services. That, however, is no new approach, fundamentally speaking, and as already stated, the indicia of this distinction also are far from settled as appears from the decision of the House of Lords (Short v. J. & W. Henderson Ltd., (3) (supra) (1946) 62 T.L.R 427), quoted above, where their lordships stressed the need of a restatement of the law on the point. Be that as it may, there can be no denying that the broad features of this distinction too are clear and easy to understand and that is enough for our present purpose.
47. Applying the above test or tests, there can be little doubt that, in the present case, the general master, the appellant, would be liable. There is nothing here to indicate that the control of the manner, in which the motor launch “Uma” was to be driven, was with the temporary employer, Respondent No. 2, and this was plainly a case where the services of the serang, —and not the serang as or qua servant, —were transferred.
48. The charter party agreement (Ext. A) shows that the serang's wages were to be paid by the appellant who, no doubt, would be paid on that account by Respondent No. 2 and if, indeed, the latter made any direct payment to the serang, that would be on behalf of the appellant. This appears clear from the letters (Memoranda). [Exts. A (2) and A (3)], exhibited in the case. The charter party agreement (Ext. A) further shows that the dismissal of the serang by Respondent No. 2 would be subject to intimation to and approval by the appellant, which means, if it means anything, that the ultimate power of dismissal lay with the appellant. This is clearly confirmed by the letter (Ext. A-3), already referred to, On the facts, therefore, it is well established that the requisite control over the serang was with the appellant company so as to make it his master for purposes of the maxim “Respondent Superior” and the liability for his tort must, accordingly, rest with it.
49. Before concluding, we may just add that the resultant position would be the same—and in no way different if we act upon the distinction which has been stressed in the above connection in some of the recent decisions between cases of skilled and unskilled labour, vide, e.g Garrard v. Southey & Co. (23) (supra) (1952) 1 All E.R 597 at page 600; vide also the observations of Viscount Simon at p. 12 and of Lord Macmillan at lip. 13, Lord Porter at p. 17, Lord Simonds at p. 19 and Lord Uthwatt at p. 22 of the report of the Mersey Docks case, (1) (supra) (1947) A.C 1, and some sort of presumption has been sought to be indicated against transference of and abandonment of, control over a skilled servant vis-a-vis an unskilled one when the skilled servant is sent to the “borrower” with and in charge of the lender's vessel, apparatus or machinery etc., involving technical skill for its operation. Truly read, this approach would not present any conflict with the principle of “effective control” (vide the observations of the Law Lords in the Mersey Docks case itself, just above referred to,) but it will greatly facilitate its Workable application by aiding determination of the seat of that control in a particular case. More on this aspect of the matter need not be said on the present occasion but we have just adverted to it in order to emphasize its importance in the future development, of the law which has taken over a century to crystallise and consolidate and assume a vivid concrete shape and may require delicate handling and chiselling for tuning up with the progressive social institutions.
50. In the above view, we dismiss this appeal. The appellant will pay the costs of this appeal to the plaintiff Respondent No. 1, hearing-fee being assessed at ten gold-mohurs. Respondent No. 2 will bear its own costs.
Sarkar, J.:— I agree.
S.N.S