Calder v H. Kitson Vickers & Sons (Engineers) Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE RALPH GIBSON,LORD JUSTICE KERR,and |
| Judgment Date | 30 July 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0730-9 |
| Docket Number | 87/0831 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 1987 |
[1987] EWCA Civ J0730-9
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
SHEFFIELD DISTRICT REGISTRY
(MR. JUSTICE FRENCH)
Royal Courts of Justice
Lord Justice Kerr
Lord Justice Ralph Gibson
and
Lord Justice Russell
87/0831
1981 C No.1254
MR. GRAHAM MACHIN and MR. STEPHEN BERESFORD (instructed by Messrs. Whitfield Son & Hallam, Solicitors, Dewsbury, West Yorkshire, WF13 1AY) appeared on behalf of the Second Defendants (Appellants).
MR. GILES WINGATE-SAUL Q.C. and MR. TIMOTHY WHITE (instructed by Messrs. Robert Leach Brooks & Co., Solicitors, Blackpool, FY5 2UQ) appeared on behalf of the Plaintiff (Respondent).
This is a defendants' appeal from a judgment of Mr. Justice French sitting at Sheffield who, on 31st July 1986, after a trial lasting a number of days, gave judgment in favour of the plaintiff in the sum of £303,647.25p. The claim was for damages for personal injuries arising out of an industrial accident which occurred on 1st February 1980. As the award indicates, the injuries were catastrophic.
On the material date the plaintiff was working with two other men breaking up a mine-sweeper in Blyth Docks. The first defendants were sub-lessees of the dock involved. They have since gone into liquidation. Their case at trial was conducted by counsel instructed by the second defendants, the Iron Trades Mutual Insurance Company Limited. In addition to" issues of liability and quantum as between the plaintiff and the first defendants the judge also had to deal with the third party proceedings wherein the second defendants and third party contended that they were not required to indemnify the first defendants. There were originally appeals and cross-appeals upon quantum but they have both been abandoned.
The circumstances of the accident were described by the learned judge at an early stage of his judgment and I gratefully adopt his rehearsal of the facts. The mine-sweeper which was being broken up was built largely of wood. In order to recover the metal the three-man team comprising the plaintiff, a man called Benson and another man called Hill were smashing the wood with a metal ball weighing one and a half to two tons. The ball was lifted by crane some seventy feet or more into the air. The crane was driven by an employee of the first defendants. The crane had attached to its hook a chain sling at the bottom end of which was another hook on to which was hooked a trigger arm or "snatch". A rope attached to the snatch allowed a lever arm to be pulled so that once the lever had passed from the vertical position through the horizontal, the ball could fall freely and "bomb" the mine-sweeper. All equipment was supplied by the defendants. At one time that equipment had included a safety chain the purpose of which was to prevent the snatch falling off the hook of the sling after the ball had dropped. The snatch itself had been cut out of steel plate by one of the team, to a template provided by a Mr. Graham, who was employed by the First Defendants as a safety officer and worked at the docks. It was a crude piece of equipment weighing some eight kilogrammes. From time to time it did not fulfill its function efficiently, and on occasions it was necessary for all three men to pull on the rope before the lever arm got sufficiently past the horizontal to ensure the dislodgment of the ball. If whilst this was being done the snatch became dislodged it would fall in the direction of the three men who were pulling on the rope. That is exactly what happened on the day of the accident. Hill, the third man, saw the snatch falling toward the group. He jumped aside knocking Benson out of the way, but unhappily the plaintiff did not escape. The snatch struck him on the head. On this occasion the safety chain was not in use. It had become damaged in some way and had not been replaced. So much for the circumstances of the accident.
The first ground of appeal, upon which substantial submissions were made to this court, was that the learned judge was wrong in his finding that the plaintiff was an employee of the first defendants. In order to examine that submission it is necessary to relate something of the plaintiff's working history and the circumstances which brought him to the Blyth Dry Dock. He had led a somewhat chequered career, working in various jobs for various employers and sometimes on his own account "working with the scrap" as his wife described it. Immediately prior to the accident, however, the plaintiff had undoubtedly been working for the first defendants as a lorry driver and he went to Blyth at the request of the first defendants' director, Mr. Derek Vickers. This gentleman gave evidence before the learned judge to the effect that he engaged the plaintiff to break up the mine-sweeper for a fixed sum of £7,500. Mr. Vickers said that the agreement was reduced to writing. He did not produce the document nor had there been, in the interlocutory stages of the litigation, any notice to the plaintiff requiring production of the copy of the agreement which Mr. Vickers contended he had given to the plaintiff. Nor was any reference to this written contract to be found in the pleadings. Mr. Machin, counsel for the defendants, told us that the first indication he received that such a written document existed was during the course of the evidence of Mr. Vickers. Not surprisingly, therefore, the learned judge disbelieved Mr. Vickers and rejected the submission that the plaintiff was an independent contractor pursuant to any written contract.
Alternatively, however, the defendants contended that the plaintiff was an independent contractor on other bases. The team of three men was undoubtedly paid a sum each week dependent upon the amount of scrap material recovered. It was left to the plaintiff to distribute the payment amongst the three men. There was no investigation at trial as to the capacity in which the other two men worked before the accident, but undoubtedly the plaintiff did not suffer any deduction from his earnings in respect of tax or national insurance. These features, it was submitted, afforded compelling evidence that the plaintiff was not a servant of the defendants. But, as Mr. Justice Cooke pointed out in Market Investigations Limited v. Minister of Social Security (1969) 2 Queen's Bench 173 at page 184 when considering whether work is done pursuant to a contract for services or a contract of service,
"no exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases".
For the plaintiff it was submitted that there were features of the activities going on at Blyth which indicated an employer/employee relationship. All the equipment was the property of the first defendants. They employed on site a safety officer, and further, the manager of the dock employed by the first defendants from time to time supervised the team and, it seems, corrected any method of work of which he did not approve. There was evidence that Mr. Betteridge, the dock manager, would assign other tasks to the gang disassociated from the breaking up of the mine-sweeper, though within the dock area.
In Ferguson v. John Dawson and Partners (Contractors Limited (1976) 1 Weekly Law Reports 1213 the Court of Appeal had to consider the status of a workman "on the lump" in the building industry. In that case, no deductions were made in respect of income tax or national insurance. Mr. Justice Boreham held that despite the fact that all concerned regarded the workmen as a labour only sub-contractor, the court was free to make a finding as to the true status of the plaintiff in law. He said:
"For the plaintiff it is contended that I must look at the realities of the situation and not to the form alone, and particularly not alone to the label that was put upon the plaintiff by both plaintiff and defendant, for it is contended that the form may be, and in this case is, a mere facade; whether or not the plaintiff regarded himself, whether or not the defendants regarded him, as 'self employed labour only contractor' may be a matter, a serious matter, to be taken into consideration, but it is by no means conclusive, and the question remains whether in reality the relationship of master and servant existed."
Later he said:
"I accept what the parties accept, namely, the label, as a guide and no more. I regard the concept of 'the lump' in the circumstances of the present case as no more than a device which each side regarded as being capable of being put to his own advantage in a manner that I have attempted to describe earlier in this Judgment, but which in reality did not affect the relationship of the parties or the performance of the substance of the contract between them."
The Court of Appeal approved that approach, Lord Justice Browne commenting at page 1230:
"When the right tests have been applied, the conclusion to be drawn is in my view a question of fact".
In the instant case the learned judge applied his mind to the features of the case to which I have referred and, having done so, he came to the conclusion that the plaintiff was in reality an employee. In my judgment that conclusion cannot be faulted and I have certainly not been...
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