Herbert v Harold Shaw Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROMER,LORD JUSTICE PEARCE |
| Judgment Date | 10 April 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0410-1 |
| Court | Court of Appeal |
| Date | 10 April 1959 |
[1959] EWCA Civ J0410-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson
Lord Justice Romer and
Lord Justice Pearce
MR J. R. BICKFORD SMITH (instructed by Messrs Helder, Roberts & Co., agents for Messrs Fidler & Pepper (Sutton-in-Ashfield) appeared as Counsel for tne Appellant.
MR MARVEN EVERETT, Q.C. and MR A. E. JAMES (instructed by Messrs Hewitt, Woollacott & Chown, agents for Messrs Browne Jacobson & Roose, Nottingham) appeared as Counsel for the Respondents.
LORD JUSTICE HUDSON: This Is an appeal from a Judgment of Mr Justice Streatfeild given at Nottingham on the 24th June, 1958. The learned Judge gave Judgment in favour of the defendants, a firm called Harold Shaw Limited. in an action brought against them by a Mr Alfred James Herbert. Mr Herbert was doing roofing work upon a shed which was being erected by the defendants as contractors for the National Coal Board at Clifton Colliery near Nottingam. The work he had to do was fixing asbestos roofing sheets to the steel framework of the shed. He was occupied on that work on the 19tn July, 1956, when unfortunately he had an accident and fell off the roof to the ground and was injured.
He or ought this action against the defendants, and in his statement of claim alleged he was employed by the defendants and cased his case upon that. The defendants by their defence set out in the forefront that Mr Herbert, the plaintiff, was not employed by them in the ordinary sense of the word at all (although, of course, the word "employed" can be used in a loose sense), but he was an independent contractor who had entered into a contract with them to do this roofing work. The case turns primarily on the question as to whether he was employed in the normal sense of the word by a master to do work or whether he was an independent contractor who contracted with the defendants to do the work which they required to be done. The evidence upon this part of the case is very plain indeed. Mr Herbert was a skilled roofer and he had worked at his trade for a great many years. He had worked on his own and he had worked as a servant or employee; indeed, he had worked for this particular firm as their servant at one time. After the war he decided that he would rather he independent and be on his own. His evidence is very clear upon this subject. He was his own "boss" and that was what he wanted to be. It was put to him that there was a period when the relationship between him and the defendant firm changed and he became their employee during the war, and he said that was quite right. He wag asked this: "After the war you reverted to being a roofing and tiling contractor? (A) Yes. During the war I went as foreman for Harold Shaw and then after the war I preferred to go back on the old basis. (Q) And that was the basis of being your own boss, was it not? (A) Quite right". That was his position. He was for income tax purposes treated, as he said, as a man running a business and an accountant prepared his returns for the purpose of profits under Schedule D. He could work for anybody he liked, although as a matter of convenience he had worked for these people, Harold Shaw, continuously for some years past. Sometimes he was paid for the work he did and sometimes ne was paid by the hour. For insurance purposes he was treated as a self employed man, he covered his own risks and in every respect he was an independent man and not a servant.
On that state of facts the learned Judge stated his conclusion as follows: "I do not think that it can be said on those facts that Mr Herbert was a...
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...Wingrove v. Prestige & Co. Ltd. E (1954) 1 W.L.R. 524; nor to a man engaged as an independent contractor and not as a servant, see Herbert v. Harold Shaw Ltd. (1959) 2 Q.B. 138. In short, it was held that the main contractor owed the duty under the Regulations only to his own workman and no......
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