Lister v Romford Ice and Cold Storage Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING,LORD JUSTICE BIRKETT |
| Judgment Date | 26 October 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J1026-1 |
| Date | 26 October 1955 |
| Court | Court of Appeal |
[1955] EWCA Civ J1026-1
Lord Justice Denning
Lord Justice Birkett and
Lord Justice Romer
In The Supreme Court of Judicature
Court of Appeal
Mr CHRISTOPHER SHAWCROSS Q.C. and Mr HARRY LESTER (instructed by Messrs Sidney Torrance & Co.) appeared on behalf of the Appellant.
Mr PATRICK O'CONNOR (instructed by Messrs J.F. Coulee & Co.) appeared on behalf of the Respondents.
Two man named Lister father and son were employed by the Rumford lee & Cold storage Co, Ltd., whom I will call "the Cold Storage Company". Their task was to collect waste and take it to the factory. On 26th January, 1949, the son drove the lorry from the Company's premises to a slaughterhouse in Old Church Road, Romford. The father went with him. The son drove the lorry through the main gates into the yard of the slaughterhouse. The father got off to go to the office. The son backed the lorry to get it into position and unfortunately ran into his father and injured him. The reason was partly because the engine was defective, so that the son had to keep it going fast and, therefore, reversed more quickly than he need have done: partly because the son did not take sufficient steps to see that all was clear: partly because the father did not keep a proper look out. The father sued the Cold storage Company for damages for negligence. The case was tried by Mr Justice McNair on 29th January, 1953. He found that the father was one-third to blame and the Company two-thirds. He assessed the total damages for the injuries at £2,400 and gave Judgment for the father for £1,600 and costs.
The Cold Storage Company were insured against this liability and the insurers have paid the father the £1,600 and costs. Now the insurers seek to recover that sum from the son. To do this, they have brought an action in the name of the Cold Storage Company against the son. The Cold Storage Company are, of course, only nominal Plaintiffs. The Managing Director of the Cold storage Company turns to the Court and gave evidence. He said that the Company were not consulted about this action. The insurers bring it under their right of subrogation or under the clause in the policy authorising them to the name of the Company.
There can be little doubt that this action was asurprise both to the cold Storage Company and to the son. Mr Lister Junior is now 33 and he has been employed by the Company over since he was 16. When he was 17 the Directors asked him to take a driving test, and after he had passed it, they asked him to drive the Company's lorries. He has driven for than ever since except he was away on war service. The Company have never suggested to him that he ought to insure himself. He took it for granted that he wee fully covered by his employers. The Managing director evidently thought the same. He was subpoenaed to give evidence on the sons behalf. He said that it never occurred to his that the Company's motor drivers would be personally responsible: and he never suggested to them that they should cover themselves separately. The parties to this action are clearly off one mind about it, but the insurers think differently. They want the son to indemnify them out of his own pocket.
Let me put aside for the moment the question of insurance and treat the case as if the Cold Storage Company were the real Plaintiffs. Even so, there was until very recently never a case of this kind recorded in our books. Many a master has been made responsible for the mistakes of his servants, but never has he sought to get contribution or indemnity from his servants. One obvious reason is that it is not worthwhile. The master is not allowed to make any deduction from his servant's wages, and it would seem the extreme of harshness to seize his savings or to make him bankrupt. The other reason is no doubt the reluctance of a good master to visit the risk of accidents on to his servants. The risk should be b by the undertaking as a whole rather than on the poor unfortunate servant who happens to make a mistake in a moment of temporary inadvertence. It seems that these reasons no longer command themselves to employers, or rather to their insurers, and we have to consider wether the claim is good in law.
At the outset Mr Christopher Shawcross, for the son took preliminary objection to the proceedings. He pointed out that when the Cold storage Company were sued by the father, if they wished to Claim indemnity from the son, the appropriate way for them to do it would have been to issue a third party notice against the son. The Judge could then in then one action have assessed the share of responsibility which attached to the father, the son and the Company respectively. But instead of issuing a third party notice, the Company proceeded by means of a separate writ against the son, and they issues this Writ, it is said, a week too soon. They issued it before the action against them was tried and before they were found liable themselves. They issued their writ against the son on the 23rd January, 1953, but they were not found liable to the father until the 29th January, 1953. Mr Shawcross argued that on this account the action was premature. The Cold Storage Company ought, he said, to have waited until they had actually been found liable to the father and then to have brought their action against the son.
At the hearing before this Court, everyone agreed that it was undesirable that the substantive claim should go off on a technical point of this kind. We therefore gave leave for a second action to be brought and consolidated the first action, the pleadings and evidence in the first action to stand as if they had taken place in the second action. This was done and we are able to deal with the merits of the case. Nevertheless, we still have to decide the preliminary point because many costs depend upon it.
In order to decide this point, and indeed the other points in the case, it is necessary to decide what is the true basis of an action like this by a master agains his servant. Is it an action of contract, or of tort, or is it only given by statute?
So far as contract is concerned, it is not suggested that the servent ever agreed to indemnify his master, either expressly or impliedly, against this liability - he never agreed to any such thing - but it is suggested that the servant impliedly agreed to use reasonable care, and that an action lies by the master for breach of the contract. This is a possible way of formulating the claim. Indeed, I suggested it myself in Jones v. Manchester Corporation, 1952 2 Queen's Bench, 892, but on re-consideration, I do not think it id the correct way, for the simple reason that it does not truly represent the facts. When a man holds himself out as a skilled man, he thereby implied warrants that he is competent at his work and will exercise hic skill on his employer's behalf, see Harmer v. Cornelius, 5 Common Bench, New Series, 236, but he does not warrant that he will never make a mistake and I know of no case where it has been so held. If a lorry driver has an accident owing to a moment's inadvertence or a slight error of judgment, and a third person is injured, his employer must pay damages. The law imposes a very high standard of care in such cases. But it is going much too far to say that the driver is thereby in breach of a contract with his employer. No man, if asked, would give a warranty to his employer that he would at all times, without exception, come up to the standard of the reasonable man of the law who, so far as I know, never makes a slip or a mistake. The ordinary man would say "I will do my best, I cannot do more", and that could hardly be said to be a contract by him. It would not be intended to create legal relations.
Take the converse case where a servant is injured by the negligence of his employer, for instance, the father's claim against the Cold Storage Company. The liability of the employer is in tort only, not in contract. If you read through the whole of Wilsons and Clyde Co. v. English 1938 Appeal Cases, 57, you will find not a word to suggest that the employer's liability rests on an implied term in the contract. The obligation of the employer is an obligation imposed by the law. It arises out of the relationship of master and servent, not out of any implied premise to use reasonable care. The employer was at one time given the defense of common employement of the supposition of a contract, but that fiction has now been abolished. It bedevilled tha law long enough and shoul serve as a warning not to imply promises contrary to the fact. If there is no implied promise of care by master to servant, so also there is none by servant to master.
Another objection to the implied contract is that it would mean that the master could sue his servant for the negligence although the master suffered no damage. That cannot be right. It is trite knowledge that an action for breach of contract lies without proof of damage, whereas in the tort of negligence damage is essential. Test the position by taking the simple case where a servant negligently injures his master's person ot property. Suppose, for instance, that a domestic servant carelessly breaks a plate whilst she is a washing up the dinner things, or a chauffeur by his negligent driving injures his master whoc is riding in the car. The master in each case can claim damages for negligence, see Digby's Case, 1943 appeal cases, 121, but damage is, I think, the gist of the action. If the domestic servant was careless but broke nothing, the master would have no cause of action. If the chauffeur inadvertly failed to keep a good look out, but there was no accident, the master could not sue him for damages. He might not even be able to dismiss him, because it is not every piece of carelessness which...
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