Lister v Romford Ice and Cold Storage Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Morton of Henryton,Viscount Simonds,Lord Radcliffe,Lord Tucker |
| Judgment Date | 20 December 1956 |
| Court | House of Lords |
| Date | 20 December 1956 |
[1956] UKHL J1220-2
Viscount Simonds
Lord Morton of Henryton
Lord Radcliffe
Lord Tucker
Lord Somervell of Harrow
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Lister against Romford Ice & Cold Storage Company Limited, that the Committee had heard Counsel, as well on Monday the 5th, as on Wednesday the 7th, Thursday the 8th, Monday the 12th and Tuesday the 13th, days of November last, upon the Petition and Appeal of Martin Alfred Lister, of 35 Hamlet Road, Romford, in the County of Essex, praying, That the matter of the Orders set forth in the Schedule thereto, namely, two Orders of Her Majesty's Court of Appeal of the 26th of October 1955 and of the 16th of January 1956 respectively, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Orders, so far as aforesaid, might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of Romford Ice & Cold Storage Company Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Orders of Her Majesty's Court of Appeal, of the 26th day of October 1955 and of the 16th day of January 1956 respectively, complained of in the said Appeal, be, and the same are hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.
My Lords,
The facts in this case are not seriously in dispute, but they give rise to questions of considerable difficulty and importance.
The Appellant, Martin Alfred Lister, was, in January, 1949, in the employment of the Respondent Company as a lorry driver. He was then some twenty-seven years of age and had, apart from an interval during the war, been in that employment since he was seventeen. He had previously for a short time been employed by them as a general labourer. On the 28th January, 1949, accompanied as mate by his father, also named Martin Alfred Lister, whom I will call "Lister senior", he drove his lorry into a slaughter-house yard off the Old Church Road, Romford, to collect some waste. In the yard he backed his lorry and in doing so knocked down and injured Lister senior, who had previously alighted from it.
In June, 1951, Lister senior issued a writ against the Respondents claiming damages for the personal injuries suffered by him, alleging that they were due to the negligent driving of the Appellant and that the Respondents as his employers were vicariously liable. This action was tried by Mr. Justice McNair on the 29th January, 1953, and that learned Judge held that the Appellant had negligently driven the lorry in reverse without looking where he was going but that Lister senior was also at fault in failing to take proper care for his own safety, the relative responsibility being two thirds for the Appellant and one third for Lister senior. The responsibility of the Respondents was purely vicarious. The damage was assessed at £2,400 and judgment was entered for Lister senior for £1,600, two thirds of that amount, and costs.
On the 26th January, 1953, three days before the trial of Lister senior's action, the Respondents issued the writ in the action, in which this appeal is brought, claiming against the Appellant "damages or in the alternative … payment by way of indemnity or contribution in respect of such damages as may be adjudged or agreed to be paid" to Lister senior in the first action and the Respondents' costs of that action.
On the 12th May, 1953, the Respondents delivered their Statement of Claim in the present action. They pleaded the facts that I have stated, including the judgment which had by then been given; they alleged that they had paid the damages of £1,600 and were liable to pay the costs and that they had suffered loss and damage to the extent of such damages and costs by reason of the Appellant's negligence. They pleaded further or alternatively that it was an implied term of the contract of service of the Appellant that he would carry out his duties with reasonable care and skill and that he had failed to do so whereby they had suffered loss and damage. They claimed an order that they might be indemnified by the Appellant in respect of the sums they had paid to Lister senior and their costs of defending the first action and alternatively "damages for negligence and/or breach of contract". I understand the first head of claim to be for a contribution of 100 per cent., that is, in effect an indemnity under the Law Reform (Married Women and Tortfeasors) Act, 1935, which I will call "the 1935 Act", and the second head of claim to be founded alternatively on tort or the breach of a contractual duty of care.
The Defence of the Appellant, to which I must refer somewhat fully, put in issue the question of his negligence. It alleged that he was present in Court throughout the trial of the first action and was ready to give evidence on behalf of the Respondents but that they did not allow him to do so, and that the judgment against them was, therefore, not due to his negligent driving but to their failure to call him as a witness. I do not think that your Lordships will take this plea very seriously. It cannot by any means be sustained. Something more formidable follows, raising, I think, a question of general importance. For it was then pleaded that it was an implied term of the contract of service that the Respondents would indemnify the Appellant against all claims or proceedings brought against him for any act done by him in the course of his employment, and, in the alternative, that it was an implied term that he would receive the benefit of any contract of insurance effected by the Respondents and covering their liability in respect of the first action, that the Respondents had in fact effected such insurance and that he claimed the benefit thereof. And it was further pleaded that there was no such implied term of service as the Respondents alleged, that he would carry out his duties with reasonable care and skill, but that on the contrary the Respondents by engaging him to drive a lorry on their behalf impliedly accepted him with all such faults and failings as he might possess and without any right or claim against him in respect of negligent acts arising out of and in the course of his employment. It was in this state of the pleadings, though they were amended when the case was heard by the Court of Appeal, that the matter came before Mr. Justice Ormerod for trial.
I will at once state the conclusions to which that learned Judge came. After stating that the case had been put by counsel for the Respondents (Plaintiffs in the action) in two ways, first that upon the ordinary law of contract the servant was liable to his master for damage suffered by him for the servant's breach of contract, it being an implied term of his contract that he would use reasonable care in the performance of his work, and, secondly, that he was as a joint tortfeasor entitled to contribution under section 6 (1) ( c) of the Act of 1935, the learned Judge said that he was constrained by the words of Lord Justice Denning in the case of ( Jones v. Manchester Corporation and Others [1952] 2 Q.B. 852 at p. 868) to consider the case from the point of view of the Act of 1935. He found as a fact that the Appellant had been guilty of negligence, rejected the contention that the claim for contribution could only be raised in the original action, and then proceeded to deal with what he regarded as the substantial defence, namely, that the contract of service was subject to the implied terms to which I have already referred. As to this he held, following the decision of Mr. Justice Finnemore in Semtex, Ltd. v. Gladstone [1954] 2 A.E.R. 206 (a case, I will interpolate, which was in my opinion rightly decided) that, while it must be an implied term that the employer would not require the servant to do anything illegal and therefore would comply with the provisions of the Road Traffic Act, 1930, in respect of insurance, there was no evidence to support any further implication. He rejected also the plea that the writ was prematurely issued, and upon a consideration of the circumstances held that the Respondents were, under the Act of 1935, entitled to a contribution which would amount to a complete indemnity. He gave judgment for the Respondents accordingly.
There has, I think, been some confusion in the course of the case between two wholly separate torts, ( a) the tort for which the Appellant and, vicariously, the Respondents might be made liable to Lister senior and in respect of which the Respondents could claim contribution under the Act of 1935, and ( b) the tort for which the Appellant might be made liable to the Respondents in respect of his breach of the common law duty of care. But I do not think that this now affects the issue, for, as I shall try to show, the deciding factor, whatever the cause of action, is whether or not certain terms are to be implied in the contract of service between the Appellant and the Respondents.
The Appellant appealed to the Court of Appeal. At the outset of the hearing in that Court the Appellant took the preliminary point that the issue of the writ was premature, inasmuch as the liability of the Respondents to Lister senior had not been established: this was said to follow from the decision of this House in George Wimpey & Co. Ltd. v. British Overseas Airways Corporation [1955] A.C. 169. The Respondents' answer was that at any...
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