Mersey Docks and Harbour Board v Coggins and Griffiths (Liverpool) Ltd and Another

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeViscount Simon,Lord Macmillan,Lord Porter,Lord Simonds,Lord Uthwatt
Judgment Date26 July 1946
Judgment citation (vLex)[1946] UKHL J0726-1
Date26 July 1946

[1946] UKHL J0726-1

House of Lords

Viscount Simon

Lord Macmillan

Lord Porter

Lord Simonds

Lord Uthwart

Mersey Docks and Harbour Board
and
Coggins and Griffiths (Liverpool) Ltd. and McFarlane

After hearing Counsel, as well on Thursday the 23d, as on Friday the 24th, Monday the 27th and Tuesday the 28th, days of May last, upon the Petition and Appeal of the Mersey Docks and Harbour Board, of the Dock Office, in the City of Liverpool, in the County of Lancaster, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 9th of February 1945, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Coggins and Griffiths (Liverpool) Limited, lodged in answer to the said Appeal (which said Appeal was amended by an Order of this House, of the 23rd of May 1946, by adding John McFarlane as a Respondent to the Appeal, he intimating that he did not intend to lodge a printed Case 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 His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 9th day of February 1945, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.

Viscount Simon

My Lords,

1

In this Appeal the Mersey Docks and Harbour Board (hereinafter called the Board), against whom a Plaintiff named John McFarlane has obtained judgment at Liverpool Assizes for £247 damages with costs on the ground of negligence in the working of a mobile crane belonging to the Board, seeks to have the judgment against the Board discharged and to have substituted for it a judgment in favour of McFarlane for the same amount against Coggins and Griffiths (Liverpool) Ltd. who are master stevedores and who had hired from the Board the use of the crane, together with its driver, for the purpose of unloading a ship called the "Port Chalmers" lying at the quay at the North Sandon Dock, Liverpool. The question in the case is therefore whether Newall, the driver of the crane, is to be regarded, for the purpose of McFarlane's claim, as employed by the Board or by Coggins & Griffiths. Both the Trial Judge, Mr. Justice Croom-Johnson and the Court of Appeal (Scott, du Parcq and Morton, L.JJ) held that the Board was responsible to the Plaintiff for Newall's negligence, but the Board contends that Newall was not at the time of the accident and for the purpose of the operation in which he was then engaged a servant of the Appellant Board but was the servant of Coggins & Griffiths.

2

When the case was called on before the House it appeared that, in an effort to simplify proceedings, the Board and Coggins & Griffiths were the only parties before us, and it was pointed out that McFarlane, who in the Action had sued both these parties in the alternative, was indifferent as to which of them was pronounced to be liable to him as, once he had established that his injuries were due to Newall's negligence, he was bound to get payment from one or other. The House, however, felt that it could not proceed to hear the appeal unless McFarlane was made a party to it, since Your Lordships were being asked to reverse a judgment which he had obtained. The Petition of Appeal was therefore varied by adding McFarlane's name as a Respondent and he intimated through his solicitors that he did not desire to take part in the argument but was ready to accept the decision of the House on the question which of the two original defendants was liable to him.

3

The further facts which raise the question to be decided can be very briefly stated. The Board own a number of mobile cranes, each driven by a skilled workman engaged and paid by it, for the purpose of letting out the apparatus so driven to applicants who have undertaken to load or unload cargo at Liverpool Docks. The conditions upon which such cranes are supplied are contained in Regulations, No. 6 of which runs 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 connection with the matter. The Board do not provide any labour in connection with the Cranes except the services of the Crane Drivers for Power Cranes. The Drivers so provided shall be the servants of the Applicants."

4

On the evening when the accident happened McFarlane, who was a registered Checker employed by James Dowie & Co., was engaged in checking goods which were in course of being transferred from shed to ship by means of this crane. McFarlane, it will be observed, was not in the employ of Coggins & Griffiths; his employers were the forwarding agents who had engaged Coggins & Griffiths as stevedores to load the cargo on the ship. The crane, which does not run on fixed lines but can be moved in any direction by the crane-driver, had picked up under McFarlane's direction a case of which McFarlane had to note the number and marks, but instead of further movement of the crane being stopped by Newall till McFarlane could take the particulars, it was negligently driven on, with the result that McFarlane was trapped and injured.

5

What has now to be decided is whether, in applying the doctrine of respondeat superior, liability attaches on these facts to the Board as the regular employers of Newall or to Coggins & Griffiths as the persons who were temporarily making use of the crane which Newall was driving. As already stated, the Board had engaged Newall, and it paid his wages: it alone had power to dismiss him. On the other hand, Coggins & Griffiths had the immediate direction and control of the operations to be executed by the crane-driver with his crane, e.g., to pick up and move a piece of cargo from shed to ship. Coggins & 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.

6

That this was the actual situation is plain from the evidence given by Mr. Pullen, an official of Messrs. Coggins & Griffiths who was called at the trial. Mr. Pullen, with reference to the extent of control exercised by Coggins & Griffiths over the crane-driver, said "We have no control over the way he drives it. We can only tell him what we want and it is not up to us to tell him how to drive it or anything. If he did not do it to our satisfaction we would certainly send in a complaint to the Dock Board"; and again, "We leave it to the crane-driver to take it", i.e., the moving of a parcel of goods in his way. We do not interfere with the "driver of the crane." Similarly, Coggins & Griffiths' Staff Foreman testified that the stevedores give orders to the crane-driver to pick up goods and to lower them into a particular hold, but do not give orders "how he drives the crane, or when he puts his brake on." In the present case the accident happened because of the negligent way in which the crane-driver worked his crane, and since Coggins & 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.

7

Mr. Pritchard placed much reliance upon the language of Regulation 6. But when the Plaintiff has proved injury caused by the negligence of Newall, and the question arises who is answerable as "superior" for such negligence, this question is not to be determined by any agreement between the owner and the hirer of the crane, but depends on all the circumstances of the case. Even if there were an agreement between the Board and Coggins & Griffiths that in the event of the Board being held liable for negligent driving of the crane while it is under hire to the latter, the latter will indemnify the Board, this would not in the least affect the right of the Plaintiff to recover damages from the Board as long as the Board is properly to be regarded as the crane-driver's employer.

8

It is not disputed that the burden of proof rests upon the general or permanent employer—in this case the 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.

9

It is not easy to find a precise formula by which to determine what these circumstances must be. In the century-old case of Quarman v. Burnett (1840) 6 M. & W. 499, which has always been treated as a guiding authority, the defendants owned a carriage, but habitually hired from a jobmaster horses to draw it: the jobmaster also supplied a regular driver who wore a livery provided by the Defendants. It was decided that the Defendants were not liable for the results of the driver's negligence in handling the horses. The ground of the decision is that the Defendants had no control over the way in which the horses were driven, though they could direct the driver where and when to drive. The test suggested by Bowen L.J. in ...

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