I T is often of great importance in law to establish
Page 43
If you've noticed an error in this article please click here to report it so we can fix it.
whose servant is the driver of a vehicle. It is directly relevant to the licensing of. goods vehicles, for Section 1 (3) of the Road and Rail Traffic Act, 1933, provides that "the driver of the vehicle if it belongs to him . . . and in any other case the person whose agent or servant the driver is, shall . . be deemed to be the person by whom the vehicle is being used."
Apart from that, however, the question becomes of paramount importance in matters of civil liability arising out of the employee's negligence resulting in injury or loss to third parties.
The answer to the question is not as easy as might appear at first sight, for in commerce and trade generally it is common for a workman to conic to a greater or lesser degree under the control or supervision of someone other than his normal master. He may be loaned for a particular job, perhaps of a day's duration, perhaps for a month or more, with or Without a vehicle or equipment with which he is skilled. In such cases is he the servant of his temporary employer or does he continue to be the servant of what may be called the "general employer "?
The law says that the answer to this question is entirely a matter of who has the effective power of control over the servant, and that this is a question of fact in each case, dependent upon each set of surrounding circumstances. Although without some guidance it might be difficult to say how the law would interpret any particular sets of facts, it can be said that, as a general rule, the law leans heavily against any suggestion of a " transfer " from the general to the temporary employer.
In the leading House of Lords case of Century Insurance Co. V. Northern Ireland Road Transport Board (1942), the Board entered into a written contract with a distributing company to supply the latter with tankers, with drivers, who were to accept and obey the orders of the distributors regarding matters of delivery, although the Board would retain the right to dismiss any driver disobeying such orders. The vehicles were garaged by the distributors and were painted with their distinguishing colours. The drivers also wore uniform to identify them with the distributors.
The Great Test The House of Lords applied the test of who had the right to control, rather than the actual physical control of the drivers. Lord Simon added that the great test was whether the servant himself was transferred or only the use and benefit of his work.
It was held that, on the facts, the Board were independent contractors undertaking by the use of their own vehicles and by the activities of their own servants to make the deliveries, and they were not in the position of people lending vehicles and drivers for the hirers to direct. Lord Wright also pointed out that there was always a presumption against the transfer from the general to the temporary employer, but added a word or warning when he said that "the facts of one case can never rule another case."
In Nicholas v. Sparkes and Sons (1945) the plaintiff's employers used to hire from the defendants from two to nine lorries a week by telephone. The drivers supplied with the lorries were told to report at and work for the hirers and to accept orders from them, but the defendants had the right to take them away and replace them.
The plaintiff was injured by the defendant's lorry on his employers' premises and the county. court judge held that the driver was under the employer's control and, therefore, the defence of common employment (which was a defence up to July, 1948, in such circumstances, after which date if was abolished) succeeded and the plaintiff could not recover. The Court of Appeal,. however, reversed this decision and laid down what—until now—seems to be the best code of rules for determining the question of whose employee the driver is in such circumstances.
(1) Where a servant is told by his general employer that he is to obey the orders of the temporary employer, and the latter!s orders are the direct cause of the servant's wrongful or negligent act, the temporary employer is liable.
(2) Where the temporary employer merely directs the driver as to time and place of his work, but has no control over the driver's act of driving, the eeneral employer remains liable for the latter's
negligence. , (3) One test useful in such circumstances is whether the driver is exercising the discretion given to him by his general employer as a driver or whether he is discharging a specific order of the particular employer as to driving.
In the case in question the court held that the driver was exercising his own discretion as a driver, and it reiterated that not only was there a presumption against a transfer of control to the temporary employer, but the onus of showing that a change had taken place was upon the general employer.
Transfer of Control A case the other side of the line was Garrard v. Southey and Co. (1952), in which occupiers of a factory contracted with some electrical contractors for the supply of two electricians and their mates to assist in electrical installation. They remained in the general employment of their own firm but worked under the same conditions as the factory men, and under the direct supervision and direction of the factory foreman who, to a large extent, told them not only what to do but how to do it, and checked their work and made them do it again if it did not conform to his ideas. It was held that the foreman went far beyond general control, and there had been a " transfer " to the factory occupiers, as the right to dismiss was not the sole or conclusive test.
With this exception, nearly all recorded cases illustrate the unlikelihood of the law holding that a transfer has occurred. and it is something for employers to ponder over when they are liable to be held responsible for the activities of their employees not merely out of their own sight—that is commonplace and inevitable-but •within the sight and believed control of another employer. Should a .carrier faced with this problem be in doubt about his position, he would be well advised
to consult his solicitor. .