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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ainslie v. Leith Dock Commissioners [1919] ScotLR 5 (16 July 1919) URL: http://www.bailii.org/scot/cases/ScotCS/1919/57SLR0005.html Cite as: [1919] SLR 5, [1919] ScotLR 5 |
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The docks and their equipment, including the cranes upon the piers, belonged at the harbour of Leith to certain Commissioners. In unloading vsssels the practice was for the stevedore employed by the ship to hire a crane from the Commissioners, who made charge therefor and provided a man to work the crane. The craneman was engaged, paid, and dismissed by the Commissioners, but the stevedore was entitled to give directions to the craneman to raise or lower the load or to slew the crane round, quoad ultra the stevedore had no control over the craneman.
Stevedores were discharging a ship by means of a crane hired from the Commissioners and worked by a craneman of theirs. In the course of unloading the craneman instead of raising a load clear over the ship's side on to the pier swung it across the ship, hitting an employee of the stevedores and precipitating him into the hold. He sustained injuries which were fatal. In an action of damages by the representatives of the injured man against the Commissioners, held that at the time of the accident the craneman was not a servant of the stevedores but was a servant of the Commissioners, who were liable for his fault.
Cairns v. Clyde Navigation Trustees, 1898, 25 R. 1021, 35 S.L.R. 808, followed.
Donovan v. Laing and Construetion Syndicate, [1893], 1 Q.B. 629, distinguished.
Mrs Jane Kerr or Ainslie and Georgina Ross Ainslie, the widow and daughter respectively of the deceased Robert Ainslie, pursuer, brought an action against the Commissioners for the Harbour and Docks of Leith, defenders, concluding for decree in favour of the pursuer first named for damages of £1000, and in favour of the pursuer second named for damages of £500, in respect of the death of Robert Ainslie.
The facts of the case were—Robert Ainslie was employed as a stevedore's labourer with Young & Leslie, stevedores, Leith. On 25th July 1918 while in that employment he was engaged with other men in unloading battens from the s.s. “Hurona,” which was lying in the Imperial Dock, Leith. A chain was passed round a bundle of battens in the hold and was fastened by a hook to the ship's winch, which lifted the bundle from the hold on to the combings of the hatch. The bundle was then attached to a chain from a crane standing upon the pier, by which it was lifted over the ship's side on to the quay. The docks and equipment thereof were the property of the defenders. It was necessary for the stevedores to provide themselves with a crane to unload the ship, and it was the invariable praetice at the Leith Docks to hire one of the cranes belonging to the defenders, who imposed certain rates and charges for the hire. The sum paid covered the use of the crane and the craneman. The craneman was employed and paid by the defenders and was engaged and dismissed by them. When not employed at cranes hired out he was controlled by the defenders. On the occasion in question the craneman, while a bundle of battens was being lifted from the ship to the quay, swung the jib of the crane towards the ship so that the battens instead of being swung clear over the ship's side swung over the ship and struck Robert Ainslie, causing
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him to fall into the hold, whereby he sustained injuries which proved fatal. The defenders averred that the stevedores had the sole control over the discharge of the ship, and the craneman was pro hac vice the stevedores' servant. The defenders pleaded, inter alia—“2. The death of the said Robert Ainslie not having been caused by the negligence of the defenders or of those for whom they are responsible, the defenders should be assoilzied.”
The case was tried before Lord Hunter and a jury, who on 6th June 1919 found for the pursuers and assessed the damages payable to the pursuer first named at £500, and to the pursuer second named at £100.
The defenders obtained a rule upon the pursuers to show cause why a new trial should not be granted.
At the hearing on the rule the following authorities were referred to:— Cairns v. Clyde Navigation Trustees, 1898, 25 R. 1021, per Lord Trayner at p. 1023, 35 S.L.R. 808; Quarman v. Burnett, 1840, 6 M. & H. 499, per Parke, B., at p. 507; Jones v. Corporation of Liverpool, 1885, 14 Q.B.D. 890; Anderson v. Glasgow Tramway and Omnibus Company, Limited, 1893, 21 R. 318, 31 S.L.R. 240; Rourke v. White Moss Colliery Company, 1877, 2 C.P.D. 205; Donovan v. Laing, Wharton, and Down Construction Syndicate, [1893], 1 Q.B. 629, per Lord Esher, M.R., at p. 631; Union Steamship Company v. Claridge, [1894], A.C. 185, per Lord Watson at p. 187; Connelly v. Clyde Navigation Trustees, 1902, 5 F. 8, per Lord Kinnear at p. 13, 40 S.L.R. 14; M'Cartan v. Belfast Harbour Commissioners, 1910, 2 I.R. 470, 1911, 2 I.R. 143.
The deceased Robert Ainslie was in the employment of a firm of stevedores, and was engaged in the discharge of the s.s. “Hurona” in the Imperial Dock, Leith. In order to discharge the ship it was necessary for the stevedores to provide themselves with a crane, and in accordance with the practice of the docks at Leith they entered into the contract (a form of which is produced) for the use of the crane subject to payment of the rates and charges exigible. In argument we were told that, theoretically, it was possible for the stevedores to get a crane elsewhere, but the universal practice, it was admitted, is for the stevedores to enter into such a contract as was made here with the Leith Dock Commissioners. The payment made by the stevedores covered the use of the crane and the craneman. During the discharge of the vessel, while battens were being lifted from the deck to the quay, the craneman, whose name was Dickson, swung the jib of the crane inboard instead of towards the shore, with the result that Robert Ainslie was caused to fall into the hold of the vessel; he sustained serious injuries and died the same day.
Now it was argued to us that although Dickson was undoubtedly the general servant of the Commissioners, yet in consequence of the contract made by the stevedores he was pro hac vice the servant of the stevedores, and that accordingly the Leith Dock Commissioners are not responsible for the negligent act which caused the death of Ainslie.
The question of what is meant by “control” is one which has been much debated throughout the course of the case. In my opinion, if the evidence is of such a character that the jury were entitled to take the view that the control was strictly limited, then the defenders' contention that their general servant was pro hac vice the servant of the stevedores fails, and in my view there is ample evidence to warrant that conclusion. I refer in the first place to the evidence of the crane superintendent in the employment of the defenders, and he defines what is meant by “control.” The question is put to him—“You say that the crane is under the control of the stevedores—how does the stevedore control the craneman?” And the answer is—“He gives him the signal to lift, lower, or slew; he also tells him if he is wanted to work overtime.” And the evidence of Young & Leslie's manager is to the effect that the only control the stevedores have over the craneman is to give a signal or pass the word as the case may be. So also a partner of the firm of James Cranston & Company, stevedores, Leith, speaks of the practice. The question is put to him—“In fact, is the whole position this, that they do the hoisting of the cargo from the ship's deck to the shore and the only control you have is to give the man a signal when you are ready to start?” and the answer is “Yes.”
Now upon that evidence the jury were entitled to take the view that the crane and the craneman had not been made over unreservedly to the stevedores, but that the contract entitled the stevedores to the use of the crane for the strictly limited part of the operation of discharge which consisted in raising and lowering and swinging. In so far as the control by the stevedores involved giving a direction by sign or by word of mouth to raise or lower or swing right or left, then, no doubt, they had control; but when it came to the manner in which the craneman was to do his work, how he was to employ his power, how he was to use his brake, and how he was to manipulate his crane, that was entirely outwith the control of the stevedores, and in carrying out any of these operations Dickson was and remained the servant of the Leith Dock Commissioners.
An analogy has been suggested during the course of the argument with the fare who hires a taxi cab. He has control to the extent of indicating where the driver is to
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In my opinion the case raises a question of fact, and there being evidence on which the jury were entitled to come to the conclusion which they reached, that in the ordinary course would end the matter. We have, however, had a full citation of authority in this case, and during the main part of the argument the controversy was whether the case of Cairns v. Clyde Trustees ( 1898, 25 R. 1021, 35 S.L.R. 808), or the case of Donovan v. Laing, &c., Construction Syndicate ( 1893, 1 Q.B. 629) was most like this case, and which of these cases was applicable.
I think it is impossible, if the question is whether a principle is to be extracted from the cases, to extract any other principle applicable to the present case than what was laid down by the Judges who decided the case of Cairns and the test which was applied by Lord Trayner. I may say that I am quite unable for my own part to distinguish the facts in Cairns from the facts in the present case, and I think that if a rubric is written for the present case it will merely be an echo of the rubric written in the case of Cairns. The test applied by Lord Trayner was this—“I think the defenders never parted with the possession of their crane. They retained possession by the hands of their own servant; they could refuse to work it if and when they pleased; and the craneman was so completely under their control that if they ordered him to abstain from working he must obey. The only control which it is pretended the stevedore had was the control involved in telling the craneman to lower the crane at one time and raise it at another. I think it extravagant to call that control—the control which a master has over a servant is something more than that.”
So in the present case it is apparent that if Dickson, the craneman, had given dissatisfaction to Young & Leslie, the stevedores, they could not have dismissed him. All they could have done would have been to go to Dickson's employers, the Leith Dock Commissioners, and lodge a complaint with them.
Lord Trayner goes on to say that the case is analogous to the carriage cases, that “the hirer of a carriage has so much control over the coachman as entitles him to order the coachman to go or to stop at his pleasure, but such control does not make him the coachman's master or responsible for the coachman's fault.”
That was a judgment of the Second Division of this Court, having fully before them the case of Donovan. In the initial stages of this case Donovan was urged upon us as containing opinions from which a principle was to be extracted adverse to the principle that was applied in the case of Cairns.
Lord Moncreiff in Cairns' case took the view that Donovan was distinguishable, and he distinguishes it on three grounds—“First, the craneman who was engaged by the wharfingers was not forced upon them, he was supplied to them along with a crane at their request by the defendants; they were not bound to take him, and they could dismiss him. Secondly, the contract under which the crane and craneman were supplied was not to supply them for a single job, but whenever they might be required. Lastly, for the time crane and craneman were placed unreservedly at the disposal of the wharfingers.”
Speaking for myself, it appears to me that one may read Donovan as meaning this—that there the wharfingers were free to go and select from anyone within an undefined area who could supply them with a crane (and craneman) the one which they considered best suited for their purpose, and having themselves that liberty of unlimited choice, and having exercised their judgment and supplied themselves, they then proceeded to take away the crane and craneman and apply them to their own particular purpose. That seems to me to be the feature of Donovan's case, which makes it different from the case of Cairns and from the present case.
But although there appeared throughout a considerable part of the argument before us to be an evenly balanced debate, Mr Wilson with great frankness tabled the case of M'Cartan v. Belfast Harbour Commissioners, [1911] 2 I.R. 143. That appears to me to be conclusive of the present question. M'Cartan v. Belfast Harbour Commissioners was a case decided in 1910 by the Court of Appeal in Ireland, and then it went to the House of Lords. The facts there were that M'Cartan brought an action against the Belfast Harbour Commissioners, and the persons who made the contract were in the position of stevedores. The only point of difference between that case and the present is one which would be rather in favour of theBelfastCommissioners, because there was as a term of the contract a stipulation that the hirer was to be liable for all loss and damage arising from an improper use of the crane. What happened there was that while the plaintiff was filling a bucket in the hold, an empty bucket while being lowered by the crane descended with great speed and violence and struck the plaintiff, who was seriously injured. The person through whose negligence that accident happened was a man of the name of Duffy. Apparently the way in which that case was left to the jury was on a query in these terms—“Had the hirer authority to control Duffy otherwise than in respect of the time and place of movement of the crane and the time of raising and lowering the buckets?” and the answer was “No.” Applying that verdict, the Court of Appeal in Ireland held that the plaintiff was entitled to a verdict, and that decision was affirmed by the House of Lords.
Now, mutatis mutandis, if the same question had been put here with reference to the stevedore and Dickson, in my opinion there
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It is instructive to see how the matter was dealt with in the judgments delivered in the House of Lords in M'Cartan's case. The Lord Chancellor commences by saying that he regards this case as purely one of fact in which no point of law is in dispute, and “the question on which the decision hinges is this—Was the man whose negligence caused this accident acting as servant of the defendants in doing what led to the mishap, or as servant of the master of the vessel which was being unloaded? For the man who is the general servant of one person may, if lent to some-one else for a particular employment, become his servant for anything done in that particular employment.”
One notices that all the noble and learned Lords are careful to say that they cast no doubt upon the conclusion reached in the case of Donovan although Lord Dunedin certainly expresses disagreement with the test which is applied by Lord Justice Bowen in these terms—“We have only to consider in whose employment the man was at the time when the acts complained of were done, in this sense, that by employer is meant the person who has a right at the moment to control the doing of the act.” Th at is expressly negativ ed by Lord Dunedin, who in a later part of his judgment says he prefers the test put by Bowen, L.J., in Moore v. Palmer ( 1886, 2 T.L.R. 781)—“The great test was this, whether the servant was transferred or only the use and benefit of his work.” The principle involved in Donovan's case and in M'Cartan's is stated by Lord Dunedin to be that “which is compendiously described by the brocard respondeat superior.” The question in M'Cartan's case was whether Duffy was controlled by the defendants, who gave him his orders every morning, paid him his wages, and could at any moment have dismissed him, and told him to leave his crane and the harbour premises. This, as Lord Dunedin points out, however, though uncontroverted is not conclusive—“As Lord Watson said … in the case of the Union Steamship Company v. Claridge ( [1894] AC 185), ‘that the servant of A may, on a particular occasion and for a particular purpose, become the servant of B notwithstanding that he continues in A's service and is paid by him, is a rule recognised by a series of decisions.’ . .” “Was this the case when, in Lord Watson's words, the servant of A became the servant of B? That is the question that was really before the jury. Now I agree that the precise form of the question as put was not very happy. On the other hand I think we had an intelligible and satisfactory account from the learned counsel who was at the trial of how the question came to be put in that form,” and then he puts the question left to the jury which I have already read. “Now,” Lord Dunedin goes on, “I read that as meaning, and I think it was intended to mean, that the general authority and control of the defendants over Duffy had not pro hac vice been surrendered by them and transferred to Chambers, but that the control given to Chambers was limited to the right to give directions to move the crane alongside the hold and to lower or raise the bucket. Any control, however limited, is not per se enough to transfer the service, and the jury has not held this control to be sufficient so to transfer it.” “If similarity of facts were a test—which, as I have already said, is, I think, fallacious—then the case of Cairns v. Clyde Navigation Trustees, decided by the Second Division of the Court of Session, is a case more on all fours with the present than Donovan's case. I refer to Lord Trayner's judgment in that case, with which I entirely agree.”
What the jury had to consider in the present case, and did consider, was exactly what the jury had to consider and decide in M'Cartan's case, and I can see nothing wrong in the principle that they applied, nor in the way in which they reached their conclusion consistently with the whole evidence in the case.
For these reasons I am of opinion that the verdict must stand.
The question which the jury had to decide was purely one of fact, namely, whether the defenders had made out their allegation that the services of this craneman had on the occasion in question been transferred to the stevedore in such a manner as to constitute the craneman the servant of the stevedore. There was, I think, ample evidence to entitle the jury to answer that question in the negative, and, for my part, I would go further and I would say that the verdict seems to me to have been the right and proper verdict for them to return upon the evidence which they had before them.
In view, however, of the contrary verdict which was returned in the case of Connolly ( 1902, 5 F. 8, 40 S.L.R. 14), of certain expressions of opinion in that case, and also of the English decision of Donovan ( [1893] 1 QB 629), I confess that at one time I thought the law as laid down in Cairns ought to be more fully considered than by a bench of judges which could not overrule that decision. In the course of the
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The
The Court discharged the rule and of consent applied the verdict.
Counsel for the Pursuers— Watt, K.C.— J. A. Christie. Agents— Murray Lawson & Macdonald, W.S.
Counsel for the Defenders— Wilson, K.C.— Skelton. Agents— Gillespie & Paterson, W.S.
