Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd

When a general employer lends a worker with machinery, vicarious liability remains prima facie with the general employer. The burden of proving a temporary transfer is heavy and will be discharged only in exceptional circumstances.

The decisive question is who has authority to control the manner in which the relevant work is performed. Authority merely to specify the task or desired result is insufficient.

An agreement describing the worker as the hirer’s servant does not determine an injured third party’s rights. The court must examine the realities of the relationship, including the worker’s consent. A hirer lacking general control may nevertheless become a joint tortfeasor by giving an improper specific direction which causes injury.

McFarlane, a checker employed by forwarding agents, was injured through the admitted negligence of Newall, who was operating a mobile crane while cargo was being loaded. The Mersey Docks and Harbour Board owned the crane, engaged and paid Newall, and alone could dismiss him. Coggins and Griffiths, the stevedores, had hired the crane with its driver. Regulation 6 of the hiring terms stated that a supplied driver should be the hirer’s servant.

Croom-Johnson J at Liverpool Assizes awarded McFarlane £247 damages against the Board. The Court of Appeal, comprising Scott, du Parcq and Morton LJJ, upheld that decision. The Board appealed, contending that Newall had become the stevedores’ servant pro hac vice. The central issue was which undertaking bore vicarious liability for his negligent operation of the crane.

1. Disposition. The House unanimously dismissed the Board’s appeal with costs. The judgment holding the Board liable to McFarlane therefore remained in force.
2. Presumption and burden. Per Viscount Simon, Lord Macmillan, Lord Porter, Lord Simonds and Lord Uthwatt, Newall was prima facie acting as the Board’s servant. The Board engaged and paid him, selected his work, supplied the crane and alone possessed the power of dismissal. The general employer bore a heavy burden of proving that responsibility had passed temporarily to the hirer.
3. Control of the manner of work. The common basis of the speeches was that the decisive question concerned authority to control how the relevant work was performed. It was insufficient that the stevedores could tell Newall what cargo to lift, where to take it or what result to achieve. They had no authority to direct the manipulation, braking or safe operation of the crane. The negligent act arose from the manner in which Newall performed the skilled work entrusted to him by the Board.
4. Contractual description and consent. Per all five Law Lords, Regulation 6 could not determine McFarlane’s rights by declaring Newall to be the stevedores’ servant. Such an agreement might affect liabilities between the Board and the stevedores and could provide evidence about the intended functions, but it could not contradict the actual distribution of control. Lord Macmillan, Lord Porter and Lord Uthwatt further emphasised that a transfer of service required the worker’s express or implied consent and had to be proved rather than presumed.
5. Authorities. The control principle in Quarman v Burnett (1840) 6 M. & W. 499 was applied. Donovan v Laing, Wharton and Down Construction Syndicate Ltd [1893] 1 Q.B. 629 was confined to the finding that entire and absolute control had passed to the hirer; its broader language was explained as referring to authority over the method of work. The materially similar decisions in M'Cartan v Belfast Harbour Commissioners [1911] 2 I.R. 143 and Cairns v Clyde Navigation Trustees (1898) 25 R. 1021 were followed. The alternative formulation in Nicholas v F J Sparkes & Son [1945] 1 K.B. 309 note, based on whether a specific order was being obeyed, was rejected in favour of the inquiry into authority to control the manner of execution.
6. Specific directions. Viscount Simon and Lord Uthwatt added that a hirer lacking authority over the worker’s general method might incur liability as a joint tortfeasor by giving an improper specific direction which the worker followed to a third party’s injury. That was distinct from liability arising from a temporary master-and-servant relationship.

• House of Lords: In Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1, the House unanimously dismissed the Board’s appeal with costs and left the judgment against it undisturbed.
• Court of Appeal: Scott, du Parcq and Morton LJJ upheld the trial judge’s decision that the Board was responsible for Newall’s negligence. No citation is stated.
• Liverpool Assizes: Croom-Johnson J entered judgment for McFarlane against the Board for £247 damages with costs.