The Gazette 1955-58

Per Denning, L.J. : Two men named Lister, father and son, were employed by the Romford Ice and Cold Storage Co., Ltd., the plaintiffs. Their task was to collect waste and take it to the factory. On 26th January, 1949, the son, the defendant, drove the lorry from the plaintiffs' premises to a slaughter house in Oldchurch Road, Romford. The father went with him. The defendant drove the lorry through the main gates into the yard of the slaughter house. His father got off to go to the office. The de fendant backed the lorry to get it into position and unfortunately ran into his father and injured him. The reason was partly because the engine was defective, so that the defendant had to keep it going fast and, therefore, reversed more quickly than he need have done ; partly because the son did not take sufficient steps to see that all was clear : partly because the father did not keep a proper look-out. The father sued the plaintiffs for damages for negli gence. The case was tried by McNair, J., on 29th January, 1953. He found that the father was one-third to blame and the plaintiffs two-thirds. He assessed the total damages for the injuries at £2,400 and gave judgment for the father for .£1,600 and costs. The plaintiffs were insured against this liability and the insurers have paid the father the £1,600 and costs. Now the insurers seek to recover that sum from the son, the defendant. To do this, they have brought an action in the name of the plaintiffs against him. The Romford Ice and Cold Storage Co., Ltd., are only nominal plaintiffs. The managing director of the plaintiff company came to the court and gave evidence. He said that the plaintiffs were not consulted about this action. The insurers bring it under their right of sub-rogation or under the clause in the policy authorising them to use the name of the company. Let me put aside for the moment the question of insurance and treat the case as if the Romford Ice and Cold Storage Co., Ltd, were the real plaintiffs. Even so, there was until very recently never a case of this kind recorded in our books. Many a master has been made responsible for the mistakes of his servants, but never has he sought to get contribution or indemnity from his servants. One obvious reason is that it is not worth while. The master is not allowed to make any deduction from his servant's wages : and it would seem the extreme of harshness to seize his savings or to make him bankrupt. The . other reason is no doubt the reluctance of a good master to visit the risk of accidents on to his servants' The risks should be borne by the undertaking as a whole rather than on the poor unfortunate servant , who happens to make a mistake in a moment of

temporary inadvertence. It seems that these reasons no longer commend themselves to the insurers of employers, and we have to consider whether the claim is good in law. When a man holds himself out as a skilled man, he thereby impliedly warrants that he is competent at his work and will exercise his skill on his em ployer's behalf, but he does not warrant that he will never make a mistake and I know of no case where it has been so held. If a lorry-driver has an accident owing to a moment's inadvertence or a slight error of judgment, and a third person is injured, his employer must pay damages. The law imposes a very high standard of care in such cases. Another objection to the implied contract is that it would mean that the master could sue his servant for negligence although the master suffered no damage. That cannot be right. It is one thing to say that, as between strangers, insurance is irrelevant, but quite another thing to say that as between master and servant it is irrelevant. If the master relies on an implied contract to make the servant liable, the servant may well rely on an implied term to exempt himself. This shows that there is an implied term in these cases whereby, if the employer is insured, he will not seek to recover contribution or indemnity from the servant. I cannot help thinking that the insurers undertook the risk on the very same understanding. The premium was fixed no doubt on the basis that they would foot the bill themselves. No allowance would be made for the possibility of any contribution being obtained from the plaintiffs' servants. Yet, if this action is well founded, it means that in every one of these cases, the insurance company can turn round and bring an action in the name of the em ployer against the servant. Nothing could be more detrimental to good relations between an employer and his servants. Nothing would be further from the contemplation of the parties. Per Birkett, L.J. : It was by virtue of this clause that the writ was issued, and it was issued without consultation with the plaintiffs. By entering into a policy of the kind we are considering, containing the condition which I have recited, the master delivers himself into the hands of the underwriters com pletely. His servant may have been in his employ ment for many years and rendered him loyal and devoted service ; yet, if he were to be found guilty of negligence, for which the master was in law responsible, and the underwriters had paid the damages under the master's policy, the underwriters could sue the servant in the master's name, although the master himself would never have dreamt of doing so; and the underwriters could recover 93