In this case, the appellants let out their crane and driver to the respondent Stevedores under a contract providing that the driver shall be the servant of the respondent. The crane driver by his negligence injured a person giving rise to the question as to who was the master at the time of the accident for the purpose of vicarious liability.
All the Courts held that there was no transfer of the servant and the appellants continued to be the master and were, therefore, liable for the negligence of the servant. Lord Porter in the House of Lords pointed out that an arrangement for the transfer of the services of the servant from one master to another can take place only with his express or implied consent and that it is not legitimate to infer that a change of masters has been effected because a contract has been made between the two employers declaring whose servant the man employed shall be at a particular moment in the course of his general employment by one of the two. He then observed: “The most satisfactory test, by which to ascertain who is the employer at any particular time, is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged. If someone other than his general employer is authorized to do this, hewill, as a rule, be the person liable for the employee’s negligence. But it is not enough that the task to be performed should be under his control, he must also control the method of performing it. It is true that in most cases there are no orders as to how a job should be done. Where a man driving a mechanical device, such as a crane, is sent to perform a task, it is easier to infer that a general employer continues to control the method of performance, since it is his crane and the driver remains responsible to him for its safe keeping. In the present case, if the appellant’s contention were to prevail, the crane driver would change his employer each time he embarked on the discharge of a fresh ship. Indeed, he might change it from day to day without any say as to who his master should be and with all the concomitant disadvantages of uncertainty as to who should be responsible for his insurance in respect of health, unemployment and accident.”