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The Right to Indemnity between Master and Servant

Published online by Cambridge University Press:  16 January 2009

J. A. Jolowicz
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Extract

The proposition that a master, who has become liable for an injury caused by a servant acting in the course of his employment, can recover an indemnity from the servant is one which has been stated on a number of occasions, but until the recent case of Romford Ice & Cold Storage Co. v. Lister no clear authority could be cited in support. It is true that the master's rights against his servant have been canvassed in at least three modern cases, but in all of them the common law position has been obscured by the application of the Law Reform (Married Women and Tortfeasors) Act, 1935. In Romford Ice & Cold Storage Co. v. Lister, however, by what those interested in legal principle can only regard as a happy chance, it was necessary for the Court of Appeal to deal with the matter independently of the Act.

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Type
Research Article
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The Cambridge Law Journal , Volume 14 , Issue 1 , April 1956, pp. 101 - 111
Copyright
Copyright © Cambridge Law Journal and Contributors 1956

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References

1 e.g., per Warrington L.J. in Weld-Blundell v. Stephens [1919] 1 K.B. 520, 536; per Singleton and Hodson L.JJ. in Jones v. Manchester Corporation [1952] 2 Q.B. 852; per Finnemore J. in Semtex v. Gladstone [1954] 2 All E.R. 206; Salmond, Torts, 11th ed., p. 92; Winfield on Tort, 6th ed., p. 207; Smith, Law of Master and Servant, 8th ed., p. 75.

2 [1955] 3 W.L.R. 631.

3 Ryan v. Fildes [1938] 3 All E.R. 517; Jones v. Manchester Corporation [1952] 2 Q.B. 852; Semtex v. Gladstone [1954] 2 All E.R. 206.

4 Hodson L.J. in his dissenting judgment in Jones v. Manchester Corporation held that the right to indemnity existed at common law, and that there was no room for the operation of the Act.

5 Nothing turns on the relationship of father and son.

6 [1955] A.C. 169.

7 The argument that insurers were suing by right of subrogation to the nominal plaintiffs and were precluded from doing so since they had, when the writ was issued, paid nothing under the policy of insurance, even if open to the defendant, failed because of an express clause in the policy entitling them to sue in the name of the plaintiffs. They therefore had no need to rely on their common law right of subrogation. See per Romer L.J. at pp. 652–653.

8 [1955] 3 W.L.R. 631 at p. 639.

9 [1952] 2 Q.B. 852 at p. 870.

10 Except Colburn v. Patmore (1834) 3 L.J.Ex. 317, where a newspaper proprietor sought an indemnity against the consequences of a prosecution following the insertion of a criminal libel in the newspaper by the editor. The case went off on a pleading point, but it is not surprising that the view was expressed that the action was not maintainable. It may be observed that it seems clear from an intervention in the course of argument that Lord Lyndhurst C.B. thought that an action could be maintained in respect of damages paid on account of a civil libel.

11 For the history of this development see Wigmore, “Tortious Responsibility” in Anglo-American Legal History, III, pp. 520 et seq., Holdsworth, H.E.L., VIII, pp. 472 et seq.

12 Attention was drawn to one of these cases—Green v. New River Co. (1792) 4 T.R. 589—by the learned editor of the Law Reports in his report of Jones v. Manchester Corporation, and some of the cases are discussed by the anonymous author of an article in 71 Law Notes p. 193.

13 Wigmore, Evidence, 3rd ed., II, para. 575, p. 677, Holdsworth, H.E.L., IX, p. 195.

14 (1704) 1 Salk. 287; 2 Ld.Raym. 1007. The objection that the pilot was not a servant but an independent contractor is not admissible. This distinction was not taken until the nineteenth century. See, e.g., Bush v. Steinman (1799) 1 Bos. & Pul. 404.

15 Jarvis v. Hayes (1738) 2 Str. 1083.

16 Green v. New River Co. (1792) 4 T.R. 589; Miller v. Falconer (1808) 1 Camp. 251; Morish v. Foote (1818) 2 Moo.C.P. 508. It must be admitted that in one or two cases the rule was apparently not insisted upon; see Viner, Abr., XII, 25, p1. 38; Buller N.P. 77. The rule was abolished by 3 & 4 Will 4, c. 42, s. 26.

17 The quotation is from Lord Raymond's report.

18 In Cuthbert v. Gostling (1814) 3 Camp. 515. See also the judgment of Parke B. in Yeomans v. Legh (1837) 2 M. & W. 419, after the Act of Will. 4 had become law.

19 (1799) 8 T.R. 186.

20 e.g., per Lord Denman C.J. in Thurman v. Wild (1840) 11 A. & E. 453; per Scrutton L.J. in The Koursk [1924] P. 140. Various leading writers have expressed the same view: Glanville Williams, Joint Torts and Contributory Negligence, p. 1; Winfield, 6th ed., p. 202; Salmond, 11th ed., p. 87. Moreover it is clear that many of the consequences of joint tortfeasorship apply in cases of master and servant: Thurman v. Wild (1840) 11 A. & E. 453; Stephens v. Elwall (1815) 4 M. & S. 259; Swift v. Winterbotham (1873) L.R. 8 Q.B. 244; Wright v. L.G.O.C. (1877) 2 Q.B.D. 271.

1 In Semtex v. Gladstone [1954] 2 All E.R. 206, 208.

2 (1827) 4 Bing. 66. See also e.g., Humphrys v. Pratt (1831) 5 Bligh (N.S.) 154; Betts v. Gibbins (1834) 2 A. & E. 57; Toplis v. Crane (1839) 5 Bing.N.C. 636; Collins v. Evans (1844) 5 Q.B. 820; Dixon v. Fawcus (1861) 30 L.J.Q.B. 137; Dugdale v. Lovering (1875) L.R. 10 C.P. 196; Sheffield Corporation v. Barclay [1905] A.C. 392.

3 At p. 649.

4 At pp. 638–639.

5 (1827) 4 Bing. 66.

6 (1844) 5 Q.B. 820. See also Burrows v. Rhodes [1899] 1 Q.B. 816.

7 See especially per Lord Herschell L.C. in Palmer v. Wick & Pulteneytown Steamship Co. [1894] A.C. 318, 324, cited by Birkett L.J. in Romford Ice & Cold Storage Co. v. Lister at p. 648.

8 At p. 649.

9 Apart from the authorities already referred to (note 1, supra) and the majority judgments in Romford Ice & Cold Storage Co. v. Lister one may instance Glanville Williams, op. cit., pp. 162 et seq.; the anonymous author of an article entitled “The Careless Chauffeur” in 218 L.J. 29; Singleton and Hodson L.JJ. in Jones v. Manchester Corporation [1952] 2 Q.B. 852; Byrne J. in Gregory v. Ford [1951] 1 All E.R. 121, 124.

10 As was the case in Gregory v. Ford [1951] 1 All E.R. 121.

11 [1954] 2 All E.R. 206, 212.

12 At p. 654.

13 Harmer v. Cornelius (1858) 5 C.B. (N.S.) 236. See also Digby v. General Accident Fire and Life Assurance Corporation [1943] A.C. 121.

14 [1943] A.C. 121.

15 Since it is now clear that if a husband injures his wife in the course of his employment she may recover against her husband's master (Broom v. Morgan [1953] 1 Q.B. 597) it seems to follow from the decision in Romford Ice & Cold Storage Co. v. Lister that the master can recover over against the husband. It may be doubted however whether the court would be prepared to allow, by this round-about process, what would amount to an action by a wife against her husband. But see Denning L.J. [1953] 2 Q.B. 517–518.

16 At p. 637.

17 [1938] A.C. 57.

18 [1891] A.C. 325, 362.

19 O'Reilly v. I. C. I. [1955] 1 W.L.R. 1155: see especially per Jenkins L.J. at p. 1163.

20 [1947] A.C. 1.

1 [1952] 2 Q.B. 852.

2 Hodson L.J. dissenting.

3 s. 6 (1) (c) proviso.

4 Contribution amounting to one hundred per cent, was awarded in Ryan v. Fildes [1938] 3 All E.R. 517; in Semtex v. Gladstone [1954] 2 All E.R. 206 and in the second action in Romford Ice & Cold Storage Co. v. Lister [1955] 3 W.L.R. 631.

5 I am indebted to Professor Hamson for drawing my attention to this point. It is only fair to add that I have reason to believe that he does not agree with my conclusions as to its validity.

6 Gregory v. Ford [1951] 1 All E.R. 121.

7 See e.g., Vandepitte v. Preferred Accident Assurance Corporation of New York [1933] A.C. 70.

8 s. 36 (4). See Tattersall v. Drysdale [1935] 2 K.B. 174.