1239R

BEFORE THE LEARNED HIGH COURT OF WALES

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CIVIL APPEAL NO: XXX/2015

[Under section 96 of the Code of Civil Procedure, 1908]

Under Original Jurisdiction

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In The Matter Of -

Turbo Plc……………………………………………...Appellant

V.

Ron.........................................…...............................Respondent

MEMORANDUM ON BEHALF OF THE DEFENDANT

Counsel for the Defendant

 TABLE OF CONTENTS

Index of authorities.........................................................................................................................iii

Statement of Jurisdiction................................................................................................................iv

Statement of Facts............................................................................................................................v

Issues For Consideration................................................................................................................vi

I. whether in disobeying the onsite manager’s direct instructions birgy and timmothy were
or were not under the course of turbo plc employment?...........................................................vi

II. whether turbo plc could be held vicariously liable for the actions of their employees,
Birgy and Timmothy?.................................................................................................................vi

Summary Of Arguments................................................................................................................vii

Arguments Advanced......................................................................................................................1

I. whether in disobeying the onsite manager’s direct instructions birgy and timmothy were
or were not under the course of turbo plc employment?............................................................1

II. whether turbo plc could be held vicariously liable for the actions of their employees,
Birgy and Timmothy....................................................................................................................3

Prayer...............................................................................................................................................4

ii
 INDEX OF AUTHORITIES

CASES:

V.J. & W. Henderson Ltd, (1946) 62 TLR 427…………………………………………….........1

Beharilal v. Surinder Singh, AIR 1956 Punj 376………………………………………………...1
Canadian Pacific Railway Co. v. Leonard Lockhart, AIR 1943 PC 63………………………….3
Cassidy v. Ministry of Health, (1951) 1 All ER 575……………………………………………..3

iii
 STATEMENT OF JURISDICTION

The Counsel for the Appellant most humbly submits that this High Court of Torquay has the
requisite jurisdiction under Section 96 of the Civil Procedure Code, 1908 to entertain the present
matter and adjudicate accordingly.

iv
 STATEMENT OF FACTS

 Turbo Plc is a large UK based Multi-national Company engaged in the production, storage
and distribution of dangerous chemicals used to manufacture fertilisers. The company has
won many awards for the care it takes in training staff to handle such chemicals.
 In December 2013, Turbo plc was faced with a severe shortage of workers due to holidays
and a flu epidemic. Concerned about the safety implications of being short staffed and
reluctant to close the plant and lay off workers just before Christmas, the company took
certain steps.
 Letters were sent to all retired staff living within 50 miles of the factory asking them to
work part-time over the Christmas holiday period. The staff were to sign a fixed-term
agreement under which they are designated "part-time labour only contractors" and are paid
a lump sum based on hours worked plus a £500 Christmas bonus. They were under no
compulsion to work any set hours but would be called in as and when required. Ten ex-
employees, including Mesers Birgy and Timmothy agreed to resume work on these terms.
 Thomson, Turbo Plc’s on site manager, after checking the work records of all the new
employees required Birgy and Timmothy to form a work details and fill a vat with the
nitrogen compounds, which form the basis of fertilisers.
 Thomson instructed the workers to use the small loading crane rather than the large crane
because although the job will take longer, the small crane was more manoeuvrable in the
small space and there was less likelihood of accidents.
 After Thomson departs, Birgy who has 20 years of experience working for Turbo insisted
on using the large crane. In the process of loading the vat, the crane, due to the negligence
of the crane driver and the other worker who was directing its operation, hits the side of the
vat causing a spark that ignites the mixture. The workers were unscathed but an office
worker, Ron, was seriously injured by flying debris.
 Ron took action against Turbo Plc. At the trials damages were awarded to Ron.
 Turbo Plc now appeals claiming birgy and timmothy were independent contractors and by
refusing to heed the instructions of the onsite manager they were outside the course of their
employment.
Thus, the present matter has come up before the Honourable Court.

v
 ISSUES FOR CONSIDERATION

I. WHETHER IN DISOBEYING THE ONSITE MANAGER’S DIRECT INSTRUCTIONS BIRGY AND

TIMMOTHY WERE OR WERE NOT UNDER THE COURSE OF TURBO PLC EMPLOYMENT?

II. WHETHER TURBO PLC COULD BE HELD VICARIOUSLY LIABLE FOR THE ACTIONS OF THEIR

EMPLOYEES, BIRGY AND TIMMOTHY?

vi
 SUMMARY OF ARGUMENTS

I. WHETHER IN DISOBEYING THE ONSITE MANAGER’S DIRECT INSTRUCTIONS BIRGY AND

TIMMOTHY WERE OR WERE NOT UNDER THE COURSE OF TURBO PLC EMPLOYMENT?

There was a master-servant relationship between the company and the employees. The four
indicia are fulfilled in the present case.

And since the employees were working for the company when the accident occurred, due to the
negligence of the crane driver hence birgy and timmothy were under the course of employment
of the company.

I. WHETHER TURBO PLC COULD BE HELD VICARIOUSLY LIABLE FOR THE ACTIONS OF THEIR

EMPLOYEES, BIRGY AND TIMMOTHY?

The company is vicariously liable for the negligent actions of their employees as the manger
owed reasonable care of duty towards the work. Thomson, the manager should have made sure
that his instructions were being followed especially when he knew that there was an inherent risk
of injury/damage to someone. However, he did not wait and left after giving the instructions after
which the accident occurred.

vii
 ARGUMENTS ADVANCED

I. WHETHER IN DISOBEYING THE ONSITE MANAGER’S DIRECT INSTRUCTIONS BIRGY AND

TIMMOTHY WERE OR WERE NOT UNDER THE COURSE OF TURBO PLC EMPLOYMENT?

A servant is engaged under a contract of service where as independent contractor is engaged

under a contract for services1.

In the case, V.J. & W. Henderson Ltd2, Lord Thankerton pointed out four indicia of a contract of
service:

1. Master’s power of selection of his servant;

2. Payment of wages or other remuneration;
3. Master’s right to control the method of doing the work;
4. Master’s right of suspension or dismissal.

The important characteristic according to this analysis is the master’s power of control for other
indicia may also be found in a contract for services.

In the present case, the employees were hired on the part time basis for the Christmas holiday
period only, the staff were to sign a fixed term agreement. Now, according to the above
mentioned indicia these part time employees came under a contract of service as all the four
points are being fulfilled here i.e., Turbo plc had the power to select whomever they wanted, they
were giving the employees a lump sum amount based on the hours worked plus a £500
Christmas bonus, they also had control over the methods employed by the employees to work
and they could suspend and dismiss according to their needs as the employees were hired as
“part-time labourers”. Hence this establishes a master-servant relationship between the company
and the employees.

In the case Beharilal v. Surinder Singh3, the conductor of an omnibus drove the omnibus with
permission of the driver who was sitting beside him for the purpose of turning it in the right
direction for the next journey and in that process by his negligence the vehicle mounted a foot
1
The Law of Torts, 26 e.d., Ratanlal & Dhirajlal, pg 146.
2
(1946) 62 TLR 427.
3
AIR 1956 Punj 376

1
pavement and injured a person. The master was held liable for the negligence of the driver whose
wrongful act in permitting the conductor to drive.

Similarly, in the present case the onsite manager instructed birgy and timmothy to use the
smaller crane which would be more suited to work in a small work space but birgy insisted on
using the large crane which caused the accident due to the negligence of the crane driver.
However, here both the employees were working under the course of employment. Therefore the
company should be held liable.

It is not the law that whenever a servant does an act which his employer has prohibited him from
doing, the act so done falls outside the course of employment.

Prohibition falls under two categories:-

1. Those which limit the scope or sphere of employment;

2. Those which merely affect or restrict the mode doing the act for which the servant is
employed.

If the servant violates a prohibition of the first category, his act will be outside the course of
employment and the master will not be vicariously liable however if the violation by the servant
is only of a prohibition of the second category, the servants act will still be under the course of
employment making the master liable4.

According to the above mentioned second category, the onsite manager merely tells them to use
the smaller crane and leaves, he doesn’t wait to see if they are following g his instructions or not.
Hence, the master is vicariously liable for the acts of his servant.

4
Supra Note1, pg 164.

2
III. WHETHER TURBO PLC COULD BE HELD VICARIOUSLY LIABLE FOR THE ACTIONS OF THEIR

EMPLOYEES, BIRGY AND TIMMOTHY

In the case Canadian Pacific Railway Co. v. Leonard Lockhart 5, the company had kept vehicles
to be used by its servants and had issued notices to them, warning them against using their own
cars for company’s business unless they had got the car to be used insured against the third party
risk. The servant concerned had a car of his own which was not insured, instead of using the
company’s vehicle, he used his car for going to the station where he had to make the key. On the
way an accident happened. The company was held liable for negligence of the servant for driving
his car.

Similarly in the present case even though the onsite manager specifically instructed birgy and
timmothy to use the smaller crane which they clearly did not follow the liability for the
negligence of the employees falls on the company.

The duty laid on the employer by the common law or statute is to produce a given result or to see
that care is taken as distinguished from duty to take reasonable care, he is not absolved from his
duty by employing within reasonable care a contactor or a servant to do the job. These are
instances of non-delegable duties or duties primarily laid on the employer and he would be liable
if there is a breach of these duties whether he appoints a servant or an independent contractor6.

In the present case the onsite manager, Thomson did give a direct instruction for the employees
birgy and timmothy to use the smaller crane as that was easily manoeuvrable and will be safer,
after instructing them he left, however birgy insisted on using the big crane which caused an
accident injuring Ron due to the negligence of the crane driver. Here instead of leaving, the
onsite manager Thomson should have waited to see whether the employees were following his
instructions or not as was expected of him. There was reasonable duty of care owed by the
manager to see that proper precaution was being taken by the employees as there is an inherent
risk in handling a crane. Therefore, the company is vicariously liable.

PRAYER

5
AIR 1943 PC 63.
6
Cassidy v. Ministry of Health, (1951) 1 All ER 575.

3
Wherefore in the lights of facts stated, issues raised, arguments advanced and authorities cited, it
is most humbly and respectfully prayed before this Learned High Court that it may be pleased to,

 Dismiss the Appeal.

And grant any other order in favor of the Respondents that this High court may deem fit in the
eyes of equity, justice and good conscience.

All of which is most humbly and respectfully prayed.

Date: 11.03.2015 Counsel No. 1239

Place: Wales Counsel for the Respondent