Back
1921 Supreme(SC) 67
Privy Council
Shaw, Atkinson, Dunedin, Viscount Cave, Justice Viscount Haldane, JJ.
Bain -Appellant
Versus
Central Vermont Railway Company -Resopndent
On Appeal from the Supreme Court of Canada
Decided On : 21-07-1921
Scott, Proffitt, Batten, Redden, Blake, G. Lawrence, Newcombe, Ogden, Weddell, Rinfret
In joint-employment arrangements, liability for a tortious act rests with the "patron momentane"—the employer who exercises actual control over the employee at the moment the act is performed—rather than the "patron habituel" or general employer.
Headnote:(A) Civil Code of Quebec - Article 7334 - Workmen's Compensation Act - Liability of employer for tortious acts of employee - Joint working agreement between two railway companies - Determination of employer based on control at the time of accident - The "patron momentane" (temporary employer) as opposed to the "patron habituel" (general employer) is held responsible when control has been displaced by the power of control of another master into whose temporary service the man has passed.
(B) Control Test - The person who has the right at the moment to control the doing of the act is the employer for the purpose of liability. A residuary and dormant control of the general employer does not override the exclusive authority of the temporary employer at the moment of the accident.
Facts of the case:
A locomotive fireman was killed due to the negligence of an engineer who disregarded signals. The engineer was generally employed by one railway company but was operating on the line of another company under a joint working agreement. The deceased's family, having received compensation from the primary employer under statutory law, initiated action against the engineer's general employer for damages.
Findings of Court:
The court found that the engineer was under the orders of the company whose signals he failed to obey at the moment of the accident. The fact that the engineer signed separate receipts for payments made by each company for services performed on their respective lines further indicated the shift in employment and control.
Issues: Whether the general employer or the temporary employer exercising control at the moment of the accident is liable for the employee's negligence in a joint-service arrangement.
Ratio Decidendi: The court ruled that the master in whose general service a man is is not responsible for the tortious act if the control of the master has been displaced by the power of control of another master into whose temporary service the man has passed. The "patron momentane" who has exclusive authority at the moment of the accident is responsible. The disregard of signals, which are the mechanical expression of orders, proves that control rested with the company owning the line at the time of the accident.
Result: Appeal dismissed.
Legal Category Hierarchy
-
tort
-
vicarious liability
- borrowed servant doctrine
-
vicarious liability
Lord Dunedin :-
Hedges, a locomotive fireman in the employment of the Grank-Trunk Railway Company, was killed in the course of his duties at Montreal on 2nd February, 1915, by being run into by another engine driven by an engineer called Frost. It is admitted that Frost was guilty of negligence. Frost was in the service of the Central Vermont Railway Company. The widow of Hedges, for herself and an infant daughter, received compensation from the Grand Trunk Railway Company under the Workmen's Compensation Act, for the death of her husband. This disentitled her to raise any action against the Grand Trunk, but in terms of Article 7334 of the Civil Code of Quebec she was entitled to recover against any person other than the employers against whom she had a right of action. She accordingly raised action against the Central Vermont Railroad
Company. The company is an American railway company, but owns a line in Canada extending from the boundary to St. Johns in the province of Quebec. The Grand Trunk have a line from Montreal to St. Johns. The two companies entered into an agreement for the joint working of the line from Montreal via St. Johns to St. Albans Vermont.
It is unnecessary to set forth the agreement in full; the relevant clauses are as follows :
"Whereas, it is considered desirable and to the mutual advantage of both parties hereto to operate jointly, and as one line, the railway from Montreal to St. Albans, for both freight and passenger business.......That each party may furnish its mileage proportion of passenger and freight engines (the engines of both companies to be as nearly as possible of equal capacity), cabooses and train crews thereof used in joint service between Montreal, Canada and St. Albans, Vermont..............
That each party hereto shall pay the train and engine men employed in the joint service for the service performed by them on its own line, and neither of the parties hereto shall be held responsible to the other for the actions of such joint employees while upon the line, of railway of the other party hereto."
As Frost, at the time of the accident, was driving a train on the Grand Trunk line and as his negligence consisted in his failing to attend to Grand Trunk signals, the Central Vermont Company denied liability on the ground that Frost, at the time of the accident, was in the employment of and subject to the orders of the Grand Trunk.
The learned trial judge found for the plaintiff. He thought that as Frost was engaged by the Central Vermont Company he was their servant, and that in a question with the plaintiff the agreement between the companies was res inter alios acta. This was, manifestly a bad ground of judgment. The agreement between the companies would indeed be res inter alios acta, in so far as it covenanted as to liability inter se, but in so far as it determined the position of the servants who performed their functions on the joint line it was obviously admissible as the best evidence.
On appeal to the Court of King's Bench, that Court, by a majority, one judge dissenting, affirmed the decision of the trial judge, but on a different ground. On appeal to the Supreme Court of Canada, that Court unanimously agreed with the dissenting judge and dismissed the action. Appeal has now been taken to His Majesty in Council
It seems to their Lordships that there was indeed no difference of opinion between any of the judges in the Courts below, with the exception of the trial judge, as to the law to be applied to the case. Indeed, it cannot be more concisely or accurately stated than it was by Cross, J., who gave the judgment of the majority in the Court of King's Bench when he says :
" He (Frost) was in the general service of the Central Vermont Railroad Company, but it is well established that the master, in whose general service a man, is, is not responsible for the tortious act of the man if the control of the master has been, for the time being, displaced by the power of control of another mas
