Norman v King

 Norman v King

CIVIL PROCEDURE: ADMINISTRATION OF JUSTICE; Courts

COURT OF APPEAL

LORD GREENE MR, MORTON AND BUCKNILL LJJ

1 FEBRUARY 1946

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

County Courts – Appeal – Misdirection – Onus of proof – Judge’s note ambiguous – Benefit of doubt.

On an appeal from a decision of a county court judge on the ground of misdirection it is for the appellant to satisfy the court that the judge did in fact misdirect

himself. If the court is left in any doubt it should adopt a benevolent construction of the judge’s language so as to support his judgment.

Notes

This is a short point dealing with the onus of proof on appeal from the decision of a county court judge on the ground of misdirection.

As to Appeals from County Courts on Grounds of Misdirection, see Halsbury, Hailsham Edn, Vol 8, pp 378, 386, paras 812, 822; and for Cases, see

Digest, Vol 13, pp 528, 541, Nos 795–797, 937.

Appeal

Appeal by the employer from an award of His Honour Deputy Judge Turner, made at Bletchley and Leighton Buzzard County Court and dated 1 October

1945. The facts are fully set out in the judgment of Lord Greene MR.

F W Beney KC and J P Stimson for the appellant.

L A Blundell for the respondent.

1 February 1946. The following judgments were delivered.

LORD GREENE MR. The appellant appeals against an award in favour of the respondent on the ground that the arbitrator misdirected himself on the vital

question as to whether the respondent was a workman in the employment of the appellant within the meaning of the Workman’s Compensation Act. Counsel

for the appellant contends that the arbitrator directed himself by limiting his consideration to one matter only, namely, the evidence of the alleged acts of

control exercised in respect of the hedging work on which the man was engaged at the time of the accident. He says that the circumstances to which

exclusively the judge directed his mind were quite neutral in character and consistent with the man’s position being that of an independent contractor. He,

however, admits, and rightly admits—I do not see how he could have avoided admitting it—that on the whole of the evidence it would have been possible for

the arbitrator to come to the same conclusion, but he said that it was a matter for him and not for us to decide; and accordingly, if he had in fact misdirected

himself, the proper course to take was to send the whole matter back for reconsideration

At the time of the accident the respondent was engaged in laying and trimming hedges on the appellant’s farm. By occupation the respondent appears to

have been a man who engaged himself—and I use that expression for the moment in a neutral sense—to farmers for a variety of jobs. He was, obviously, one

of those skilled men that one finds in the country who can do all sorts of work about a farm. He was, apparently, a skilled thatcher, a skilled hedger, he could

mow and he could thresh. In the course of a continuous period of work on 􀂭 339􀀉 behalf of the appellant he actually performed for the appellant all those

things. He started thatching ricks. He then, apparently, went on to mow some clover. He then went to lay the hedges and, while he was engaged in the task of

laying hedges, which naturally took some time, he was diverted, apparently by amicable arrangement, certainly on one occasion when the appellant was

short-handed, to help in the threshing, and I am not sure that there were not diversions of other kinds. His method of remuneration varied according to the

work that he was doing. He was paid, as I understand it, on a time basis for all the work except hedging and for that he was paid at the rate of £1 a pole.

The evidence as to the control exercised by the appellant, related both to control of hedging and the control of, certainly, the threshing. Counsel for the

appellant says that looking at the hedging by itself the evidence as to control was not such as to justify a finding of the right to control because it was no more

than that sort of control which the employer of an independent contractor exercises over his operations. With regard to that the evidence of the respondent was

to this effect: “He came round frequently and when I said what was required he agreed to send it along. He suggested methods of trimming trees here and

there. He—that is the appellant—said he did not want thick hedges as fields get ploughed and cows would not be there for a year or two.” The appellant said:

“I visited him at work from time to time. I went and told him what sort of fence I wanted in the different fields and, apart from that, I left it to him.” Then, a

little later on, he says: “When hedging I told him whether thick or thin and sent bushes for thickening. I told him to top certain trees and to get the hedge

down.” Looking at the hedging by itself, I think there is force in counsel’s contention that those directions given by the appellant were consistent with the

relationship being that of an independent contractor, and I will assume that that is right. Evidence as to control in respect of other operations is, I think, limited

to the thatching and there it appears from the evidence of the appellant that he said this: “He is a practical man and he knows how to do the work. If he had

started it in a rough way I should have told him and told him to do it differently. I went and told him to put extra pegs in the rick.” There again, that perhaps

does not go very far, but there is evidence that the respondent was switched, if I may use that word, from one kind of work to another kind of work, and it

would have been legitimate for the arbitrator in deciding what the relationship was while the hedging work was going on to look on the whole course of those

operations from beginning to end and from that conclude what the true relationship was in respect of the hedging. There was evidence, and, in my opinion,

ample evidence, on which he could have found that in respect of hedging there was the relationship of master and servant, having particular reference to what

is a most important test in these cases, namely, the power of control.

Counsel for the appellant points out, and points out quite properly, that there was other evidence that might point the other way. For instance, the fact

that the method of remuneration for the hedging was not by time but piece and the fact that, as the respondent said and the appellant agreed, while he was

hedging he was not bound to come when he did not want to come, particularly if the weather was bad. That was a matter which could have been put to the

other scale by the arbitrator. But that there was evidence on which he could have found that the relationship was that of master and servant, counsel really did

not dispute.

The question, therefore, boils down to this. Did the arbitrator, or did he not, misdirect himself? It is for the appellant to satisfy us that he did misdirect

himself. If we are left in doubt as to that, in my opinion his reasons must be construed in a favourable way so as to support his judgment. This court is not

entitled, in my view, to scrutinise the type of concise note that we have in this case with very critical care; it must be satisfied that there was a misdirection. If

the matter is left in doubt, the court should construe the judge’s language in a benevolent way so as to support his judgment.

The language of the arbitrator is not clear, but it is, to my mind, certainly very far from establishing with any certainty that he was misdirecting himself.

As usually happens in these cases, the note is made presumably some time after he delivered his judgment and is very concise. It appears, typed obviously at a

different time, at the bottom of his notes of the evidence in these words:

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

􀂭 340􀀉

‘Respondent did inspect the work and gave certain directions during its progress. It was not necessary to do more as the applicant was an

experienced and skilful hedger but sufficient evidence to establish that in fact respondent had the right and power to control the manner in which the

applicant did the work.’

I read that as meaning that the arbitrator was directing his mind to this question: “In the matter of hedging, which is the particular branch of occupation

with which I am concerned, did the alleged employer have that measure of control or that type of control which, at any rate, is the most important factor in

deciding whether or not the relationship of master and servant exists.” That explains his reference to the hedging, and I think words like “the work” used there

mean the work of hedging. In the first line, undoubtedly, he is referring to the instructions given during the progress of the work of hedging, but the

controversy really turns on the last sentence and, indeed, on three or four words in it. The arbitrator says: “But sufficient evidence to establish that in fact the

respondent had the right and power to control. If the arbitrator had said “but the evidence before me was sufficient to establish that fact,” it would, I think

have been impossible for us to have said that he had excluded from consideration the other relevant factors in the case beyond the mere evidence of directions

given in respect of hedging. Those words could, I think, clearly have meant that he had applied his mind to the whole of the evidence before him and the

whole of the relationship of these parties while they were concerned with one another. It would have meant that, having regard to the whole of the evidence,

he had come to the conclusion that in the matter of hedging there was the necessary power of control. That could not have been attacked, but he has not said

that. He has said “but sufficient evidence to establish.” That may mean that the evidence of the instructions given during the progress of the hedging is

sufficient to establish the power of control. It may mean that there was sufficient evidence before him that he had the power of control. Counsel for the

appellant wishes us to construe his language as bearing the former meaning. What the result might have been if that former meaning had been expressed in

unambiguous language is one thing, but counsel first had to satisfy us that that is what the language means. In my opinion, this phrase is ambiguous and it is,

no doubt, susceptible of the meaning which counsel places on it. But that is not enough in the case of an appeal from a decision of this kind. Counsel has to

satisfy us that we ought to put that meaning upon it so as to impute to the judge a misdirection. I think it would be wrong to do anything of the kind. I think

that where there are two possible, and, indeed, equally possible, meanings to be attributed to his language it is the duty of this court to choose that which will

support his decision and to give him, so to speak, the benefit of the doubt. Having regard to those considerations, the appeal must, in my opinion, be dismissed

with costs.

MORTON LJ. In this case there is, in my view, ample evidence on which the deputy county court judge sitting as arbitrator could properly find that at the

time of the accident the injured man was a workman within the meaning of the Workmen’s Compensation Act, that is, that he was working under a contract of

service, and the arbitrator has found that he was a workman. The sole ground for the appeal is that it is suggested that, according to the true construction of the

judge’s notes of his reasons, there was misdirection of himself on the part of the judge. For my part, I think the more natural construction of the very elliptical

note which the judge has made is that he did take into account the whole of the evidence. I was inclined to read it in this way. First of all, there is the sentence

“Respondent did inspect the work and gave certain instructions during its progress.” That, it is said by counsel for the appellant, and said truly; might be

regarded as a neutral state of affairs and not sufficient to establish the matter one way or another. The second sentence is, “It is not necessary to say more than

that the applicant was an experienced and skilful hedger.” That, as it seems to me, is an explanation by the county court judge of why it was that the

respondent did not take any more active part in directing the work. Then come the words “but sufficient evidence to establish that in fact respondent had the

right and power to control the manner in which the applicant did the work.” To my mind, that sentence is clearly elliptical, something has been left out

between “but” and “sufficient.” I would supply 􀂭 341􀀉 the words “but there is sufficient evidence to establish that in fact respondent had the right and power

to control” as being the more natural construction. Let me assume that there are two possible constructions and that there is some difficulty in determining

which is right. In my view, it would not be right to conclude that the judge has addressed his mind only to the evidence which he mentions in the first

sentence and has disregarded the whole of the rest of the evidence given in the case. I need not go into that evidence in detail as my Lord has already referred

to certain portions of it. To my mind, the county court judge has arrived at the proper conclusion justified by the evidence, and, on the construction of his

judgment as I see it, there is no ground for saying that he has misdirected himself. But even if it was open to the other construction, I myself would not feel

inclined to give it in a case where there was undoubtedly at the least a doubt as to the true meaning of his notes. I agree that this appeal must be dismissed

with costs.

BUCKNILL LJ. I agree. It seems to me that the case turns on the smallest and nicest of points, namely, the interpretation of the last sentence of the very

short note of the judgment. The last sentence by itself is not grammatical and there is obviously something left out. There are two possible readings of the

words; it is either “but it is sufficient evidence” or “but there is sufficient evidence.” If it is to be read as “it is” then I agree that it would mean that the judge

had concluded that mere inspection and instructions were sufficient to show the relationship of master and servant. On the other hand, if one reads it “but

there is sufficient evidence” then one must take into account all the evidence which was given before the judge. I think the right reading is “but there is

sufficient evidence” because it seems to me reasonable to suppose that the judge would have regard to all the evidence including the work done by this man in

mowing clover, thereshing and so on. Also, I think, if there is a doubt as to how to read the words, one should impute rightness on the part of the judge and

not wrongness. For these reasons, I think the appeal should be dismissed.

Appeal dismissed with costs.

Solicitors: Samuel Price & Sons agents for Darnell & Price, Northampton (for the appellant); Moodie, Randall, Carr & Brown agents for Thornley &

Boutwood, Leighton Buzzard and Dunstable (for the respondent).

F Guttman Esq Barrister.

[1946] 1 All ER 342

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble