of alternative

liability.

With regard to the liability of the tenant, it is always said Examination that he is primâ facie liable, and that he may shift his liability on to the landlord. There seems, however, some question whether they are not joint tortfeasors, although Brett, J., in Gwinnell v. Eames considered that if the burthen of repair is L. R. 10 C. P. 658. cast upon the tenant, the duty of the landlord altogether ceases (1).

It must be confessed, however, that it is difficult to explain the alternative liability on which all the cases dwell; why the covenant to repair as between two parties should affect the liability of either towards the public. It is clear that in a case in which the occupier is liable he could not get rid of that liability by alleging that he had contracted with another person to execute the necessary repairs, and that as he had not executed them he and not the occupier was liable; why, then, should he get rid of his liability by setting up this covenant with the landlord which is unfulfilled? Notwithstanding Brett, J.'s strong expression of opinion, the point has not directly been decided, and it is with great submission suggested that the reason which is given above for the landlord's liability, where he has covenanted, is the true one, and points to him as a joint tortfeasor; and the same principle would apply to a tenant who had covenanted to repair, where the demised premises were ruinous when he entered into occupation. It would seem, too, that an actual demise is necessary, and that an occupier, to whom premises were only lent for a time, would not under any circumstances be liable.

In Todd v. Flight, in which the accident arose from the 9 C. B: N. S. falling of a stack of chimneys, the fact according to the decla- 377. ration (which was necessarily assumed to be true on demurrer) was that the landlord had kept and maintained the stack in a ruinous state and in danger of falling; "and thus,"

(1) In Rosewell v. Prior, the owner let the premises with the nuisance com- Salk: 460. plained of, which had been erected upon them. That, therefore, was a misfeasance of which he himself had been guilty; and, say the Court, his demise affirmed the continuance of the nuisance, and therefore might be said to be a continuation of it by himself. Per Buller, J., in Cheetham v. Hampson.

4 T. R. 318.

4 C. B. 783.

said Erle, C.J., "he was guilty of the wrongful non-repair which led to the damage, and after the demise the fall appears to have arisen from no fault of the lessee, but by the laws of nature." Here, again, stress is laid on the absence of the lessee's fault, and the liability to the public is apparently made to depend on the existence of a private right between two persons; if this were so, and there were no covenant to repair on either side, no one would be liable. It is suggested, however, that the true view of the law is that stated above, and that the only reason for introducing the covenant to repair is to ascertain whether the landlord is or is not liable for a continuing nuisance.

On similar principles, if the landlord builds a chimney which, by the act of the tenant, becomes a nuisance, the landlord is not liable: Rich v. Basterfield; but if this use is contemplated and authorized by the landlord, he is, as well 45 L. J: Q. B. as the tenant, the author of the continuance of the nuisance: 544. Harris v. James.

The same rules apply to sub-contrac

tors.

(iv.) Sub-contractors.

The rule as to contractors is extended to sub-contractors, the inquiry being the same as before, whether the relation of master and servant exists between the original contractor and the sub-contractor; if it does not, then the contractor is not liable but the sub-contractor for his own or for his servant's torts. Rapson v. Cubitt is an example of this. In Dalzell v. 28 L. J: Q. B. Tyrer, the plaintiff contracted with H. to be carried across the

[post, p. 96.]

52.

ferry; H. hired the vessel and crew from the defendant; the accident happened through the negligence of the crew. They being selected and hired by the defendant, and remaining under his control, H. was held liable. The contract between H. and the plaintiff was held to make no difference; for it was clear that the action could have been brought against the defendant by a stranger who had been damaged by the crew, and the mere existence of the contract could not take the right of action away from the plaintiff.

(ii) continued. Voluntary contracts for services to be rendered by third parties.

We must now revert to the second division of the subject, namely, the liability for the acts of contractor's servants.

Another illustration of the strictness of the inquiry whether the relation of master and servant actually exists between the actual tortfeasor and the person for whom the work is done is to be found in the extension of the rule as to contractors, to cases where the person undertaking the work is at the time of the contract the servant of the other party to it. Thus, in Knight v. Fox, a company contracted with A. to make a railway; A. contracted with B. to make a bridge over it, and B. contracted with C., who was his general servant, surveyor and manager at an annual salary, to erect the scaffolding. The injury arose from a defect in the scaffold, and C. was held alone liable on the ground that he was not quoad that particular work B.'s servant.

This point is not without difficulty. In Blake v. Thirst a 2 H. & C. 20. fall into a sewer was being constructed under contract between the defendant and the commissioners. The defendant contracted with one of his workmen to do the brick-work and watching. It was proved that the defendant had a right to control the way in which the work was to be executed, and that he would have dismissed the workman if he had been dissatisfied with the work. He was held liable, because the facts shewed that the relation of master and servant remained notwithstanding the contract.

But some little difficulty arises in determining what amount of control of workmen or superintendence of work will shift the liability for negligence from the actual master to the person who has contracted with him for his servant's work.

What amount

of control will

shift liability.

From Quarman v. Burnett, and similar cases, it will be [ante, p. 81.] seen that the ordinary control which the hirer must have over

14 Q. B. D. 890.

16 C. B. 550.

4 Ex: 255.

Power to dismiss insufficient test.

8 A. & E. 835.

I Q. B. D. 36.

the hired servant of the contractor is not sufficient to make the hirer liable. The most recent case on this point is Jones v. Corporation of Liverpool. It remains to be seen if the retention of any larger control will make him liable.

In Steel v. South Eastern Ry. Co. the company was held not liable, although their surveyor was superintending the works and directing their progress. In Reedie v. North Western Ry. Co. a bridge was being made by contract over a highway, and one of the workmen let a stone fall on a passer-by: the company was held not liable, although they had reserved to themselves power to dismiss men for incompetence. The decision was rested on the principle that he who had chosen the workmen must be liable.

So where a charterer hired a steamer for six months, the owners to keep her in good order and to find seamen, whose wages the charterer would pay, the owners were held liable for the seamen's negligence: Fenton v. City of Dublin Steam Co.

The same point arose in Pendlebury v. Greenhalgh. A certain portion of a highway was ordered to be raised under the superintendence of the surveyor of highways. The surveyor contracted with another person to do the work, but he himself "had nothing to do with the paving, except superintending on behalf of the vestry committee." The accident arose at night from the alteration in the road levels not being properly marked out with lights. The Court of Appeal held the surveyor liable. Lord Cairns, C., pointed out that "the work ordered to be done was of a complex nature, consisting of providing materials, labour, superintendence, and, as incident to the work, lighting and fencing during the night. It was therefore necessary to see what had been contracted for it was for the labour alone. Therefore, if the defendant did not contract for the fencing or lighting, then the duty of fencing and lighting remained in the defendant, for which hs remained responsible."

It must be particularly noticed that the question we have been considering is the exemption from liability of a person who has done work by the agency of an independent contractor with servants and workmen of his own, for the acts of negligence of those servants. It follows, therefore, that there can be no such exemption unless the tort has in fact been committed, or can be directly traced to these servants or to the person who is responsible for them. They have been employed to do something in a proper manner and they have done it in an improper manner.

But the injury may be directly traceable, not to the manner in which the work has been executed, but to the work itself. The tortious act in such a case is his who ordered the work to be done. For example, if a person intending to dig a trench in the highway has the work done by contract, if the work is negligently done (as where heaps of stones are put in unnecessary and unusual places) the contractor is liable and not the person who gave the order; but if the work is not done negligently (as where heaps of stones are put in proper and usual places) and an accident happen which would not have happened but for the work in the highway, then the contractor is not the tortfeasor but the person for whom the work was done. Lord Campbell, C.J., emphasised the distinction

No exemption from liability if the tort is

traceable to the principal:

eg., where

the work

itself is

tortious.

in Ellis v. Sheffield Gas Co.: "If the contractor does the thing 2 E. & B. 767. which he is employed to do, the employer is responsible for that thing as if he did it himself. If he is employed for a lawful act the relation of master and servant does not subsist between the employer and those actually doing the work. He is not answerable except for the act itself. This rule is usually expressed by saying that if a man authorizes lawful work, or work from which if properly done no evil consequences can arise, he is not liable for the negligence of the contractor's servants; but if the work is unlawful, or the injury is a natural consequence of the work even when properly executed, then he is liable." The liability of the servant in the latter case, however, still remains.

[cf: p. 74.]