Caribbean Land and Cattle Company Incorporated v Mak

• Jurisdiction: Belize
• Court: Supreme Court (Belize)
• Judge: Malone, C.J.
• Judgment Date: 12 June 1978
• Docket Number: Civil Action No. 73 of 1977
• Date: 12 June 1978

Supreme Court

Malone, C.J.

Civil Action No. 73 of 1977

Caribbean Land and Cattle Company Incorporated

and

Mak

Appearances:

Mr. D. R. Lindo for the plaintiff

Senator S. W. Musa for the defendant

Before the Hon. Sir. Denis Malone, Chief Justice

Industrial Law - Contract of service

Trespass - Trespass to goods — Conversion

Facts: Logging contractor performed services for defendant — Logging contractor trespassed on lands of plaintiff while in performance of his services for defendant — Whether logging contractor was an independent contractor or an employee of the defendant — Contract of service and a contract for services distinguished

Facts: Independent contractor performing logging operations for defendant trespassed on lands of plaintiff and felled trees growing thereon — Plaintiff claimed damages for trespass and conversion of property — Whether defendant vicariously liable for acts of independent contractor — Maxim “Qui facit per alium facit per se” applied

Held: Judgment for plaintiff entered.

Held: Defendant held liable for loss sustained by plaintiff — Judgment for plaintiff entered — Counterclaim dismissed.

1 This case raises the question of the distinction between a contract of service and a contract for services. It is a distinction that as Lord Denning, L. J. pointed out in Stevenson Jordan and Harrison Ltd, v. Macdonald and Evans (1952) 1 T.L.R. 101 at p. 111 is often easy to recognise but difficult to say wherein the difference lies. Until comparatively recent times, the degree of control exercised by the alleged master over the alleged servant was the decisive factor for determining whether a given situation produced a contract of service or a contract for services. The position today is different for as Lord Widgery C, J, said in Global Plant v. Secretary of State for Health and Social Security (1971) 3 W.L.R. 269 at p. 277:

“I think it is well accepted now that the idea of the degree of control exercised by the employer over the servant being the decisive factor in this question has been largely modified. It is recognised nowadays that other factors, other, that is, than simply the degree of control exercised by the alleged master, have to be taken into account in separating a contract of service from a contract fox services.”

2 In that case Lord Widgery C. J., expressed the view that of assistance in a classification of the main considerations upon which this issue turns was a passage from Cooke J's judgment in Market Investigations Ltd, v. Minister of Social Security [1969] 2 Q.B. 173 at p. 180 as taken further in another judgment of Cooke J. in Construction Industry Training Board v. Labour Force. Ltd. [1970] 3 All E.R. 220 at p. 224. The first passage is as follows:

“The observations of Lord Wright, of Denning L.J. and of the judges of the Supreme Court suggest that the fundamental test to be applied is this: ‘Is the person who has engaged himself to perform these services performing them as a person in business on his own account?’ If the answer to that question is ‘yes’, then the contract is a contract for services. If the answer is ‘no’, then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor, and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.”

3 The second is as follows:

“These tests are now so familiar that in my judgment it is unnecessary to set them out in detail. I merely observe this. First, that no list of tests which has been formulated is exhaustive, and that the weight to be attached to particular criteria varies from case to case. Secondly, although the extent of the control which the alleged employer is entitled to exercise over the work is by no means a decisive criterion of universal application, it is likely in many cases to be a factor of importance. On the one hand, the tribunal pointed out that an hourly paid workman has no opportunity to deploy managing skills or make money by so doing. On the other hand, the tribunal took account of the undeniable fact that in the building industry there are many self-employed persons. I think that in the circumstances of this case, the tribunal was entitled to take account of that.”

4 In the instant case, the defendant for the years 1974, 75, 76 and 77 obtained licenses from Government to cut, collect and remove rosewood from certain Forest Reserve and Grown lands in the Toledo District. The defendant is a businessman of Punta Gorda in the Toledo District without, it would seem, any knowledge of timber operations. Mr. Westby on the other hand is a logging contractor and claims to have been engaged in this business since 1967. In fact it may be that he has been engaged in it since 1966 as Mr. Garcia, a Government forestry officer, spoke of seeing Mr. Westby cutting trees in the forest in 1966 for a Mr. Boodai who Mr. Garcia said, held a license. In 1975 and again in 1976, Mr. Westby said that he made a written contract for one year with the defendant to cut timber on the lands within the defendant's licensed area. The terms of each of those contracts are, with minor variations, the same. Under those contracts Mr. Westby is described as “the logger” and the defendant as “the buyer” and their purpose as stated in the contracts is: “to bind the former to cut logs, and the latter to make payments according to the terms and conditions…..” set out in the contracts. The contracts then specify the tonnage, more or less, to be cut, the minimum girth and length of the logs to be cut, the quality and fashioning of the logs. The construction of roads and bridges for the extraction of the logs is made an expense of the logger and it is his responsibility to deliver the logs to the bacadillas selected for the collection of the logs. A bacadilla is the name given to the place where logs are assembled for transportation and in the instant case the bacadillas were located on the northern bank of Golden Stream river, which flows to the sea and the intention was to ship the logs out by barge to Belize City. The contracts made it clear that the obligations of the logger came to an end on delivery of the logs to the bacadillas as it is then that the buyer is to pay the logger for the logs at the rate of $100.00 per ton of 2,240 lbs. Further obligations of the buyer are that he will make advances to the logger in cash or goods up to a given amount (the amount varies with each contract) to enable the logger to fulfil his contract and to hire to the logger at an agreed payment per ton of logs such equipment as may facilitate him in the extraction of the logs. Any advances so made and the amount due for the hire of any equipment to be deducted from the value of the logs delivered. The evidence in the case is that in each year the equipment hired comprised a tractor and two chain saws.

5 Before I consider the nature of the contract in this case, it will be convenient to dispose of a submission made by Counsel for the plaintiff with respect to the written contracts to which I have referred. That submission was that the documents expressing the contracts were false documents. I must confess I find that to be a remarkable submission of Counsel in as much as Mr. Westby, who was the plaintiff's witness and through whom the documents were admitted in evidence made no suggestion that they were false but acknowledged them to bear his signature and Counsel did not at any point seek to impute the integrity of Mr. Westby nor to suggest that Mr. Westby might be mistaken. Indeed Counsel relied upon other aspects of Mr. Westby's evidence to support the plaintiff's case. The submission that the documents are false was put forward on the following three grounds. The first was that because the defendant had on the first day of the hearing amended his defence and counterclaim to allow him to advance as a defence that if there had been a trespass, the trespass was committed by Mr. Westby as an independent contractor and not as a servant of the plaintiff and had applied at that late stage to do so as he had only shortly before become aware of the implications of the contract documents, these documents were last minute creations and false. Mr. Westby clearly did not think so. Then it was suggested that because Mr. Westby accepted at one stage of his cross-examination that under the contracts he was to sell logs to the defendant at the price of $100.00 per ton, that showed that Mr. Westby was not speaking the truth and that the documents were false as there was no mention of selling in the documents. Neither the word “sale” nor its connotations is to be found in the documents, but the defendant is referred to in the documents as the “buyer”, the contract is that he is to “pay” $100.00 per ton and it was Counsel for the defendant who introduced the word “sale” as his question to which Mr. Westby replied “Yes” was: “You contracted to go into the forest and cut the logs and then sell them to Mak at $100 per ton?” Finally, because it would seem that Mr. Westby cannot read, it was suggested that advantage had been taken of him to put in a false document. In making that suggestion Counsel seems to have completely overlooked the following facts. That Mr. Westby was his...