PUBLIC RECORD OFFICE
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Reference :-
19 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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*known to those gentlemen and to the Colonial
Government,"
Oflice.
The Treasury replied “It appears to their Treasury to Lordships that, as it has been determined that Colonial the Agents are to be held responsible for the 19 October, acts of those persons who are appointed and 1863. employed by them, the Agents may reasonably be entrusted with a full control over those persons, and may be allowed to distribute among them, according to their own discre- tion, the amount appropriated for the pay of the establishment so long as the authorised totals
are not exceeded."
The Crown Agents may also be considered as possessing the same power of dismissal as they now possess in respect of appointment.'
It is thus clear that in 1863 the Crown Agents in return for full control over their staff accepted personal responsibility in case of losses arising from dishonesty, negligence, or ignorance of themselves or their subordinates.
That responsibility has, so far, apparently not resulted in any financial charge upon them-in fact its existence has been practically forgotten.
In 1898 a bell buoy was sent out to the 18238 00 Gambia by the Crown Agents. Owing to their Gambia. not having sent out at the time particulars showing how it should be ballasted and the Colonial Officers proceeling without waiting for them, a loss was incurred of about £140. The question was raised as to the liability of the Crown Agents or their officers to make good the loss.
Sir M. Ommanney (who had recently been appointed Under Secretary of State) said The Crown Agents have never yet been held to be pecuniarily liable for mistakes in the transaction of their mercantile business. They transact that business on terms which involve a loss in most cases and they make up that loss out of the income of their savings in past years, making to that extent, say from £3,000 to £5,000 a year, an actual present to the Colonies. Their remu- neration on the expenditure involved in this case was about 28s.
They must, of course, bear the blame of the mistakes which do occur, but it appears to me that they are not at all to blame in this case. They sent out the plans and drawings supplied by their Inspecting Engineer. They cannot be expected to satisfy themselves on such a purely technical question as the sufficiency of erecting plans: their engineer must answer to them for
that."
Mr. Chamberlain asked the Legal Assistant Under Secretary to report whether the Crown Agents were legally liable for the damage both direct and consequential.
Mr. Cox replied :—
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"This is a difficult question, not so much in point of law as in the application of the law to the facts.
"I take that the relation of the Crown Agents to their engineers, inspectors, and other persons employed by them in the ordinary course of their business is that of principal and agent. This being so they are answerable for every such act of negligence of their employés as is com- mitted by them in the course of the service and for their benefit. If on the other hand their engineers, inspectors, &c., when engaged on their work for the Crown Agents are not under their orders or control and are so to speak independent contractors, the Crown Agents would not be liable. He who controls the work is answer- able for the workman: the remoter employer who does not control it is not answerable.' Assuming therefore an action were brought against the Crown Agents by persons damnified by the negligence of their engineers the relation existing between the Crown Agents and that particular engineer in the particular case would be the first question of fact to be decided. So far as I am familiar with the relations existing between the Crown Agents and inspecting engineers, &c., I should incline to the view that the relation of principal and agent did exist between them, and that the Crown Agents would be held liable so far as this point is concerned.
"Turning to the present case,-if it were proved that defective plans and instructions were sent out by the engineer intended to be acted on and that the consequence of their being so acted on (? was that) the loss was occasioned I think the loss would be directly due to the negligence of the engineer and the Crown Agents would be liable. But if the loss were shown to be not directly due to this, or not entirely due to this, but to negligence on the part of those laying the buoy then the proximate cause of the loss not being traceable to the engineer no liability would arise. Looking at the facts from the point of view of a case tried by judge and jury, I think that the engineer and Crown Agents would probably escape. It would be said,-You admit you did not understand the plans, why did you lay the buoy without telegraphing for further informa tion? In taking on yourself to lay the buoy, &e.. without it, you yourself caused the loss. There may have been negligence on the part of the engineer but there was contributory negligence on your part. This argument would have the greater weight with a jury if the Crown Agents who trusted their engineer were being sued and not the engineer; I think a jury would probably find there was contributory negligence and give a verdict for the defendants-the Crown Agents. "On the whole I think the Crown Agents would not be held liable."