Division: IN THE HIGH COURT, SEKONDI
Date: 27 NOVEMBER 1964
Before: DJABANOR J
JUDGMENT OF DJABANOR J
On 4 September 1963 the deceased, Samuel Kojo Akyeampong and his friend Robert Yaw Eshun, were selling their wares not far from the workshops of the Sese State Farms Corporation on the pavement behind the drain at the side of the road, when one of the corporation’s lorries was driven out of that yard. It was driven very inexpertly and so fast that it ran into the drain and hit and killed Akyeampong. From the evidence, which was not disputed, the driver was very negligent. It was discovered, after due interrogation, that the person driving the vehicle, one Kwame Essel, was in fact not a licensed driver. He did not know how to drive. He was employed by the State Farms Corporation as an apprentice fitter. But at the time of the accident, fifteen minutes to two o’clock in the afternoon, a driver employed by the State Farms Corporation was sitting in the lorry with this fitter.
Upon this evidence the plaintiff’s counsel submitted, relying on the case of Ricketts v. Thomas Tilling, Ltd.,1 that the State Farms Corporation is vicariously liable because there was negligence on the part of the driver in allowing the lorry to be negligently driven by the fitter.
The first defendants did not call evidence. Counsel relied upon the case of Poulton v. London & Southwestern Railway2 and submitted that the State Farms Corporation cannot be held responsible for the act of the qualified driver who was sitting in the lorry with the fitter because there is no possible ground for supposing that the corporation will authorise their driver who would in turn authorise an unlicensed person to drive the vehicle, because the corporation itself cannot authorise an unlicensed person to drive their vehicle. In the Poulton case (supra) the railway company were authorised by statute to arrest a passenger who did not pay his fare. The stationmaster arrested a passenger who had paid his fare but did not pay the freight for
his horses. I think that the ratio decidendi in that case was that it was completely outside the scope of his authority to arrest passengers who had paid their fare. There is also authority for saying that the mere fact that the act of a servant amounts to a criminal offence will not exonerate the master if it is done in the course of the employment. See Dyer v. Munday.3
I think that the real issue of this case is whether or not the fitter was acting in the course of his
employment, and also whether the driver was acting in the course of his employment. I will take the fitter first. Clearly an apprentice fitter is not employed to drive, and in this case where the evidence suggests that a driver was available, there will appear to be no reason why the fitter should drive. Counsel suggested that perhaps the fitter wanted to try out the lorry which he had repaired. This suggestion is not based on any evidence. The case of Worrow v. General Steam Navigation Co.4 is in point. In that case a steamship arrived at Butler’s wharf and the second engineer went ashore as he was quitting the ship. At his request the third engineer, the next day, purely as a favour to the second engineer, arranged to put ashore a case belonging to the latter. The third engineer used the ship’s crane for this purpose. It was his duty to maintain the engine of the crane but he had no duty or authority to work it. This would require the
permission of the mate. He was not properly capable of working the crane and in the unloading
negligently injured a lorry driver on the wharf. The lorry driver sued the shipowners. It was held that the third engineer was not acting within the scope of his employment because he was doing an act which was not in any way authorised or within the scope of his employment, either by implied authority or by practice or in any other way. The verdict was for the defendants. In my view the fitter was clearly acting outside the course of his employment when he drove the vehicle out of the workshop yard. There is a judgment against him already.
According to the evidence, a driver employed by the defendants was seated beside the fitter when the accident occurred. The plaintiff, therefore, relying on the Ricketts case (supra), submitted that there is evidence of negligence on the part of the driver in allowing the lorry to be negligently driven by the fitter. The case of Ilkiw v. Samuels5 is similar to the Ricketts case (supra). In that case the defendant’s lorry was driven to the premises of the plaintiff ‘s employers to load bags of sugar. The defendant’s driver, one Waines, put the lorry under a conveyor and then stood in the back of the lorry to load bags from the conveyor. When sufficiently loaded the lorry had to be moved. Samuels, a fellow employee of the plaintiffs and not employed by the defendants, offered to move it. Waines allowed him to do so without asking whether he could drive. In fact Samuels could not drive and after starting the lorry could not stop it. It crushed the plaintiff, who was working nearby, causing him serious injury. Waines remained in the back of the lorry throughout. He had been expressly forbidden by his employers to let anyone other than himself drive the lorry. It was held that Waines was negligent in allowing Samuels to drive without inquiring as to whether he was competent. The defendants were held vicariously liable for his negligence because it was a mode, though an improper mode, of performing the duties for which he was employed, namely, to have charge
and control of the lorry. It was therefore a negligent act within the scope of his employment.
From the above it is clear that a lorry was being used in each case for the purposes of the master’s business and also that a lorry was placed under the charge and control of the driver. In the instant case the only evidence we have is that the fitter was driving, and that a man employed by the State Farms Corporation as a driver was sitting beside him. There is no evidence as to what purpose the lorry was being used on this occasion, whether engaged on the business of the State Farms or otherwise. There is no evidence that it was being driven during working hours. Again in each of the two authorities referred to supra, the driver had been driving the vehicle in the course of his duties. He was therefore in charge and control of the vehicle and it was therefore his duty to see that it was not driven negligently or by an unauthorised person. In this case there is no evidence that the driver who was seated in the vehicle, though employed by the State Farms Corporation, was employed to take charge of and control this vehicle in question. There is also no evidence that the driver was sent on his normal duties with the lorry and that he allowed the fitter to drive while they were going. In fact no evidence has been adduced to show where the vehicle was going and what the driver was doing there seated near the fitter at the time of the accident. In a case like this it is the plaintiff’s duty to prove by a preponderance of evidence that the injury was caused by the negligence of the defendant’s servant who was acting within the course of his employment and within the scope of his authority. I regret that the plaintiff has failed to discharge this duty and his claim against the first defendants must fail.
I will now proceed to assess the damages which are claimed against the second defendant against whom judgment has already been given. The deceased’s personal representative who gave evidence did not give the impression that he knew much about the business activities of the deceased and he failed to prove his means satisfactorily. To merely enter the witness-box and repeat the allegations in the pleadings is not proof, unless these are not challenged. When they are challenged then actual proof is required. In this case some idea should be given of the turnover of the deceased. If he was on salary or paid income tax these could be proved by evidence. Nothing was shown. But the defendants agreed that the deceased was worth about £G200 to £G250 per annum. I would say that half of this amount may be used on his wives and
children. The deceased was only 34 years old. I will give him a life span of about 54 years, and therefore fifteen years of purchase. That will come to £G1,875.
Allowing for other exigencies, capitalisation and all the other factors I will make a final assessment of £G1,500 and do award that sum. In the result there will be judgment for the plaintiff against the second defendant for £G1,500 and 30 guineas costs. But the plaintiff’s claim against the State Farms Corporation fails and is accordingly dismissed. There will be judgment for the State Farms Corporation and 40 guineas costs.
DECISION
Judgment for plaintiff against second defendant.
Action dismissed against first defendant.
T. G. K.
