COURT OF APPEAL
DATE: 25 JANUARY 1971
AZU CRABBE, APALOO AND JIAGGE JJA
CASES REFERRED TO
(1) Benmax v. Austin Motor Co. [1955] A.C. 370; [1955] 2 W.L.R. 418; 99 S.J. 129; [1955] 1 All E.R. 326, H.L.
(2) Laycock v. Grayson [1939] W.N. 204; 55 T.L.R. 698.
(3) Joel v. Morison (1834) 6 C. & P. 501; 172 E.R. 1338.
(4) Hilton v. Thomas Burton (Rhodes) Ltd. [1961] 1 W.L.R. 705; 105 S.J. 322; [1961] 1 All E.R. 74.
(5) Marsh v. Moores [1949] 2 K.B. 208; [1949] L.J.R. 1313; 65 T.L.R. 318; 113 J.P. 346; 93 S.J. 450; [1949] 2 All E.R. 27.
[p.229] of [1971] 1 GLR 228
NATURE OF PROCEEDINGS
APPEAL from a judgment of Owusu Ag.J. (as he then was) awarding the respondent N¢8,400 damages for the negligent driving of the appellant’s servant: See Dadey v. The Ministry of Interior, High Court, 5 July 1968, unreported; digested in (1968) C.C. 146. The facts are fully set out in the judgment of Azu Crabbe J.A.
COUNSEL
- M. C. Dodoo, Principal State Attorney (Mrs. Adusa-Amankwa with him), for the appellant. E. B. Sekyi-Hughes for the respondent.
JUDGMENT OF AZU CRABBE J.A.
In this case the respondent’s claim was (1) a demand against the appellant for the repair of his Bedford lorry No. AN 906, which was damaged through the negligence of one Joseph Ekow Jabin, a servant or agent of the Ghana National Fire Service stationed at Sekondi, a department of the Ministry of the Interior; and (2) for the loss of profits at the rate of N¢10.00 per diem from 5 June 1966 until such date as the repairs would be completed. Under section 10 of the State Proceedings Act, 1961 (Act 51), the Attorney-General is the person to sue for the liabilities of the Ghana National Fire Service.
The facts are these: The respondent was the owner of Bedford lorry No. AN 906 and he had employed, as the driver of this vehicle, one George Quayson. The Ghana National Fire Service was, at all material times, the owner of vehicle No. WR 2745, and the driver employed to drive the said vehicle was one Joseph Ekow Jabin. It was alleged that on or about 5 June 1966, whilst the respondent’s driver was driving vehicle No. AN 906 from Sekondi towards Ketan along the Sekondi-Kojokrom road, the said Joseph Ekow Jabin negligently drove vehicle No. WR 2745 into the respondent’s vehicle, and caused extensive damage to it. The next day after the accident, the Ghana National Fire Service removed the respondent’s vehicle to their garage in Sekondi for the purpose of repairing it. At the date of the hearing of this action, the respondent’s vehicle had not been repaired, although it was still standing at the garage of the Ghana National Fire Service.
The appellant denied that the driver of the Ghana National Fire Service, Joseph Ekow Jabin, was negligent, and it was further contended that the said driver was at the time of the accident not driving in the normal course of his business. With regard to the removal of the respondent’s vehicle to the garage of the Ghana National Fire Service, it was said that this was done with a view to preventing litigation, and that it was not an admission of liability. In one passage in his judgment the learned trial judge said, “The two main issues to be determined are whether or not Joseph Ekow Jabin was negligent; and whether or not he drove vehicle No. WR 2745 in the course of his employment. Both issues are questions of fact to be determined by the court after careful evaluation of the evidence.” I think the learned trial judge showed, in this passage, a proper appreciation of the real issues in the case. The learned trial judge then proceeded to examine the evidence in some detail, and he came to the conclusion that the driver of the Ghana National Fire Service
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vehicle was not only negligent, but that, at the time of the accident, he was also driving in the course of
his employment. On the second issue, which has now become the crucial question in this appeal, the learned trial judge expressed himself as follows: “From the evidence of the plaintiff and of the two defence witnesses it is too glaring that Joseph Ekow Jabin was performing a duty in the course of his employment. This is a fact so clearly established by the evidence.” He, however, omitted to state the portions of the evidence of the respondent and the two defence witnesses which, in his view, demonstrably established that the driver of the Ghana National Fire Service, Joseph Ekow Jabin, was acting in the course of his employer’s business at the time of the accident. This is really an inference drawn by the learned trial judge from the facts proved, and as Lord Reid said in Benmax v. Austin Motor Co., Ltd. [1955] 2 W.L.R. 418 at p. 422, H.L.,
“[I]n cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion.”
In this appeal the only ground of appeal argued is stated in these terms, “That the accident occurred when the appellant’s servant was on frolic of his own and therefore the appellant was not liable.” The principles which are applied to cases of this type, where it is sought to hold a master or employer vicariously liable for the tort of his servant, are well established. These are clearly stated in Salmond on Torts (14th ed.) at p. 658, para. 194 as follows:
“A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master. It is clear that the master is responsible for acts actually authorised by him: for liability would exist in this case, even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes — although improper modes — of doing them.”
The principle so stated is simple, but the real difficulty lies in its application to the facts of a particular case.
In this case a vehicle belonging to the Ghana National Fire Service was entrusted to an employee of the service to be driven, and it was whilst the employee was so driving the vehicle that the accident, which gave rise to the present action, occurred. The law, as I understand it, is this: the master is liable if the servant is negligent while using the vehicle
[p.231] of [1971] 1 GLR 228
for the master’s purposes, but not if he is negligent while using it for any other purposes, even though the servant has the permission of the master to use it for those purposes. There is a presumption that a vehicle is being used for the master’s purposes if the servant has a general authority to use it at all (see Laycock v. Grayson (1939) 55 T.L.R. 698), and a deviation from the master’s instructions does not necessarily absolve the master from liability. This depends upon the degree of deviation, and it is always a question of fact for the trial court. As Parke B. said in Joel v. Morison (1834) 6 C. & P. 501 at p. 503:
“If the servants, being on their master’s business, took a detour to call upon a friend, the master will be responsible . . . . The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master’s implied commands, when driving on his master’s business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master’s business, the master will not be liable.”
This passage from the judgment of Parke B. has been cited and approved in numerous cases, and it is now well-established that an employer who permits his servant or employee to use his vehicle is not
vicariously liable for the negligence of the servant or employee, unless the vehicle is being used for the employer’s business.
The application of this principle was illustrated in the case of Hilton v. Thomas Burton (Rhodes) Ltd. [1961] 1 All E.R. 74. There, the plaintiff, acting as the administratrix of the estate of her late husband, claimed damages against the defendant company in respect of his death in an accident which occurred while he was being driven in the defendant company’s van by another employee. The deceased foreman and certain other workmen were engaged in demolition work at a site in the country to which they were driven each day from the defendant’s premises, a distance of about 30 miles. Those who did not bring their lunch or tea with them were allowed to use the van to go to a café or public house. On the day of the accident the second defendant and some of the men took the view, early in the afternoon, that they had done enough work for the day to pass muster, and they therefore decided to fill in the rest of their time until their hours of work had come to an end, by driving to a café seven miles away. The van was driven by the second defendant, a licensed driver, with the permission of the normal driver. When they had almost reached the café they realised that it was late, so they turned around and started back, so as to be in time to collect the other men, including the normal driver, who were still working at the site, for the return journey to the first defendant’s premises. The van overturned while they were going very fast round a bend and the plaintiff’s husband was killed. A director of the defendant company testified at the trial that, provided the men got through a reasonable amount of work, he had no objection to their leaving and using the company’s van. The plaintiff’s action failed, for it was held that even if the director of the company had given the men permission to leave, this did not mean that in the course of their journey they were doing
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anything that they were employed to do. The fact that they were using the company’s vehicle with the director’s permission was not enough. In the course of his judgment Diplock J. (as he then was) made observations from which, I think, the true test to be applied in this present case can be found. He said at pp. 76 and 77:
“The question remains, and it is probably the most important practical question in this case: Are the first defendants liable, vicariously, for the second defendant’s negligence? I think that the true test can be expressed in these words: Was the second defendant doing something that he was employed to do? If so, however improper the manner in which he was doing it, whether negligent as in Century Insurance Co., Ltd. v. Northern Ireland Road Transport Board ([1942] 1 All E.R. 491; [1942] A.C. 509), or even fraudulently, as in Lloyd v. Grace, Smith & Co. ([1912] A.C. 716), or contrary to express orders, as in Canadian Pacific Ry. Co. v. Lockhart ([1942] 2 All E.R. 464; [1942] A.C. 591), the master is liable. If, however, the servant is not doing what he is employed to do, the master does not become liable merely because the act of the servant is done with the master’s knowledge, acquiescence, or permission. To say, as is sometimes said, that vicarious liability attaches to the master where the act is an act or falls within a class of act, which the servant is authorised to do, may be misleading. In one sense a master may be said to authorise a servant to do an act when he grants the servant permission to do something for the servant’s own benefit, which, without such permission, would be a breach of his contract of employment or even a tort, as when he permits him to take time off for refreshment in working hours, as in Crook v. Derbyshire Stone, Ltd. ([1956] 2 All E.R. 447), or permits him to use the master’s property, as in Higbid v. R. C. Hamnett, Ltd. ((1932) 49 T.L.R. 104). In such cases, the master is not liable, for although he may be said, in a loose sense, to authorise the act, it is nevertheless not an act which the servant is employed to do . . . It may be he was using his master’s vehicle with his master’s permission, but as Higbid v. R.C. Hamnett, Ltd. shows, that is not enough. The true test is: Was he doing something that he was employed to do?”
I think that the test applied by Diplock J. (as he then was) is a sensible and practical one. It is in accordance with principle and I propose to apply it to the facts of our present case.
Before proceeding to examine the evidence, however, I would, having regard to the facts of this case, say that the question of whether or not an unauthorised act by a servant is within the scope of his employment or outside his employment is one of fact: per Lynskey J. in Marsh v. Moores [1949] 2 K.B. 208 at p. 215. In the present case the learned trial judge said that on the evidence it was plain beyond any argument that the driver of the Ghana National Fire Service, Joseph Ekow Jabin, was at the time of the accident engaged on business which he was employed to do.
[p.233] of [1971] 1 GLR 228
With the greatest respect to the learned trial judge, I venture to differ. Unlike the learned trial judge, I do not think that the evidence of the respondent is of any assistance whatsoever in the determination of this crucial issue. The evidence which I think is material is that given for the defence by the driver, Joseph Ekow Jabin, and Joseph Rowland Arthur, the Assistant Chief Fire Officer in charge of the Fire Service in the Western Region. Joseph Ekow Jabin gave evidence as follows:
“I am a driver at the Ghana National Fire Service; I live at Sekondi. I have been with the Fire Service for 24 years. As a driver my duties include driving the fire service vehicles. On 5 June 1966 I attended business at 7.40 p.m. When on duty I was assigned to drive vehicle No. WR 2745. At about 7 p.m. [sic.] I was taking the driver I relieved to his house; one of our senior officers had died and those who had closed from duty were to attend the wake-keeping. The driver asked me to take him to Ketan because he was to return to the wake keeping. It is not our practice to send the drivers we relieve home, but in this particular instance because of the death of the senior officer I had to take him to change to come back to the wake-keeping. . . . We were instructed by our senior officer that those who had closed must attend the wake-keeping.”
And these were his answers to questions when he was cross-examined:
“Q. You took this driver to the house because your senior officer had died and he was expected to come to the funeral?
- That is so.
- You would not have done this under normal circumstances?
- That is correct.
- Is it not the normal practice with the fire service that when an employee dies you take the other employees on a vehicle belonging to the fire service to attend the funeral ?
- That is correct.”
When he was asked in re-examination whether on this particular occasion any senior officer gave him permission to take the other driver home, his answer was, “I was the most senior man on duty and therefore the officer in charge at the time, therefore, I used my initiative.” But whether or not he used his initiative as the only senior officer present, this witness has already admitted in examination-in-chief that it was not the practice to drive home drivers whom they relieved. Joseph Rowland Arthur also testified as follows:
“I know the first defence witness, Mr. Jabin. He is a driver in our department. We have got regulations with regard to the use of vehicles in our department. It is a departmental instruction; here is a copy and I tender it. [Not objected to, accepted and marked exhibit 1]. On 5 June 1966 it came to my notice that our vehicle No. WR 2745 had been involved in an accident. Driver Jabin was then in charge of the vehicle; the time was about 7.30 p.m. It did not get to my knowledge
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what driver Jabin had gone to do with the vehicle. I had the information after the accident. On 5 June 1966 we had no business at Ketan. I did not expect any of our vehicles to be in that area. To my knowledge driver
Jabin never asked any permission before taking the vehicle to Ketan. On that date there was a fireman on duty. Whenever there is any official duty to be performed the officer in charge of each platoon gives the instructions for the use of vehicles. On the date in question the officer in charge of Mr. Jabin’s station was off duty, but Mr. Jabin was the officer in charge of his platoon. The brigade vehicle was brought to the station.”
Mr. Arthur tendered in evidence exhibit 1 which contains instructions on the misuse of official vehicles, and in paragraph 2 thereof it is stated as follows:
“Firemen will only be allowed to be conveyed from the fire station to their various homes when there is a major fire which require reinforcement. This will require the permission of the divisional officer before a vehicle could be used for that purpose.
Any driver found carrying a person on his vehicle without official instruction will be dealt with in accordance with Fire Service Regulations.”
It is clear that on the date when the accident occurred there had been no major fire which required reinforcement, and Mr. Jabin, as the officer in charge of his platoon, must have taken the decision by himself to give another employee of the Ghana National Fire Service a lift to Ketan. But to hold the defendant vicariously liable for the negligence of Jabin, it is, in my view, not sufficient that his wrongful act was done in the course of doing something of a kind which he usually had authority to do. It must further be shown that Jabin was, at the time of the accident, performing an official duty, and was not merely on a frolic of his own. The fundamental question in this case is: Was Jabin engaged on a duty he was employed to do at the time of the accident? I think he was not.
Accordingly, I would allow this appeal and set aside the judgment of the learned trial judge, together with any order as to costs. The costs, if paid, are to be refunded. The appellant is to have his costs in the court below fixed at N¢105.00, and in this court at N¢4134.50.
JUDGMENT OF APALOO J.A.
I agree.
JUDGMENT OF JIAGGE J.A.
I also agree.
DECISION
Appeal allowed.
T G. K.
