COURT OF APPEAL
DATE: 7 DECEMBER 1970
APALOO, SOWAH AND ARCHER JJA
CASES REFERRED TO
(1) Ormrod v. Crosville Motor Services, Ltd. [1953] 1 W.L.R. 1120; [1953] 2 All E.R. 753; 97 S.J. 570, C.A.
(2) Norton v. Canadian Pacific Steamships, Ltd. [1961] 1 W.L.R. 1057; [1961] 2 All E.R. 785; 105 S.J. 442, C.A.
(3) Davey v. Chamberlain (1802) 4 Esp. 229; 170 E.R. 701.
(4) Samson v. Aitchison [1912] A.C. 844; 82 L.J.P.C. 1; 107 L.T. 106; 28 T.L.R. 559, P.C. (5) Brooke v. Bool [1928] 2 K.B. 578; 97 L.J.K.B. 511; 139 L.T. 376; 44 T.L.R. 531; 72 S.J. 354. (6) Scarsbrook v. Mason [1961] 3 All E.R. 767; 105 S.J. 889.
(7) Powers v. State (1940) 11 Atl. 2d. 909.
NATURE OF PROCEEDINGS
APPEAL from a judgment of Aboagye J. in the High Court, Sekondi (unreported) in which he held the appellant vicariously liable for the negligence of one K. The facts are fully set out in the judgment of Apaloo J.A.
COUNSEL
D. Kom (with him Djamson) for the appellant.
No appearance by or for the respondent.
JUDGMENT OF APALOO J.A.
On 9 March 1965 a collision occurred between a lorry and a VW van at a place called Apremdu Road on the Takoradi-Apowa motor road. The lorry was then being driven by the first defendant while
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Mr. M. K. Bosumtwe was in charge of the VW van. The latter met his death as a result of the accident.
On 5 December 1966 the plaintiff obtained letters of administration to administer the estate of the said Bosumtwe and on 30 December 1966 he brought an action against the defendants claiming damages on behalf of certain named dependants of the deceased. It was claimed by the plaintiff that the accident occurred as a result of the negligent driving of the first defendant. The second defendant was sued jointly with the first defendant because it was stated in the writ that: “At the material time, the first defendant was the servant and employee of the second defendant, the second defendant being the owner of the vehicle in question.” As attempts to serve the first defendant with the writ were unsuccessful, the High Court, Sekondi, on the application of the plaintiff, granted an order for substituted service. After the lapse of the period limited for this purpose and as the first defendant failed to enter an appearance or lodge a defence, the court, again at the behest of the plaintiff, granted leave for an interlocutory judgment to be entered against the first defendant, subject to the assessment of damages. On 11 November 1967 these damages were assessed at N¢5,000 and were apportioned among the three named dependants of the deceased.
The second defendant, however, entered an appearance and filed a defence in which he denied that at the date of the accident the first defendant was his servant or agent or was driving the motor vehicle in the course of his employment. In paragraph (3) he averred:
“The second defendant denies paragraph (3) of the statement of claim and avers that before the date of the said accident, the said motor vehicle had been sold to the first defendant herein and as such cannot be said to be driving it with the consent of the second defendant but that he drove the said motor vehicle in his own right as the owner thereof.”
Thus, the only issue joined between the plaintiff and the second defendant was whether the latter was vicariously liable for the negligence of the first defendant. At the trial, the second defendant gave oral evidence of the sale and produced in evidence a written document in support. The authenticity of that document was vouched for by the person who actually prepared it. The agreement, exhibit 1, was headed “Hire-Purchase Agreement.” It contains the total purchase price and the way in which payments are to be made. It stipulates that property in the bus shall remain in the second defendant until the full payment of the purchase price. It put the obligation for the making of repairs on the first defendant and paragraph (6) which weighed very much with the judge reads: “That in the event of any accident taking place, the second party shall be responsible to all costs of repairs, damages or claims resulting from the said accident.”
After reviewing the evidence, the learned trial judge, Aboagye J., held that the first defendant was not the servant of the second defendant.
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He found further:
“That the [lorry] was owned by the second defendant at the material time and that it was being driven by the first defendant with the permission of the second defendant upon their joint venture, the joint venture being the collection and payment of daily fares by the first defendant to the second defendant until the cost of the vehicle being N¢600 had been fully paid and thereafter the first defendant was to have the vehicle to himself.”
The learned trial judge then referred to the now well-known case of Ormrod v. Crosville Motor Services, Ltd. [1953] 2 All E.R. 753, C.A. and concluded that: “The second defendant is vicariously liable for the negligent driving of the first defendant and he is jointly and severally liable to satisfy the judgment debt and costs awarded against the first defendant.” Against that decision, the second defendant appeals to this court on the ground that the evidence led and accepted by the trial judge negatived any basis of vicarious liability against the second defendant.
I think that contention is difficult to resist. On the trial judge’s own finding, there has been a bailment of the lorry by the second defendant to the first defendant. It is not suggested that the second defendant retained any right of control over the vehicle. Such interest as he had was merely financial, that is, to receive the balance of the purchase price. In what sense can the first defendant be said to be the agent of the second defendant in these circumstances? The learned trial judge’s view was that such agency arose by reason of the fact that both the first and second defendants were engaged in a joint venture. If such be a fact, then each would be the agent of the other for the purpose of vicarious liability provided the tort was committed in the course of the joint enterprise. The learned trial judge considered that the fact that the first defendant had to pay the daily fares to the second defendant in payment of the purchase price, shows that they were engaged in a joint venture. I respectfully disagree.
It cannot be said on the facts that in driving the vehicle in these circumstances, the first defendant was in any sense acting for the second defendant. It is plain that he was acting entirely for his own benefit and on his own accord. The fact that the daily takings would have to be accounted for to the second defendant in payment of the purchase price does not show that the car was driven partly for the purpose of the first and second defendants within the principle laid down in the Crosville Motor Services case (supra). I think the Crosville case can be distinguished from this case on the simple ground that at the time that the accident occurred, the first defendant was driving the vehicle in his right as a purchaser. Unlike the Crosville case, he was not driving it because the second defendant asked him to drive it to a destination in which they were both interested. Indeed in the later case of Norton v. Canadian Pacific Steamships, Ltd. [1961] 2 All E.R. 785, C.A., Pearson L.J. explained the principle in the Crosville case as follows at p. 790:
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“The owner of a car, when he takes or sends it on a journey for his own purposes, owes a duty of care to other road users, and if any of them suffers damage from negligent driving of the car, whether by the owner himself or by an agent to whom he has delegated the driving, the owner is liable. There is the principle.”
In all the cases of joint enterprise, joint possession or joint right to control has been the basis of liability.
The case of Davey v. Chamberlain (1802) 170 E.R. 701, is an early decision that where two persons jointly hired a vehicle and are in joint possession and control of it both the one who is driving and the one who is not, are liable for the consequences of an accident. But the leading English case is Samson v. Aitchison [1912] A.C. 844, P.C. There the owner of a car had taken an intending purchaser, a lady, on a trial run for which it was driven by her son. The question was whether the owner was liable for an accident caused by the son’s negligence. The Privy Council then laid down the principles governing vicarious liability in these circumstances. It quoted the following passage (at p. 849) from the judgment of the trial court and said it laid down the law with perfect accuracy:
“ ’I think that where the owner of an equipage, whether a carriage and horses or a motor, is riding in it while it is being driven, and has thus not only the right to possession, but the actual possession of it, he necessarily retains the power and the right of controlling the manner in which it is to be driven, unless he has in some way contracted himself out of his right, or is shewn by conclusive evidence to have in some way abandoned his right. If any injury happen to the equipage while it is being driven, the owner is the sufferer. In order to protect his own property if, in his opinion, the necessity arises, he must be able to say to the driver, ‘Do this,’ or ‘Don’t do that.’ The driver would have to obey, and if he did not the owner in possession would compel him to give up the reins or the steering wheel. The owner, indeed, has a duty to control the driver. If the driver is driving at a speed known to the owner to be dangerous, and the owner does not interfere to prevent him, the owner may become responsible criminally: Du Cros v. Lambourne [1907] 1 K.B. 40. The duty to control postulates the existence of the right to control. If there was no right to control there could be no duty to control. No doubt if the actual possession of the equipage has been given by the owner to a third person – that is to say, if there has been a bailment by the owner to a third person – the owner has given up his right of control’.”
It would seem the best known English decision which imposes vicarious liability on joint ventures is the case of Brooke v. Bool [1928] 2 K.B. 578. In that case, the defendant who was the plaintiff’s landlord, was asked by her to search for a suspected gas leak in her basement. The defendant procured the assistance of a third party who applied a naked light to the pipe they were examining with the result that an explosion
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occurred, damaging the plaintiff ‘s property. It was held that the defendant was liable for the negligence of his assistant and although it might have been argued on the facts that the defendant had specifically authorised the actual act of negligence which caused the damage and therefore personally liable for his own acts, the court held that the defendant and his assistant were engaged in a joint enterprise and the defendant was therefore liable for the negligence of his assistant in the course of the joint enterprise. The more recent case of Scarsbrook v. Mason [1961] 3 All E.R. 767 proceeded on the same basis. In that case the defendant was one of a party in a car driven by one S. who had driven the car without the owner’s consent and offered to take the defendant on a day’s trip to Southend if he would pay a share of the expenses. During the journey an accident occurred as a result of S.’s negligence in which the plaintiff (a pedestrian) was injured. In holding the defendant liable, Glyn-Jones J. asked himself the question at p. 768:
“What was the status of the defendant in that motor car? Was he a mere guest of someone who, as it were, retained control of the motor car, or was he … an equal member, so to speak, of a group who were jointly using this motor car for the purpose of taking them all to Southend?”
Joint possession or control is also basic to American jurisprudence in this branch of the law. In the Maryland case of Powers v. State (1940) 11 Atl. 2d. 909, Delaplaine J. made a statement typical of the principles applied in the American courts. He said at p. 912:
“It is generally held that the common purpose of riding together for pleasure is insufficient to establish a joint enterprise. Although the purpose of a pleasure journey is a common one the courts usually hold that such purpose is not sufficiently joint to have the effect of imputing the negligence of the driver to others, unless the parties had entered into an actual or implied contract giving common possession of the vehicle and joint control of its operation…. If there is no pre-arrangement for a substantial sharing of the expenses of a pleasure trip, it is the general rule that the trip is not a joint enterprise, even though the parties have a common destination and a common purpose, and though the guest driver alternates with his host. But if the parties do not own or hire the car jointly, even the fact that they share the expenses of a trip does not make their trip a joint enterprise.”
It seems therefore that both common law jurisdictions are in accord on the basis of imposition of vicarious liability in joint ventures. And in so far as these cases accurately reflect the common law, I think we should apply them. I cannot think of any sound policy reason peculiar to this country why vicarious liability should be imposed on a person who either sells on credit or hires his vehicle to a third person to whom he relinquishes possession and control simply because he retains in himself the bare legal title and is interested only in the balance of the purchase price or the
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hire-purchase rentals. If strong reasons of public policy require that vicarious liability should be imposed on an owner of a vehicle in such a case, it should be done by enacted not judicial legislation.
In my judgment, in holding that the second defendant was vicariously liable for the tort of the first defendant because they were engaged in a joint venture, the learned trial judge was in error. I hold that he was not so liable and that the judgment ought to be reversed on this score. Accordingly, I would allow the appeal and set aside the judgment in so far as it affects the second defendant. As against him, I would order that the action do stand dismissed.
JUDGMENT OF SOWAH J.A.
I agree.
JUDGMENT OF ARCHER J.A.
I also agree.
DECISION
Appeal allowed.
T. G. K.
