COURT OF APPEAL
DATE: 13 MARCH 1967
BEFORE: OLLENNU, AZU CRABBE AND LASSEY JJ.A.
CASES REFERRED TO
(1) Monk v. Warbey [1935] 1 K.B. 75; [1934] All E.R. Rep. 373; 104 L.J.K.B. 153; 152 L.T. 194; 51
T.L.R. 77; 78 S.J. 783, C.A.
(2) Daniels v. Vaux [1938] 2 K.B. 203; [1938] 2 All E.R. 271; 107 L.J.K.B. 494; 159 L.T. 459; 54
T.L.R. 297; 82 S.J. 335.
(3) Goodbarne v. Buck [1940] 1 K.B. 771; [1940] 1 All E.R.613; 109 L.J.K.B. 837; 162 L.T. 259; 56
T.L.R. 433; 84 S.J. 380; 31 Cox C.C. 380, C.A.
(4) Barnard v. Sulley (1931) 47 T.L.R. 557.
(5) Hewitt v. Bonvin [1940] 1 K.B. 188; 109 L.J.K.B. 223; 161 L.T. 360; 56 T.L.R. 43; 83 S.J. 869, C.A.
(6) Attorney-General v. Simpson [1901] 2 Ch. 671; 70 L.J.Ch. 828; 85 L.T. 325; 17 T.L.R. 768, C.A.
(7) Rutherford v. Richardson [1923] A.C. 1; 92 L.J.P. 1; 128 L.T. 399; 67 S.J. 78; 39 T.L.R. 42, H.L.
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(8) New Brunswick Railway Co. v. British and French Trust Corp. Ltd. [1939] A.C. 1; [1938] 4 All E.R. 747, H.L.
(9) Chahin v. Boateng [1963] 2 G.L.R. 174, S.C.
(10) Mersey Docks and Harbour Board v. Coggins & Griffith (Liverpool) Ltd. [1947] A.C. 1; 115
L.J.K.B. 465; 175 L.T. 270; 62 T.L.R. 533; [1946] 2 All E.R. 345, H.L.
(11) Ormrod v. Crossville Motor Services [1953] 1 W.L.R. 1120; 97 S.J. 570; [1953] 2 All E.R. 753,
C.A.
NATURE OF PROCEEDINGS
APPEAL by the defendants against the judgment of Archer J. wherein he awarded the infant plaintiff damages jointly and severally against the defendants for personal injuries sustained through the negligent driving of the second defendant of a lorry owned by the first defendant. The facts are sufficiently stated in the judgment of Azu Crabbe J.A.
COUNSEL
Akyea-Djamson for the appellants.
Osei for the respondent.
JUDGMENT OF AZU CRABBE J.A.
This is an appeal against the judgment of Archer J., 12 November 1964, unreported; digested in (1965) C.C. 6, whereby £G3,100 damages together with 200 guineas costs, were awarded against the first and second defendants (appellants) jointly and severally, in favour of the plaintiff (respondent). The action was brought by the plaintiff, a female infant, aged nine years, by her mother as next friend, claiming damages from the two defendants jointly and severally for personal injuries sustained by her through the negligence of the second defendant (a driver), who as agent or servant or both of the first defendant (lorry-owner), drove a Morris vehicle one and a half ton weight, registration No. AE 7814 on 3 November 1962, without due care and negligently knocked down the plaintiff. The issues which were formulated for trial were: (1) whether or not the second defendant was negligent; (2) whether or not the defendants were liable; and (3) whether or not the plaintiff was entitled to the reliefs sought. The first issue was a question of fact for the learned trial judge, who, after hearing the evidence, had no difficulty in finding that the second defendant was negligent. In my view the learned judge’s conclusion was clearly right, for there was ample evidence to support it.
The learned trial judge then posed the question: “Who is liable?” In trying to find an answer to this question he embarked upon a careful and thorough examination of the evidence led on behalf of
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the defence, and the end-result was he found that the first defendant was the owner of vehicle No. AE 7814 which was being driven by the second defendant at the time of the accident. This finding he expressed in the following passage of his judgment: “I therefore find that at the time of the accident the property in the vehicle AE 7814 was vested in the first defendant as owner and that the second defendant drove the vehicle with the knowledge and consent of the first defendant. It is not necessary for me to find whether the second defendant was agent or servant of the first defendant. I therefore hold the first and second defendants jointly and severally liable for negligently causing the injuries to the plaintiff.” Before arriving at this conclusion, however, the learned trial judge had to consider who the owner of vehicle No. AE 7814 was in terms of the Road Traffic Ordinance, 1952 (No. 55 of 1952), and the owner in whose name an insurance policy certificate had been issued in accordance with the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958). Consideration of these matters became necessary during the trial, because the first defendant denied that he was the owner of the vehicle; he having sold it to the second defendant about three months before the accident. The learned trial judge, however, rejected the first defendant’s contention because, as he said: “It is obvious that by keeping the insurance policy in the name of the first defendant and by renewing the licences in the name of the first defendant, both the first and second defendants intended that the property in the vehicle should not pass until the full purchase price had been paid.”
It seems to me, at first blush, that in determining the liability of the first defendant solely on the fact of ownership in these circumstances the learned trial judge must have had in mind the principle in Monk v. Warbey [1935] 1 K.B. 75, C.A. which decided that the owner of a motor car who permits another person to drive so that there is no insurance in relation to the user of the car against third party risks is guilty of a breach of the statutory duty imposed upon him by section 35 of the Road Traffic Act, 1930 (20 & 21 Geo, 5, c. 43), of England, whereby he becomes liable in damages to a third party who has been injured by the negligence of the uninsured driver of the car. This principle enables the injured third party, where the driver who is primarily responsible is impecunious so that nothing is obtainable from him, to proceed directly against[p.129] of [1967] GLR 125 the person responsible for the breach of the statutory duty. But this principle does not apply where the insurance has nothing to do with the injury suffered: see Daniels v. Vaux [1938] 2 K.B. 203. In this case the evidence shows that there was a valid insurance policy in relation to the user of the vehicle in existence at the time of the accident, but unfortunately the insurance certificate was not tendered in evidence at the trial. The question whether the insurance also covered the driver at the material time was not investigated. In my view, if the learned trial judge was applying the principle in Monk v. Warbey (supra), then certainly he erred, as far as the personal liability of the first defendant is concerned, because there was no evidence that the second defendant was uninsured. For an owner of a vehicle to be held liable, qua owner, to a third party without liability of his insurers to meet judgment against him, it must be proved that he permitted his vehicle to be driven by an uninsured person. This, no doubt would amount to a breach of his statutory duty under the Motor Vehicles (Third Party Insurance) Act, 1958 (supra), and thereby render him liable in damages to an injured third party. Liability of the first defendant under the Monk v. Warbey principle (supra) would depend upon whether he could have been successfully prosecuted under section 3 (1) and (2) of the Motor Vehicles (Third Party Insurance) Act, 1958, for having caused or permitted the second defendant to use vehicle No. AE 7814 on the road without there being in force a proper policy of insurance: see Goodbarne v. Buck [1940] 1 K.B. 771, C.A. In this case there is no evidence that the first defendant committed a breach of the 1958 Act. In Salmond on Torts (14th ed.) at p. 647, the learned author states the two courses open to an injured party as follows: “[A]n injured person will be in the position of being able to allege that the defendant is liable to him on two distinct grounds — first, as vicariously responsible for the tort of his servant; secondly, as personally responsible for a breach of some obligation laid directly on him.” The plaintiff’s claim was not for breach of a statutory duty under the Motor Vehicles (Third Party Insurance) Act, 1958. It was a claim, as the learned trial judge himself observed in his judgment, for damages for negligence. Where a plaintiff in an action for negligence proves that damage has been caused by the defendants’ motor car, the fact of ownership of the motor car is only prima facie evidence that the motor car, at the material time, was being driven by the owner, or by his servant or agent: see Barnard v. Sulley (1931) 47 T.L.R. 557.
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In this appeal it has been submitted by Mr. Akyea-Djamson, counsel for the defendants, that for the plaintiff to succeed against the first defendant it must be established: (1) that the first defendant was the owner of the vehicle; (2) that the second defendant was employed by him in the sense that he was being paid by the first defendant and that he could dismiss him; (3) that the vehicle was being used for the purpose or business of the first defendant; and (4) that the vehicle was under the control and management of the first defendant. He submitted further that, quite apart from the learned judge’s failure to make any finding whether or not the second defendant was the servant or agent of the first defendant, it was established that the vehicle was in possession and under the control of the second defendant. Although I do not agree with Mr. Akyea-Djamson that the evidence in the case established that the second defendant was in control of the vehicle, I accept his four propositions as correct. I regret that I found it difficult to follow Mr. Osei’s argument on this aspect of the case, but he seemed to have placed great reliance on the provisions of the Motor Vehicles (Third Party Insurance) Act, 1958, and sections 4 and 5 of the Road Traffic Ordinance, 1952 (supra). Although he did not cite Monk v. Warbey (supra) the tenor of his argument left me in no doubt that he was relying broadly on the principle enunciated in that case. I think Iam right in taking this view because his references to the 1958 Act and the Ordinance of 1952 would otherwise be pointless. Mr. Osei further submitted that the learned judge was right in saying that it was not necessary to find that the relationship of master and servant existed. But in my view the mere fact of consent by the owner to use his motor car is not evidence of agency.
The fact that the learned judge was wrong in failing to find that the second defendant was the agent or servant of the first defendant is, in my judgment, demonstrated beyond peradventure by the case of Hewitt v. Bonvin (1940) 109 L.J.K.B. 223, C.A. to which I respectfully refer with approval. In that case a son obtained from his mother, who had authority to grant it, permission to drive his father’s motor car. Through the negligent driving of the son a friend in the car was killed. In a claim against his father, because he was the owner of the car, the trial judge held the father liable because his son was driving the car as his agent or servant. In his judgment MacKinnon L.J. said at p. 225: “In my opinion the plaintiff must, in order to make the father Bonvin liable, establish (1) that the son was employed to drive the car as his father’s servant, and (2) that he was, when
[p.131] of [1967] GLR 125
the accident happened, driving the car for the father, and not merely for his own benefit and for his own concerns. In my opinion the plaintiff did not establish either of these propositions. The learned lord justice concluded his judgment as follows at p. 225: “The following is the essential passage in the judgment of Lewis, J.: ‘It seems to me clear that the boy was driving this car with the consent of the owner. Therefore he was on that journey the servant or agent — the agent — of Mr. Bonvin.’ That is in my opinion certainly an erroneous statement of the law.” Lord Justice du Parcq also said at p. 225: “It is plain that the father’s ownership of the car cannot of itself impose any liability upon him. It has long been settled law that where the owner of a carriage or other chattel confides it to another person who is not his servant or agent, he is not responsible merely by reason of his ownership for any damage which it may go in that other’s hands: see the judgment of Littledale, J., in Laugher v. Pointer ((1826) 5 B. & C., 547, 561-563), where a distinction is drawn between the responsibility of the owner of movable property and that of the occupier of a house or land. That part of the judgment of Littledale J. was expressly approved by the Court of Exchequer in Quarman v. Burnett, per Baron Parke (6 M. & W. 399, at p. 509 and see especially pp. 510, 511). It is true that, if a plaintiff proves that a vehicle was negligently driven and that the defendant was its owner, and the Court is left without further information, it is legitimate to draw the inference that the negligent driver was either the owner himself, or some servant or agent of his (Barnard v. Sulley 47 T.L.R. 557), but in the present case all the facts were ascertained, and the Judge was not left to draw an inference from incomplete data.”
He later observed at p. 226:
“The driver of a car may not be the owner’s servant, but the owner will be nevertheless liable for his negligent driving if it be proved that at the material time he had authority, express or implied, to drive on the owner’s behalf. Such liability depends not on ownership, but on the delegation of a task or duty.” But should this appeal succeed merely because the trial judge had stopped short of making a finding that the second defendant was either the servant or agent of the first defendant? I think not.
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In Hewitt v. Bonvin (supra), du Parcq L.J. remarked that if the court had thought that on a fair view of the evidence agency was established, it would clearly have been right to dismiss the appeal in that case. This remark strongly commends itself to me as good sense and I shall approach this appeal in the same waybecause I think it would be a travesty of justice in these circumstances to allow this appeal when there is ample evidence on record to establish the liability of the first defendant. Moreover, I think that rules 31 and 32 of the Supreme Court Rules, 1962 (L.I. 218), confer upon this court the power and authority to rehear the whole case and give any judgment and make any order which ought to have been made by the court of first instance. The relevant terms of rules 31 and 32 are these: “31. The Court may … make any order necessary for determining the real question in controversy in the appeal … and generally shall have a full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Court as a Court of first instance, and may rehear the whole case … 32. The Court shall have power to give any judgment and make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs. These powers may be exercised by the Court, notwithstanding that the appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.” The corresponding provisions in the English Rules of the Supreme Court are contained in Order 58, rr. 3 and 4. There are a few English decisions explaining the scope of the powers conferred upon the court by these rules. In Attorney-General v. Simpson [1901] 2 Ch. 671, C.A. Vaughan Williams L.J. delivering the leading judgment of the court said at pp. 712-713: “The result, in may judgment, is that the order of Farwell J. must be amended, first, as to the river above St. Ives, by declaring that the defendant Simpson is entitled to a reasonable toll under the charter of 14 Car. 1.
But I do not think that toll extends to pleasure-boats; it extends only to boats carrying commodities. Secondly, as to the St. Ives stanch, I think the defendant Simpson is only entitled to the tolls so long as he keeps the stanch in such repair as to render the river navigable.
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I think that under Order LVIII., r. 4, we can make the proper declaration, notwithstanding that there is no appeal by the plaintiffs against so much of the judgment as declares that the defendant is not bound to repair and maintain the works.’, Stirling L.J. also said at p. 720: “I think that this Court ought to exercise the power conferred by Order LVIII., r. 4, namely, ‘to give any judgment and make any order which ought to have been made, and to make such further or other order as the case may require.’ The order confers power to do this, although the appeal may be from part of the judgment only, and although the respondent ma not complain of the decision.” See also Rutherford v. Richardson [1923] A.C. 1, H.L. and New Brunswick Railway Co. v. British and French Trust Corp. Ltd. [1938] 4 All E.R. 747 at p. 763, H.L. The dicta in Attorney-General v. Simpson (supra) were referred to in the local case of Chahin v. Boateng [1963] 2 G.L.R. 174 where the Supreme Court exercised the powers conferred upon it by rules 31 and 32 of the Supreme Court Rules, 1962, and discharged the original judgment and gave such Judgment as should have been given by the trial court.
The main defence of the first defendant was that he was not the owner of the vehicle, but the learned trial judge found against him on that. He denied that the second defendant paid daily earnings to him because at the time of the accident he had sold the car to the second defendant who had paid him the full price.
This denial cannot be true because the undisputed evidence is that he paid for periodic repairs done to the vehicle while it was in the possession of the second defendant. Besides, the accident was promptly reported to him after the event. One piece of evidence which the second defendant gave is most significant. He said that the first defendant told him that he was to drive the vehicle on a “work and pay”basis. The learned judge called Mr. Young, National Organiser of the Teamsters Union of the T.U.C., to explain the term “work and pay” as understood in the driving profession. From his evidence it would appear that the main features of this system are that the owner of the vehicle remains the owner of the vehicle until full payment of the vehicle is made by the hirer. The owner imposes restrictions on the user, and as a rule he pays for the costs of repairs, but sometimes he adds it to the purchase price. In some cases the hirer is regarded as a co-partner of the owner, but the owner has the right to seize the vehicle. The owner does not pay the hirer a monthly salary, but
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Mr. Young said: “Under the ‘work and pay’ system the hirer is the servant of the owner.” There is no doubt in my mind that in this case where there is evidence: (1) that the earnings are paid to the first defendant, (2) that both the vehicle licence and insurance are in his name, (3) that he gives instructions as to user of the vehicle, (4) that repairs to the vehicle were paid by him, and (5) that he had a right to seize the vehicle; then the first defendant must surely be entitled to control the second defendant as to how the vehicle was to be run. As Lord Porter said in Mersey Docks and Harbour Board v. Coggins & Griffith (Liverpool) Ltd. [1947] A.C. 1 at p. 17, H.L.: “[I]n most cases no orders as to how a job should be done are given or required: the man is left to do his own work in his own way. But the ultimate question is not what specific orders, or whether any specific orders, were given but who is entitled to give the orders as to how the work should be done.”
It seems to me that there is evidence which proves beyond doubt that the second defendant was the servant or agent of the first defendant. In any event the “work and pay” system under which the vehicle was operated clearly shows that both defendants were jointly interested in the venture, and therefore the first defendant must be liable for damages caused through the negligence of the second defendant: see Ormrod v. Crossville Motor Services [1953] 2 All E.R. 753, per Denning L.J. at p. 755.
In the result I would dismiss the appeal with costs.
JUDGMENT OF OLLENNU J.A.
I agree.
JUDGMENT OF LASSEY J.A.
I also agree.
DECISION
Appeal dismissed.
T. G. K.
