PACKER v. SEKONDI/TAKORADI MUNICIPAL COUNCIL [1960] GLR 259

DIVISION: IN THE SUPREME COURT

DATE: 23RD DECEMBER, 1960

BEFORE: KORSAH, C.J., GRANVILLE SHARP, AND AKIWUMI, JJ.S.C.

CASES REFERRED TO

(1) Joel v. Morison (1834) 6 Car. and P. 501; 172 E.R. 1338;

(2) Irwin v. Waterloo Taxi-Cab Company Limited [1912] 3 K.B. 588.

NATURE OF PROCEEDINGS

APPEAL from a decision of Sarkodee-Addo, J., in the High Court Sekondi on February 25, 1959 in an action for damages for negligence arising out of a car accident. The plaintiff sued the Sekondi/Takoradi Municipal Council and also an employee of the council, Judgment was given against the employee, and the claim against the council was dismissed.

JUDGMENT OF GRANVILLE SHARP, J.S.C. Granville Sharp, J.S.C. delivered the judgment of the court: In this case the plaintiff has sued for damages for injuries occasioned by the negligence of a servant in the employment of the defendant council when driving a small motor-bus, the property of the council. The employment, the negligence and the amount of damages have been found and assessed by the learned judge and the only question raised in this court has been whether he was correct in his finding that the council are not liable to the plaintiff because the co-defendant, the council’s servant, was not acting in the course of his employment at the time when his negligence caused personal injury and damage to the plaintiff. The facts relative to the issue thus raised, as they are narrated in evidence, are in small compass. They are that the second defendant worked as a fitter with a driver’s licence to enable him to drive vehicles on test. He worked on the material date under a foreman named Kwata and both Kwata and another foreman had the power to order vehicles out and also to test them, and the second defendant “was”, to quote the council’s manager, “under Mr. Kwata’s orders and was bound to obey his instructions and normally was bound by his orders”. Thus the council delegated to Kwata their own power to give such orders.

The particular bus driven by the second defendant at the time of the accident was one of a number of buses that had been withdrawn from general service, but were still available for private hire. It was a bus which was in fact held by the council between the hours of 4 to 5 a.m. and again between 10 to 11 p.m. for the use of municipal bus drivers and conductors going to and returning from their work.

There were notices in the garage warning employees and all concerned not to use these buses for their private or unofficial use.

On the 10th May, 1956, Kwata the foreman ordered the second defendant, who was on duty at the time, to drive him home. This defendant’s evidence was that:

It was quite proper for Mr. Kwata to give me instructions and/or orders which I should obey. He did not tell me that any testing was to be done. If Mr. Kwata asks me to do a job outside my profession such as mending a light even though I am not an electrician if I know how to do it, I will do it. It is not for me to question why. When he asked me to take out the bus I simply had to obey his orders”.

The witness further stated that at the time it was raining heavily.

Such are the facts which gave rise to the contention of the first defendants that they were not liable for the negligence of their co-defendant because he was at the time acting outside the course of his employment.

As long ago as 1934, Baron Parks, in the case of Joel v. Morison (6 Car & P. at p. 503) summed up the law as follows: –

“If the servants, being on their master’s business, took a detour to call upon a friend, the master will be responsible. If you think the servants lent the cart to a person who was driving without the defendant’s knowledge, he will not be responsible. Or, if you think that the young man who was driving took the cart surreptitiously, and was not at the time employed on his master’s business, the defendant will not be liable. 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.” Ever since the time when this summation of the law was given it has been held to be the classic test in a case such as the present, and in more recent times has repeatedly been approved in the courts. In

Irwin v. Waterloo Taxi-Cab Company Limited ([1912] 3 K.B. 588) it was held that where a driver in the defendants’ employment by the order of the general manager whose orders it was his duty to obey drove him in a cab upon his private business, the general manager having no authority to use the cab for that purpose and the driver having no reason to suppose that the order was an improper one, the defendants were liable for the consequences of the driver’s negligence in the course of the journey. The decision in Joel v. Morison (supra) and Baron Parker’s reasoning as well as later cases in which it had been examined and approved were fully considered, and much emphasis was placed upon the fact that it was the duty of the driver in his position as a servant of the company to obey the orders given to him in the ordinary matters of his service. In the present case it was the duty of Quaye Fio to take orders from Kwata and this latter person was his superior officer who had general authority to order vehicles out and to order testing and to act for the council in giving such orders. I cannot think that the second defendant could have supposed that the order given to him, even if unusual, was an unreasonable order or one which Kwata had no authority to give. Quaye Fio was to remain on duty until 10 p.m.

He was one who had a driver’s licence for the purpose of driving buses on test, and it would in my opinion be taking too narrow a view to hold that the journey he was ordered to take was so foreign to his employment as to lead him to question the order given, or to think that he was using the vehicle for private or unofficial use. He was to drive his superior officer to his residence at a time when heavy rain was falling and in circumstances when it was in the interest of the defendant council that his superior officer and their foreman should not be put to the risk attendant upon a journey unprotected and without cover through a heavy rainfall. Each case has to be considered in the light of its own special circumstances, but I would go further and on general principles conclude that the defendant council are liable. A servant is presumed to act in the course of his employment unless it can be shown that he acted in his own interest in his use of his master’s property, surreptitiously, without the knowledge of his master and independently of orders from any superior whose orders he was bound to obey. This general duty to obey orders that emanate from superiors is in the general interest of employers and is therefore of considerable importance in decisions of the kind here in question. As I have said, I hold the view that the learned judge, albeit that the question raised is always of some nicety, and that the borderline, marking the scope of employment is often not very clear, took too narrow a view of the matter. I would therefore allow this appeal and, in reversing that part of the judgment which is complained of, order that judgment be entered in the action against the municipal council.

DECISION

Appeal allowed.