086-NLR-NLR-V-58-L.-M.-ELLIS-Appellant-and-L.-D.-K.-PARANAVITANE-Respondent.pdf
1956 Present : H. N. G. Fernando, J,, and T. S. Fernando, J.
M. ELLIS, Appellant-, and L. T>. K. PAT?ANA VTT ANE, RespondentS. C. 337—D. C'. Gainjiaha, 3.792f37
Delict—'Matter ancl servant—“ Coarse of employment ”.
A master is not responsible far the negligence of liis servant where tlio latteris about liis own business with the permission but- not at- the request of or on thodirection or order of tlie master. Therefore. if A permits 13, who is n car driverin A’s employment, to drive A’s car for 73's own purposes, A is not liable indamages for 73's negligence in doing so.
^^.PPEAD from a judgment of the District Court, Gampalia.
A. B. Candappa, with Vernon Marlyn, for the defendant-appellant.No appearance for the plaint iff-respondent.
Cur. adv. vult.
December 5, 1956. T. S. Febxaxdo, J.—
As a result of a motor car belonging to the defendant coming into colli-sion with a motor car of the plaintiff in which she was being driven theplaintiff received injuries and her car was badly damaged. The collision
was admitted by the defendant to have been due to the negligent drivingof her car by one Perera, a car driver in her employment. In this actioninstituted by the plaintiff against the defendant for recovery of damages,suffered by reason of the negligence of the defendant’s servant acting" within the scope of his usual employment ”, the learned District Judgehas estimated the damages suffered by the plaintiff on account of theinjuries caused to her person at Rs. 500 and the damages to her car atRs. 3,500 and awarded her the sum of Rs. 4,000. The defendant hadhowever denied liability on the ground that at tiie time of the collisionPerera was not driving the car within the scope of his employment. Itis this defence that arises for consideration on this appeal.
According to the evidence, tlie_ ear was maintained by the defendantfor the purpose of sending her children to school and bringing them backhome. On the day of the collision, after the children had been broughtback home from school, Perera made a request to the defendant that he beallowed to drive away in the car to enable him to pay a visit to his wifewho was ill at the time. The request was granted by the defendant.This evidence was not challenged in cross-examination and lias not beendoubted by the learned District Judge. Indeed, an acceptance of thetruth of this evidence is implicit in his judgment. Nevertheless, thelearned District Judge has held the defendant liable in damages onaccount of the negligence of her servant Perera on the ground that (1)Perera’s function was to drive her car, and (2) he was in fact driving hercar at the time of the collision. The learned j udge has also found that thedriving of the car at the relevant time was with the full knowledge andauthority of the defendant and has held that the mere fact that thepurpose of the particular trip in which Perera was engaged in at the timeof the collision between the two cars was one in which the defendant wasnot interested did not absolve her from liability.
The fact that the defendant knew that the car was to be used for aparticular purpose b}r Perera and authorised its use for that purpose intire sense that she permitted its use is not, in my opinion, sufficient toattach liability to the defendant for the tort of her servant Perera. Toattach liability the circumstances in which Perera drove the car mustbe such as to constitute a driving within the scope of his employmentas a driver. Tire evidence docs not warrant the inference that, there wasanything in the nature of a request, a direction or an order emanating fromthe defendant to Iter servant to drive the car on this occasion so as toconstitute the occasion one on which he was employed by her to drivet he car. I would refer in this connection to the following passage appear-ing in the standard work on Torts by Salmond. (lltli. ed), at page 115 :—
" A master is not responsible for the negligence of his servant whileengaged in doing something which he is permitted to do for his own.purposes, but not employed, to do for his master; I am liable only forwhat I employ my servant to do for me, not for what I allow him to do-for himself. If I permit my servant for his own ends to drive my car,.
I am not liable for his negligence in doing so. In this respect ho is not-my servant, but a mere bailee to whom I have lent my property ; andthere is no more reason why I should answer for his conduct in suc-h a.
■ matter than reason why I should answer for that of my friends or my- children to whom, without personal negligence on my part, X lend orintrust property that may bo made the instrument of mischief, ”
I should perhaps add that the plaintiff was not represented at tliohearing of the appeal before us', and such researches into case law as wehave ourselves been able to undertake have not led u-s to a previousdecision where a court has attached liability to a master in damages for thenegligence of his servant where the latter was about his own business orthe business of a person other than his master with the permission but notat the request of or on the direction or order of the master.
In reaching a decision in favour of the plaintiff, the learned District• Judge has purported to follow the South African case of Li mason v.Leyland Motors 1 referred to in Negligence in Delict by Macintosh andScoble, 2nd. ed., at page 100. Quite apart from the fact that McKerronin his treatise on the law of Delict (see 4th. ed., at jiage 131) submitsreasons why the decision in that case was wrong, that case is distinguish-able from the present case as there the use of the car by the servant couldhave been said to have been in furtherance of his employer’s business.The facts of the present case approximate more closely to those in theEnglish case of Higbid v. IJammelt Limited 2 contrasted with Limason v.Leyland 3Iotors by the learned authors on tlio very same page 100. InHigbid’s case it was held that when an employee, for his own purposes,used his employer’s bicycle, by the employer’s permission, the employerwas not liable for the employee’s negligence. The reason for the decisionwas that the employee was not doing something in tlie course of theemployer’s business at the time of the negligent act.
That there is no difference between the Roman-Dutch law and theEnglish law on the point that arises in this case is apparent not only ona consideration of cases decided iu South Africa and in England, but isalso clear from the judgment of Innes J. A., in the leading case of Mki-C v.Martens, 3 in the course of which he stated :
“ The principle generally adopted by those (South African) courtsis that expressed by Pothier as follows : ‘ Whoever appoints a personto any function is answerable for the wrongs and neglects which hisagent may commit in the exercise of the functions to which lie isappointed In effect it is identical with the English rule that a masteris answerable for the torts of a servant committed in the course of hisemployment. The reason underlying this important exception to themaxim poena sitos tenet aaclores has been differently expressed bydifferent writers. But perhaps the most satisfactory statement of itis that given by Pollock on Torts founded upon a pronouncement ofChief Justice Shaw of Massachusetts :* I am answerable for the
wrongs of my servant or agent, not because he is authorised by meor personally represents mo, but because lie is about my affairs, andI am bound to sec that my affairs are conducted with due regard to thesafetj' of others.’ However that may be, we may, for practical pur-
(1910) Is. R. 1 K. B. D. 1SS.
(1963) 2 A. R. R. at 766.
poses, adopt the principle that a master is answerable for the torts ofhis servant committed in the course of his employment, bearing inmind that an act done by a servant solely for his own interests andpurposes, and outside his authority, is not done in the course of hisemployment, even though it may have been done during his employ-ment.’
The same principle is echoed in the words of Wesscls J. A., in Estate VanDer Byl v. Swanepol1,
“ What, however, the employer can say is : ‘ when my servant didthe act complained of he was not about my affairs and lie did not dotbe act whilst looking after my afFairs or in the course of my employ-ment, but he did it whilst on his own business and for his own purposes’.’ ’
Apart from llirjbid’s case referred to already by me, there are otherdecisions of the Knglish courts giving effect to the same principle. InBritt v. Gahnoye and Nevill-, the facts were that the first defendant, whohad the second defendant in his employment as a van-driver, lent him hisprivate motor car after the day’s work was finished, to take friends to atheatre. The second defendant by his negligent driving injured theplaintiff. One of the reasons given hy Shearman J. in awarding judgmentin favour of the first defendant was that the journey not being on themaster’s business the latter was not liable for his servant’s act. Tiieprinciple was more vividly exemplified in the judgment of the Court ofAppeal in the case of Hewitt v. Bonvin el al.3 where the facts were that ason obtained from his mother, who had authority to grant it, permissionto drive his father’s motor car. The son wanted the ear for his own pur-poses in order to drive t wo girl friends to their homes. Neither the fatliornor the mother knew the girls and it was no concern of either of them thatthe girls should be taken to their homes. On the way, through the negli-gent driving of the son, the ear was upset- and a friend who had accom-panied the party was killed. In an action by the administrator of thedeceased man against the father, the owner of the car, it was held thatthe son was not- driving the ear as his father’s servant or agent- or for hisfather’s purposes, and that therefore the father was not liable for theson’s tortious act. MacKinnon L.J., reversing the judgment of Lewis J.,stated as follows :—
“ The essential passage in the judgment of Lewis J. is the followingsentence: ‘It sec-ms to me clear that the boy was driving this ear* with the consent of the owner. Therefore lie was on that journey theservant or agent—the agent—of the owner’. I am quite sure thatthis is an erroneous statement of the law. ”
Again, in the recent case of Ormrod v. Grossvillc Motor Services Ltd. theprinciple was set out by Denning L.J. in t-lie following words :—
“ The law puts an especial responsibility on the owner of a vehiclowho allows it to go on the road in charge of someone else, no matter
whether it is his servant, his friend, or anyone else. If it is being usedwholly or partly o"n the owner’s business or for the owner’s purposes,the owner is liable for any negligence on the part of the driver. Theowner only escapes liability when he lends it or hires it to a third personto be used for purposes in which the owner has no interest or concern. ’’
In the present case, the learned District Judge’s finding that the functionof Perera was to drive the defendant’s car does not appear to meto be complete, if it stands unqualified. To put it accurately, the findingshould have been that it' was Perera’s.function to drive the defendant’scar for the defendant’s purposes, and the question of the defendant’sliability is dependent on the answer to the further question whether atthe time of the collision Perera was driving the car for the defendant’spurposes or about her business. The learned District Judge has foundthat at the time of the collision Perera was driving the defendant’s carthe use of which he had obtained from the defendant—after his normalwork was over—for the purpose of enabling him to visit his sick wife.Having regard to this finding which must form the basis for the applicationof the relevant law, I am clearly of opinion that Perera, having beenallowed to take the car for his own purposes, was not at the time of thecollision driving the car for the defendant’s purposes or about her businessand was not acting within the scope of his employment. In thecircumstances no liability attached to the defendant in law, and theplaintiff’s action should have been dismissed. I would therefore allow the'appeal and direct that the plaintiff's action be dismissed with costs inboth courts.
H. X. G. Fernando, J.—I agree.
Appeal allowed.