SARATH KUMARA PERERA v. KEERTHIWANSA AND OTHERS

002-SLLR-SLLR-1992-2-SARATH-KUMARA-PERERA-v.-KEERTHIWANSA-AND-OTHERS.pdf


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SARATH KUMARA PERERA
v.KEERTHIWANSA AND OTHERS
COURT OF APPEALPALAKIDNAR, J. (P/CA)
A. DE Z. GUNAWARDANA, J.
A. NO. 37/82(F)
C. GAMPAHA NO. 21936/M8 MAY. 29 JUNE AND
24 AUGUST 1992
Delict – Vicarious liability of the master for injuries caused by negligent act of aservant – Can secret instructions given absolve the vicarious liability of themaster – Meaning of ’scope of employment’ and, in the 'course of employment' -Prescription – Requirement that the cause of action must be pleaded in the plaint- Whether inflation should be taken into account in assessing damages.
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The plaintiff filed action for damages against the defendant, who is the master ofthe driver of a hiring car, for having caused the death of the deceased, who wasthe husband of the 1st plaintiff and the father of the 2nd to 5th plaintiffs, as aresult of the negligence of the defendant’s driver. The car had gone on a hire todrop some tourists at a hotel in Trincomalee. On its return trip to Colombo,contrary to verbal instructions by the master, the driver had picked up threepassengers, one of whom was the deceased. At Kalagedihena on the Colombo-Kandy road, the car had met with an accident and the deceased suffered seriousinjuries in consequence of which he died about two years later.
Held:
that all the facts and circumstances of this case show that the driver wasacting within the sphere of employment and thereby the act of giving a lift to thedeceased, would come within the scope of his employment. Therefore, thedefendant, as the master is vicariously liable for having caused the death of thedeceased as a result of the negligence of his driver.'
that in an action by dependants of the deceased for recovery of damages fordeprivation of maintenance and assistance and recovery of expenditure incurred,prescription will begin to run only from the date of the death of the deceased.
that where facts and circumstances constituting the cause of action and thedifferent claims that have accrued to the plaintiffs are set out in the plaint and inaddition the reliefs sought are averred in the prayer to the plaint, there is sufficientcompliance with section 40 of the Civil Procedure Code.
that it is very much the practice in judicial decisions, to take into considerationinflation, in assessing damages.
Per Gunawardana, J. “We are in agreement that it ought to be so. Otherwise,the decree of Court will move away from reality."
Cases referred to:
Estate Van DerByl v. Swanpoel (1927) S.A.L.R. (A.D.) 141,145,151.
Lumpus v. General Omnibus Co. 32 L.J. Ex. 40.
Rossouw v. Central News Agency, Ltd. (1948) 2 S.A.L.R. 267.
South African Railways and Harbours v. Marais 1950 S.A.L.R. 610.
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Twine v. Bean's Express Limited (1946) 1 ALL ER 202.
Mckize v. Masters 1914 AD 382.
Feldman (Pty) Ltd.. v. Mall 1945 S.A.L.R. (AD) 733, 736.
Joel v. Morrison (1834) 6 CP 502, 503.
Municipal Council of Jaffna v. Dodwell & Co., 74 NLR 25, 28.
Mitchell v. Mulholland (No. 2) (1972) 1QB65,83.
Cookson v. Knowles (1977) QB 913. 921.
APPEAL from District Court of Gampaha.
R. C. Gooneratne for defendant-appellant.
G. F. Sethukavalar, RC. with ShammilJ. Perera for plaintiff-respondent.
Cur adv vult.
15th October, 1992.
A. DE Z. GUNAWARDANA, J.
This is an appeal from a judgment of the District Court ofGampaha, dated 3, February 1982, awarding a sum of One Hundredand Fifty Thousand Rupees (Rs, 150,000/-) as damages to thePlaintiffs-Respondents and an additional sum of Thirty ThreeThousand one Hundred and Twenty Three Rupees (Rs. 33,123/-), asexpenditure incurred by the 1st Plaintiff-Respondent. The Plaintiffs-Respondents alleged that the death of the deceased, who was thehusband of the 1st Plaintiff-Respondent and the father of the 2nd to5th Plaintiffs-Respondents, was caused by the negligent driving of amotor car by the Defendant-Appellant's driver, in the course of hisemployment. After trial, the learned trial judge held with the Plaintiffs-Respondents and awarded the aforesaid damages.
The Defendant-Appellant had hired his car and the driver, to Baur& Co. Ltd., through a company called Cosmos Travels and Tours, totransport some tourists from Katunayake Airport to the Club Oceanic
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Hotel, Trincomalee. Having dropped the tourists at Trincomalee thedriver came back alone in the car upto Kurunegala, where he offereda lift to one Hettiaratchi, who was on the road. Both of them travelledupto the Kurunegala bus stand, where the deceased and a womanpassenger were also picked up. The car proceeded on its journey toColombo and at Kalagedihena on the Colombo-Kandy road, the carmet with an accident at about 5.30 a.m. on 21, July 1975. Accordingto witness Hettiaratchi the car was driven at a fast speed, around 60
M.P.H. At the time of the accident the car had moved in a zig zagmanner and struck against a post by the side of the road andthereafter it had overturned. The deceased who was travelling in therear seat had to be lifted out of the car as he could not move hislimbs. The deceased had sustained serious injuries on his neckcausing a dislocation of the cervical spine, which had resulted inparalysing him below his neck. He was admitted to the hospital onthe same day. He underwent medical treatment in hospital till hedied, on 14, October 1977.
The learned Counsel for Defendant-Appellant submitted that theDefendant-Appellant is not vicariously liable to pay damages forcausing the death of the deceased, because the act of the driver ingiving a lift to the deceased was a completely unauthorised act,which was outside scope of his employment and in no way furtheredthe Defendant-Appellant’s interest. In this context it would beappropriate to examine the facts of the case, to ascertain whether in• fact the act of the driver in giving the lift to the deceased was“completely unauthorised". The relevant evidence in this regardcomes from the witness Wadood who was the Manager of Baur & Co.Ltd., the Defendant-Appellant himself, and the driver. According toWadood his company has informed the suppliers of vehicles, not totransport anyone when the vehicles come back empty. He wasunable to say whether written instructions were given to that effect.His company had dealings with Cosmos & Co. and had no contactwith the driver. The position taken up by the Defendant-Appellant inhis evidence was that he had given specific instructions, verbally, tothe driver not to take in passengers on his return trips and to takeonly persons who have hired the car. However, in cross-examinationhe has admitted that no such written instructions were given. The
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driver in his evidence has admitted that the owner, the Defendant-Appellant, has told him not to take in passengers on his return trips,when the car is coming “empty”. Thus it appears that verbalinstructions had been given to the driver not to take in passengers onhis return trips.
In this context it must be noted that merely giving instructionswould not enable the master to disclaim liability. It is up to the masterto select trustworthy servants who will exercise due care towards thepublic and carry out his instructions. If the injury that has beencaused to a third party is a likely or natural result that could beexpected from the type of employment the servant was engaged toperform, then it is only just and equitable that master should suffer,than the third party. As was pointed out by Wessels, J. in Estate VanDer Byl v. Swanpoel<1).
“The Master ought not to be allowed to set up as a defence secretinstructions given to the servant where the latter is left, as far as thepublic is concerned, with all the insignia of a general authority tocarry on the kind of business for which he is employed".
“The law is not so futile as to allow the master by giving secretinstructions to a servant to set aside his liability”Per Blackburn inLumpus v. General Omnibus CoP.
in the instant case there were no written instructions. There was no 'way how a third party would have known that the driver had beengiven instructions not to carry passengers on his return trip. On theother hand, the driver had conducted himself in such a way as if heostensibly had such authority.
In any event, even if such instructions had been given, does thatabsolve the vicarious liability of the master, the Defendant-Appellant?The real issue then is, was the driver acting within the scope of hisemployment in giving a lift to the deceased? It is undoubtedly adifficult question to answer, as the law in this area is far from beingsettled, and the best approach is to examine the facts of each caseand apply the relevant legal principles accordingly.
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The learned Counsel for the Defendant-Appellant cited the SouthAfrican case of Rossouw v. Central News Agency, LtdP where theemployee (one Ashburner) of the respondent company, while on thebusiness of his employers, had given a lift to the applicant in the car,the said employee was driving. The car had met with an accidentdue to the negligence of the employee, and the applicant wasseriously injured. It was held that as the giving of the lift to theapplicant was something completely foreign to the scope of theemployer’s duties, the respondent company was not liable. Thelearned Counsel drew our attention to the following observation madeby Blackwell, J. in the said case viz., “. . . the only question is,whether it can be fairly said that in picking up and conveying theapplicant he was acting in the course of his employment.” Blackwell,
J.went on to state further that, “ In the present case the giving of a liftto a stranger was something completely foreign to the scope ofAshburner’s duties, it was neither necessary nor incidental to them."
The learned Counsel for Defendant-Appellant also cited the caseof South African Railways and Harbours v. Marais (4), whereGreenberg, J. has quoted Lord Greene M. R. in the case of Twine v.Bean's Express Limited(5), that the driver was “doing two things atonce." Greenberg, J. went on to explain that, "He was driving hisengine from one place to another in the course' of his employmentand simultaneously was doing something totally outside the scope ofhis employment, viz. conveying someone on his engine who had no' right to be there; to this person, viz. the deceased Marais (or to hisdependants), the appellant owed no duty to take care."
Since a master is liable for the acts done by a servant “in the 'course of his employment” or “within the scope of his employment", itwould be appropriate to examine what these phrases actually mean.As was stated in the case of Mckize v. Masters (6>, the basis of liabilityappears to be the same in English law. Watermayer, C.J. has pointedout in the case of Feldman (Pty) Ltd., v. Mallm, that,
“. . . the expression “scope of employment" is apt to bemisleading, unless one is alive to the fact that the words “scopeof employment” are not equivalent to “scope of authority". One
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is apt, when using the expression “scope of employment” inrelation to the work of a servant, to picture to oneself a particulartask or understanding, or piece of work assigned to a servant,which is limited in scope by the express instructions of themaster, and to think that all acts done by the servant outside ofor contrary to his master's instructions are outside the scope ofhis employment: but such a conception of the meaning of“scope of employment" is too narrow. Instructions vary incharacter, some may define the work to be done by the servant,others may prescribe the manner in which it is to beaccomplished: some may indicate the end to be attained andothers the means by which it is to be attained. Provided theservant is doing his master’s work or pursuing his master’s endshe is acting within the scope of his employment even if hedisobeys his master's instructions as to the manner of doing thework or as to the means by which the end is to be attained …Consequently, a servant can act in disobedience of his master’sinstructions and yet render his master liable for his acts”.
The majority of the Judges (4 out of 5) applied the said criteria inthe said case to ascertain what the words “scope of employment”means and held that the master was liable for the negligent acts ofhis servant. The facts of the said case briefly are as follows. OneBaloyi was employed by the appellant company as a van driver, inwhich van the company made deliveries of its goods to variousretailers in the suburbs. On the day of the accident, after making thelast delivery, he handed over the monies collected to one of thecompany’s officers, at his house. Thereafter his duty was to take thevan to the company's garage. However, instead of going direct to thecompany’s garage, he deviated and went to Sophiatown, where hehad rented a house. He attended to his affairs there, and was laterinveigled by a friend to have some beer, and drank enough to makehim unfit to drive the van safely to the company's garage. Later in theevening, when he was on his way to park the van in the company’sgarage, negligently collided with and killed the husband of theplaintiff and the father of her two minor children.
Watermayer, C.J. having analyzed the above facts, in the saidcase, came to the following conclusion.
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“Baloyi had not abandoned his master's work entirely. He wasstill retaining custody and control of the van on behalf of hismaster, both at the time when he became intoxicated and at thetime when the accident occurred, for the ultimate purpose ofdelivering it at the Sauer Street garage in accordance with hismaster's instructions. He probably hoped that his escapadewould remain undetected. In these circumstances, in myopinion, he was driving the van, not solely for his own purposebut also for his master in his capacity as a servant, and theharm which was caused must be attributed, in part, to anegligent performance of his work as a servant, and his masteris therefore legally responsible for it."
It is reasonable to discern from the above conclusion that theliability had been attached to the master, on the basis that thedeparture from the path of duty by the servant did not take himcompletely away from the functions entrusted to him as servant, toexonerate his master from the legal responsibility, for the servant'snegligence.
If on the other hand, the servant had abandoned the work of themaster completely in order to attend to his own affairs, then hismaster may not, according to the circumstances, be liable for theharm the servant may cause to third parties. This position was aptlyexplained by Baron Parke, J. in the case of Joel v. Morrison a where• he used the famous phrase “frolic of his own”. In summing up to thejury in that case he explained,
“If you think that the young man who was driving took the carsurreptitiously, and was not at the time employed on hismaster's business, the defendant will not be liable …. If hewas going out of his way against his master's impliedcommands when driving on his master's business he will makehis 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 notbe liable."
In each case whether the servant has departed so far from hismaster's instructions or disobeyed the instructions of the master, so
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as to make the acts of the servant outside the scope of hisemployment, is always a question of fact. The dividing line whichseparates the acts within the scope of servant’s employment fromthose outside is uncertain and has to be decided having regard to allthe facts and circumstances of each case.
In the case of Estate Van DerByl v. Swanpoell' the appellant wasthe owner of several taxis, and he employed several drivers. Thetaxis plied for hire principally between G and S railway stations. Thedrivers were expressly forbidden by the appellant to take passengersanywhere within the S municipality, as they were not licensed to runfor hire within the S municipality. On one occasion one of the driversdisobeyed this instruction, and conveyed a passenger from the Srailway station to a place within the S municipality and on his wayback to the station negligently drove his taxi into a cart driven by therespondent, who was injured.
In dismissing the appeal against the award of damages againstthe appellant, Wessels, J. with whom the other four judges agreed,observed at page 145 that,
“When, however we come to consider whether a master is liableto third parties for the negligence of his servant when the latterdoes an act in the course of his employment but not reasonablynecessary to carry out his orders, then two divergent views maybe considered. We may either adopt the view that the master’sliability to third parties must be so narrowed down that he willthen and then only be liable for the tortious act of his servantwhen the latter is carrying out the exact instructions of hismaster or was engaged in an act which was reasonablynecessary to carry out those instructions, or else we may adopta wider interpretation, of a master’s liability and hold that themaster is liable to a third party whenever the servant does anact which strictly speaking falls outside of the specialinstructions of the master and also outside of what wasabsolutely necessary to carry out those instructions but whichwas done whilst the servant was engaged in the affairs of hismaster, or in the course of the employment to which the servantwas appointed …
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Now it is quite clear that this Court has adopted the largerliability of the master and it is therefore this larger liability whichis the law of the Union."
When we consider the facts of the instant case in the light of theprinciples discussed above, it is clear that the Defendant-Appellant’sdriver was acting in the course of his employment, at the time of theaccident. He was driving the car towards Colombo, in theperformance of his assigned duty of bringing the car back toColombo. He had not deviated from the normal route to Colombo.The fact that Defendant-Appellant had given verbal instructions not tocarry passengers on the return trip shows that it was a foreseeableact, which the Defendant-Appellant had envisaged could happen inthe performance of driver’s duty, of bringing the car back toColombo. It may be called a natural or likely act which the driverwould have engaged in whilst performing his duty. It is also to benoted that this car was used for carrying passengers for hire and hada red number plate, according to the evidence of the Defendant-Appellant. The driver was employed for the purpose of carryingpassengers for hire. Third parties would know that it is a car plying forhire since it carried red number plates. Of course, the Defendant-Appellant states that the car was used only to carry tourists. All thesefacts and circumstances go to show that the driver was acting withinthe sphere of employment and thereby the act of giving a lift toPlaintiff's-Respondent's husband, the deceased, would come within■ the scope of his employment. Therefore, in our view, the Defendant-Appellant, as the master is vicariously liable for having caused thedeath of the deceased, as a result of the negligence of his driver.
The learned Counsel for the Defendant-Appellant submitted thataction is prescribed, in that the accident occurred on 21, July 1975and the action was instituted on 8, October 1979. In this regard thelearned Counsel for the Plaintiffs-Respondents pointed out that thisaction is for deprivation of maintenance and assistance owing to thedeath of the deceased, and for expenditure incurred by the 1stPlaintiff-Respondent from the date of the accident until the death ofthe deceased. This is not an action for recovery of damages as aresult of the accident. Therefore, the learned Counsel for the
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Plaintiffs-Respondents rightly submitted that, prescription would runonly from the date of the death of the deceased, viz. 14, October1977. We are in agreement with the said submission and we hold thatthe action is not prescribed.
The learned Counsel for the Defendant-Appellant submitted thatthe Plaintiffs-Respondents have not pleaded a cause of action in theplaint. He cited the case of Municipal Council of Jaffna v. Dodwell &Co.<9>. He further submitted that there is no relief claimed in the plaint.Therefore, the overruling by the trial Judge of the preliminaryobjection raised in this case on that basis, was erroneous. Upon acareful examination of the plaint, it is clear that the plaintiffs have setout the facts and circumstances constituting the cause of action andmore specifically in para 7, set out the different claims that haveaccrued to them. They have also prayed for specific reliefs underthree heads in the prayer to the plaint. This in our view is sufficientcompliance with section 40 subsection (d) and (e) of the Civil'Procedure Code, which states that a plaint shall contain the followingparticulars namely,
"(d) a plain and concise statement of the circumstancesconstituting each cause of action, and where and when it arose.Such statement shall be set forth in duly numberedparagraphs … . (e) a demand of the relief which the plaintiffclaims;"
In Municipal Council of Jaffna v. Dodwell & Co. the case relied onby the Counsel for the Defendant-Appellant, the original cause ofaction pleaded in the plaint was for the recovery of the price of goodsdelivered upon a contract of sale of goods. At the stage of the trial,the plaintiff tried to raise issues upon an unpleaded cause of actionbased on unjust enrichment, to the extent of the value of the goodsdelivered. H. N. G. Fernando, C.J. having set out, “the cir-cumstances constituting the cause of action" necessary to be statedin a plaint in an action for unjust enrichment, went on to observe that,
"The ‘circumstances' which I have mentioned at (1) and (2)above are also circumstances which need to be stated in a
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plaint in an action to enforce a buyer's liability under a contractof sale. They were perforce stated in the plaint in the instantcase. But none of the other circumstances which I have listedare stated in this plaint; and these are the very circumstances, astatement of which distinguishes a plaint which pleads thecause of action based on unjust enrichment."
Thus it is clear that the facts and circumstances of the said caseare so different that the decision in that case has no application to theinstant case. In any event, in our view there is sufficient compliancewith the provisions of section 40 of the Civil Procedure Code.Therefore we hold that the learned District Judge was right in over-ruling the said preliminary objection and accepting the plaint.
The final submission made by the learned Counsel for theDefendant-Appellant wasthat the learned District Judge had erred inlaw in taking into account inflation, in assessing the damages. It is tobe noted here that although the Plaintiffs-Respondents claimedRs. 250,000/- as damages, the learned District Judge has reducedthat amount by Rs. 100,000/- and awarded only Rs. 150,000/- asdamages, which he thought was an equitable and reasonableamount having taken into account all the circumstances of the case.It is only reasonable to assume that the monetary compensationawarded to an injured party or a person who has suffered a loss must. necessarily help to alleviate his injury or loss to a practical orreasonable level. In arriving at such a realistic assessment inflationnecessarily is a factor to be taken into consideration. This reality hadbeen acknowleged. and adopted in several judicial decisions in therecent past. For instance, in the case of Mitchell v. Mulholland (W), itwas held that,
t
“No one doubts that an award of damages must reflect thevalue of the pound sterling at the date of the award, andconventional sums attributed to, say, the loss of an eye, havebeen adjusted upwards in recent years on that account.Inflation which has reduced the value of money at the date ofthe award must, thus, be taken into account."
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In McGregor on Damages (Fifteenth Edition – 1988) at page 629, itis stated that, “This result seems now to be generally accepted”.
Lord Denning M.R. has, in Cookson v. Knowles observed that,
. .the Courts invariably assess the lump sum (viz. for the non-pecuniary loss to an injured plaintiff) on the ’scale’ for figurescurrent at the date of the trial.”
Thus it is seen, that it is very much the practice in judicialdecisions, to take into consideration inflation, in assessing damages.We are in agreement that it ought to be so. Otherwise, the decree ofCourt will move away from reality. Therefore, we are of the view thatthe learned District Judge had not erred when he took into accountinflation, in assessing the amount to be awarded as damages.
Accordingly we affirm the said judgment of the learned DistrictJudge dated 3, February 1982 and dismiss this appeal with costsfixed at Rs. 1050/-.
K. PALAKIDNAR, J. – I agree.
Appeal dismissed.