SARATH KUMARA PERERA v. WINIFRED KEERTHIWANSA AND OTHERS

018-SLLR-SLLR-1993-2-SARATH-KUMARA-PERERA-v.-WINIFRED-KEERTHIWANSA-AND-OTHERS.pdf


274
Sri Lanka Law Reports
[1993] 2 Sri L.R.
SARATH KUMARA PERERA,
v.WINIFRED KEERTHIWANSA AND OTHERS
SUPREME COURT.
G. P. S. DE SILVA, C.J.,
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. APPEAL NO. 66/92.
A. NO. 37/82 (F).
C. GAMPAHA NO. 21936/M.
Negligence – Death of passenger – Vicarious liability of master for negligenceof servant.
The defendant had hired his car and driver Sally to Baur & Co. Ltd., througha company called Cosmos Travels & Tours to transport some tourists from theKatunayake Air Port to Trincomalee. It was Sally's duty to bring back thedefendant's car to Colombo. Having dropped the tourists at Trincomalee, Sallycame alone in the car up to Kurunegala. At Polwatte close to Kurunegala hepicked up one Hettiarachchi and he next drove up to the Kurunegala bus standwhen he picked up the deceased Keerthiwansa and another passenger, a woman.Neither Hettiarachchi nor the other passengers knew Sally. The car had a rednumber plate and was driven at a very high speed when at Kalagedihena thecar struck a post. Keerthiwansa was seriously injured and later succumbed tohis injuries. Sally had been orally instructed by his master, the defendant notto give lifts to passengers. Keerthiwansa's widow and children sued the defendant.
Held : (Ramanathan J. dissenting)
In every case where it is sought to make the master liable forthe conduct of his servant, the first question is to see whether the servant wasliable. If the answer is 'Yes', the second question is to see whether the employermust shoulder the servant's liability.
The liability of the servant, Sally was not challenged. The questionthen was whether the defendant was vicariously liable for the act of Sally in givinga "lift" to the deceased.
The question whether the servant was acting within the scope ofhis authority is in every case a question of fact. The dividing line which separatesthe acts which fall within the scope of the servant's authority from those whichfall outside is never rigid ; it is flexible and has to be decided having regardto all the facts and circumstances of each case.
The fact that the car carried a red number plate is a crucialundisputed fact. It is a representation that it was a car authorised to carrypassengers for a fee. The secret instructions given by the defendant to Sallywere unknown to the public.'
sc
Sarath Kumara Perera v. Winifred Keerthrwansa and Others
275
There is a difference between implied authority and ostensibleauthority. The Servant's act may be an authorised act for the purposes of vicariousliability even if it is done solely for his own purposes if in the circumstancesthe permission of the master can be implied. Ostensible authority is different ;it may be held to exist if, whatever the true state of affairs, the stranger hasbeen misled by appearances.
Sally was returning to Colombo on an authorised journey and therewas no deviation from the authorised route. He had not abandoned his master'swork. The vehicle had a red number plate and at the time of the accident therewere 3 passengers in the car none known personally to Sally. Sally was notgiving a lift to a friend. The passengers, it may be reasonably be informed, werewilling to pay for the journey and they travelled in the car with the permissionand consent of Sally. The defendant had known Sally for only a year and usedto employ him whenever the need arose. The act of taking Keerthiwansa in thecar was within the ostensible authority of Sally and was not an unauthorisedact. Therefore Sally was acting within the scope of his employment in takingthe deceased as a passenger and the defendant is thus vicariously liable.
Cases referred to :
Young v. Edward Box & Co. Ltd., (1951) 1 TLR 789, 793.
Limpus v. London General Omnibus Co. 1 H & C 526, 539.
Marsh v. Moores (1949) 2 KB 208, 215.
Priestly v. Dumeyer (1898) 15 SC 393.
Beard v. London General Omnibus Co. (1900) 2 QB 530.
Ilkiw v. Samuels (1963) 1 WLR 991.
Estate Van Der Byl v. Swanepoel (1927) AD 141, 151.
Rossouw v. Central News Agency Ltd., (1948) 2 SA (WLD) 267.
Twine v. Beans Express Ltd., (1946) 1 All RE 202, (1946) 175 LT 131CA.
South African Railways and Harbours v. Marais (1950) 4 SA (a£>) 610.
Conway v. Wimpey Co. Ltd., (1951) 2 KB 266.
Rose v. Plenty (1976) 1 WLR 141.
APPEAL from Judgement of the Court of Appeal.
R.C. Gooneratne for defendant Appellant.
S.Sivarasa, P. C. with Shammi Perera and Sampath Walgampaya for plaintiff-respondents.
Cur. adv. vult.
276
Sri Lanka Law Reports
[1993] 2 Sri L.R.
November 24, 1993.
P. S. DE SILVA, C.J.,
The plaintiffs filed this action against the defendant claiming damagesin a sum of Rs. 283,000. Admittedly, the defendant was the ownerof the motor car bearing distinctive No. 6 Sri 5728. It was not disputedthat A. M. Sally was the driver employed by him on the date whenthe car met with an accident, namely on 21st July 1975, atKalagedihena on the Colombo-Kandy Road. It was the case for theplaintiffs that G. W. Keerthiwansa who was a passenger in the carat the time of the accident died as a result of the negligent drivingof Sally. The first plaintiff is the widow of G. W. Keerthiwansa andthe 2nd, 3rd, 4th and 5th plaintiffs were the dependent children ofthe deceased. The accident was admitted by the defendant but itwas the defendant's case that his servant Sally was acting outsidethe scope of his employment at the time of the accident and thereforehe was not liable in damages. After trial, the District Judge held withthe plaintiffs and awarded a sum of Rs. 150,000 as damages to theplaintiffs and a further sum of Rs. 33,123 as expenditure incurredby the 1st plaintiff. The defendant unsuccessfully appealed againstthe judgment of the District Court to the Court of Appeal. Thedefendant has now preferred an appeal to this court.
The defendant has hired his car and the driver to Baur & Co.Ltd., through a company known as Cosmos Travels & Tours totransport some tourists from the Katunayake Air Port to Trincomalee.It was Sally’s duty to bring back the defendant’s car to Colombo.Having dropped the tourists at Trincomalee, Sally came back alonein the car Up to Kurunegala. At the Polwatte junction close to theKurunegala town, he stopped the car at the point where witnessHettiarachchi was, and offered him a lift. Hettiarachchi got into thecar and Sally drove the car and stopped it in front of the bus standat the Kurunegala town. At the bus stand the deceased Keerthiwansaand another woman were picked up. According to Hettiarachchi, hehad not known Sally previously. Hettiarachchi knew the deceased andwith the permission and consent of Sally the deceased also got intothe car. At that stage, a women also got into the car. Sally continuedon his journey to Colombo. At Kalagedihena he met with this accidentat about 5.30 a.m. According to Hettiarachchi, the car was drivenvery fast (60 M.P.H). The car moved in a zig zag manner andstruck against a post by the side of the road ; the car overturned.
sc
Sarath Kumara Perera v. Winifred Keerthiwansa and Others
(G. P. S. de Silva, C. J.)
277
W. Keerthiwansa had to be lifted out of the car. The medicalevidence revealed that he had sustained serious injuries which hadresulted in paralysing him below his neck. He was hospitalised andhe ultimately succumbed to his injuries on 14th October 1977.
Mr. Gooneratne for the defendant appellant strenuouslycontended that Sally had no authority to give a lift to the deceasedKeerthiwansa. The principal defence was set out in issue (10) whichreads as follows :
" Did Abdul Majeed Sally have any authority to carry personsother than foreigners for hire at the time of this accident." (Theanswer to this issue by the District Judge was " Not proved ").
As stated by Lord Denning MR in Young v. Edward Box & Co.Ltd., (1), " In every case where it is sought to make the master liablefor the conduct of his servant, the first question is to see whetherthe servant was liable. If the answer is 'Yes', the second questionis to see whether the employer must shoulder the servant's liability."
At the hearing before us, the liability of the servant Sally was not •challenged. The question then is whether the defendant is vicariouslyliable for the act of Sally in giving a " lift “ to the deceased in thedefendant's car on the return journey from Trincomalee to Colombo.
At this point it is relevant to state that the finding of the Court ofAppeal is that the defendant had verbally instructed Sally not to takeany passengers in the car on his return trip to Colombo fromTrincomalee. Althogh this finding is contrary to the finding of theDistrict Judge, I will proceed on the basis that Sally had been orallyinstructed not to take any passengers on his return trip. Howeveras observed by Willes J., " The law is not so futile as to allow amaster, by giving secret instructions to his servant, to dischargehimself from liability." (per Willes J., in Umpus v. London GeneralOmnibus Co.®.
In this connection the Court of Appeal has rightly stated ; " Inthe instant case there were no written instructions. There was noway 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 ifhe ostensibly had such authority."
278
Sri Lanka Law Reports
[1993] 2 Sri L.R.
The question whether a servant was acting within the scopeof his authority is in every case a question of fact (Marsh v.Moores(3). In Priestly v. Dumeyer w the defendant's servant who wasemployed to drive a cab plying for hire allowed a friend to drive it.The court held that the defendant was liable in respect of an accidentcaused by the negligence of his servant's friend. On the other hand,in the case of Beard v. London General Omnibus Co.,(5) the defendantCompany was held to be not liable for the accident caused by thenegligence of the conductor of the omnibus who drove the bus inthe temporary absence of the driver. In llkiw v. Samuels (6), it washeld that a servant who is authorised to drive a motor vehicle andwho permits an unauthorised person to drive in his place may yetbe acting within the scope of his employment. The dividing line whichseparates the acts which fall within the scope of the servant'sauthority from those which fall outside is never rigid ; it is flexibleand has to be decided having regard to all the facts and circumstancesof each case.
What then are the facts which are relevant to the issuewhether Sally was acting within the scope of his authority in takingKeerthiwansa as a passenger in the car?. On the evidence onrecord the facts and circumstances established may conveniently beenumerated as follows :
Sally was returning to Colombo having dropped the touristsat Trincomalee. He was on an authorise'd journey.
There was no deviation whatever from the authorised route.
It cannot be said that he had abandoned his master's workfor he had at all times material retained the custody andcontrol of his master's vehicle.
The vehicle had a red number plate. This was a clearrepresentation to the public that the vehicle was authorisedto carry passengers for a fee, whatever may have beenthe secret instructions, unknown to others, that were givenby the master to his servant.
SCSarath Kumara Perera v. Winifred Keerthiwansa and Others
(G. P. S. de Silva, C. J.)279
At the time of the accident there were no less than 3passengers in the car including the deceased. None of thepassengers were personally known to Sally. This certainlywas not a case of a servant giving a lift in his master'scar to a Mend.
It is not unreasonable to infer, having regard to the normalcourse of conduct, that a person who travels as a passengerin a car, with a red number plate, is ready and willingto pay for his journey.
The 3 persons who travelled in the car (including thedeceased) did so with the permission and consent of Sally.
The defendant had known Sally only for about a year priorto the accident. Sally was only a casual employee calledon to drive the car whenever the need arises. The defendantknew nothing of Sally's antecedents. The defendant hadfailed to exercise the degree of care expected of a prudentemployer in selecting the person whom he employs. Thedefendant was content to give mere oral instructions to suchan employee.
The prohibition against taking passengers on the return journey,very strongly relied on by Mr. Gooneratne, has to be consideredin the context of the facts set out above and in the light of the legalposition succinctly stated by Wessels J., in Estate Van Der Byl v.Swanepoel (7).
"It is within the master's power to select trustworthy servantswho will exercise due care towards the public and carry out hisinstructions. The third party has no choice in the matter and if theinjury done to the third party by the servant is a natural or likelyresult from the employment of the servant then it is the master whomust suffer rather than the third party. The master ought not to beallowed to set up as a defence secret instructions given to theservant where the latter is left, as far as the public is concerned,with all the insignia of a general authority to carry on the kind ofbusiness for which he is employed " (The emphasis is mine).
280
Sri Lanka Law Reports
[1993] 2 Sri L.R.
The fact that the car carried a red number plate is a crucial,undisputed fact in this case. The red number plate constituted arepresentation that it was a car authorised to carry passengers fora fee. The secret instructions given by the defendant to Sally wereunknown to the public. There was no notice inside the car prohibitingthe presence of unauthorised passengers. It is significant that Sallystopped the car in front of the bus stand at Kurunegala and it wasthere that the deceased got into the car with the consent of Sally.He was carrying 3 passengers picked up at different places. Referringto the distinction between implied and ostensible authority SalmondStates :-
" There is a difference between implied authority and ostensibleauthority. The servant's act may be an authorised act for the purposesof vicarious liability even if it is done solely for his own purposesif in the circumstances the permission of the master can be implied.Ostensible authority is different ; it may be held to exist if, whateverthe true state of affairs, the stranger had been misled by appear-ances." (Salmond Law of Torts 19th Edition page 524).
Having regard to the facts and circumstances relevant to theinstant case enumerated above, in particular the matters set out as
, (v), (vi) and (vii), I am of the view that the act of takingKeerthiwansa in the car was within the ostensible authority of Sallyand was not an unauthorised act. I accordingly hold that Sally wasacting within the scope of his employment in taking the deceasedas a passenger in the car and that the defendant is thus vicariouslyliable.
Bearing in mind that the answer to the question whether the masteris vicariously liable for the act of his servant depends on the factsand circumstances of each case, I now pass on to consider someof the decisions on which strong reliance was placed by Mr. Gooneratnefor the defendant-appellant.
Rossouw v. Central News Agency Ltd., (8> This was a casewhere Ashburner (the servant) while driving his employer's car gavea lift to a person whom he saw walking along the road. The carmet with an accident and the passenger was seriously injured.Admittedly, at the time of the accident Ashburner was on “ thebusiness of his employers ". The question before the court waswhether in picking up the passenger, Ashburner was acting within
sc
Sarath Kumara Perera v. Winifred Keerthiwansa and Others
(G.P.S.de Silva, C.J.)
281
the scope of his employment. The court answered this question inthe negative. It is to be noted that there are significant facts whichdistinguish this case from the case in appeal before us
the car " was an ordinary private car indistinguishable inits outward appearance from any other car on the road °. (at page269).
the conveyance of passengers was no part of the businessof the employers ;
“the giving of a lift to a stranger was something
completely foreign to the scope of Ashburner's duties, it wasneither necesary " nor incidental to them (at p. 271).
Twine v. Beans Express Ltd., (9>. Here the driver of thedefendant's van was authorised to carry certain classes of passen-gers but strictly forbidden to carry any other class of passengers.The plaintiffs husband who was not in the permitted categoryaccepted a lift in the van. An accident occurred and he was killed.The court held that the defendants were not liable. An important factin this case was that there was a notice on the dash board of thevan which read as follows " No unauthorised person is allowedon this vehicle. By Order Beans Express Ltd., “ Thus the passengerin the van had been clearly informed that he was in the position ofa trespasser. There is no question here of secret oral instructionsbeing given by the master to his servant.
South African Railways and Harbours v. Marais (,0), this wasa case where the respondent's husband Marais was killed whiletravelling on the engine of a train as a result of the derailment ofthe train. It was not disputed that Marais was issued with a ticketwhich entitled him to travel in a compartment in the guard's coachat the tail end of the train. The evidence was that had he remainedin that compartment he would not have been killed ; but what hedid was that sometime before the derailment he left the compartmentand boarded the engine. Watermeyer C.J.,
stated
” It was not the work of the administration to transportpassengers on the engine and if the driver chose to do so hewas acting outside the scope of his employment. It cannot be saidthat transporting a passenger on the engine was a negligent
282
Sri Lanka Law Reports
[1993] 2 Sri L.R.
manner of driving the engine ; it had nothing to do with engine
was in my opinion entirely the driver's own act."
Thus it is clear that the decision turned on the proved facts andcircumstances in each case.
For these reasons, I affirm the award of the sum of Rs. 183,123to the plaintiffs by the District Court and I further order that thedefendant must pay legal interest on the aforesaid sum from thedate of the decree in the District Court till payment in full. Subjectto this variation, namely the payment of interest, the appeal isdismissed with costs fixed at Rs. 2000.
Kulatunga, J.
I have perused in draft, the judgments of my Lord The Chief Justiceand my brother Ramanathan. I agree with the judgment of my LordThe Chief Justice. My brother Ramanathan has relied on the decisionin Conway v. Wimpey Co. Ltd.<11). With great respect, the facts ofthat case are different from those in the case before us.
RAMANATHAN, J.
This is an appeal from the judgment of the Court of Appeal whichhas affirmed the award of damages made by the District Court forcausing the death of the deceased by one Abdul Majeed Sally theservant of the defendant-appellant-appellant by his negligent act. Thedeceased was the husband of the 1st plaintiff and the father of the2nd to the 6th plaintiffs-respondents-respondents.
The defendant-appellant-appellant was the owner of the vehicleand master of the driver Abdul Majeed Sally his servant. The vehiclehad been hired by Cosmos a travel agency who in turn had hiredthe vehicle to Baur & Co., to transport specified tourists from KatunayakeAirport to Club Oceanic Hotel in Trincomalee.
At the trial the defendant led evidence to establish that the servantwas given specific oral instructions not to give lifts to anyone. Thedriver had acted contrary to these instructions.
sc
Sarath Kumara Perera v. Winifred Keerthiwansa and Others
(Ramanathan, J.)
283
The learned District Judge in his judgment has on the questionof the prohibition by the master not to carry passengers on the returnjourney, concluded that no such instructions had been in fact given.He based his conclusions on the presumption that if there had beensuch instructions they would have been in a written form and thefailure to have such written instructions indicates that no suchinstructions whatever had been given.
I find it difficult to accept the reasoning adopted by the learnedDistrict Judge which had led him to this conclusion. The mere factthat there were no written instructions is no basis, in my opinion,for saying that there were no instructions whatever written or oral.
The Court of Appeal has taken a different view on this aspectand proceeded on the basis that verbal instructions had been givento the driver not to take passengers on the return journey and givenreasons for why they chose to do so. I accept the findings of theCourt of Appeal that verbal instructions had been given. HoweverI am not in agreement with the Court of Appeals determination onthe law with regard to the vicarious liability of a master for theprohibited acts of his servant.
In the general run of cases, the duty of both master and servantis the same, but this is a coincidence and not a rule of law. Fora master to be liable he must owe a duty of care to the injured.
It was decided in Twine v. Beans Express Ltd., (9) for a masterto be liable for the negligence of his servant the injured must comewithin a class of persons to whom a duty to take care was owedby the master. In this case the driver of a vehicle had given a liftto the plaintiff, contrary to the defendants instructions. The plaintiffwas injured due to the negligence of the driver. The employer wasnot liable to the plaintiff as the servants act was wholly outside thecourse of the servants employment and not an improper means ofcarrying it out.
This principle of law was followed in Conway v. Wimpey Co.,Ltd., (,1>. A number of contractors were employed in work at theHeathrow Airport. The defendant company had instituted a busservice for their own employees and the driver was prohibited by thedefendant company from giving lifts to anyone other than their own
284
Sri Lanka Law Reports
[1993] 2SriLR.
employees. A non employee of the company had travelled in the busand due to the negligence of the driver had been injured. Asquith,LJ held that the act of the driver in giving a lift to the plaintiff wasoutside the scope of his employment. It was not merely a wrongfulmode of performing an act of the class which the driver was employedto perform but was the performance of an act which he was notemployed to perform.
In Rose v. Plenty <,2) a milk roundsman had contrary to theinstructions of his employer made use of the services of a boy forthe purpose of assisting his delivering of milk in the milk float. Theboy was injured due to the negligent driving of the vehicle by theroundsman. The Court of Appeal by a majority held that the employerwas vicariously liable for the negligence.
Lord Denning, MR in his reasoning has established that thedecisive point was that it was not done by the servant for his ownpurpose but for his master's, business.
On an analysis of the cases it would appear that the principleson which a master's liability are determined fall into three categories.
where the prohibited act relates to the mode of performingan act of the class which the servant was employed toperform the employer will be vicariously liable.
where the prohibition relates to an act of a class whichhe was not employed to perform at all the employer is notliable. The prohibition mark the limits of the scope ofemployment. Therefore for any act done outside that scope,the employer will not be liable.
where the injury has been caused in the course of perform-ing an act, which the servant was not employed at all toperform, the master will nevertheless be liable where theprohibited act was committed in the furtherance of themaster's business.
The facts of the present case briefly are as follows :
sc
Sarath Kumara Perera v. Winifred Keerthiwansa and Others
(Ramanathan, J.)
285
The defendant-appellant-appellant had hired his car and driverto Baur & Co., through Cosmos Travels to transport specifiedtourists from Katunayake Airport to Club Oceanic Hotel inTrincomalee. The document V2 shows Baurs had paid for bothits outward and the inward journey. There was a prohibition notto take passengers on the return journey.
The driver having dropped the tourists on his return journeyvia Katunayake had offered a lift to one Hettiarachi who was onthe road. From the Kurunegala bus stand the driver picked upthe deceased and another passenger. The car was driven fastand due to the negligence of the driver the car over-turned andinjured the deceased, who subsequently succumed to his injuries.
The evidence disclosed that the driver was given oral instructionsnot to carry any person on their return journey. The driver had actedcontrary to the prohibition and was performing an act which he wasnot employed to perform. It cannot be said that the deceased wasfurthering the master’s business or interest as was in the case ofRose v. Plenty(,2) where the boy was assisting the milk roundsmanin his work.
For the reasons stated I hold that the appellant was not vicariously liablefor the negligence of his servant. In the circumstances, the plaintiffs’ actionfails and I set aside the judgments of both Courts below. I allow the appeal.There will be no costs.
I very much regret that I have to dissent from the judgment ofmy Lord the Chief Justice.
Judgment of the District Judge affirmed.