107-NLR-NLR-V-57-THE-TRUST-CO.-LTD-Appellant-and-T.-H.-I.-DE-SILVA-Respondent.pdf
[lx THE PHIVV COUXC1L]
1956 Present : Lord Oaksey, Lord Tucker, Lord Cohen, Lord Keithof Avonholm, and Jdr. L. M. D. de SilvaTHIS TIM'ST CU., LTD., Appellant, and T. H, I. VK SILVA,
Jvcsponclcilt
l’liivv Cocxctr, Aite.vl Xo. 20 of I Doo
,V. C. 229—D. C. Colombo, 2-3,0'JS
Master and servant—.Ycgligcnt driving of motor earJlctcntion of control tig person
other than driver—Jtcsjionsibititg for damage.
A person in control of a motor vehicle—though not actually driving—is liablefor the negligcnco of the driver over whom he lias the right to exercise control.
I*, was one of three " field officers ’’ employed by the defendant insurnneoCompany. The work of the field officers was to supervise and control the can-vassers and to assist them to bring in business to the Company. They were [.aida monthly salary and an overriding commission on business introduced throughthem. It was the duty of any canvasser or field officer bringing in a proposalfor life insurance to forward with it a doctor's certificate with regard to theproponent. The doctor's fees were paid by t-lic Company.
One day the plaintiff, who was a doctor, suffered personal injuries by reason ofthe negligent driving by If., a canvasser, of a motor ear in which flic plaintiffwas a passenger on a journey undertaken from Colombo for the purpose ofexamining a number of proponents in Jaffna. On the journey there werepresent in the car four persons, viz., the plaintiff, J-f., I?., and G. who was a paiddriver. I’., H., and G. took turns in driving the car. At the time of the accident■ H. was driving and P. was sitting in the back seat. The evidence disclosed thatthe car had been supplied to P. by tlieCompany under a hire purchaso agreementwhich recited that P. was employed by the Company as a field officer and thatunder the conditions of his appointment he was obliged to discharge certainobligations oncl that with a view to helping him discharge these obligations theCompany had lent him the money to purchase near in the name of the Company.It was also accepted by the trial Court that the plaintiff had stipulated with If.that transport should be supplied for the. journey and that If. had agreed aridarranged with P. for the use of his car.
Held, that P. was a servant of the Company and that in making the journeyin the car which had been supplied to him for the purpose of carrying out liisduties lie was acting in the course of anil for the purposes of his employment-.Accordingly, although II. was at the wheel of the ear at the moment of theaccident, the fact tliat-P. was at all times in control of the car ami was exercisingthat control as a servant of the Company on its behalf rendered the Companyliable to pay damages to the plaintiff.-
A
-TA.PPEAL from a judgment of the Supreme Court reported in■55 X. L. B. 241.
Xcil Lawson, Q.C., with B. K. Handoo, for the defendant appellant.
19lvii_
j >■" U 55003— 1.500 (n /5G1.
tiir Frank Soskicc, Q.C., with P/tineas Qnass, Q.C., and Crime t intAmemsinyhe, for the plaintiff respondent.
Car. rule. cull.
March 10, I95G. [Delivered by Poitu TreKKi:]—
The 1 •espondent (hereinafter referred (o as i:thc plaintiff'”) snfl’eredpersonal injuries by reason of the negligent driving by one Holsingher ofa motor car in which he was a passenger on a journey from Colombo toJaffna on 27th April, 1030.•
The question in the appeal is whether t he appellant (hereinafter referredto as '■ the Company ”) is responsible for Jlolsingher’s negligence.
The plaintiffs' claim failed at the trial in the .District Court of Colomboon Sth March, U)51, but this judgment was reversed on appeal by theSupreme Court of Cejlon oil 20th Oc-tobcr, 1033, when judgment, wasdirected to be entered in his favour for Its. 30,000 with costs.
The Company transacts insurance business in Ceylon with its principalplace of business and registered office in Colombo. Some of its businesscomes through canvassers who are paid commission on business introducedby them but receive no salary. Holsinglicr was one of these canvassers.The Company employ three field officers ” or field organisers ”. Theirduties are to supeiu-i.se and control the canvassers and to assist them tobring in business. They are paid a salary of approximately Its. 100 amonth and an overriding commission on business introduced throughthem. They are answerable to the secretary of the Company who per-forms the duties generally carried out by a managing director. Anycanvasser or field officer bringing in a proposal for life insurance mustforward with it a doctor’s certificate with regard to the proponent. It isleft to the canvasser or field officer to select the doctor and make thenecessary arrangements for medical examinations but the doctors’ feesarc paid by the Company. Doctors normally provide their own transport.A field officer cannot function efficiently without a car. One of these fieldofficers was named Percra. He was supplied with a car by the Companyunder a hire purchase agreement dated 30th July, 191$, by which Percraagreed to pay at least 11s. 200 a month towards the full purchase priceof 11s. 5,S75 plus interest at G per cent. On payment in full the car-was to become the property of Percra. The agreement rcc-itcd that Percrawas employed by the Company as one of its field officers and thatunder the conditions of his appoint incut lie was obliged to dischargecertain obligations and that with a view to helping him discharge theseobligations tile Company had lent him the money to purchase a ear inthe name of the Company….. .
There was a c-onfliet of evidence at the trial as lo the circumstances inwhich the plaintiff came to he travelling in the ear at the time of theaccident. ■ Holsinghcr’s evidence was to the "effect that the plaintiff hadhnrrowcd the ear for his own exclusive benefit in order to fulfil an under-taking lo travel tu Jaffna at his own cos! and expense for the. purpose
of examining a number of proponents for Holsinghcr. It is iinplieit inthe judgment oft lie District Judge that lie rejected this story and acceptedthe plaintiff’s version which was that he had stipulated that transportshould bo supplied for the journey from Colombo to Jaffna, a distanceof 248 miles. Holsinghcr agreed and arranged with Perera for the useof his car. On the journey there were present in the car the plaintiff,Hotsingher, Perera and a paid driver named Gunapala. Perera, Holsinghcrand Gunapala took turns in driving the ear. At the time of the accidentHolsinghcr was driving and Perera was sitting in the back seat. •
The plaint was framed on the basis that Holsinghcr was an employeeof the Company acting within the scope of his employment-, but the easewas argued on the alternative ground that Holsinghcr was under thecontrol of Perera who was a servant of the Company acting on itsbehalf. The Judge dealt with the case on this basis without requiringany amendment of the pleading and no objection has been .taken to thiscourse at any stage of the proceedings. He held that Holsinghcr was nota servant of the Company nor was Perera when driving the car on thisjourney, and that if the accident had happened while he was drivingthe Company would not have been liable. Consequently no liabilitycould attach to the Company while Holsinghcr was driving.
The Supreme Court reversed this judgment on the ground that Pererawas a servant of the Company and that at no .stage had lie divest eelhimself of his character as a servant authorised to act on behalf of theCompany. That throughout the journey the car was through Pci-era'sinstrumentality being used on the Company’s business, and that a con-tractual obligation binding on the Company had been entered into byHolsinghcr with the knowledge and approval of Perera to convey theplaintiff to Jaffna and that the ear was being used as a means of transportwhich was clearly.incidental to the execution of that which Perera wasemployed to do.
Their Lordships consider it is clear that Perera was a servant of theCompany and that in making this journey in the car which hail beensupplied to him for the purpose of carrying out his duties lie was actingin the course of and for the purposes of his employment. (See Canadian.Pacijic Railway Company v. Lockhart) Accordingly if the accidenthad happened while he was actuaflj- driving there can be no doubt thatthe Company would have been liable. Can it escape liability becauseHolsinghcr was at the wheel at the moment of accident ? Their Lordshipsarc of opinion that this question must be answered in the negative.
It is now well settled that the person in control of a carriage or motorvehicle—though not actually driving—is liable for the negligence of thedriver over whom he has the right to exercise control". (See Wheatley v.Patrick Samson r. A itchison3 and Reinhardt c. Shara A). Perera was atall times in control of this car. He was exercising that control as a servantof the Company on its behalf. Any consequential liability attachingto him is a liabilitj- of the Company.
2 M. ,0 If. 0.50.{1014) .34 T.L.lt. 24.
'(tOt2) A.U. 501. .
^1012) .4.(7. S44.
Their Lordships do not consider it is necessary for the decision ofthis case to express any view on the question which was much canvassedat the Bar as to whether Percra had authoritj* to delegate the drivingof the car to Holsingher so as to create a direct relationship of masterand servant or principal and agent between Holsingher and the Company,nor do they base their decision on the view that the Company was con-tractually bound to provide transport for the- plaintiff on this journey.
For the reasons indicated above their Lordships will humbly ad vise HerMajcstv that this appeal should be dismissed. The appellant Companymust, pay the respondent’s costs of the appeal.
.-!ppraJ dismissed.