Jahan v Sukhlal [1969] FijiLawRp 36; [1969] 15 FLR 202 (7 November 1969)

[1969] 15 FLR 202

COURT OF APPEAL

Civil Jurisdiction

RABUL JAHAN AND ANOTHER

v

SUKHLAL

Gould V.P., Marsack J.A.

30th October, 7th November, 1969

Negligence — motor vehicle — personal injuries — driver negligent — whether owner vicariously liable — whether driver agent of owner at relevant time.

Agency — motor vehicle — whether driver agent of owner — owner having no interest or concern in use of vehicle at relevant time.

Practice and procedure — pleadings in running down case making no point of condition of vehicle — evidence of condition admitted only as affecting question of speed — not permissible on appeal to base allegation of negligence on defective condition.

In an action for damages in respect of personal injuries caused by the plaintiffs having been struck by a motor vehicle the trial judge found that the driver of the vehicle was negligent but that he was not acting as the agent of the owner in using and driving the vehicle at the relevant time. The rule, as stated by the trial judge, is that a driver must be doing something for the owner in order to become the owner's agent, and the owner is not liable if the use of the vehicle is for a purpose in which the owner has no interest or concern.

Held: The principle as stated and applied by the trial judge was correct.

Ormrod v Crossville Motor Services Ltd. [1953] 2 All ER 753; 216 LT Jo.418, considered.

Per Curiam: No allegation as to the condition of the vehicle having judge only as affecting the question of excessive speed, may not be used on appeal to found a charge of negligence against the owner.

Other cases referred to: Hewitt v Bonvin [1940] 1 KB 188; 161 LT 360: Manawatu County v Rowe [1956] NZLR 78: Mako v Land [1956] NZLR 624: Carberry v Davies [1968] 2 All ER 817; [1968] 1 WLR 1103: Hutchins v Maunder (1920) 37 TLR 72: Norton v Canadian Pacific Steamships Ltd. [1961] 2 All ER 785; [1961] 1 WLR 1057.

Appeal from a judgment of the Supreme Court dismissing, as against the owner of a motor vehicle, a claim for damages for personal injuries.

F. M. K. Sherani for the appellants.

A. I. N. Deoki for the respondent.

The following judgments were read:

HUTCHISON J.A.: [7th November 1969]—

The infant plaintiffs brought this action against the owner of a motor truck, now the respondent to the appeal, and the driver of that truck, in respect of injuries received by them when they were knocked down by the truck on the road. They alleged negligence on the part of the driver of the truck in:—

"(a) Failing to keep a proper look out.
(b) Driving at a speed which was too fast having regard to the presence of the plaintiffs and vehicles on the roadway.
(c) Failing to slow down on a bend.
(d) Failing to steer clear of the plaintiffs."

They alleged that the driver at all material times was the authorised agent and acting with the knowledge and consent of the owner.

The driver of the truck took no part in the action, and the learned Judge before whom the action came found him guilty of negligence as alleged and awarded damages to the plaintiffs against him. As to the owner of the truck, the respondent in this appeal, he held that the driver was not acting as the agent of the owner and that the plaintiffs' claim against him therefore failed. In the truck at the time with the driver was the son of the owner. What the Judge actually said was this:—

"I find as fact that neither D.W.2" (that is the son) "nor the second defendant was acting as the agent of the first defendant in using and driving the vehicle respectively. The plaintiffs' claim against the first defendant must, therefore, fail."

It was quite clear on the evidence that both the son of the owner and the actual driver were engaged on their own private purposes in the journey by the truck on which the accident happened. Counsel for appellant, in the argument of what he set out in the notice of appeal as Grounds 4, 5 and 6, which he argued together, directed our attention to a number of pieces of evidence which, in his submission, tended to show that the son and the driver were using the motor truck on this occasion with the permission of the owner. What the learned Judge had said immediately prior to his final finding on the point, which I have quoted, was:—

"Even if the first defendant had authorised D.W.2 to use the lorry for his own private purpose unconnected with the first defendant's business — which has not been proved — he could not be held vicariously liable for the injuries caused (Hewitt v Bonvin [1940] 1 KB 188). The driver must be doing something for the owner in order to become the owner's agent (Ormrod v Crossville Motor Services [1953] 2 All ER 753). In this case D.W.2 and the second defendant were using the vehicle only for a purpose in which the first defendant had no interest or concern."

Counsel contended that the view of the law which the learned Judge took in writing this paragraph was wrong. He said that the reference to Ormrod v Crossville Motor Services Ltd. and the arguments which Mr. Deoki addressed to us on that case showed an over-simplification of that decision, and he said that the true modern view is that set out in the judgment of Denning L.J., as he then was, in that case. Lord Justice Denning said (at pp.754-5): —

"It has often been supposed that the owner of a vehicle is only liable for the negligence of the driver if that driver is his servant acting in the course of his employment. That is not correct. The owner is also liable if the driver is his agent, that is to say, if the driver is, with the owner's consent, driving the car on the owner's business or for the owner's purposes ..................... If it is being used wholly or partly on the owner's business or for the owner's purposes, the owner is liable for any negligence on the part of the driver. The owner only escapes liability when he lends it or hires it to a third person to be used for purposes in which the owner has no interest or concern: see Hewitt v Bonvin."

Counsel said that the words "interest or concern" used by the learned Lord Justice at the end of that quotation mean something different from the "owner's business or for the owner's purposes", the words which he 'used earlier. I do not agree with this. I think that those words are just different words meaning the same thing, the owner's business or purposes. I think that the learned trial Judge was perfectly right in taking from Ormrod v Crossville Motor Services the rule which he stated. There are two comparatively recent cases in New Zealand, Manawatu County v Rowe [1956] NZLR 78 and Mako v Land and Anor. in the same volume at p.624, which state the law as the learned trial Judge stated it. Counsel referred also to Carberry v Davies [1968] 2 All ER 817. That case does not help him, for the test there adopted by the Judge at first instance and approved by the Court of Appeal was "The question I have to decide is whether or not (the car driver) was (the car owner's) agent", and that is the test which Thompson J. adopted in this case.

Mr. Sherani's second submission, which he related to Grounds 3 and 7, was that, because of certain inconsistencies and possibly contradictions in the evidence of the owner and his son, the Judge should have rejected their evidence, whereas in fact, apart from the son's description of the accident as he saw it, the Judge in general accepted it. I can see no reason for disagreeing with the learned Judge in his estimate of the credibility of these witnesses whom he both saw and heard. A particular point taken with regard to the son was that his view of what preceded the accident was very different indeed from the view of certain other witnesses. Everyone knows that witnesses to a road accident, particularly those closely involved in it, quite honestly take views which are quite wrong, and for myself I can see no reason why on this account the Judge should have disbelieved the son on the other matters concerned.

The third point taken was on Ground 2, in which the complaint was made that the trial Judge erred in not holding the respondent liable on the grounds that the vehicle in question was defective in its steering and braking system. There was evidence of a vehicle examiner employed by the Department of Transport and Civil Aviation that on the day after the accident there were defects in its steering and braking system and that, in his opinion, those defects had been present for a week or so. No point as to the condition of the vehicle had been pleaded, and, when counsel for plaintiffs sought to introduce this evidence, there was an objection to it. He claimed, however, that it related to the allegation against the driver that he drove too fast, saying that what is too fast is relative to the vehicle and its condition. The learned Judge allowed the evidence on this basis saying: —

"In my view the condition of the steering and brakes is relevant to the question of whether the speed is too fast, if their condition must have been apparent to the driver."

That being why this evidence was admitted, it can be no surprise that the only reference in the judgment to the braking and steering came, when, after finding the driver negligent in various respects, the Judge said that there was evidence of defects in the steering and braking system but that these would not excuse the manner in which the lorry was driven.

Now, however, in this ground of appeal, Mr. Sherani seeks to elevate this evidence into a charge against the respondent of negligence causing the injuries to the plaintiffs. In my opinion, he may not do that.

Even if he may, however, it does not take him nearly far enough. There was no finding that the defects were a contributing cause to the accident. There was no finding, and no evidence on which such a finding could be made, that respondent was aware or should have been aware of any defects in the steering or braking. On the contrary, the evidence was that, only two days before the accident a Mr. Morrell, foreman mechanic for Millers Ltd., who were used to servicing the truck which was a comparatively new truck, after having some work done on it, road-tested it and found it in satisfactory condition and so informed respondent.

Mr. Sherani appeared to me to put his argument here on a basis, not of negligence, as it has to be put, but of absolutely liability; and that is quite unjustifiable. He relied on Hutchins v Maunder 37 TLR 72. I see that that case is referred to in Mazengarb's Negligence on the Highway 4th Ed. at p.290 as a case in which the owner should have known of the defect. If it was such a case, well and good; but if it was decided on the grounds which Darling J. stated, I say that, if the decision was supportable in 1920, which I respectfully doubt, it is in my opinion not supportable in 1968 or 1969. He referred also to the judgment of Sellars L.J. in Norton v Canadian Pacific Steamships Ltd. [1961] 2 All ER 785. Having read that judgment, I can find nothing in it to support his argument.

I would dismiss the appeal.

GOULD V.P.: I have had the advantage of reading the judgment of Hutchison J.A. with which I am in full agreement.

The appeal is dismissed with costs fixed at $50 and disbursements.

MARSACK J.A.: I concur.

Appeal dismissed.