Colonial Mutual Life Assurance v Attorney General [1974] FijiLawRp 24; [1974] 20 FLR 102 (4 November 1974)

[1974] 20 FLR 102

COURT OF APPEAL

Civil Jurisdiction

COLONIAL MUTUAL LIFE ASSURANCE

v

ATTORNEY-GENERAL

Gould V.P., Marsack J.A., Henry J.A.

14th October, 4th November, 1974

Negligence — action for damages arising from motor vehicle accident — whether owner vicariously liable for driver's negligence.

Master and servant — servant driving master's motor vehicle involved in collision — whether master vicariously liable for servant's negligence — whether acting outside scope of employment.

The driver of a government vehicle was instructed to convey a visiting delegation to various functions, and, then, at the end of the day take his superior, a liason officer, home before returning home himself with the ear.

On one evening, both the driver and the liason officer went to a party given by another visiting delegation where both consumed liquor. On the journey to the liason officer's house, the driver was involved in a collision with another vehicle.

It was contended that the driver and the liason officer had been on a frolic of their own and, therefore, the driver was not acting within the scope of his employment at the time of the accident.

Held: The facts showed that the driver was under a duty to obey the liason officer, who was his superior, and to drive him home. The liason officer had told the driver to wait and take him home. There was no dereliction of duty on the part of the driver except that, during the period of waiting, he had consumed alcohol. This was no more than improper conduct during employment.

The result was that the Crown was vicariously liable for its driver's negligence.

Cases referred to:

Hilton v Thomas Burton Ltd. [1961] 1 All ER 74; [1061] 1 1WLR 705.

Canadian Pacific Railway Co. v Lockhart [19421 AC 591.

Edward (Inspector of Taxes) v Bairstow [1955] 3 All ER 48; [1956] AC 14.

Watt (or Thomas) v Thomas [1947] AC 484; [1947] 1 All ER 582.

S. S. Hontestroom [1927] AC 37; 136 LT 33.

Akerhielm v De Mare [1950] AC 789; [1959] 3 All ER 485.

Benmax v Austin Motor Co. Ltd. [1955] AC 370; [1955] 1 All ER 326.

Century Insurance Company Ltd. v Northern Ireland Road Transport Board [1942] AC 509.

Lloyd v Grace Smith & Co. [1942] AC 591.

Appeal against the reversal by the Supreme Court of a finding for the appellant in the Magistrate's Court in an action for damages.

R. I. Kapadia for the appellant.

R. Nair and Trafford-Walker for the respondent.

4th November 1974.

The following judgments were read:

HENRY J.A.

Appellant brought an action for damages against Respondent in the First Class Magistrate's Court at Suva. The learned Magistrate gave judgment for $185.00 and costs. This judgment was reversed on appeal. Appellant has appealed against such reversal. This Court is limited to questions of law. The action was based on a claim that a Holden Motor car registered No. AC693 was negligently driven by an employee of the Fiji Government whilst in the course of employment. The learned Magistrate found that the employee was so acting and held Respondent vicariously responsible for the damage. The Supreme Court decided to the contrary and reversed the judgment at first instance. The sole question in this Court is whether the learned Judge was wrong in law in allowing the appeal on the ground that Respondent was not vicariously liable.

The primary facts are not in dispute. The Fiji Government was host to a number of Pacific Nations at a Pacific Arts Festival held in Suva. The Fiji Government provided transport during the Festival. It assigned to each delegation a Liaison Officer and a motor car together with a driver. All such Liaison Officers and drivers were employed and paid by the Fiji Government. Car No. AC693 and its driver together with a Liaison Officer were placed at the disposal of the Solomon Islands Delegation. The hours of duty, which were irregular, were governed by the requirements of the said delegation. Neither the Liaison Officer nor the driver had a duty to other delegations, and in particular no duty was owed to the Papua-New Guinea Delegation.

On May 13, 1972 the driver of Car AC693 was on duty as usual. At about 7.30 p.m. he drove the Solomon Islands Delegation from Hotel Travelodge (where they were accommodated) to a function at the residence of the Prime Minister and returned to Travelodge after midnight. The said delegation had no further need for car AC693 that night. The driver was authorised (and it was unquestionably part of his duties) to keep Car AC693 in his custody at all times whether on duty or not. The usual procedure, when the said delegation no longer required the services of the car and driver, was for the driver to take the Liaison Officer home and then proceed to his own home with Car AC693 so as to be ready when required the next day. The normal route of travel after returning the Solomon Islands Delegation to the Hotel would be from Travelodge to the home of the Liaison Officer then on to the home of the driver. That was the route later embarked on, but, instead of going home immediately after duty with the Solomon Islands Delegation had ceased, the driver and the Liaison Officer remained at Travelodge and attended a party given by the Papua-New Guinea Delegation. They both consumed liquor. The delayed journey home was commenced some 3-4 hours later. It is now common ground that the driver, in the course of that journey, negligently caused the damage claimed. It is a fair inference that the consumption of alcohol was a material factor.

The general law was concisely summarised by Diplock J. in Hilton v Thomas Burton Ltd. [1961] 1 All ER 74, 76 where the learned Judge said:

"I think that the true test can best be expressed in these words: Was the second defendant doing something that he was employed to do? If so, however improper the manner in which he was doing it, whether negligent as in Century Insurance Company Limited v Northern Ireland Road Transport Board [1942] AC 509 or, even fraudulent, as in Lloyd v Grace, Smith and Co. [1942] AC 591, or contrary to express orders, as in Canadian Pacific Railway Company v Lockhart [1942] 2 All ER 464, the master is liable. If, however, the servant is not doing what he is employed to do, the master does not become liable merely because that act of the servant is done at the master's knowledge, acquiescence or permission. To say, as is sometimes said, that vicarious liability attaches to the master whether the act is an act, or falls within a class of act, which the servant is authorised to do, may be misleading".

In Canadian Pacific Railway Co. v Lockhart [1942] AC 591 Lord Thankerton in delivering the judgment of the Privy Council quoted with approval the following passage from Salmond on Torts, 9th Ed. p.95 . . . " a master . . . is

liable even for acts which lie has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes—although improper modes—of doing them. In other words, a master is responsible not merely for what he authorises his servant to do, but also for the way in which he does it . . . On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such case the servant is not acting in the course of his employment, but has gone outside it".

His Lordship later said that the inquiry is: What was the servant employed to do?

The question whether an employee is at a particular point of time acting in the course of his employment may be regarded as a pure question of fact, or as the determination of a question of law or of mixed law and fact. The first may be set aside (as a matter of law) if it appears that the trial Judge acted without any evidence or upon a view of the facts which could not reasonably be entertained: per Viscount Simonds Edwards (Inspector of Taxes) v Bairstow [1955] 3 All ER 48, 53. Lord Radcliffe in the same case when dealing with appeals on questions of law said:-

"When the case comes before the court it is its duty to examine the determination having regard to its knowledge of the relevant law. If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the courts must. intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances in which they are found to occur". (ibid: p.5).

I turn now more particularly to the evidence. The only conflict was between the Liaison Officer and the driver on the question of how the driver happened to be present at the party. The learned Magistrate resolved this conflict in favour of the driver who said he had been invited by the Liaison Officer. The learned Magistrate accepted the driver as a credible witness generally in respect of his evidence. The grounds upon which such a finding on credibility may be successfully attacked on appeal were laid down by Lord Thankerton in Watt (or Thomas) v Thomas [1947] AC 484, where it was said:

I. "Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the Judge, an appellate Court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge's conclusion;
II."The appellate Court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence;
III."The appellate Court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that lie has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate Court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question".

Other leading authorities are S. S. Hontestroom [1927] AC 37; Akerhielm v De Mare [1959] AC 789 and Benmax v Austin Motor Coy. Ltd. [1955] AC 370.

No grounds have been advanced upon which the finding on credibility ought to be set aside in this case so the appeal must be determined in accordance with the facts accepted at the trial. Mrs Dreunimisimisi gave evidence. She was employed by the Fiji Government as Assistant Secretary for Foreign Affairs and was the Departmental Protocol Officer. As such she had control of the organisation of transport for the various delegations. Mrs Dreunimisimisi said that she allocated Car AC693 and a driver, Mohammed Lateef, to the Solomon Islands Delegation and that she appointed one Joe Tokaibau as Liaison Officer. The witness said that the liaison officer was instructed to see that "the Solomon Islands Delegation was taken to all events" and that "he was to be generally useful to them". Witness said she told the driver "to obey the laison officer". The driver made it clear that he was under instructions from the liaison officer. He said "Joe was my boss". The evidence is very clear that this was the case. It is supported also by the liaison officer.

On the night of May 13 the driver said that the liaison officer had invited him to the party with the Papua-New Guinea delegation. The driver also swore categorically that he was instructed by the liaison officer to wait and take him home. As he put it: "I would have gone home except for Joe". "I followed "his instructions". It is thus clear on evidence accepted at the trial that the driver was following the usual course of taking the liaison officer home and then preceding to his own home where he always kept car AC693 until required for the next day's work. It is equally clear that the driver was instructed by his authorised superior to wait so that the time of the journey was fixed by the driver's superior. There was no dereliction of duty on the part of the driver except that, during the period of authorised waiting, he consumed alcohol thus rendering himself unfit to carry out carefully the duty of taking the liaison officer home and of taking car AC693 to his own home until again called for duty.

The learned Judge found that both the driver and the liaison officer decided to go "on a binge". He further found that the control of the liaison officer over the driver was never properly defined "and in any event" became non-existent after the Solomon Islands Delegation "reached Travelodge". The learned Judge further found that the actions of the driver and the liaison officer could not reasonably be explained on any hypothesis other than that they were on a frolic of their own after 1.00 a.m. The learned Judge finally said:

"In my view the learned magistrate misdirected himself in giving a too rigid an interpretation to the concept of vicarious liability and in doing so failed to pay sufficient attention to the true effect of the evidence of Lateef as viewed against the whole background of the case. His failure to properly evaluate Lateef 's evidence has led to a result which cannot be supported upon the evidence in this case".

With the greatest respect to the learned Judge the crucial findings of fact above referred to are not supported by the evidence. The hierarchy of control in descending order from the Protocol Officer to the liaison officer and then to the driver was clearly proved. That control over the driver still existed on the journey home which was made in accordance with express instructions from a superior. There was no occasion to resort to hypothesis. The route taken and the purpose of the journey were clearly within the usual course of employment. This is not now disputed. The time factor was unusual because there was long delay after the Solomon Islands Delegation had returned, but the evidence is clear that an authorised superior gave instructions for the driver to wait so the time of the journey was within the scope of employment. The only dereliction of duty on the part of the driver was the consumption of alcohol during authorised waiting time with the consequent impairment of his ability to drive safely. Such a dereliction in the course of the proved duties of the driver is no more than an improper mode of spending authorised waiting time. It does not alter the character of the journey when it was undertaken after the period of waiting had ended.

The finding that the liaison officer and the driver decided "to go on a bin" or "a frolic of their own" is not justified if it is meant to imply that thereafter the driver was no longer in the course of his employment. This finding overlooks, and is contrary to, accepted evidence to the effect that the driver was directed to wait for the liaison officer and that it was his duty to obey the liaison officer and to take him home and then to take car AC693 to his own home. The learned Judge said that if the driver had dutifully remained in the car and had not joined the drinking party there may have been some support for the view of the learned Magistrate. In my opinion this would make no difference. The time, route and purpose of the journey would be the same. it is true, as the learned Judge said, that the driver's employment implied that he would be sober on duty and the driver agreed that he was not authorised to imbibe alcohol while at work, but a breach of such a duty or implication of duty was no more than improper conduct during employment.

The evidence is clear that the route and purpose of the journey were normal incidents of the employment. The time of the journey was fixed by express direction of the liaison officer whom the driver was told to obey. Thus the evidence proves clearly, and bears no other construction, but that the driver was "doing something that he was employed to do". His dereliction of duty in rendering himself unfit by consumption of liquor was no more than a factor which made him unsafe to carry out an authorised task when the time came to perform it. It provides no support for a finding that the driver was not acting, albeit negligently, in the course of what he was employed to do.

In my respectful judgment the learned Judge misdirected himself in law in coming to a conclusion that the Respondent was not vicariously liable.

I would allow the appeal. This court, being unanimous that the appeal should be allowed, it will be allowed accordingly. The judgment in the Supreme Court will be set aside and the judgment in the Magistrate's Court will be restored. Respondent will pay the costs on appeal in this court and in the Supreme Court.

Appeal allowed accordingly.

MARSACK, J. A.

I have had the advantage of reading the clearly reasoned judgment of Sir Trevor Henry and fully agree both with that judgment and with the reasons upon which it is based.

Where in my respectful opinion the learned appellate Judge has erred is in treating what he refers to as the "binge" and the "frolic of their own" as terminating for that night the duties which the driver was required to perform on behalf of the Government. He was certainly not carrying out such duties while he was attending the Papua-New Guinea party; but as soon as he started to drive the Liaison Officer home, after the party, he was once again acting in the course of his employment by the Government. He was undoubtedly negligent in performing that duty, and his negligence was due to the manner in which he had filled in his waiting time; but in accordance with the principle laid down in Hilton v Burton Ltd. [1961] 1 All ER 74 cited by Henry J.A., the improper manner in which he carried out his duties does not relieve his employer of liability.

Accordingly, as I have said, I agree with the judgment proposed by Sir Trevor Henry.

GOULD V. P.

I have had the opportunity of reading the judgment of Henry J.A. in this appeal and agree entirely with his reasoning and conclusions and with the orders proposed by him.

Appeal allowed.