[1938] EACA 169

## APPELLATE CIVIL

#### Before HAYDEN, J.

## OWEN THOMAS & COMPANY, Appellant (Original First Defendant)

v.

# 1. MOTICHAND HANSRAJ, Respondents (Original Plaintiff)

2. THE VACUUM OIL COMPANY OF SOUTH AFRICA.

LIMITED (Original Second Defendant)

#### Civil Appeal No. 7 of 1939

Master and servant-Negligence of servant-Liability of hirer of motor lorry for negligence of driver.

Appellants hired a motor lorry to the second respondents. In the course of the hiring the lorry collided with the first respondent whereby he suffered injury. The collision was due to the negligence of the driver who was employed and paid by the appellants. In an action by the first respondent against the appellants and second respondents damages were found against the appellants and the case as against the second respondents was dismissed. Appellants appealed.

Held (7-6-39).—That the suit has been rightly decided in the lower court.<br>Quarman v. Burnett (9 L. J. (N. S.) Ex. 308) followed. Other authorities reviewed. Appeal dismissed with costs.

Atkinson for the Appellants.

Patel for the First Respondent.

Bryson for the Second Respondents.

JUDGMENT.—The appellants hired to the Vacuum Oil Company of South Africa Limited (No. 2 Respondents) a motor lorry together with a driver thereof at a fixed sum per day. The appellants employed the driver and paid his wages. On 14th March last the lorry, whilst on hire to the Respondents No. 2, collided with the plaintiff (Respondent No. 1) thereby causing personal injuries to him and damage to his bicycle. The plaintiff instituted proceedings in the court of the Resident Magistrate, Mombasa, against appellants and second respondents claiming damages against Respondents No. 2 or in the alternative from the appellants arising out of the alleged negligence of the driver of the lorry. Mr. O'Brien Kelly, the Acting Resident Magistrate, found the driver guilty of negligence in driving the lorry and gave judgment for plaintiff (Respondent No. 1) for Sh. 600 with costs against the appellants and dismissed the suit against Respondents No. 2 with costs against the plaintiff. The appellants appealed only against that part of the judgment which held them liable to the plaintiff and submitted that the learned magistrate should have held the Respondents No. 2 liable. The grounds of appeal as set out in the memorandum of appeal are as follows:-

(1) That the learned magistrate erred in holding that the appellant was liable to the respondent, Motichand Hansraj, and that he. should have held that the respondent, The Vacuum Oil Company of South Africa Limited, was liable.

(2) The learned magistrate erred in holding that at the time of the accident which caused the damage the subject matter of the said suit in the court of the Resident Magistrate, Mombasa, the driver of the lorry which caused the said accident was under the control of the appellant and should have held that at the time of the said accident he was under control of the respondent. The Vacuum Oil Company of South Africa Limited.

The driver's negligence not being in dispute the only question which I have to consider is whether the appellants who were the owners of the lorry, or the Respondents No. 2 who were the hirers thereof should be made liable for the driver's negligence. A number of cases have been cited by learned counsel on both sides, the first of which I shall refer to is the leading case of Quarman v. Burnett (1840) 9 L. J. N. S. Ex. 308, the headnote to which is as follows: $-$

"The defendants, being the owners of a carriage, were in the habit of being furnished by a job-mistress with a coachman and a pair of horses. The same man constantly acted as coachman, being the only regular driver in the yard; and, at the end of each drive, received 2s. from the defendants they having told him three years before that they would give him that sum. The defendants furnished him with a livery hat and coat, which he wore only when driving them, and replaced in the passage of their house when he returned with the carriage. On one occasion, having returned from driving the defendants, and, having gone into their house to replace his hat, the horses, which were left in the street, without any one to take care of them, started off with the carriage, overthrew the plaintiff, who was sitting in his chaise and injured him and the chaise. Held, that although there might be special circumstances which would render the hirer of job-horses and servants responsible for the neglect of a servant, though not liable by virtue of the general relation of master and servant, yet those special circumstances were not found in this case; and that the relation of master and servant did not exist, so as to render the defendants liable."

I would quote the following extract from the judgment of the court which was delivered by Parke $B$ :-

"Upon the principle that qui facit per alium facit per se, the master is responsible for the acts of his servant; and that person is undoubtedly liable, who stood in the relation of master to the wrongdoer—he who had selected him as his servant, from the knowledge of or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey; and whether such servant has been appointed by the master directly, or intermediately through the intervention of an agent authorized by him to appoint servants for him, can make no difference.

But the liability, by virtue of the principle of relation of master and servant, must cease where the relation itself ceases to exist: and no other person than the master of such servant can be liable, on the simple ground that the servant is the servant of another, and his act the act of another; consequently, a third person entering into a contract with the master, which does not raise the relation of master and servant at all, is not thereby rendered liable; and to make such person liable recourse must be had to a different and more extended principle, namely, that a person is liable not only for the acts of his own servant, but for any injury which arises by the act of another person, in carrying into execution that which that other person has contracted to do for his benefit. That, however, is too large a proposition as Lord Chief Justice Eyre says in the case of Bush v. Steinman, and cannot be maintained to its full extent, without overturning some decisions, and producing consequences which would, as Lord Tenterden observes, "shock the common sense of all men": not merely would the hirer of a post-chaise, hackney-coach, or wherry on the Thames, be liable for the acts of the owners of those vehicles if they had the management of them, or their servants if they were managed by servants, but the purchaser of an article at a shop, which he had ordered the shopman to bring home for him, might be made responsible for an injury committed by the shopman's carelessness whilst passing along the street. It is true that there are cases-for instance, that of Bush v. Steinman, Sly v. Edgley, and others, and perhaps among them may be classed the recent case of Randleson v. Murray—in which the occupiers of land or buildings have been held responsible for acts of others than their servants, done upon or near, or in respect of their property. But these cases are well distinguished by my Brother Littledale, in his very able judgment in Laugher v. Pointer.

The rule of law may be, that where a man is in possession of fixed property, he must take care that his property is so used or managed, that other persons are not injured; and that, whether his property be managed by his own immediate servants. or by contractors with them or their servants, such injuries are in the nature of nuisances; but the same principle which applies to the personal occupation of land or houses by a man or his family, does not apply to personal movable chattels, which, in the ordinary conduct of the affairs of life, are intrusted to the care and management of others, who are not the servants of the owners, but who exercise employments on their own account with respect to the care and management of goods for any persons who choose to intrust them with them. It is unnecessary. to repeat at length the reasons given by my Brother Littledale for this distinction, which appear to us to be quite satisfactory; and the general proposition above referred to, upon which only can the defendants be liable for the acts of persons who are not their servants, seems to us to be untenable. We are therefore of opinion that the defendants were not liable in this case; and the rule must be made absolute to enter a verdict for the defendants on the second issue."

In Jones v Liverpool Corporation. (1885) 14 O. B. D. 890, the owner of a horse contracted with the defendants to supply to them by the day the horse and driver to drive and draw a watering cart belonging to the defendants. The driver was employed and paid by the owner of the horse, and was not under the defendants' direction and control otherwise than that their inspector directed him what streets to water. In an action to recover damages for injuries caused by the negligent conduct of the driver whilst in charge of the cart it was held the defendants were not liable. The decision in Quarman v. Burnett (supra) was followed in this case as will appear from the following extract from the judgment of Grove J.:-

"It is said that the cases in which one person lends his servant to another apply, and that then the borrower is liable for the negligence of the servant. The distinction between such cases and cases of hiring like the present may be this: where a driver is hired the person from whom he is hired is bound to exercise due care in selecting a man of proper skill and conduct; but it is otherwise with the lender for no reward of a servant. The person who borrows takes him cum onere, and is liable for his negligence whilst in the borrower's employment. Whether that be the true distinction or not, I am of opinion that the principle of Quarman v. Burnett, and the class of cases which have followed that decision, ought to be applied here; that the transaction being one of hiring and not of loan, and the negligence complained of being that of Mrs. Dean's servant, not of the defendants' servant, the defendants are not liable."

In Dewar v. Tasker and Sons, Ltd. (1907) 23 T. L. R. 259, the defendants hired out an engine to another person, and they supplied a driver for the engine. They paid the driver, supplied the oil for the engine, and kept it in repair. The person to whom the engine was hired could direct where the engine should go and what loads it should haul, and that the defendants never knew where the engine was sent to or what it carried. While so hired, the engine, by the negligence of the driver, injured the plaintiff. Held, that, on the facts, the defendants, who appointed and paid and who could dismiss the driver, had control over him at the time of the injury, and were therefore liable to the plaintiff. As the learned magistrate in the court below said I think this case is on all fours with the present one.

The next case to which I shall refer is Poulson v. John Jarvis and Sons, Ltd. (1919) 89 L. J. K. B. 305, the headnote to which reads:-

"The Ministry of Munitions were engaged in discharging steel billets from a ship in a dock into railway trucks standing on railway lines in a dock shed, which when loaded had to be hauled on to railway lines outside the shed and there marshalled ready to be taken away by an engine. The Ministry hired a man and two horses from the defendants, the man's permanent employers, 'to haul railway wagons' in the dock at a day rate. On arriving at the dock, the man was directed by a representative of the Ministry to take each truck as it was loaded outside the shed. When the man had taken several trucks outside he proceeded to marshal them without giving any warning. The plaintiff, while attempting to cross the lines where they were usually crossed by persons using the docks, was caught by a moving truck and injured. Nobody was actually controlling the man while he was marshalling the trucks. Greer J. having found. that the plaintiff was not guilty of contributory negligence, Held, that the man was guilty of negligence, and that he was acting as the servant of the defendants, and that they were therefore liable in damages. On appeal, Held, that Greer J. had rightly directed himself in law, and that there was evidence upon which he could properly arrive at his decision."

Lord Sterndale M. R. at p. 307 said: "One great difficulty which arises in these cases is that in fact in a great many cases no actual control in detail is exercised over the man in the position of Davies (the driver) by anyone. He knows what he has to do, and it is not necessary to control him or tell him the details of his work, and so the question of control does not arise until some accident happens."

These remarks apply equally well to the present case also

The following is a case in which the owner was not held liable for the negligence of his servant, Donovan v. Laing (1893) 1 Q. B. D. 629, the headnote to which reads: $-$

"The defendants contracted to lend to a firm who were engaged in loading a ship at their wharf a crane with a man. in charge of it. The man in charge of the crane received directions from the firm or their servants as to the working of the crane, and the defendants had no control in the matter. The plaintiff who was a servant of the wharfingers and was employed by them to direct the working of the crane, sustained an injury through being struck by it by reason of the negligence of the man in charge, and sued the defendants on the ground that the negligence was the act of their servant. Held, that, though the man in charge of the crane remained the general servant of the defendants, yet, as they had parted with the power of controlling him with regard to the matter on which he was engaged, they were not liable for his negligence while so employed.

In this case the hirers or their servants controlled the working. of the crane and hence it is clearly distinguishable from the present case. I would cite the following extract from the judgment of Bowen L. J. in that case at $pp. 633$ and 634.

"We have only to consider in whose employment the man was at the time when the acts complained of were done, in this sense, that by the employer is meant the person who has a right at the moment to control the doing of the act. That was the test laid down by Crompton J. nearly forty years ago, in Sadler v. Henlock, in the form of the question 'Did the defendants retain the power of controlling the work?' Here the defendants certainly parted with some control over the man, and the question arises whether they parted with the power of controlling the operation on which the man was engaged. There are two ways in which a contractor may employ his men and his machines. He may contract to do the work, and, the end being prescribed, the means of arriving at it may be left to him. Or he may contract in a different manner, and, not doing the work himself, may place his servants and plant under the control of another, that is, he may lend them, and in that case he does not retain control over the work. It is clear here that the defendants placed their man at the disposal of Jones & Co. and did not have any control over the work he was to do. The case is on the same lines as Rourke v. White Moss Colliery Co., and Lord Watson's decision in Johnson v. Lindsay and Co. does not differ from the view taken of the law in the other case. The principal part of the argument for the plaintiff was founded on what may be called the carriage cases: Laugher v. Pointer and Quarman v. Burnett; but they really have nothing to do with the point presented in this appeal. If $\dot{a}$ man lets out a carriage on hire to another, he in no sense places the coachman under the control of the hirer, except that the latter may indicate the destination to which he wishes to be driven. The coachman does not become the servant of the person he is driving; and if the coachman acts wrongly, the hirer can only complain to the owner of the carriage. If the hirer actively interferes with the driving, and injury occurs to anyone, the hirer may be liable, not as a master, but as the procurer and cause of the wrongful act complained of."

That the principle enunciated in *Quarman v. Burnett (supra)* is still good law in England is clear from the observations of Lord Russell of Killowen C. J. in Jones v. Scullard (1898) 2 Q. B. 565 at pp. 571 and 572; of Lord Haldane L. C. in S. S. Devonshire v. Barge Leslie (1912) A. C. 634 at 645 and of the judgment of the whole Court of Appeal, read by Slesser L. J. in Honeywill and Stein Ltd. v. Larkin Bros. Ltd. (1934) 1 K. B. 191 at pp. 196 and 197.

Mr. Atkinson has cited three decisions of the Privy Council which he submitted were opposed to the principles laid down in *Quarman* $v$ . Burnett (supra), the first of which (in order of date) was Societe Maritime Francaise v. Shanghai Dock and Engineering Co. (1921) 90 L. J. P. C. 85, the headnote to which reads: -

"Where a master has placed his servant at the disposal of another person for the purpose of doing a particular piece of work, and does not retain any power of controlling the work on which the servant is engaged, he is not liable for the damage caused by the negligence of the servant in doing such work, the power of control being the test of liability."

From the Judgment of the Board which was delivered by Lord Dunedin there is no doubt that although the men, one of whom through negligence, caused the damage to plaintiff's vessel were in the employment of the defendants yet they were under the control of a Mr. Relf, the engineer of the plaintiff's vessel, as will appear from the following extract from the judgment:-

"The question here really turns on whether the work was Gray's (defendants' superintendent) work supervised by Relfwhich is what the trial judge thought-or was Relf's work performed by Gray's servants, whose services had been given over to Relf for a consideration. This latter is the view which their Lordships take. The order which led to the mischief was directly Relf's."

This case is, I consider, clearly distinguishable from *Quarman* $v$ . Burnett.

The second case is Bain v. Central Vermont Railway Co. (1921) 2 A. C. 412, the headnote of which reads: $-$

"The appellant's husband was killed owing to the negligence of the respondent company's engine driver in disregarding the signals of another company upon whose line he was driving the engine under an agreement between the companies for joint working; each company paid the drivers employed in the joint service for the service on its own line. The appellant sued the respondents for damages: *Held*, that the respondent company was not liable, since at the moment of the accident the engine driver was under the control of the other company.'

The reason for the decision is that at the time of the accident the engine was being driven on the Grand Trunk Company's line and therefore it was the duty of the respondent's engine driver to obey the Grand Trunk signals, which he failed to do, and accordingly at the material time he was under the control of the Grand Trunk<br>Company and not of the respondents. This case is also clearly distinguishable from Quarman v. Burnett as the driver in that case had no signals to obey and so the control remained with his master the owner of the horses. I would cite the following extract on p. 416

from the judgment of Lord Dunedin, who delivered the judgment of the Board in Bain v. Central Vermont Railway Co.:-

"Their Lordships had occasion to examine the law on this subject in a very recent case which had not been decided when the Supreme Court gave judgment. It is the case of La Societe Maritime Francaise v. Shanghai Dock and Engineering Co., which is not yet reported. They can only repeat what they there said, that they were of opinion that the law was accurately laid down by Bowen L. J. in Donovan v. Laing Syndicate. The first sentence of the judgment of Bowen L. J. which was there quoted is as follows: 'We have only to consider in whose employment the man was at the time when the acts complained of were done, in this sense, that by the employer is meant the person who has a right at the moment to control the doing of the act'."

The third case is **Bull and Co. v. West African Shipping Agency** and Lighterage Co., 1927 A. C. 686, the headnote to which reads:-

"The appellants let on hire to the respondents a lighter manned by two native lightermen. The lighter was moored to the respondents' ship in Lagos harbour, and was used by them during the day in loading the ship. During the night the lightermen negligently left the lighter. The lighter got adrift, and owing to the absence of the lightermen, it was carried out to sea, ran ashore and broke up. Held, that the lightermen being under the orders and control of the respondents during the night as well as during the actual loading, the respondents were responsible for their negligence and were liable to the appellants in damages."

From the judgment of the Board which was delivered by Lord Shaw of Dunfermline it would appear that it was the duty of the lightermen to obey the orders of the officers of the respondents' vessel and as such were under their control and therefore this case is also clearly distinguishable from *Quarman* v. Burnett. That the Board approved of the law laid down in *Quarman v. Burnett (supra)* would appear from the judgment which states at p. 690:-

"Upon the law of the case, it may be said, the facts being as just put, that the cleavage of opinion in Laugher v. Pointer, in which the judges were equally divided, has long been disposed of in *Ouarman v. Burnett.*"

Now had the Privy Council in that case disapproved of the principles laid down in *Quarman* $v$ . *Burnett* I have not the slightest doubt, especially in view of the fact that that decision had stood the test of time and had been followed in so many cases, that the Board would have done so in clear and unequivocable language and would have given full reasons for so doing. As this has not been done I consider it is obvious that they distinguished that case from *Quarman* v. Burnett, i.e. that whilst the lightermen were under the control of the hirers the driver in *Quarman v. Burnett* was not under the control of the hirer. From the foregoing it will appear that I do not agree with Mr. Atkinson's submission that the Privy Council cases are opposed to the principles laid down in *Quarman v. Burnett.*

Appellant's counsel also referred to the case of Leggott v. Normanton (1928) 45 T. L. R. 155, and submitted that the facts in that case were similar to those in the present case and showed that the principle enunciated in Bull and Co. v. West African Shipping Agency and Lighterage Co. (supra) applied to cases of motor vehicles,

In that case it was held that the temporary employers of a servant who has been hired out to them by his general employers and who is under the control of such temporary employers, are liable to the servant's general employers for damage caused to the general employers by the servant's negligence. To my mind that case can be distinguished from the present one as the cement mixer which caused the jamming inside the tunnel with resultant damage to the plaintiffs (the owners of the motor wagon and trailer) was carried on the trailer on the express instructions of the defendants the hirers of the vehicle and the plaintiffs had no control over what loads were carried. It is in that sense, I deem, that the Court considered the driver and his assistant to be at the time, for the particular purpose on which they were engaged, the servants of the defendants. That is quite different to an injury resulting to a third party through negligent driving as in the present case.

I consider the fact in this case bear a much stronger resemblance to those in Quarman v. Burnett (supra), Jones v. Liverpool Corporation (supra), Dewar v. Tasker and Sons (supra) and Poulson v. Jarvis and Sons, Ltd. (supra) than to those in the Privy Council cases and in Leggoti v. Normanton (supra) and am of the opinion that the three Privy Council cases can be distinguished from the present case for the same reasons which I have already given to show that they are distinguishable from *Quarman v. Burnett (supra)*. The hirers in this case as in *Quarman v. Burnett* and the other carriage cases had undoubtedly power to order the driver where to go and what loads to deliver but they were not in a position to control the manner of his driving and therefore cannot be held liable. It has been said that neither could his employers (the appellants) control the manner of his driving, but this remark is equally applicable to all the other carriage cases and it must be borne in mind that the appellants employed the driver and so it was their duty to exercise due care that the person they selected was a careful and competent driver. If one of two parties has to bear responsibility for the driver's negligence surely it is fairer that the person who selected him should do so than that the hirer, who had no selection, should do so unless the latter actually interferes in the manner or method of driving and so assumes control over the driver at the material time so as to become his master with regard to the particular act which caused the accident. There is no suggestion of interference with the method of driving in the present case.

The hirers, as Mr. Atkinson contended, may have agreed with the owners of the lorry (appellants) that they, the hirers, would insure against third party risks, but I do not consider that this could affect the question of the hirer's liability to the plaintiff (Respondent No. 1) which is not a matter of contract but of tort. As already stated, plaintiff could not recover damages resulting from the negligent driving of the vehicle against Respondents No. 2 unless the temporary relationship of master and servant existed at the time of the accident between the latter and the driver in the sense that the respondents had control over the manner of his driving which undoubtedly they had not.

On the authority of *Quarman v. Burnett* and the other carriage cases to which I have referred I must hold that that control rested in the owners of the vehicle and not in the hirers and therefore I uphold the decision of the learned magistrate and dismiss this appeal with costs.

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