D Landless (M/W) v Attorney-General (1970/HP/126) [1970] ZMHC 4 (13 July 1970)

I D LANDLESS (M/W) v ATTORNEY-GENERAL (1970) ZR 56 (HC) HIGH COURT 40 MAGNUS J 13th JULY 1970 1970/HP/126 Flynote Tort - Vicarious liability - Liability of employer for servants wrongful act - When arises. 45 Tort - Vicarious liability - Liability of Government for breach of duty of care of army officer in charge in failing to control soldiers under his command. I 1970 ZR p57 MAGNUS J Headnote A company of soldiers was being moved from the place of their exercises to their barracks under the charge of an army officer by the name Banda. While on their way some of the soldiers committed an assault on the plaintiff causing her serious injuries. Banda failed to stop the assaults and his lawful orders in an effort to stop the soldiers from attacking the 5 plaintiff were disobeyed. In this case the plaintiff claimed damages from the defendant as representing the Government for injuries suffered in the assault. The court proceeded to consider the issue of whether the relationship of master and servant existed between the soldiers concerned in this riot and the State at 10 the time when the plaintiff received her injuries and if not whether the Government was liable at all. Held: ■ I (i) A wrongful act committed in the course of a servant's employment will only fix the employer with liability if the course of 15 employment has not been broken by some ■ exterior motive. (ii) In the instant case it cannot be said that the soldiers concerned were in any way pursuing their employer's interests by this unprovoked and disgraceful assault on the plaintiff and as such could not be said to have been acting in the course of their 20 employment. On this ground the State cannot be held liable on the basis of master and servant relationship. ■ (iii) However the officer in charge was under a duty of care to the public and he negligently performed his duty in moving the soldiers from one point to another and as a result of his negligence 25 the men were allowed to get out of control and cause damage to the plaintiff. The State was vicariously liable for the negligence of the officer in charge. ■ I (1) Warren v Henlys Limited [1948] 2 All ER 935, 92 Sol. Jo. 706. 30 Cases cited: (2) Dyer v Munday [1895] 1 QB 742, 64 LJ QB 448; 11 TLR 282. (3) Dorset Yacht Company Limited v The Home Office [1969] 2 All ER 564. E Shamwana, Counsel, for the plaintiff. M S Chaila, Senior State Advocate, for the defendant. Judgment Magnus J: In this case the plaintiff claims damages from the 35 defendant, as representing the Government of the Republic of Zambia, for injuries suffered in an assault committed on her by soldiers of the Zambia Army on or about the 29th of June last year. The parties have wisely agreed the facts in this case and have asked me to decide what is the legal position arising out of those facts. They have 40 also agreed the damages, should I decide that the State is liable, in the sum of K10,000 plus K120 special damages. I am therefore left with the question of law to decide and should I decide in favour of the plaintiff I would then enter judgment for the sum agreed. ■ ■ 1970 ZR p58 I ■ MAGNUS J The facts briefly are as follows. On the day in question, "A" Company of the 1st Battalion of the Zambia Regiment was returning from exercises from Kalabo in the Western Province to its base at Ndola. There were certain officers in charge of the Company, one of whom was a Lieutenant 5 Banda, and it was the duty of these officers to see that the Company was moved from Kalabo to the barracks at Ndola. Several lorry loads of soldiers in the Company reached Landless Corner which is about half way between Lusaka and Kabwe, when they stopped to wait for the rest of the convoy to catch up with them. Lieutenant Banda was left 10 in charge while his immediate senior went ahead to Kabwe. It appears that, while the lorries had stopped and some of the soldiers had got on, one soldier trespassed on the abutting farm which belonged to a Mr Landless and tried to shoot a bird sitting in a field with the BSA air rifle with which he was armed. 15 I Mr Landless challenged him and confiscated his rifle telling him that he was taking him to the police, whereupon the soldier replied that he could not go without first obtaining his superior officer's permission. Mr Landless then agreed to go with the soldier to the superior officer. They arrived at the convoy of lorries, where Mr Landless asked to 20 see ■ the officer in charge but saw instead a sergeant whom he told that he was taking the man to the police station. Several of the soldiers then surrounded Mr Landless and one of them took the rifle from him, pointed it and fired it hitting one of his fellow soldiers in the cheek. The other soldiers then accused Mr Landless of shooting this man and one of them 25 actually kicked Mr Landless on his legs while the others were obviously in an ugly mood. Mr Landless thereupon, deciding that discretion was the better part of valour, ran way along the Great North Road with the soldiers in pursuit. Meanwhile his wife, the plaintiff, had come in a vehicle to look for her husband and he managed to reach this vehicle 30 and get in. He got into the driver's seat and proceeded to reverse into the Old Mumbwa Road turn - off when the soldiers began throwing stones at the vehicle, one of which struck the plaintiff in her right eye, as a result of which she has become blinded in that eye and received certain other injuries with which I do not have to concern myself since the 35 damages have been agreed. While all this was going on, Lieutenant Banda came up, apparently before the stone throwing had begun, and made some attempt to stop the soldiers from pursuing and throwing stones at the vehicle. It is a reflection on the extent of the discipline prevailing in this particular contingent that they completely ignored the officer in 40 command and it is a further reflection on the efficiency with which this contingent was managed that the officer in charge, Lieutenant Banda, seemed to do no more than make a weak remonstrance. The failure of the soldiers in concert to obey the lawful order of their officer undoubtedly constituted mutiny but this is a military offence with which I am not 45 concerned and I should have hoped that the Army authorities would themselves take steps to punish the mutineers, although it seems to me very little seems to have been done in this regard. It might, of course, be that inquiries are still proceeding, it might even be that some courts • • ■ ■ ■ 1970 ZR p59 MAGNUS J martial have taken place. If so, they have been carried out in conditions of the utmost secrecy so that not a whisper has been heard in public. As I have said, it is not my province to discipline the Army, although it is in the interest of the public generally that the Army be maintained in conditions of the greatest efficiency and any signs of I indiscipline such 5 as we have witnessed in this case must of necessity give rise to the greatest disquiet in the public mind. Be that as it may, I have here to consider the implications of this incident as regards the liability of the State for the acts of its soldiers. I should mention that four of the soldiers concerned were prosecuted 10 some six months or so later and sentenced by the magistrate at Kabwe to six months' imprisonment each with hard labour for riot. The first point I have to consider is whether the relationship of master and servant existed between the soldiers concerned in this riot and the State at the time when the plaintiff received her injuries. There 15 is little doubt that the soldiers concerned were on duty at the time, since they were returning from exercises in military formation and were on their way back to barracks. Were they, however, in the course of their employment at ■ ■ ■ the time when they caused the injuries to the plaintiff? I am not going at length into the authorities but I will refer to the passage 20 in Clerk & Lindsell on Torts, 12th, Ed., para. ■ 223, headed "Assault by Servant" where the learned authors state, "It is, in general, the case that the master will not be liable for an assault committed by his servant unless done in the wrongful exercise of the discretion vested in the servant." The learned authors cite several cases notably Warren v Henlys Ltd (1), 25 where a garage attendant assaulted a customer of the garage as an act of personal vengeance and it was held that his employers were not liable. Per contra in Dyer v Munday (2), the manager of a hire purchase furniture dealer, trying to recover some furniture hired to X, which X had ■ pledged to his landlord as security for his rent, assaulted the landlord's wife who 30 tried to prevent him from removing the furniture. In this case the defendant, namely the dealer, was held to be liable. The distinction between the two cases was that in Warren v Henlys Ltd the garage attendant was not acting in his employer's interests but pursuing his own ends whereas in the second case the defendant's manager was carrying 35 out his master's business in an unlawful manner and it is clear that a wrongful act committed in the course of a servant's employment will only fix the employer with liability if the course of employment has not been broken by some exterior motive. I cannot say here that the soldiers concerned were in any way pursuing their employer's interests by this 40 unprovoked and disgraceful assault on the plaintiff and therefore I cannot say that they were acting in the course of their employment when they committed this assault. It follows therefore that, on that ground, the State cannot be I held liable on the basis of the master and servant relationship. 45 That does not, however, end the matter. The position here, is, that a body of men, part of the Zambian Army, were being moved from point A to point B by their superior officers who themselves were employed ■ ■ 1970 ZR p60 I ■ MAGNUS J by the State for the purpose of so doing. These men were subject to military discipline, were bound by law to obey the commands of their superior officers who had several sanctions at their disposal for imposing their will upon these men if they disobeyed their lawful commands. At 5 the material time this duty devolved upon one officer, Lieutenant Banda. The evidence is (a) that he was not available at the time when Mr Landless first came up, which in itself would imply a certain degree of negligence on his part, and (b) when he ultimately appeared on the scene all he seems to have done was to have made a vain appeal to the men to stop it. 10 He had N. C. O.s available whom he could have instructed to take the offenders into custody. There were other lorries in the convoy due to arrive who presumably could have constituted reinforcements to apprehend the offenders and prevent them from disobeying his order, but he does not I appear to have done any of those things. 15 In the case of Dorset Yacht Co. Ltd v The Home Office (3), ten boys from an open Borstal institution were taken by three officers to an island for a training exercise. They were quartered in an empty house and during the night seven of these boys got out, boarded a yacht and inflicted substantial damage on it. The owners sued the Home Office for damages 20 for negligence alleging that there was no proper supervision of the boys. The Court of Appeal decided that the Home Office, their servants or agents, owed a duty of care to those in the neighbourhood and that care was capable of giving rise to a liability in damages. This was a decision on a preliminary point as to whether in fact vicarious liability could 25 attach to the Crown (this was, of course, in England) for the negligence of its officers and it seems that such liability can in fact so attach. Applying these facts to the present case, as I have said, I consider Lieutenant Banda was negligent in absenting himself when he was supposed to be in command of these men and secondly he did not take all the steps that 30 were open to him to prevent these men from inflicting the damage which they in fact did. I see no distinction in principle between this case and the Dorset Yacht Club case. A parallel would appear to me to be where an employer entrusts to his employee the driving of a vehicle and through his negligent driving he causes damage to a third party. The employer is 35 clearly liable. Another illustration which occurs to me is that of a drover entrusted with the herding of ■ ■ ■ ■ cattle on behalf of the owner of the cattle and who negligently allows the cattle to run wild on the highway causing an accident. There is little doubt in my mind that the owner of the cattle would be liable. In using this illustration, I do not wish to be taken in 40 any ■ way comparing soldiers with cattle except in so far as there is here involved the movement of a number of individual units as one cohesive body. I therefore hold that Lieutenant Banda was under a duty of care to the public, that he negligently performed his duty in moving his men from Kalabo to Ndola and as a result of his negligence the men were 45 allowed to get out of control and cause damage to the plaintiff. Lieutenant Banda's employers therefore, i.e. the State, must be held vicariously liable for his negligence. On that basis the plaintiff is entitled to judgment ■ 1970 ZR p61 MAGNUS J against the defendant and I accordingly enter judgment for K10,120 damages and costs. Judgment for the defendant