RODRIGO v. PERERA

053-NLR-NLR-V-43-RODRIGO-v.-PERERA.pdf


Rodrigo v. Perera.
Present: Howard C.J. and Soertsz J.RODRIGO v. PERERA.
66—D. C. Chilaw, 11,554.
217
1942
Master and Servant—Action for damages for injuries caused in a bus—Negligenceof incompetent driver—Driving handed over by driver to conductor—Benefit of master—Scope of employment.
Where the driver of an omnibus negligently entrusted the drivingof the bus to the conductor, through whose incompetence injuries werecaused to the plaintiff, a passenger in the bus,—
Held, that the driver was acting in the course and within the scopeof his employment if the act of handing over the bus to the conductorwas done in the interest and for the benefit of the owner, even though thedriver had express instructions not to hand over the bus to anunauthorized person.
i HE plaintiff sued the defendant to recover damages for injuries
-*■ sustained by himself, his wife and son in consequence of „anaccident to an omnibus in which they were passengers and which wasnegligently and rashly driven by the conductor to whom the drivinghad been entrusted by the driver. The defendant while admittingthe ownership of the bus pleaded that the driver was casually employedby him in the absence of the regular driver and that the conductor hadno authority to drive the bus. He further pleaded that the driver hadexpress instructions not to entrust the driving to any other personand that he was not liable for the negligent act of the driver in doing so.
The learned District Judge held that it had not been establishedthat the driver had acted within the course of his employment in handingover the bus to the conductor and that therefore the defendant was notliable.
L. .4. Rajapakse (with him D. Abeywickrema and Ratnam) for plaintiff,appellant.—The defendant’s driver,_ Mathias, permitted the bus to bedriven by the conductor who was an incompetent driver. That was anegligent act by the driver, acting in the course and within the scopeof his employment. The owner is therefore liable for the driver’sneglect of his duty. The effective cause of the damage, as distinct fromthe proximate cause, is the negligence of the driver in giving over thewheel to an incompetent driver—Engelhart. v. Farrant1 ; Ricketts v.Tillings; Priestly v. Dumeyer The learned District Judge purportedto follow Beard v. London General Omnibus Company *. That case isdistinguishable. There the conductor drove in the absence of the driverand without, his authority, after the journey had come to an end. Gwilliamv. Twist1 is also inapplicable, because that was a case of delegation ofduty. The fact that the servant did the act in disregard of expressinstructions does not exculpate the master as long as the act is done inthe course of his employment—Estate Vander Byl v. Swanpoel °; Mckerron
T
: (1897) 1 Q. B. 240.- (1915) l K. B. 644.3 15 S. C. 393.
*(1900) 2 Q. B. 530.
5 (1395) 2 Q. B. S4.
(1927) S.A.L.R.A.D. 141.
218
SOERTSZ'J.—Rodrigo v. Perera.
on Torts, pp. 62-66. The master’s liability for unauthorised torts of hisservant applies to unauthorised modes of doing authorised acts—Clerkand Lindsell on Torts (8th ed.) p. 68.
H. V. Perera, K.C. (with him Herat), for defendant, respondent.—Mathias was not employed to drive this particular bus. If he wasemployed to drive one bus but drives another he would be doing a whollyunauthorised act. He' would not be acting within the scope and in thecourse of his employment. In the absence of proof that Mathias hadauthority to drive this particular bus the cases cited by the other sidedo not apply and plaintiff cannot succeed.
'■m
L. A. Rajapakse, in reply.—Mathias was not a temporary but apermanent driver. The driver’s licence is to drive any bus, not a partic-ular bus. The onus is not on plaintiff to prove that the driver hadauthority to drive a particular bus. There is a presumption that if Adrives B’s car A is B’s authorised servant—(1938)55 S.A.L.J. 33,
footnote 43. In any case Mathias had implied authority to drive thisbus—Halsbury (Hailsharh) Vol, 22, p. 228, sec. 408.
Cur. adv. vult.
March 25, 1942. Soertsz J.—
0
In this case, the plaintiff who was very severely injured and lost hisleft hand and left leg when an omnibus belonging to the defendantcapsized, sued the defendant to recover a sum of Rs. 3,000 on accountof the injuries sustained by him and the consequent impairment of hisearning capacity, as well as on account of the expenses incurred by himin obtaining treatment for himself and for his wife and son, who werealso injured in that transaction.
The plaintiff alleged that the omnibus capsized in consequence ofthe defendant’s driver, Mathias, having “ negligently and rashly entrustedthe said bus to be driven by …. Gabriel Costa alias John who,
though employed by the defendant to work on the defendant’s buses,had no certificate of competence to drive a bus and was also incom-petent to drive a bus ”.
The defendant filed answer admitting the ownership of the omnibus,admitting that “ the plaTintiff sustained some injuries of a somewhat,severe nature and that tiis wife and son sustained some slight injuries ”,but putting the plaintiff “ to- the proof of the allegation that omnibusNo. X 8537 capsized owing to the negligence of Gabriel Costa Healso pleaded that the capsizing of the omnibus was not “ owing to thenegligence or rashness on the part of.. Mathias or incom-
petence . or inefficiency of Gabriel Costs ” and he went on to say thatMathias “ was casually employed by the defendant on April 27, 1939,to drive omnibus No. Z 507 during the temporary absence of the regulardriver …. and that* the said Mathias had no authoritywhatever from the defendant to drive omnibus No. X 8537. .
and that the said Gabriel Costa was employed by the defendant to dothe work of conductor only and that he had no authority from thedefendant to drive omnibus No. X 8537.and that Mathias
SOERTSZ J.—Rodrigo v. Perera.
219
had been strictly instructed by the defendant not to allow any person todrive the" omnibus entrusted to him, and that the defendant is not liablefor any act or thing done by the said Mathias
The case went to trial on the following issues : —
Was plaintiff injured by the negligent act of defendant’s servant,
Mathias., in handing over the bus to be driven by Gabriel Costa ?
Was plaintiff injured by the negligent act (sic) of Gabriel in driving
the bus in question ?'
In either case, is plaintiff entitled to damages ?
What damages ?
Did the two servants, Mathias and Gabriel, act in the common
(sic) and within the scope of the employment ?
(5a) If not, can plaintiff claim damages from defendant ?
Was Mathias’s act in handing over the bus to Gabriel in disregard
to express order given to him ?
(6a) If so, can plaintiff claim damages ?
After trial, the trial Judge answered these issues as follows : —
Yes.
Yes.
No, for reasons stated in my judgment.
Not necessary to answer in view of my other findings.
Gabriel Costa definitely did not. It has not been established that
Mathias acted in the course of his employment in handing over
the bus to Costa.
(5a) No.
Yes.
(6a) Plaintiff can.
He went on to say “ in the result although the damages (sic) were causedby the neligence of Mathias in handing over the bus to Gabriel Costait has not been established that in so handing over the bus Mathias actedin the course of and within the scope of his employment
The words I have underlined make it quite clear that the trial Judgedismissed the plaintiff’s action on the ground that Mathias .was notacting in the course of and within the scope of his employment in handingover the bus to Gabriel Costa to drive.
There appears to have been an alternative defence adumbrated in thecourse of the trial in the. Court below, but vigorously pressed on appealas the main defence, namely, that-Mathias was not acting in the courseand within the scope of his employment in being at the wheel of this,bus at all. As I pointed out in the course of this appeal, that defencewas an afterthought. It is not expressly taken in the answer nor can itreasonably be said to be implied in it. It appears to have been sqvaguely put before the trial Court in the course of the evidence being ledthat the Judge does not deal with it for, as the words I have underlinedshow, the Judge found that Mathias was not acting in the course andwithin the scope of his employment in handing over the bus, not in drivingit.
220
SOERTSZ J.—Rodrigo v, Perera.
But against the possibility of that being an oversight on the part of thetrial Judge, I have myself examined the evidence with great care, ar.dhave formed a very clear opinion that Mathias was acting in the courseand within the scope of his employment in drivShg this bus on that day.There is ample evidence to support that view but, exempli gratia, I wouldquote a short passage from the defendant’s own evidence:—“ Mathiashad no authority from me for driving Stephen’s bus (i.e., the bus inquestion). If he had done it safely I could not have found fault with,him. In the circumstances of this case, if Stephen stopped to attendto repair bus Z 507 (as in fact, he did) and asked Mathias to drive his bus,
I could not have found fault with him ”. To say the least, this can onlymean that Stephen who is the defendant’s brother-in-law had impliedauthority to give orders to Mathias in such circumstances as arose in thiscase and that Mathias had implied authority to act on those orders.It must, therefore, be held upon the evidence that Mathias was in thecourse and within the scope of his employment in driving the busand by.implication of the answer given by the trial Judge to issue 5 thatappears to have been his view too.
Once that position is reached the other questions are easily disposed of.It is so clearly established-that a servant who in the course and within thescope of his employment disregards express orders by his employerdoes not ipso facto exempt his employer from liability that citation ofcases would be pedantic.
The only question left, then, is whether Mathias, while driving thisbus in the course and within the scope of his employment, was withinthose limits when he handed the bus to Gabriel Costa and asked him todrive it. There can only be one answer to that question on the factsof this case, and that is an answer in the affirmative, for, to apply theprinciple quoted by the trial Judge from Clerk and Lindsell (1921) p. 74if the act complained of was an intentional act—and there can be nodoubt that. Mathias intentionally gave over the wheel to Gabriel—thequestion is whether that intentional act was done in the interest and for'the benefit of the master. That, of course, does not mean “ interest ”and “ benefit ” from the point of view of the manner in which thetransaction came to an end, but from the point of view of what wasintended when the transaction was set on foot—and this transactionwas set on foot to enable the defendant’s bus to continue its journey tocarry passengers who had embarked on it to be carried to their destina-tions in return for the fares they paid, those fares going to enrich noother person than the defendant.
For these reasons, I have no hesitation whatever in reversing theanswer given by the trial Judge to issue 5 and, in view of his answersto the other issues, in holding that the plaintiff is entitled to damages.
In regard to the amount of damages, this Judgment was deferredin the hope that parties would be able to reach some agreement, butI am informed that this has not been found possible, and Counsel desirethat I should assess the damages or send the case back for the trial Judgeto assess them, I do not think it necessary to send the case back for
Suppiah v. Oriental Govt. Society Life Assurance Co., Ltd.
221
that purpose because there is on record all the necessary material forme to deal with that question and my doing so will save time andexpense.
In regard to damages, if the liberal measure adopted in English casesbe taken into consideration, the amount claimed by the plaintiff appearsto be extremely modest. The plaintiff is 45 years of age and prior to theinjuries he sustained was a cultivator, and was also engaged in the tobaccotrade. He has had one leg and one arm amputated owing to the injurieshe sustained on that day. He has thus, in the prime of life, been, toa great extent, deprived of the pleasures of life, and almost totallydeprived of his earning capacity. The medical and nursing expenses in-curred by him for himself and his wife and soli must be considerable,and I think it would be extremely arbitrary to reduce the amountclaimed by him. In my opinion, that can only be done in the cynicalview that a man always overestimates his damages. I am not preparedto take such a view. Indeed, it seems to me that the plaintiff has madea modest claim.
I would, therefore, set aside the judgment of the trial Judge and enterjudgment for the plaintiff as prayed for in the plaint with costs in bothCourts.
Howard C.J.—I agree.
Appeal allowed_