B e f o r e :
THE MASTER OF THE ROLLS (Sir Raymond Evershed)
LORD JUSTICE BIRKETT and
LORD JUSTICE ROMER
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THE LONDON COUNTY COUNCIL
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CATTERMOLES (GARAGES) LTD.
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(Transcript of the Shorthand Notes of The Association of
Official Shorthandwriters, Ltd., Room 392 Royal Courts of Justice,
and 2 New Square, Lincoln's Inn, London W.C.2).
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MR. E. W. EVELEIGH (instructed by Mr. J.G. Barr, County Hall, Westminster, S.E.1)
appeared on behalf of the Appellants (Plaintiffs).
MR. F. S. CONINGSBY (instructed by Messrs. Robbins, Clivey & Lake)
appeared on behalf of the Respondents (Defendants).
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
THE MASTER OF THE ROLLS: This appeal involves an illustration of the principle (not difficult to state but by no means always easy to apply), which is found in Salmond on Torts now at page 89 of the 10th edition. I refer to that passage because in the recent case of the Canadian Pacific Railway Company v. Lockhart, reported in the Privy Council in 1942 Appeal Cases, page 59, the passage (then at page 95 in the 9th edition of that learned author's book) was expressly approved.
''It is clear that the master is responsible for acts actually authorised by him: for liability would exist in this case, even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to the employer of an independent contractor, is liable even for acts which he 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 a case the servant is not acting in the course of his employment, but has gone outside of it".
As I have referred to the Lockhart case it is convenient to state that the facts before the Board were briefly these: The railway company provided for the use of certain of their employees certain cars, which proceeded on the company's rails, known as "speeders" or "track motors", or hand cars, to enable their employees to get conveniently from one place of work to another. It appeared, however, that certain of the employees had motor-cars of their own and found it more convenient in getting from one job to another to use their own motor-cars on the road rather than the track motors of the railway company. The Defendant company, who had experienced some difficulties, because their employees own cars had not always been properly licensed, put up notices expressly prohibiting employees from using their own motor-cars in connection with the company's business unless they were properly insured against, among other things, what we call Third Party risks. One of the employees, one, Stinson, had used his own motor-car for the purposes of getting from one job to another, he being a carpenter in the employ of the company. In disregard of the notice he used his car although the cur was not properly insured. An accident occurred and the question was whether the railway company was liable. The Privy Council, the Judgment of the Board being given by Lord Thankerton, held that the company was liable, applying the passage which I have read. I have stated that their. Lordships took the view that the man, Stin-son, was doing an authorised act, namely, proceeding in the company's service from one job to another in his motor-car, but doing it in an unauthorised way, namely, using his car when it was not properly licensed, in disregard of the prohibition. At the close of the Judgment, Lord Thankerton used this language, which has been quoted to us and relied upon by Mr. Coningsby:
"If the prohibition had absolutely forbidden the servant to drive his motor-car in course of his employment it might well have been maintained that he was employed to do carpentry work and not to drive a motor-car, and that, therefore, the driving of a motor-car was outside the scope of his employment, but it was not the acting as driver that was prohibited, but the non-insurance of the motor-car, if used as a means incidental to the execution of the work he was employed to do".
Lord Thankerton (as I read the Judgment) is not there expressing a final conclusion but suggesting the possibility of the argument. Indeed, it is said in the present edition of Salmond that that passage, if it professed to state the law, might go too far. I do not think it necessary for me to express any view upon that matter. I have, however, read the passage because it leads, I think, conveniently to the substance of Mr. Coningsby's argument for the Respondent, which is this: that the job which the employee in this case was employed to do was something quite different in its nature and character from the driving of motor-cars and that the accident which occurred arose from the fact that he was then engaged in the latter capacity and, therefore, not in the course of his employment. I think the learned County Court Judge took the game view, for in the brief note of his Judgment with which he has provided the Court, I find the following:
"I found that Preston was employed as a general garage hand. It was part of his duties to assist in the movement of cars on the defendants' premises by pushing them or by giving guidance to the driver e.g. when reversing. But he was not authorised to drive, i.e. to control the movement of vehicles under their own power. He was not competent to drive and had, in fact, been expressly forbidden to do so. I held that this was not a case where the Defendants' servant was doing an unauthorised act in a manner which was unauthorised, but that the act in question, viz. the driving of a car, was outside the scope of what he was employed to do and was wholly unauthorised".
In my judgment it necessarily follows from that passage that the view of the learned Judge was in accordance with the argument Mr. Coningsby addressed to him, namely, that the driving of the motor-car was an activity in character and kind distinct from the activity which Preston was employed to perform. I have myself come to a different conclusion, with all respect to the learned Judge. I must, therefore, state a little more closely, what were the facts of the case and, in particular, what was the precise employment for which Preston was engaged.
The accident which has given rise to the present proceedings happened, as I understand it, in the following way. Somewhere between 8 and 9 o'clock in the morning one day, there was a van stationary in front of the petrol pumps which are themselves in front of the Respondent's garage, and between the garage itself and the Pentonville Road in London. There approached the Defendant's premises two large lorries, both desirous of obtaining petrol. There was a man, whom I must call Bob, for I have no other knowledge of his name, in charge of the petrol pump, and he, seeing Preston, asked him to move the van. Preston proceeded to get into the van, start the engine and drive it past the petrol pump into the Pentonville Road with a view to turning round there and coming back again to the garage behind the lorries and thus getting out of the lorries' way. In the course of that manoeuvre he came into collision with another motor van belonging to the London County Council. The damage, was not very great, £20 odd, but the London County Council sued the garage company. The answer of the garage company was that Preston was doing an act wholly outside the scope of his employment and that they, therefore, were not liable.
In stating the circumstances in which the accident occurred I have, it is quite true, drawn my information from the evidence given by Preston himself and I do not forget that, on the matter of the terms of his engagement, the learned Judge, who saw Preston, preferred the evidence of the Defendant's manager, Mortimer. But I cannot conclude that nothing that Preston said should be believed, and this part of his story was not challenged in cross-examination. Indeed, unless that is substantially what occurred there seems to me no point in or basis for these proceedings at all. The question then remains, was Preston when he executed this manoeuvre doing an authorised act, that is, something within the scope of his employment, in an unauthorised manner? Or was he doing something quite independent of his employment and altogether outside its ambit or scope? What, then, was the nature and what were the terms of the employment? I have already read in the learned Judge's note of his Judgment, the passage "Preston was employed as a general garage hand. It was part of his duty to assist in the movement of cars on the Defendant's premises by pushing them or by giving guidance to the driver when reversing". The learned Judge goes on to find that he was forbidden to drive and there is no question in this Court that that was so. But is it true to say that the nature of his employment was of the somewhat limited and curious nature of what I will call manhandling motor-cars and, if so, was that something wholly distinct from moving them by any other means? We have been supplied with notes taken of the learned Judge's oral Judgment by both the learned Counsel who have assisted this Court, and upon this matter there is a close identity between them. Mr. Evesleigh's note contains this statement:
"His job was to get cars out of the way of other cars and a great deal of that had to be done by hand".
Mr. Coningsby's note is:
"Part of his job being to assist in getting cars out of the way of other cars", etc.
I quite agree that as Mr Coningsby points out it is not to be expected in a County Court case that a full note will be found of everything the witnesses said or, indeed, except occasionally, of everything that the Judge said. But we have also got the Judge's note of the witnesses' evidence and I will turn at once to what the manager, Mortimer, said of the nature of Preston's employment.. He said he did not himself engage Preston but that his job was general garage hand and "assisting to shunt vehicles that is, to assist drivers when reversing by standing behind the vehicles. It was not his job to drive vehicles. At first he was not employed to grease. Then he was asked to fit in on the servicing side". Then later, but this is not stated as part of the terms of his employment, Mortimer says, "Preston was not employed to drive himself. I once saw him in a vehicle driving. I warned him if I saw it again I would dismiss him". Doing the best we can on the note of the evidence and what Mr. Eveleigh and Mr. Coningsby recorded of the oral Judgment, it appears to me tolerably clear that the terms of this man's engagement were not very precise. He was employed in a general capacity as a garage hand and part of the functions of a garage hand were to move or to help to move cars in the garage so as to make way for other cars which wanted to get in or out, and so forth. I think from the'evidence as I have read it that the prohibition about driving was not a limitation of the scope of his employment so much as a prohibition subsequently insisted upon (for obvious reasons) when it was discovered that he had no qualifications for driving. I think it, therefore, impossible to say that Preston was engaged for the defined job of pushing cars by hand or, indeed, that such a job is one which can be sensibly supposed in contradistinction to moving cars by other means including that of driving them. I am leaving out of account, for the moment, the circumstance 'which has caused me a little difficulty, that the accident occurred when Preston was driving this van not in the garage at all but when he was on the Pentonville Road. To that matter I will return. But for the moment I confine myself to the general matter of moving cars by driving them under their own motive power as distinct from pushing them or using any other means for moving them. It seems to me that once the nature of the employment is regarded as I have stated it, then as a matter of commonsense the result inevitably follows that the use of a motor-car's own engine in order to do the shunting was not something independent of the job of shunting but was an unauthorised or prohibited mode of doing an authorised job.
We have been referred to a number of cases and of all of them it, may be said that the facts being very different they cannot be decisive in the present case. But I think that the case already mentioned, Lockhart's case, and one other which I will particularly mention, another Privy Council case, Goh Choon Seng v. Lee Xim Soo, 1925 Appeal Cases page 554, tend to support the view that the Court does not attempt narrowly to define the precise limit and scope of a man's employment by treating the particular prohibition, express or implied, as limiting the scope of the employment as distinct from being confined in its application to modes of performance. In Goh Choon Seng v. Lee Kim Soo persons who had been employed among other things to collect and set fire to rubbish, had thought fit to carry the rubbish on to somebody else's land and set fire to it there. It does not appear that they were expressly prohibited in terms from going on to somebody else's land, but obviously such a prohibition would be implicit; at least it could not have been authorised... That, however, was what had been done. It was, nevertheless, held by the Board that the damage which flowed from the burning of rubbish on the land of a third party, flowed from an act done by the servants in an unauthorised manner but in pursuance of their authorised task. I also cite a few words of Lord Justice Romer in the case of Beard v. London General Omnibus Company (1900 2 King's Bench, page 530) (a case in which the decision went the other way), as indicating what I have ventured to call the commonsense of the matter. He said,
"If one sees in the streets of London an omnibus admittedly belonging to the Defendant Company driven in the ordinary way by a person who appears to be a driver, the presumption is that he is authorised by the company".
So here, as it seems to me, if one sees a van on the premises of a garage company being driven by a garage hand, the presumption is that the garage hand is doing something which he is authorised to do. Apart, therefore, from the matter of the highway, to which I will come in a moment, it seems to me, with all respect to His Honour in the Court below, that the prohibition against moving cars by driving them does not amount to such a limitation of the scope of Preston's authority that it can be said that he was doing something outside the scope of his employment.
There remains this last point. As I have indicated in my statement of the facts, Preston moved this van not within the precincts of the garage itself but out on to the highway, on to the Pentonville Road, where, incidentally, he was doing something unlawful, having no licence to drive at all. The question, then, does arise whether the scope of the employment, defined in general terms as it was by Mortimer, did not extend to the movement of this van out into the street with a view to bringing it back behind the lorries into the yard. I think it is clear that nothing of significance was made of that particular matter in the Court below. The question was asked during the argument, Supposing Preston, obeying the command or request of "Bob", had pushed this van on to the highway and then it had caused some accident, whose would the liability have been? In cross-examination, all that was said that was material was this by Mortimer:
"Not on to the road: there would be nothing wrong for him to push it on to the ramp".
By the ramp I understand is meant not the inside of the garage but that part of the Defendant's premises on which the pumps were. Again, it is important to bear in mind the circumstances of the accident. Preston himself said (and there seems to be no reason to doubt it, nor was he cross-examined upon it) that originally he intended to move the car (albeit by the prohibited method of driving) out of the lorries' way, by going forward and then back again into the doorway which is marked on the plan. But he said that the possibility of so doing was prevented by the fact that the lorries were too close behind him to enable him to get back. Therefore, in order to get out of the way he had to get out into the Pentonville Road. In the circumstances, it seems to me that the excursion on to the Pentonville Road is purely incidental to what Preston was doing. And that was something which he was engaged to do. In general terms, he was getting this van out of the way of two other motor cars. I do not, therefore, think that the result is altered by the circumstance that Preston took this van off the garage premises on to the Queen's Highway.
I said at the beginning of my Judgment that the principle is not difficult to state. The difficulty has been in its application. Giving the matter the best attention that I can and applying (as I hope I am entitled to do) some degree of commonsense to the matter, I conclude (contrary to the view of the learned Judge) that Preston was here doing no more than performing in an unauthorised way an act he was employed to perform. In my judgment, the London County Council are entitled to recover and this appeal should be allowed accordingly.
LORD JUSTICE BIRKETT: I agree. My view of this case is that the act of Preston's which is complained of here and which has given rise to the dispute was merely a wrongful and unauthorised mode of doing an act authorised by the employer. It is perfectly plain that the learned Judge took the opposite view because he says he was not authorised to drive:
"I held that this was not a case where the Defendants' servant was 'doing an authorised act in a manner which was unauthorised, but that the act in question, viz. the driving of a car, was outside the scope of what he was employed to do and was wholly unauthorised".
There, I think, are the two conflicting views with which we have been concerned during the argument. With the greatest respect ' to the learned County Court Judge, in coming to the conclusion that he did I think he fell into a very pardonable error in regarding this act of driving in itself as being a conclusive thing. Lord Wright in the case which was cited to us of the Century Insurance Co. v. N. Ireland Road Transport Board (1942 Appeal Cases page 519) was dealing with the act of a servant in that case (which was, of course, a negligent act) of throwing down a lighted match or cigarette at a place and at a time where petrol fumes were to be expected. He said,
"The duty of the workman to his employer is so to conduct himself in doing his work as not negligently to cause damage either to the employer himself or his property or to third persons or their property, and thus to impose the same liability on the employer as if he had been doing the work himself and committed the negligent act. This may seem too obvious as a matter of commonsense to require either argument or authority. I think what plausibility the contrary argument might seem to possess results from treating the act of lighting the cigarette in abstraction from the circumstances as a separate act".
With great respect to the learned County Court Judge I think that is what he did here, because from the careful note which he made about the matter the clear line of demarcation that he made was
"You were not authorised to drive and therefore the thing you did was outside the scope of your employment";
whereas I think the view which ought to be taken on the facts and on the authorities which have dealt with similar facts is that this was a wrongful and unauthorised mode of doing the act authorised by the master. In the Canadian Pacific Railway v. Lockhart, the Judgment of the Privy Council said,
"In these cases the first consideration is the ascertainment of what the servant was employed to do. The existence of prohibitions may, or may not, be evidence of the limits of the employment".
In this case it is not clear exactly what Preston was employed to do. The evidence of Mr. Mortimer, which was preferred and accepted by the learned Judge, I think can be summarised in this way. He said Preston was a general garage hand and he was to assist to shunt vehicles, that is to assist drivers by standing behind vehicles. Later he was to fit in on the service side. What that means is not quite clear. It may mean greasing or filling up with petrol or polishing cars — I do not know. Furthermore, Mr. Mortimer said that between 8 and 9 o'clock in the morning, which was the period of time when this accident occurred, his job was to assist the drivers when driving out. What he meant by that was, I think, to stand behind them and give them directions. Furthermore, Mr. Mortimer said Preston could push a car but not into the road. It was not wrong for him to push a car on to the ramp. Finally, he said he was not authorised to drive and there was, indeed, a prohibition against it. It is not really very clear what the precise duties of Preston were even there.
We had the advantage of the note made by learned Counsel from which it appears that the Judge said, adopting Mr. Mortimer's evidence to which I have referred, "It is enough if Preston was employed to move vehicles". So the argument before the learned Judge was that the scope of Preston's employment was to move vehicles.
"Later his job was to cet cars out of the way of other cars. A great deal can be done by hand. In no sense a driver and has never driven in his life".
Then we had Mr. Coningsby's note, according to which the learned Judge said,
"I am not able to take the view that if the Plaintiff showed no more than this that Preston was authorised to push vehicles about by hand, thus moving them a few feet, and perhaps assisting movement by guiding them with one hand on the steering wheel, they can succeed in this action against Preston's employers. Part of his job being to assist in getting cars out of the way of other cars, a man who is in no sense a driver and has never perhaps driven a car in his life could have done this job".
The important words there, I think, are
"Part of his job to assist in getting cars out of the way of other cars".
Then the learned Judge's note says,
"It was part of his duty to assist in the movement of cars on the Defendants' premises by pushing them or by giving guidance to the driver, for example, when reversing, but he was not authorised to drive".
Having cited those passages it seems to me, in view of what the Privy Council said, that the first consideration is to gather the scope of the employment. The conclusion to which I come on the evidence is that the scope of the employment was as a general garage hand to get cars out of the way of other cars. I do not know whether one is justified in bringing one's own experience into a case of this kind, but everybody knows that in a big garage quite frequently in order to get your car out of the garage someone has to take other cars away in order to give you a way out. It seems to me clear from the evidence which has been given, even rejecting entirely the evidence of Preston, that the employment of Preston reasonably and properly can be stated in this way "Part of his job was to get cars out of the way in order to let' other cars move freely in the garage".
There is a passage in Sir John Salmond's book at page 92 which says,
"Even expressed prohibition of the wrongful act is no defence to the master if that act was merely a mode of doing what the servant was employed to do".
So once a conclusion is come to as to what the scope of the employment of Preston was, even bearing in mind what is called an express prohibition, my own view is that the driving of the car in the circumstances of this case was not something outside the scope of the employment but was merely a wrongful, improper, and unauthorised mode of doing an act which was authorised by the master, so as to make the master liable.
I confess that at various points in this case I was disturbed by the point which was raised particularly by my brother Romer: It might have been said, "Yes, that may be entirely right so far as the garage is concerned but this happened to be upon the highway", and there all sorts of different considerations come to the mind. To drive upon the highway without a licence, as was the case with Preston, is to do an illegal act and it cannot be said, so the argument runs, that that was in no sense an unauthorised way of doing an authorised thing. It was something completely and entirely outside the scope of the employment. That consideration raised by my brother occasioned me some-perturbation of mind but I am bound to say upon full reflection that I agree in the view which has been expressed by the Master of the Rolls. If the facts of the matter are looked at (and the plan is of some assistance in this matter) it seems be quite an incidental matter. It was not a case where Preston was driving some 40 or 50 miles with a customer's car. It was part and parcel of the movement of the car to enable the business of the garage to go on. No doubt he had been rather forcibly told by the lorry drivers what he had to do, and he was getting the car out of the way in the garage.
In the circumstances of the case it became impossible to fulfil that duty without taking the course he did, which involved him going upon the highway where the accident took place. Had he not done that there would have been no trouble and we should never have heard of this case but I cannot think that the mere fact that he did go on to the highway and the mere fact that w when he was there he was without a licence and, therefore, his act was illegal, makes any difference. I think the true view to take of the matter is that it was merely an incidental part of performing the act which he was employed to do, though it was an unauthorised way of doing it.
For these reasons I agree with the Judgment delivered by my Lord and that this appeal should be allowed.
LORD JUSTICE ROMER: I agree. I was myself troubled a little at one time during the discussion about the point which my brother Birkett referred to towards the end of his Judgment, namely, the question as to whether the fact that the accident took place not within the curtilage of the garage premises but on the public highway outside made any difference. The learned Judge in his short note of Judgment said, "It was part of his duties" — he was referring to the man Preston who was driving the van at the time of the accident — "to assist in the movement of cars on the Defendant's premises by pushing them". Then in one of learned Counsel's notes of the Judgment the learned Judge, according to the notes, said, "Preston was authorised to push vehicles in the garage". It was not quite clear to me that a point could not be made to this effect, that a necessary inference from those statements of the Judge was that anything that was done by Preston outside the Defendants' premises was something done outside the scope of his employment. But the point does not appear to have been a great deal relied upon in the Court below. It was used for a somewhat different purpose and certainly, I think, formed no foundation for the learned Judge's decision I think myself, on reflection, that Mr. Eveleigh was well justified in submitting that that act of taking the van on to the road was not an independent act in itself but was part of the act of getting the van out of the way. I do not think that the learned Judge was intending to define the premises within which alone the Defendants were authorised to do their work and, accordingly, it follows from Mr. Eveleigh's submission that the accident did take place within the area of Preston's authorised activities. If that be so, I have practically nothing to add to what my brethren have said, because it seems to me that the facts bring this case clearly within the third proposition which was laid down by the Privy Council in Goh Choon Seng v. Lee Kim Soo, 1925 Appeal Cases, 550, where Judgment was delivered by Lord Phillimore. I need not refer to the first of the two heads which Lord Phillimore laid down. The third one is, "Where the servant is doing some work which he is appointed to do, but does it in a way which his master has not authorised and would not authorise, had he known of it". That statement was afterwards elaborated and affirmed in the later decision of the Judicial Council in Lockhart's case, and applying it it seems to me that when this man Preston was told to keep the garage clear from other cars it involved the movement of cars and the mode in which he chose to perform that duty was a subsidiary part of the function itself, and the fact that he chose what, after all, is a usual and not an abnormal method of doing it brings the matter within the operation of the law as stated in those cases. It was an unauthorised method of doing an authorised act, and according to the law, as decided in those cases, the employer is liable for the consequences. I accordingly agree that the appeal should be dismissed.
(Judgment for Plaintiff for £23. Os. 11d with costs below on Scale 3 and the costs of the Appeal)
