3PLR – C.F. A. O. V. CHUBA IKPEAZU
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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C.F. A. O.
V.
CHUBA IKPEAZU
SUPREME COURT OF NIGERIA
S.C. 359/1964.
4TH MARCH, 1966.
3PLR/1966/49 (SC)
BEFORE THEIR LORDSHIPS:
SIR LIONEL BRETT, J.S.C. (Presided)
GEORGE BAPTIST AYODOLA COKER, J.S.C.
CHUKWUNWEIKE IDIGBE, J.S.C. (Read the Judgment of the Court)
REPRESENTATION
- Sofola (with him, T. Sofola) – for the Appellants
G.C.M. Onyiuke (with him, Chike Ofodile) – for the Respondent
MAIN ISSUES
COMMERCIAL LAW – AGENCY – Acts of agent – Liability of principal – When it can arise – Determinants of.
EMPLOYMENT AND LABOUR – MASTER AND SERVANT – Vicarious liability – Determinant of liability of
muster for tort of servant.
EMPLOYMENT AND LABOUR – MASTER AND SERVANT – Vicarious liability – Master expressly prohibiting tortious act – Whether can still be liable.
TORT – Master and servant – Vicarious liability – Determinant of liability of master for act of servant.
TORT – Master and servant- Vicarous liability – Master expressly prohibiting tortious act – Whether master can be vicariously liable.
TORT – Master and servant – Vicarious liability – Where plaintiff establishes that the vehicle at the time of the accident belonged to the master – Presumption raised.
TORT AND PERSONAL INJURY – Muster and servant – Vicarious liability – Whether servant acting in course o f employment – On whom onus of proof lies – How discharged.
MAIN JUDGEMENT
IDIGBE, J.S.C. (Delivering the Judgment of the Court):
The appellants were the defendants in an action instituted by the respondent, a legal practitioner, in the Enugu High Court in which he claimed damages for negligence arising out of a motor accident.
The accident occurred along the Onitsha/Enugu Road at about 6.30 p.m. on Sunday, 22nd July, 1962. One Francois Bourgery, the District Manager of the appellants at Enugu, was driving a Morris Station Wagon No. EO.2328, owned by the appellants along the Enugu/Onitsha Road in the direction of Onitsha from where the respondent was traveling in his chevrolet car No. EO.1145. It was the case of the respondent that Mr.. Bourgery drove his vehicle so furiously and negligently that after taking a bend or curve on the Enugu/Onitsha Road he lost control of the vehicle and crashed on to the respondent’s vehicle which had almost come to a standstill and off the Tarmac on its own near-side of the road. Both vehicles were damaged beyond repair and both the respondent and Mr.. Bourgery sustained serious and extensive injuries from which the latter died a few hours later. The respondent received treatment at the General Hospital Onitsha, the Orthopeadic Hospital at Igbobi, Lagos, and the University College Hospital, Ibadan, for several months before he was able to resume his normal duties.
The Senior Medical Officer-in charge of the General hospital, Onitsha testified that inspire of the treatment which the respondent received from the various hospitals, he would continue &to feel pain both in the chest and foot” for a long time.
The evidence of the respondent which the learned trial Judge accepted, as well as that of the Police Corporal and the Deputy Superintendent of Police who visited the scene soon after the accident and saw the resultant positions of both Chevrolet car and the Morris Station Wagon, put beyond doubt the question of the negligence of the driver of the Station Waggon (Mr.. Bourgery).
The issue of negligence was not disputed in the High Court and, before us, it was conceded – rather wisely-by appellants’ Counsel. The learned trial Judge (Reynolds, Ag. C.J.) gave judgment for the respondent and awarded a total sum of £3,120 as damages; and this was made up as follows:-
(1) Loss on the value of car .. . . . . . . . . . . . . . . . . £720
(2) Loss of earnings . . . . . . . . . . . . . . . . . . . . £7,500
(3) Pain and suffering . . . . . . . . . . . . . . . . £400
(4) Dimunition of earnings . . . . . . . . . . . . . . . . . £500
Two grounds of appeal were argued before us; one of them, feebly attacked the assessment of the value of respondent’s car, the other attacked the finding of the lower court on the liability of the appellants for the act of Mr.. Bourgery. We think there was no merit in the first of the two grounds of appeal, as in our view the learned trial Judge, on the evidence before him, came to a just and correct decision on the value of the Chevrolet car.
We shall now deal with the latter ground of appeal. The appellants’ complaint here, is that it was not proved that at the time of the accident Mr.. Bourgery was engaged in the course of the duties of his office, and that the learned trial Judge erred in law in holding that the accident occurred in the course of Mr.. Bourgery’s employment.
The question which arises is: when is a servant acting in the course of his employment? or-which is almost the same-when is an agent acting within the scope of his authority? Decided cases show beyond any shadow of doubt that the answer of either of the questions is not free from difficulty. However, before we venture any attempt on the answer in relation to the case in hand, we think it would be well to refer to the salient facts given in evidence and arising from the state of the pleadings in the lower court. Apart from the evidence of a solitary witness, Christian Udoka (D.W.5) which the learned trial Judge disbelieved, it seems that the substance of the evidence on both sides was accepted by him.
The learned trial Judge accepted as proved by the respondents that Mr.. Bourgery was at least an agent (if not a servant) of the appellants who employed him as their District Manager at Enugu and, that the Station Wagon he was driving at the time of the accident belonged to the appellants. The appellants’ case was that Mr.. Bourgery was not entitled to drive the Station Wagon; that although he could use the vehicle in the interest of the business of the appellants, he must on such occasions be driven by a driver provided for that purpose by the appellants. We pause to observe that although the appellants’ case was that all District Managers should, or ought to know that there is a standing written order prohibiting all or any of them from driving the Company’s vehicles themselves, they (appellants) were neither able in the case in hand, to show that Mr.. Bourgery’s attention was at any time drawn to this standing order, nor that he was specifically prohibited from driving the particular Station Wagon. There was also the evidence of Mr.. Sylvan, the General Manager for Eastern Nigeria of the appellants’ business, that it was within the discretion of Mr.. Bourgery, as a District Manager, to travel out of Enugu; he could decide without reference to any one else, when and for what reasons or purpose he should travel out of Enugu, in furtherance of the business of the Company. Evidence was also given that all the vehicles of the Company (appellants) were at the end of each day locked up at the garage in the premises of the Company where the keys were also kept, but that this particular Station Wagon was always left at the residence of Mr.. Bourgery with whom the driver – whose residence was unknown to the former – kept the keys.
It is a well-established principle of law that a master cannot escape liability for the servant’s wrongful acts committed in the course of the servant’s employment merely because he expressly prohibited the act – Limpus v. General Omnibus Co. Ltd. (1862)7 L.T. (N.S.) 641; the essential question is this: was the act committed in the course of the servant’s employment? If it was, it does not matter that as between the servant and the master, the former was prohibited from doing the act in question. Undoubtedly an express prohibition by the master may, however, limit the scope of the servant’s employment. On the same principle a principal is liable for the acts of his agent done within the scope of his authority. In each case it is always necessary to determine in the first instance what exactly the servant or agent was employed to do.
There is, however, a rule of practice or evidence which was affirmed in Bernard v. Sculls (1931) 47 T.L.R 557, and which has also been applied in this country – See Ogunmuyiwa v. Solanke (1956) 1 F.S.C. 53; [ 1956] S.C.N.L. R.143, and it is: that although the onus of proving that a servant (driver) was, at the time when an accident occurred. acting in the course of his employment is always on the plaintiff. as soon as he (plaintiff) establishes that the vehicle responsible for the accident belongs to the defendant, a presumption is raised in his favour that at the material time, the driver & the agent or servant of the defendant. By the principle of respondent superior, the defendant in those circumstances would – unless he shows that the servant was, at the time in question not acting in the course of his employment or, that the agent, at the material time, was not acting within the scope of his authority – be liable in damages for the negligent act of the servant or agent. By the ordinary rules of proof in civil cases, the defendant can always discharge this onus which the law places on him on a balance of probability.
This brings us then to the question which has agitated the minds of both counsel and the Court in the case in hand; and this relates to the hour and day of the occurrence of accident in question. The evidence shows that it occurred on a Sunday at about the hour of 6.30 p.m.; and learned Counsel for the appellant has raised the question before us, whether it was likely i.e. probable that Mr.. Bourgery would, at that hour and on that day (a Sunday) normally be about the business of the appellants? There is, he submitted, no question but that normally a District Manager will not be about his principal’s business on a Sunday at 6.30 p.m. The presumption which arises in favour of the respondent in the case in hand, by virtue of the rule of evidence affirmed in the case of Bernard v. Scully (supra) is based on the principle that the truth about the actual business in which the servant of the appellants was, at the material time, engaged in was a matter peculiarly within the knowledge of the servant and his master. The master, it was submitted, can only produce all available evidence at his disposal to rebut this presumption; it being always left with the court to decide on a balance of probability whether or not the master has rebutted that presumption.
Once again, we pause to observe that evidence was given in this case that the vehicle in question (the Station Wagon) as in the case of the other vehicles of the appellants, was always supplied with petrol on the account of the appellants, whenever it was required for use on company’s business; and that on the day of the accident or, at least, the day previous to the accident, (i.e. 21st or 22nd July, 1962) the vehicle in question (the Station Wagon) was at the instance of Mr.. Bourgery supplied with petrol on the account of the appellants. It is, however, our view that this is not conclusive on the question whether or not Mr.. Bourgery was in fact on the road at the material time and date in the interest of the business of the company.
There was, however, an attempt on the part of the appellants to prove that Mr.. Bourgery was at the material time on a specific frolic of his own. Christian Udoka (D.W. 5) who gave evidence that Mr.. Bourgery had left Enugu that Sunday afternoon (22/7/62), expressly for the purpose of bringing back from Onitsha an African lady-friend of his was rightly disbelieved by the learned trial Judge. It is of course true that this failure on the part of the appellants to prove that Mr.. Bourgery was on a specific frolic of his own, although significant, did not disentitle them from having the entire evidence in the case examined in their favour.
In his judgment the learned trial Judge made the following observations:-
On the evidence I find that Mr.. Bourgery was not given any specific instruction prohibiting him from driving the company’s car himself on the company’s business. I also find that he was permitted to travel on the Company’s business outside official hours of business and for that purpose to travel a reasonable distance from Enugu and that the journey to Onitsha would be a reasonable distance. I also find that on the day of the accident Mr.. Bourgery had no company business on which to see Mr.. Basel (i.e. District Manager, C.F.A.O. Onitsha) but there is no evidence as to whether or not he was going to see some one there for the purposes of his business……..”
Later the learned trial Judge found as a fact that Mr.. Bourgery, on the evidence before him, could properly drive the company’s car (in this case, the Station Wagon) in the interest of the business of the company.
He (the learned Judge), however, went on to observe as follows:-
”However, even if he were not permitted to drive the car himself, his so driving it would only amount to his doing something within the scope of his employment in an unauthorised manner as illustrated in the case of Canadian Pacific Railway Co. v. Lockhart (1942) A.C. 591. It is not without significance that the Morris (car) with its ignition key were in the sole control of Mr.. Bourgery outside the normal business hours while the other two kit cars owned by the company were at such times kept locked in the defendants’ premises
In the circumstances, in my opinion, unless it is established by direct evidence to the contrary, the presumption raised that Mr.. Bourgery at the time of the accident, was traveling on the company’s business has not been rebutted by the evidence called by the defendant……….
With all respect to the learned trial Judge, we do not share his view that merely by leaving the Station Wagon virtually in the control of the late Mr.. Bourgery, the appellants were necessarily vicariously liable for the negligent act of Mr.. Bourgery in the use of that vehicle in spite of prior instructions prohibiting him from driving the same. The case of Lockhart (1942) A.C.591 cited by the learned Judge in favour of that proposition of law does not support it; and we think, it is well to point out, that the judgment of Erskine, J. in Sleath (Heath) t°. Wilson (1839) 173 E.R. 976 at 978 generally relied upon for that proposition of law put forward by the learned Judge was rejected by the four learned Judges (Cockburn, CT. Mellor, Lush and Hannen, JJ.) who considered the case of Store_r t•. Ashton in 1869. In that case, Cockburn, C.J. observed :-
…….. I think the judgments of Maule and Creswell, JJ. in Mitchell v. Crassweller 13 C.B. 237 expresses the true view of the law, and the view which we ought to abide by; and that we cannot adopt the view of Erskine, J. in Sleath v. Wilson 9 C & P. 607, 612, that it is because the roaster has entrusted the servant with the control of the horse and cart that the master is responsible. The true rule is that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant……..
See – (1868 – 9) LR.4 QB. 476 at 479 – Storey v. Ashton. In all cases the question is. as we pointed out earlier on what was the servant or agent employed to do, and thereafter it has to be examined whether the negligent act has occurred in the course of his employment or within the scope of his authority?
On we evidence before the lower court, the net result is this: the learned trial Judge found that it was not proved that Mr.. Bourgery was prohibited from driving himself, the vehicle in question in the interest of the business of the company.
It was proved that on the material date he was driving the company’s vehicle on his way to Onitsha possibly in the interest of the business of the company. Here, it must be observed that on the state of the evidence, following the case of Bernard v. Scull y (supra) and the principle of respondent superior, there is a presumption in favour of the respondent that Mr.. Bourgery was, at the material time, driving the Station Wagon which caused the accident within the scope of this authority.
The appellants failed to prove by affirmative evidence that Mr.. Bourgery, at the material time, was on a frolic of his own. It was then urged on us that, because the incident happened on a Sunday at 6.30 p.m., the court should hold on a balance of probability that Mr.. Bourgery was at the time of the accident on a frolic of his own i.e. he was traveling outside, the scope of his authority or, the course of his employment; but it was admitted by one of the witnesses for the appellants that the business of the company has been known to take place on a Sunday, e.g. such as stock-taking of goods and, (b) that it was entirely within the discretion of Mr.. Bourgery – as District Manager or agent of the appellants – to decide, without reference to any other officer of the company – when and for what reasons he may travel out of Enugu in the interest of the business of the company. In these circumstances the balance of probability cannot remain one way (i.e. in the sense that Mr.. Bourgery was on a frolic of his own); it could also be the other way (i.e. that Mr.. Bourgery decided to be about the business of the company on the day of the incident, albeit on a Sunday evening).
It is perhaps unfortunate for the appellants that the death of Mr.. Bourgery has made the onus placed on them unduly heavy but, in our view, the rule of evidence applies i.e. that the appellants having failed to discharge the onus which rested on them to rebut the presumption in favour of the respondent that, at the time of the accident, Mr.. Bourgery was traveling in the interest of the business of the company, there must be judgment for the respondent.
This appeal must fail, and accordingly it is hereby ordered that it be dismissed with costs to the respondent assessed at fifty-five guineas.
BRETT, J.S.C.: I concur.
COKER, J.S.C.: I concur.
Appeal dismissed.
