Jarmakani Transport Ltd v. Madam Wulem Otu Abeke (1963) LLJR-SC

LawGlobal-Hub Lead Judgement Report

GEORGE BAPTIST AYODOLA COKER (Justice of The Supreme Court of Nigeria)

This is an appeal from the judgement of the High Court, Abeokuta, whereby the appellants were adjudged jointly and severally with the second defendant in the action (who has not appealed) to pay to the respondent damages in the amount of #1,750 with costs assessed at 100 guineas. The respondent had claimed against the appellants and one Ladipo Akanmu, a total of #5,020 being special and general damages for the negligence of the defendants resulting in injuries to her as follows:
Hospital and Medical Examination Fees 20
General damages 5,000
TOTAL #5, 020

The claim of the plaintiff respondent was founded on injuries received by her when a lorry owned by the appellants and driven by the second defendant and on which she was riding was involved in an accident along the Abeokuta Lagos Road on the 30th September, 1958. On the day of the accident the appellants’ driver who was driving an open lorry designed only to carry goods went to the Abeokuta (Lafenwa) lorry park and invited passengers to come on the lorry for transport to Lagos. The respondent was one of the passengers at the park waiting for transport to Lagos and she acceded to the invitation of the second defendant and went on the lorry. She paid a fare but there was no evidence that she received a ticket. At the time she boarded the lorry there were about twenty other passengers on the lorry all sitting on their loads as there were no seats provided on the body of the lorry. As the lorry was already full of passengers and loads the second defendant, the driver, invited her to sit by him in the driver’s cab and she did so. On the way to Lagos she observed that the second defendant was speeding excessively and she requested him to allow her to get off the lorry. This request was apparently unheeded by the second defendant and near the Lafenwa railway crossing the lights of the lorry went out. The driver continued to drive the lorry without lights zigzagging along the road and paid no attention whatsoever to the entreaties of the respondent to allow her to get off the lorry. Shortly afterwards the lorry collided with and rammed another stationary vehicle parked on the left side of the road near Wasinmi on the road to Lagos. The respondent sustained serious injuries to her legs and feet and indeed her feet were trapped in the metal floor of the front seat of the lorry on which she was sitting.
The learned trial Judge, after listening to the evidence of both sides and in particular the medical evidence on behalf of the plaintiff/respondent to the effect that she sustained fractures on the right leg and foot, lacerations over the tendo Achillis and a one inch shortening in the right lower limb (involving a total disability of 17 per cent), gave judgment in favour of the respondent against the appellants and the second defendant, the driver, for #1,750 general damages and awarded 100 guineas costs against both defendants.

It was contended on behalf of the appellants that the second defendant was not acting within the scope of his employment when contrary to the express prohibitions of the appellants he had carried passengers in the lorry which was manifestly not built for carrying passengers. The learned trial Judge came to the conclusion that the appellants were vicariously liable for the negligence of the second defendant who was at the material time their driver and in charge of a lorry owned by them.
A number of grounds of appeal were filed and argued on behalf of the appellants but on account of the view which I have formed of this appeal I propose to deal fully with only two of the grounds, as follows:-
“A. That the learned trial Judge erred in law in holding that the second defendant was acting within the scope of his employment with the 1st defendant in view of
(a) The uncontradicted evidence of the defence that the lorry LB 6841 was licensed to carry goods only, that it bore the inscription “Passengers Not Allowed” and the terms of Exhibit “B”;

(b) the fact that the second defendant was acting on a jaunt of his own by neglecting the duties of his employment in carrying the plaintiff as a passenger when the lorry was not designed to be and was not in fact a passenger lorry, a fact established by the lack of provision of seats of any kind in the lorry thereby showing that the driver was acting outside the ostensible scope of his employment.”

“That the damages of #1,750 awarded are excessive in view of the evidence of the second witness for the plaintiff.”
I observe in passing that on a close reading of the several grounds of appeal filed in this matter it would be found that they are all, apart from the grounds of appeal dealing with the weight of evidence and quantum of damages, directed against the finding that at the time of the accident the second defendant was acting within the scope of his employment with the appellants. It was not complained or suggested before us that in the events that happened the second defendant who drove the lorry in question on the particular day was not negligent. There can be no doubt as to his own negligence as at the material time he was driving and indeed speeding with an open lorry in the dark after his lights had failed and then collided with a stationary lorry correctly parked on its own side of the road.

This appeal therefore turns on the question whether the driver was acting at the time of the accident within or outside the scope of his employment. The respondent gave no specific evidence on this point but relied on the facts that the lorry belonged to the appellants (whose servant the driver was) and that the driver specifically invited her to join the lorry at Lafenwa Motor Park. As against this the appellants produced evidence at the trial to the effect that the vehicle concerned was an open lorry not built for the carriage of passengers, that the lorry was licensed to carry goods only and insured for that purpose only and that they had caused to be printed boldly on both sides of the lorry the warning “Passengers Not Allowed”.

The appellants also testified to the effect that all their drivers including the driver of the lorry involved in the present case were specifically warned not to carry passengers. Indeed a copy of the alleged warning notice issued to the second defendant in this case was produced in evidence as Exhibit “B”. It reads in part as follows:-
“You shall be driving Commercial Goods Lorry No. LB 6841 and this being a vehicle constructed and designed mainly for carrying goods, you are not permitted under any circumstances to carry passenger or passengers on this vehicle or any other vehicle that may be allocated to you in future. If you happen to do so, you are liable to immediate dismissal. Offence and Claims resulting from your carrying passengers in disregard of this instruction shall be your own responsibility and we shall not in any way be liable as such act is outside the scope of your employment.
You will have to sign this letter and return it to us immediately. The attached copy is yours.”

In their final addresses to the Court, Counsel on both sides referred to some legal authorities in support of their contention as to whether or not at the time of the accident the driver was acting within the scope of his employment so as to render the appellants liable for his act under the doctrine of “respondent superior” . The learned trial judge came to the conclusion that the appellants were so liable and stated inter alia in his judgment as follows:-

“With regard to the third point, I hold that in the circumstances of this case, the 1st Defendant is vicariously liable for the negligence of the 2nd Defendant. The 1st Defendant employed the 2nd Defendant to drive lorry No. LB 6841. In the course of doing what he was employed to do, he drove the lorry negligently, as a result of which the Plaintiff sustained the injuries for which she is now claiming damages. It is immaterial whether he acted improperly or contrary to express orders. In any case, I am not satisfied that the words PASSENGERS NOT ALLOWED” were written on the lorry. Even if they were, the words could not have been intended, and they were not intended, for the illiterate class of persons to which the Plaintiff belongs.

Furthermore, there is no proof that the contents of the instructions (Ex. “B”) were ever interpreted to the 2nd Defendant who the 1st Defendant admitted is an illiterate, before he affixed his thumb impression. It is significant that Yesufu Olu, who was shown on Ex. “B” as having interpreted Ex. “B” to the 2nd Defendant, was not called by the Defence to give evidence.”

Before us learned Counsel for the appellants attacked these findings and submitted that in the circumstances of this case the appellants could not be vicariously liable for the negligence of the second defendant as he was not at the material time acting within the scope of his employment with the appellants.

It is trite law that a master is vicariously liable for the negligence of his servant committed in the course of and within the scope of the servant’s employment, but the application of this principle to the realities of a situation is fraught with considerable difficulties. The result is that ultimately each case will have to be determined on its own facts.

In Goh Choon Seng v. Lee Kim Soo [1925] A.C.550, the Privy Council held that an employer is responsible for damage caused by the negligent act of his servant in the course of performing the duties of his office even if the act incidentally involves a trespass which the employer has not authorised. In the course of the Judgement of the Board, Lord Phillimore suggested a classification of the possible cases into three categories, in a passage which reads as follows [at p. 554]:-

“As regards all the cases which were brought to their Lordships’ notice in the course of the argument this observation may be made. They fall under one of three heads:

(I) The servant was using his master’s time or his master’s place or his master’s horses, vehicles, machinery or tools for his own purposes: then the master is not responsible. Cases which fall under this head are easy to discover upon analysis. There is more difficulty in separating cases under heads (2) and (3). Under head (2) are to be ranged the cases where the servant is employed only to do a particular work or a particular class of work, and he does something out of the scope of his employment. Again, the master is not responsible for any mischief which he may do to a third party. Under head (3) come cases like the present, where the servant is doing some work which he is appointed to do, but does it in a way which his master has not authorized and would not have authorized, had he known of it. In these cases the master is, nevertheless, responsible.”
I respectfully agree with this classification. It should, however, be understood that the three categories are not necessarily mutually exclusive of each other, in other words, they overlap or interlock to some extent.

In the present case the learned trial Judge came to the conclusion that the appellants’ driver drove the lorry negligently “in the course of doing what he was employed to do” and stated further that “it is immaterial whether he acted improperly or contrary to express orders”. To start with I am clearly of the view that this is a misdirection for it certainly overlooks the difference between an act which is an improper way of executing an authorized act and an act which is the performance of an unauthorized act. I will advert to this point again later in this judgement.

As I indicated above the most important point raised by this appeal is whether or not at the time of the accident the driver was acting within the scope of his employment. In Twine v. Beans Express Limited (1946) 175 L.T. 131, the widow of a passenger who was given a lift by the respondents’ driver on a van belonging to the respondents but contrary to the express prohibitions of the respondents to the effect that he should not carry passengers (with the exception of limited class of persons) claimed damages from the respondents for the negligence of the driver resulting in the death of her husband. The Court of Appeal held that the deceased when on the van was, as against the respondents, a trespasser in that, in carrying the deceased when he was expressly forbidden to carry passengers, the driver was doing an act outside the scope of his employment. Lord Greene, M.R. in the course of his judgement at page 132 observed as follows:-

“That being so, it seems to me there is an end of the matter, because if the question is asked: Was the driver, Harrison, in giving a lift to the deceased man, acting within the scope of his employment? the answer is clearly ‘No’. He was doing something that he had no right whatsoever to do, and qua the deceased man he was as much on a frolic of his own as if he had been driving somewhere on some amusement of his own quite unauthorised by his employers”.

It is to be noted that in Twine’s case the deceased knew that he ought not to go on the van and it appeared as if the driver of the van said to him on boarding the van that he was not authorised to carry passengers. Nevertheless like the respondent in the case on hand the deceased got on the van at the invitation of the driver. It is, however, not necessary that the passenger should realise that he is a trespasser for he is one as against the employers of the driver unless it can be shown that he was on the van on the invitation or licence actual or constructive of the driver’s employers.
In the present case the learned trial Judge observed in the course of his judgement as follows:-
“Thirdly, the evidence given by the Plaintiff and that of her 3rd witness as to the motor park at which they joined the lorry and the number of persons on the lorry seem to indicate that the lorry was authorised to take and did take quite a number of passengers.”

With all respect this is a non sequitur and wrongly assumes in favour of the plaintiff/respondent what she was supposed to prove. In Conway v. George Wimpey & Company Limited [1951] 2 K.B. 266 where the facts are not much dissimilar, Asquith, L.J. dealt with a similar point in the following passage of his judgement on page 274:-
“The steps by which this result is reached must logically, I think, be the following, if it is to be reached at all:-first, there has to be shown knowledge by the defendants that their lorry drivers had made a practice of disregarding the prohibition; secondly, acquiescence by the defendants in that practice; and, thirdly, acquiescence in such a manner as to represent to people like the plaintiff, and indeed the plaintiff himself, that the driver’s authority was not limited to carrying the defendants’ men.

I cannot see how the plaintiff can get over the first of these three hurdles, not to mention the second and the third,    “
The plaintiff gave no evidence from which the acquiescence in or ratification of the acts of their driver by the appellants could reasonably be inferred and the appellants’ witness specifically testified on this point as follows :-
“I did not permit the driver to carry passengers. We are not liable.” ….
“We do not know whether our drivers carry passengers or not. As they do not admit that they carry passengers we never see the proceeds.”
In my view it is clear that the plaintiff/respondent was at the material time a trespasser on the lorry as against the appellants and it does not matter whether or not she was able to read the inscription “passengers not allowed” alleged by the appellants to be boldly written on both sides of the open lorry. There was uncontradicted evidence on behalf of the appellants that the driver of the lorry was peremptorily forbidden to carry passengers. The learned trial Judge seemed to hold the view that the prohibition was not established inasmuch as the driver of the lorry was an illiterate and neither did he give evidence nor was the person who interpreted the written instructions to him called as a witness. Again with respect I cannot see the relevance of this point nor does the fact that the instructions were written or oral affect the legal position. The case of the appellants was and is that the driver was expressly forbidden by them to carry passengers. The lorry given in charge of the driver was an open one and on the plaintiff’s own showing the passengers carried by the appellants’ driver on the day in question were all sitting on loads inside the vehicle. Quite clearly the appellants made no provisions for the accommodation of passengers on their lorry. The position is that the driver was, at the time of the accident, performing an act which was clearly forbidden by his employers and could not be regarded as falling within the scope of his employment. If it was contended that the driver has ostensible authority to carry the plaintiff as he did, the onus of proving this was certainly on the plaintiff. No attempt whatsoever was made to do this. At the end of his judgement in Conway v. George Wimpey Company Limited (supra), at page 276, Lord Asquith observed as follows:-
“To put it differently, I should hold that taking men not employed by the defendants on to the vehicle was not merely a wrongful mode of performing the act of the class this driver was employed to perform, but was the performance of an act of a class which he was not employed to perform at all. In other words, the act was outside the scope of his employment for the same reason that the act complained of in Twine’s case was held to be outside the scope of that driver’s employment.”

In the present case it seems to me that the learned trial Judge overlooked the clear distinction between a prohibition that limits or defines the mode of performance of a duty and one that limits or curtails the scope of employment. (See per Lord Dunedin in I Plumb v. Cobden Flour Mills Company Limited [1914] A.C. 62 at page 67). The prohibition in the present case certainly curtails the scope of employment of the driver. A similar point arose for determination in the case of Madam Patego Meniru and 10 others v. I C letus Igwe and another, F.S.c. 339/1962 (decided on 4th January, 1963) and this Court held affirming the judgement of the Kaduna High Court that the employers of a driver were not liable for damages to the widow of a passenger who was killed whilst on board the car of the defendants and taken on board by the driver in violation of the express instructions of the employers that he should not carry passengers.

Learned Counsel for the respondents has urged on us to take the view that the prohibition in this case was only one defining the mode of performance of his duties by the driver and has referred us to the cases of London County Council v. Cattermoles (Garages) Limited [1952] 2 A.E.R. 582 and Canadian Pacific Railway Company v. Lockhart [1942] 2 A.E.R. 464. It is sufficient to point out that in the first case the garage attendant was performing (although in an unauthorized and forbidden way) the duties for which he was employed.

See also in this connection William N. Iko v. JohnHoltCompany Limited and another (1957) 2 F.S.C. 50. With respect to the second case the carpenter involved was clearly performing duties of his office although he had used an un-insured vehicle against the prohibition of the employers. Besides, there was clear evidence in that case to the effect that the employers had acquiesced in his previous violations of this prohibition. Accordingly in Hilton v. Thomas Burton (Rhodes) Limited and another [1961] 1 A.E.R. 74, where there was no express prohibition with regard to the use of the employers’ van but it was established that at the time of the accident the plaintiff’s husband was on the van, on a journey which was not authorized, expressly or impliedly, by the employers of the driver, it was held that the employers were not liable. In my view on the evidence before the learned trial Judge the appellants were entitled to a finding that the driver at the material time was not acting within the scope of his employment and that they were therefore not liable in damages to the plaintiff respondent for his negligence.

It was also contended on behalf of the appellants that the damages awarded were excessive. I have already set out the amount of damages as awarded by the learned trial Judge. The principles on which an Appeal Court acts when it is called upon to decide on the quantum of damages are well established and clearly stated by Greer, L.J. in Flint v. Lovell [1935] 1 K.B. 354 at page 360.

These principles were considered by the Privy Council in Nance v. British Columbia Electric Railway Company Limited [1951] A.C. 601, where at page 613 Viscount Simon observed as follows:-

“The principles which apply under this head are not in doubt. Whether the assessment of damages be by a judge or a jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the tribunal of first instance was a judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage (Flint v. Lovell approved by the House of Lords in Davies v. Powell Duffryn Associated Colliery, Ltd. [1941 A.C. 601). )
These principles were applied by this Court in the recent case of Agaba v. Otubusin [1961] 1 All N.L.R. 299, where total damages of’a33,830 awarded by a High Court to the plaintiff were reduced to ‘a32,000. In that case the injuries suffered by the Plaintiff were described as follows [at p. 300]:’97
“the injuries he sustained were a V-shaped cut one inch long above the left eye brow; a cut three inches long over the upper lip; a cut three inches long over the left side of the chin: these were stitched and healed, but left scars behind; there were also some abrasions, which were not serious, except for the fractured abrasion of the left hip joint. He was suffering from shock;”

There was also evidence that his nervous disorder would recur and there was a virtual certainty that osteo-arthritis of the injured hip joint would develop later and lead to the fixation of the thigh bone and to osteo-arthritis of the spine and the other hip joint.

In the case on hand the learned trial Judge made no specific findings about the injuries suffered by the plaintiff respondent, but awarded damages as described above on the basis of the evidence given by her witnesses to the effect that she suffered:-
(i) Simple fractures of the right tibia and three lateral bones of the right foot;
(ii) A cut in the tendo Achillis (tendon above the heel) resulting in pain, a permanent definition of the right leg and a one-inch shortening of the limb; and
(iii) Some injury (undefined) to the chin whereby “the bone of the chin is not as strong as it was before the accident.”

The surgeon who examined and treated her testified to the effect that he did not think that her expectation of life was affected by the injuries she sustained and the learned trial Judge clearly stated that he was not awarding her any damages for loss of expectation of life. She certainly suffered much less than the plaintiff in Agaba’s case.

I have dealt with the measure of damages only because it was raised in this appeal for it is clear that having regard to the judgement on the other point of this appeal the matter of quantum of damages does not strictly speaking still arise. I would say, however, that if that matter had arisen, I would for the reasons stated above have suggested a substantial reduction in the amount awarded as general damages.

The points already discussed have disposed of this appeal. I would therefore allow the appeal, set aside the judgement of the learned trial Judge and make the following order:-
Appeal allowed. As against the first defendants the Plaintiff’s case is dismissed.
The appellants must also have their costs both in the Court below and in this Court. I would assess the costs in the Court below at 50 guineas and costs in this Court at 25 guineas.