Recent Judgment EMPLOYER’S LIABILITY FOR NEGLIGENCE

Press, Volume XCIX, Issue 29108, 21 January 1960, Page 9

Recent Judgment EMPLOYER’S LIABILITY FOR NEGLIGENCE

Union Steam Ship Co. Ltd.,

V. Colville

[By a Legal Correspondent] Before the Court of Appeal, at Wellington.

An employer is liable for the consequences of his employee’s wrongful acts committed in the course of his employment and within its scope, even though the employee’s wrongful act is an improper mode of performing the work authorised by the employer. This case is an application of that legal principle to the circumstances of an accident on a wharf.

On November 16, 1956, at about 1 pm., Colville (here called “the plaintiff”), an employee of the Wellington Harbour Board, was waiting to begin discharging cargo. During the period of waiting he was taking his ease by sitting on the wharf with his back to a shed, 15ft from the doorway. Suddenly a wharf tractor, on which were two employees of the Union Steam Ship Company named Clark and Kidd, emerged through the doorway and turned sharply to the left with the result that the tractor ran over both legs of the plaintiff, and he received quite serious injuries to his left leg. Clark was the driver of the tractor. He was not authorised by the company to drive the tractor. He was, therefore, doing something which was outside the scope of his employment. Kidd was the authorised driver employed by the company to drive the tractor. Both men had been instructed to go to one of the company’s ships to let go mooring lines. Kidd received a further instruction to go to another place later, and do other work as well. It was a common practice, if two persons were engaged on a job which required the use of a wharf tractor, that both should ride on the tractor. No objection was ever taken by the company to this practice. On this occasion, Clark persuaded Kidd to let him drive, though he was not employed by the company as a driver, and he had had very little experience of driving tractors. Jury’s Finding

for unauthorised acts as well if they may rightly be regarded as modes —though improper modes—of doing the work.

If the true view of the evidence were that Kidd had abandoned control, then, in the Court’s opinion, it would be clear that he delegated his task; and, in so delegating, he was acting outside the scope of his employment. If he did purport to delegate the performance of his duty to Clark it could not make any difference whether Clark was or was not a fit and proper person to drive the vehicle.

If, however, Kidd did retain control of the vehicle, then he was not acting outside the scope of his employment in agreeing to allow Clark to drive.

Kidd, while allowing Clark to do the driving, sat beside him. The Court thought the evidence was sufficient to show that, being in that position, he not only was able to direct the way Clark drove but, if the occasion had arisen, to some extent at all events, he could have exercised physical control. That being the position, the Court held that there was evidence justifying the jury finding that Kidd was acting within the scope of his employment when he allowed Clark to drive the vehicle. Second Ground

The second ground relied on by the company was that, before a jury could properly find the company responsible, it was necessary that there should be evidence of personal negligence on the part of Kidd during the time Clark was driving. On the view that the Court of Appeal took of the principles of law which required to be applied in the present case, it was not necessary for the plaintiff to show that Kidd (independently of Clark) was guilty of an act of negligence while Clark was driving the vehicle. Even, however, if the Court had taken another view of the matter,, the judgment added, there was evidence which, if accepted, would have justified a finding that Kidd was negligent, too, for it was open to the jury to find that Clark was an inexperienced driver, and, further, that he drove out of the shed at a speed which was excessive in the circumstances and did so without giving any warning of his approach. Therefore, in the jury’s view, Kidd should not have allowed him to drive at all, or, if he did, he should have taken greater care to see that he drove carefully. Appeal Fails It necessarily followed, from what the Court of Appeal had said, there were no grounds for concluding that a finding that Kidd, at the time of the accident, was still acting within the scope of his employment was against the weight of evidence. His employer, the company, was liable for the consequences of his negligence while he was so acting. The motions for nonsuit and judgment, and, alternatively, for a new trial, on the ground that the findings of the jury were against the weight of evidence, therefore failed. The appeal was dismissed. The injured plaintiff was awarded costs in the Court of Appeal on the highest scale, together with an allowance for a second day of £2l. Counsel: For the company. White; for the plaintiff, Kent. Solicitors: For the company. Young, Bennett, Virtue, and White (Wellington): for the plaintiff. Buddle, Anderson, Kent and Co. (Wellington).

On those facts, the plaintiff claimed damages from the company, alleging negligence on its part and on the part of its employees Kidd and Clark. The action came before Mr Justice Hutchison and a common The jury found Clark negligent in driving the tractor, in a manner causing or contributing to the aC lt d found that Kidd was negligent in a manner causing or contributing to the accident in allowing Clark to drive, and in failing o see that he drove it properly. It also found that the company was not negligent in a manner causing or contributing to the accident in failing to keep the tractor under proper supervision. The jury awarded the plaintiff special damages, £451 16s Id and general damages £lBOO, a total of £2251 16s Id. Company Appeals The company moved for a judgment of nonsuit, and, in the alternative, judgment for the company on the ground that there was no evidence on which the jury could properly find that the of the actions of Kidd m that Kidd was not acting within the scope of his employment. Alternatively. a new trial was sought on the grounds that the verdict was against the weight of evidence. These motions duly came before Mr Justice Hutchison and were dismissed. The company appealed In the Court of Appeal, it was argued for the appellant company first, that, as the evidence stood no jury could properly find that Kidd was acting within the scope of his employment in agreeing to allow Clark to drive the vehicle: and secondly, that though Kidd remained on the vehicle, there was no evidence on which a jury could properly find that the accident was due to the negligence of Kidd during the time Clark was driving.

Employee In Control The Court of Appeal held, on the first point, that the action of Kidd in allowing Clark to drive did not take him outside the scope of his employment, for an employer is liable not only for acts which he has authorised, but

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