East v Beavis Transport Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PHILLIMORE,LORD JUSTICE KARMINSKI |
| Judgment Date | 25 March 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0325-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 March 1969 |
[1969] EWCA Civ J0325-2
In The Supreme Court of Judicature
Court of Appeal
On Appeal From The Spalding County Court
Lord Jestice Danckwerts
Lord Justice Phillimore and
Lord Justice Karminski
Mr J.D.A. FENNELL (instructed by Messrs Lee, Bolton & Lee, Agents for Messrs Roythorne & Co - Spalding) appeared on behalf of the Appellants (Defendants).
Mr J.V.R. McAULAY (instructed by Messrs Greenwoods) appeared on behalf of the Respondent (Plaintiff).
Mr I. JUDGE (instructed by Messrs Dyer, Marris & Frost) appeared on behalf of the Respondents (First Third Party).
Mr W.A. MACPHERSON (instructed by Messrs Herbert Smith & Co.) appeared on behalf of the Respondents (Second Third Party).
LORD JUSTICE DANCKWERTS: This is an appeal from a Judgment of Judge Daly Lewis given at Spalding on the 17th July, 1968. The accident took place on the 26th February, 1965. The learned County Court Judge decided in favour of the Plaintiff and awarded the agreed damages of $225.
There are in fact four parties to this case, a third party and a second third party being brought in. That always produces some confusion if they are referred to by their official positions and not by their actual name. I propose to explain who the respective parties are, and then after that call them not by their descriptions as parties, but by their proper names.
The Plaintiff East was a lorry driver, employed by Geests, who were the owners of one of the two lorries concerned in this accident. The other lorry belonged to the Defendants, Beavis Transport Ltd. and the driver thereof was a man called Rose. Barry Sellars, who is the first third party, was a docker, and he was employed by the remaining party, the wharfingers, W.E. Anderson & Co. Ltd.
What happened was that there were two lorries standing back to back at Boston Docks on the day in question, and they were being loaded with tomatoes or some other perishable product of that kind. Everybody was for some reason or other in a great hurry to get them loaded and get the lorries away. A man called Diggle was the driver in charge of the lorry belonging to Geests, and it was suggested that the other lorry, belonging to the Defendants, should be moved up in order to allow the tailboard to be put down - there was some question whether it should be put down or not - in order that the loading of the back of the Defendants' lorry could be proceeded with and the loading of the other lorry with more ease.
Thereupon Sellars volunteered to move it up and said to Rose "Shall I move it up?" or words to that effect, and insome way - there was a dispute as to whether it was exactly an answer or whetherit was by implication - there is no doubt, I think, that Sellars received permission from Rose to get into the cab of the lorry and move it. The evidence probably establishes, I think, that there was an actual consent by Rose for him to do it. Anyhow, Sellars got into the cab of the lorry, and then the question is whether he moved it up first or backed it at once. I feel no doubt in fact what he did was to move it up a little bit and then reverse it.
While he was doing that, the Plaintiff East came and took out one of the pins of the tailboard and was about to take out the other pin when Rose's lorry came back, under the driving of Sellars, and crushed his chest between the two lorries, and he received some unpleasant injuries, for which the damages were agreed.
The question is who was responsible and who was the negligent party, if any. The learned County Court Judge held that Rose was really the person responsible, and found him alone to blame, and consequently, of course, his employers vicariously to blame for his negligence; that is to say, the Defendants. He exonerated from blame the Plaintiff with regard to contributory negligence, and Sellars and Sellars' employers, W.E. Anderson & Co. Ltd.
The evidence shows in my view, that Rose was plainly the person in charge of the lorry which was backed. He was responsible for its movements. He assented to Sellars moving it Sellars was a person who held a licence to drive an ordinary car, but apparently was not entitled to drive heavy vehicles. He was, therefore, doing something which prima facie was wrong. Also, it was wrong from another view. He was a docker and dockers were not supposed to drive vehicles about in the docks, though it does appear that this prohibition was not in fact observed and it was not unusual for dockers to drive vehicles for these purposes, I suppose of moving them, but not in a general way.
The trouble was that Rose, once having given consent to the vehicle being moved by Sellars, was apparently looking the other way and took no trouble whatever co observe what Sellars was doing. In his evidence Rose, by his admissions, gave his case away. He said, first of all, that dockers A should not be allowed to drive vehicles, and if they Mid, they should be guided. He further said he ought to have stood still and watched, and made a mistake in that. So there is no doubt whatever that he, being responsible for the movements of the lorry, was negligent and involves his employers in that way.
The learned County Court Judge, as I have said, acquitted Sellars from negligence, but I think Sellars was also to blame. There was a pile of boxes, or whatever the products were in, in the forward part of the lorry, and consequently he was unable to see directly the back of the lorry in question, and he said he had to rely on the side mirrors. The side mirrors are all very well for seeing persons at the side of the vehicle or overtaking it, but they are obviously of no help whatever, and it was admitted that he could not see the back of the lorry. Consequently, it seems to me that he was to blame. He relied apparently on Rose to tell him when to stop, expected him to shout, but he does not appear to have made any definite arrangement for that purpose, and consequently it seems to me that Sellars was also to blame for the accident which happened end was negligent.
I do not think the Plaintiff was to blame. It is quite true he might have been expected to be a little more careful to see what the Defendants' lorry was doing when he was letting down the tailboard of the lorry with which he was concerned, but I think probably he relied on the other parties to do the matter in a safe manner and he was caught off his guard and was injured.
The next question which arises is, assuming that both Hose and his employers and Sellars are to blame, are the Defendants, the second third party, Anderson & Co, liable for the acts of Sellars in this connection. He was, of course, a docker. He was not employed, as has been pointed out, to drive vehicles, but he was doing something which was for the purposes of the job which he had, the job being to load the vehicles in question, and he was doing this in order to speed up the loading of the vehicles and therefore to carry out the work which he was employed to do about the docks.
The principles, which have been approved by the Courts several times, are stated in Salmond on Torts, 14th Edition, at page 658. The heading is "The Course of Employment". "A master is not responsible for a wrongful act done by...
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...in the course of his employment" Salmon on Torts 11 th edition (1965). 77Danckwerts LJ further illuminated the principle in East v Beavis Transport Limited and Ors. (1969) 1 Lloyds Law Reports 303 at pg. 304 He said:- "A master is not responsible for a wrongful act done by his servant unles......
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