Houston v Buchanan
| Jurisdiction | England & Wales |
| Judge | The Lord Chancellor,Lord Russell of Killowen,Lord Wright,Lord Romer |
| Judgment Date | 14 March 1940 |
| Judgment citation (vLex) | [1940] UKHL J0314-2 |
| Docket Number | No. 2. |
| Court | House of Lords |
| Date | 14 March 1940 |
[1940] UKHL J0314-2
House of Lords
Lord Chancellor
Lord Thankerton
Lord Russell of Killowen
Lord Wright
Lord Romer
After hearing Counsel, as well on Wednesday the 24th, as on Thursday the 25th, days of January last, upon the Petition and Appeal of Mrs. Norah McLeod or Houston, Pauper, residing at Turner Farm, Gartmore, Stirlingshire, praying, That the matter of the Interlocutors set forth in the Schedule thereto, namely, an Interlocutor of the Lord Ordinary in Scotland (Lord Jamieson) of the 8th of December 1937, so far as therein stated to be appealed against, and also an Interlocutor of the Lords of Session there, of the First Division, of the 15th of July 1938, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutors, so far as aforesaid, might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Hugh Reid Buchanan, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Interlocutors, in part complained of in the said Appeal, be, and the same are hereby, Recalled: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland with a Direction to pronounce Decree in favour of the Appellant for the sums of seven hundred and fifty pounds (£750), with interest thereon at the rate of five per centum per annum, as from the 11th day of June 1935, and of two hundred and ninety-nine pounds, three shillings and four pence (£299 3s. 4d.), with interest thereon at the rate of 5 per centum per annum, as from the 22d day of August 1935, and to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellant the Costs of the Action in the Court of Session, so far as not already dealt with by the Interlocutors of the 24th day of February and the 18th day of June 1937, and also the Costs incurred by her in respect of the said Appeal to this House, such last-mentioned Costs to be taxed in the manner usual when the Appellant sues in formâ pauperis and the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within one calendar month from the date of the certificate thereof, the Court of Session in Scotland, or the Judge acting as Vacation Judge, shall issue such summary process or diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
The Appellant has had an unhappy experience in her quest for some compensation for the loss of her son, James Houston, who was killed on the 30th November, 1933, by a motor car belonging to the Respondent driven by his brother, James Buchanan. The history of the prolonged litigation which the Appellant has had to meet begins with her action against James Buchanan for damages in respect of the death of her son having been caused by James Buchanan's fault. She obtained a verdict for £750 damages, and was also found entitled to expenses amounting to £299 3s. 4d. Unfortunately James Buchanan was unable to pay any part of these sums.
The Appellant then took proceedings, under Section 10 of the Road Traffic Act, 1934, against the Royal Insurance Co., with whom the Respondent was at the time of the accident insured, in respect of third party liability arising out of the use of the car. She claimed the damages and expenses awarded to her in the action against James Buchanan. The Insurance Company met the claim by relying on a condition of the Policy under the head "limitations as to use", namely "use in connection with the Policy holder's business only", whereas the driver, James Buchanan, was using the car for his private purposes. The Insurance Company succeeded and the Appellant then began the present proceedings against the Respondent for the recovery of the damages and expenses awarded to her, by way of damages for the breach by the Respondent of his Statutory duty under Section 35 of the Road Traffic Act, 1930. The action was at first dismissed as irrelevant. On appeal to the First Division Lord Carmont's interlocutor was recalled and proof allowed. When the proof was taken, the Lord Ordinary, Lord Jamieson, pronounced an interlocutor in favour of the Respondent. The Appellant once more appealed. The First Division of the Court of Session, consisting of four Judges, heard the appeal and, as they were equally divided, a rehearing took place before a Court of five Judges. Finally an interlocutor was pronounced in favour of the Respondent by a majority consisting of the Lord President, Lord Fleming and Lord Pitman, Lord Moncrieff and Lord Carmont dissenting.
The Appellant now comes to your Lordships' House. The only question now outstanding is as to the Appellant's right to recover damages, the Respondent by his Counsel having taken the very reasonable course of admitting at the Bar the amount of damages to be the two sums of £750 and £299 3s. 4d., if the Appellant should be held entitled to succeed.
Section 35 of the Road Traffic Act, 1930 , upon which the Appellant relies, imposed a duty on the Respondent not "to use or to cause or permit any other person to use" his motor car, unless there was in force in relation to the user of the vehicle by that other person a policy of insurance in respect of third party risks complying with the requirements of the Act. Section 36 sets out the requirements of the Act in respect of policies. The material requirement is contained in sub-section (i) ( b). The result of these provisions was to prohibit the Respondent from causing or permitting James Buchanan to use the car in question, unless a policy of insurance was in force covering third party risks in respect of the death of or bodily injury to any person caused by or arising out of the use made of the car. Neither the Respondent nor anyone else was insured in respect of the actual use which was being made of the car at the time of the accident. In these circumstances the only question is, did the Respondent use or cause or permit James Buchanan to use the car? As the answer depends on all the facts, it is necessary to state them in some detail.
The Respondent is a member of a firm of solicitors in Glasgow. In 1932 he became tenant of Garrauld Farm in order that his brother James Buchanan might carry on a poultry farm as manager for him. The Respondent's intention was to allow his brother in course of time to buy him out and to become the proprietor. The Respondent took no part in the management of the farm and James Buchanan had sole control. Garrauld Farm is about 4 1/2 miles from the nearest village and is 21 miles from Glasgow and about 14 miles from Milngavie where the Respondent lived. James Buchanan thought the farm was isolated and found it necessary to have the use of a motor vehicle in connection with the business. Accordingly the Respondent bought an old Humber touring car for a few pounds for his brother and for the use of the farm. It seems that the purchase was carried through by James Buchanan. The Respondent did not see the car before it was bought, but he paid for it. It was registered in his brother's name and a proposal form was signed by James Buchanan for a policy of insurance covering the car for twelve months from the 28th June, 1932, to the 28th June, 1933. James Buchanan did not remember filling in the details of the form and it is probable that this was done by one of the clerks in the Respondent's office. The form used was headed "Proposal form for motor cars used for private purposes". In reply to a question "Will the motor car be used solely for social, domestic and pleasure purposes?", the answer given was "No", and in reply to the next question "If not, please state other uses", the answer was "also in connection with my poultry farm". In due course the proposal was accepted and a policy was issued in the name of James Buchanan containing the words "no use except for private purposes". But by a definition of "private purposes", the use of the car by James Buchanan (described as "the insured") in connection with his business or profession was within the terms of the policy. The Respondent did not personally interest himself in the matter of the insurance, and only became aware much later that the car was registered and insured in his brother's name. From time to time the Respondent visited the farm for the purpose of showing interest in his brother rather than in the farm. He said that he became aware that the car was used for every purpose practically for which a car could be used. As might be expected the Humber car was not very reliable and the Respondent had bills to pay for repairs. For one reason or another Mrs. Buchanan, the wife of James, was not satisfied with the Humber as their only car and she bought a small Standard car for her own purposes. Up to the time of the purchase of the Standard, the Humber was freely used by Mr. and Mrs. James Buchanan for social as well as for business purposes. After the purchase of the Standard, James Buchanan used the Humber for his own private purposes, but not when his wife was with him.
The evidence of the Respondent,...
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