Ilkiw v Samuels
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DANCKWERTS,LORD JUSTICE DIPLOCK |
| Judgment Date | 23 May 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J0523-2 |
| Docket Number | 1958. I. No. 108 |
| Court | Court of Appeal |
| Date | 23 May 1963 |
[1963] EWCA Civ J0523-2
Lord Justice Willmer,
Lord Justice Danckwerts and
Lord Justice Diplock
In The Supreme Court of Judicature
Court of Appeal
From Mr Justice Philimore Lincoln Assizes
Mr BERNARD CAULFIELD, Q. C., and Mr ALAN C. H. de PIRO (instructed by Messrs Clifford Turner & Co., Agents for Messrs Alick hitman & Co., Nottingham) appeared on behalf of the Appellants (Third Defendants).
Mr W. PERCIVAL GRIEVE, Q. C., and Mr DAVID A. L. SMOUT (instructed by Mr William Bains, Brigg) appeared on behalf of the Respondent (plaintiff.)
LORD JUSTICE WILLMER; This is an appeal from a Judgment of Mr Justice Phillimore given at Lincoln Assizes on the 8th February 1963, whereby in an action brought by the plaintiff for personal injuries he found in the plaintiff's favour against the third defendants to the action, and awarded damages amounting to £4,077. I would say at once that the odd £77 represents the amount of agreed special damage.
The action arises out of an accident in which the plaintiff was involved, and which took place at his place of work, namely, the British Sugar Corporation warehouse at Brigg, on the 17th March 1955. I emphasise the date of the accident,as indeed the learned Judge did, for something like eight years had elapsed between the date of the accident and the date when the case was tried.
The plaintiff unfortunately was struck and injured by a lorry belonging to the third defendants, which at the time was manoeuvring inside the warehouse where the plaintiff was working, after picking up a load of sugar. The action was brought against three defendants, but in the event the plaintiff proceeded only against the third defendants. The first defendant was a fellow employee of the plaintiff with the British Sugar Corporation; he was actually the man who was driving the lorry at the time of the accident, which took place in circumstances to which I will presently refer. The second defendant was the regular driver of the lorry, and as such an employee of the third defendants, who were the owners of the lorry. Having now disposed of the first and second defendants, I think it may be convenient to refer hereafter to the third defendants simply as "the defendants".
There was a considerable dispute of fact as to how the accident came to occur. I do not go into that because the learned Judge heard the evidence and came to the clearest possible finding of fact as to how the accident occurred. For the purposes of this appeal the Judge's findings of fact in that respect have been accepted. I can, therefore, summarise the nature of the accident quite briefly.
The lorry had backed into the warehouse into a position under a conveyer belt which was in use for the purpose of delivering the sacks of sugar to the lorry. The driver, whose name was Wairnes, was standing on the back of the lorry engaged in stacking the sacks of sugar in the ordinary course of his work. The moment came when the loading of the lorry had been completed, and it was then necessary to move it forward away from the conveyor belt for two reasons - first, so as to enable waines to sheet the load with a tarpaulin, and secondly, so as to clear the conveyor belt and make room for any other lorry which might want to back In there to take another load.
At this point Samuels (the first defendant, to whom I have already referred, who had been engaged on the work of loading this Lorry, intervened and offered to move the lorry for Waines. Waines allowed him to do so, and went so far as to tell him how to start the engine of the lorry. He made no inquiry whatsoever as to Samuels's competence to drive the lorry, and (as was very quickly apparent) Samuels was in fact quite incompetent to do so. He did succeed in starting the engine, got into gear, and moved the lorry a few yards forward, but he then found that he could not stop it: the lorry ran into the base of two conveyor belts, between which the plaintiff was standing, with the result that it caused injury to the plaintiff. Throughout this time Wainea, the regular driver, remained in the back of the lorry. I should here state and emphasise that Wainea was under strict instructions from the defendants (his employers) that he was not in any circumstances to allow anyone else to drive his lorry.
On those facts the learned Judge came to the conclusion that Waines was guilty of negligence. He said: "I have no doubt that in allowing Samuels to do so" - that is, to drive the lorry - "Waines was acting in flat disregard of those instructions. It is quite clear that this accident was caused by the negligent driving of Samuels; that in allowing him to drive without inquiry Waines was negligent, and that that negligence caused this accident".
The Judge then went on to consider whether, in acting as he did, Waines was acting in the course of his employment so as to render the defendants liable for his negligence. He referred to a number of authorities that had been cited to him, and came to his conclusion which he expressed as follows: "I have no hesitation in concluding in this case that In accepting Samuels's offer to drive this lorry a short distance, Waines was doing a job that he was authorised to do, albeit doing it in an unauthorised way, indeed in a way which was directly contrary to the instructions of his employer. Moreover, I am satisfied that he gave his permission and remained on the lorry whilst this manoeuvre was carried out in close conjunctionwith this man Samuels who was driving it, and it might be said that he was still in control of the lorry. In those circumstances, in accordance with the principle to which I have referred, I have no doubt that these defendants are liable for the negligence of waines. This is the exact equivalent of a case where an employer tells an employee to drive from A. to B., and the employee gets someone else to drive part of the way. Thus, the employee Is doing the job that is authorised, albeit, as I have said, in an unauthorised way. In such circumstances I think it is clear law that an employer is liable for the negligence of his employee".
Having thus found that the defendants were liable for the negligence of Waines, the learned Judge proceeded to consider the question of damages. He arrived at the conclusion that the general damages ought to be assessed at £4,000, and, adding the general damage which had been agreed, he arrived at the result which I have stated.
On this appeal three points have been argued before us. First, it is said that the Judge was wrong to find that waines was guilty of any negligence. Secondly, it has been contended that, even if Waines was guilty of negligence, his action was not within the course of his employment so as to render the defendants liable. Thirdly, it has been contended that in any case the damages awarded by the Judge were excessive having regard to the nature of the plaintiff's Injuries and all the circumstances of the case. I will deal with those points in that order.
First, as to the question whether Waines was guilty of negligence. This was a matter which It was necessary for the learned Judge to find if liability was to be fastened on to the defendants, for the defendants could not be liable for the plaintiff's injuries otherwise than through the negligence of Waines. It is quite clear, as the Judge pointed out, that the man Samuels was guilty of negligence, and there can be no doubt that his negligence was a cause, and a substantial cause, of the accident. But the defendants, of course, cannot be made liable for the negligence of Samuels, who was not their servant. As I have already stated, the Judge has foundthat Waines, too, was guilty of negligence, and that his negligence was also a cause of the accident. Oddly enough (although one might be forgiven for thinking that this was a plain question of fact) a considerable number of authorities has been cited to us in relation to this question. They are mostly cases where, in varying circumstances, vehicles have been permitted to be driven by unauthorised persons. I hope that I shall not be thought to be lacking in respect for the interesting argument which has been addressed to us on this aspect of the case if I do not refer to all the cases which have been cited. But I do not think that any principle of law is involved in this aspect of the present case. The only difficulty hero lies in applying perfectly well known principles as to the law of negligence to the somewhat unusual circumstances of this peculiar accident.
Treating it as a question of fact, I am perfectly satisfied that the learned Judge came to the right conclusion, and for the reason that he gave, namely, that waines was negligent in allowing Samuels to drive without any inquiry. Certain it is that he made no inquiry. Had he done so, he might have ascertained (as was the fact) that Samuels had never driven a lorry before; in fact, I do not think he had ever driven anything before except in a field, and that was some years before the accident with which we are concerned took place. He had never driven on the road, and he held no driving licence. Yet here he was being invited to drive a very heavily loaded lorry, in a confined space, where the difficulties of manoeuvring might well have taxed the skill of even an experienced driver, in circumstances in which there were clearly obstructions such as the conveyor belts on the warehouse floor, and where there were men moving about. It is difficult to imagine anything more dangerous than allowing an unknown man to take on the joo of moving a heavily loaded vehicle like this in such circumstances. It seems to me that, not having inquired, Waines can be in no better position than he would have been if he had known of Samuels's incompetence
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