Janata Bank v Ahmed (Qutubuddin)

JurisdictionEngland & Wales
JudgeLORD JUSTICE WALLER,LORD JUSTICE DONALDSON,LORD JUSTICE ACKNER
Judgment Date08 July 1981
Judgment citation (vLex)[1981] EWCA Civ J0708-4
Docket Number81/0381
CourtCourt of Appeal (Civil Division)
Date08 July 1981

[1981] EWCA Civ J0708-4

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

ON APPEAL FROM THE

HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Before:

Lord Justice Waller

Lord Justice Donaldson

Lord Justice Ackner

81/0381

1975 J No 3251

Janata Bank
and
Ahmed

MR A. HUSSAIN (for MR L. ZUCKER) (instructed by Messrs Herbert Oppenheimer, Nathan & Vandyk) appeared on behalf of the Appellants.

MR A. PARDOE (instructed by Messrs Kaye Tesler & Co.) appeared on behalf of the Respondents.

LORD JUSTICE WALLER
1

This is an appeal from a decision of Mr Justice Park when he gave judgment for the Bank for £36,135.10 on the claim and on a counterclaim by Mr Ahmed for £2,562.32. In addition there is an appeal from a decision of the Employment Appeal Tribunal holding that Mr Ahmed was entitled to £5,200 compensation, as being an employee who ordinarily works in Great Britain who had been unfairly dismissed.

2

Before 1972 Mr Ahmed was employed by the United Bank in Bangladesh. In March, 1972, the banks in Bangladesh were nationalised and the Janata Bank took over the United Bank. Sometime in 1972 Mr Ahmed went to London and was posted then as an employee of the Janata Bank in London. After arrival in London Mr Ahmed helped to set up the London office, and the position by 1974 was that Mr Noor was European Manager and Mr Ahmed was Assistant General Manager. In the summer of 1974 Mr Ahmed spent some time in Brussels helping with the establishment of a branch there. On 25th April, 1975, by an Ordinance issued in Bangladesh the functions of the Janata Bank were transferred to the Sonali Bank. There was a dispute, both before Mr Justice Park and the Industrial Tribunal (there were two hearings before that) as to the events between October 1974 and April 1975, there being an issue as to whether he was wrongfully or unfairly dismissed or whether he ceased to work because he had resigned. The one agreed fact was that the Bank issued a P.45 to Mr Ahmed and whatever happened before that issue Mr Ahmed had not worked for the Bank since. By the time of the hearing before Mr Justice Park both Industrial Tribunal hearings and both appeals to the Employment Appeal Tribunal had taken place.

3

Mr Justice Park after a hearing lasting 8 days delivered a full and careful Judgment, the contents of which I do not propose to repeat here. It is sufficient at this stage only to mention certain salient facts which emerge from the correspondence. On 14th October 1974, Mr Ahmed was ordered to be released from London and ordered to report to Head Office in Dacca Mr Ahmed made several requests to delay this, but ultimately in December wrote that because of the timetable he had no option but to tender his resignation and he asked for his P.45. In early 1975 another letter was written on behalf of the bank saying that Mr Ahmed was suspended pending the investigation of certain charges and telling him to report to Dakar when they had been investigated. The transfer to the Sonali Bank took place on 25th April, 1975. At about the same time Mr Ahmed was asked for the return of £5,000, being the amount owing on an overdraft, and in April or May the P.45 was sent to him. On 23rd June the Bank's Writ, which had been already issued claiming £5,000, was served on Mr Ahmed and on 27th July 1975, Mr Ahmed applied to an Industrial Tribunal for compensation for unfair dismissal.

4

The Judge gave Judgment on 19th July 1979. He found Mr Ahmed an unconvincing witness whose evidence was not acceptable unless it was confirmed by a contemporary document. He found that Mr Ahmed had no intention of returning to Dacca and that his behaviour was such that the Bank "was entitled to assume that he was no longer prepared to serve their bank and thus himself determined his contract of employment" and so found against Mr Ahmed on this part of the counterclaim. The Judge went on to consider the Bank's claim which by the time of the trial included not only the repayment of the £5,000 overdrawn claimed in the Writ originally but also a claim of £34,640 being the substance of 5 of the charges of which Mr Ahmed had been notified. The Judge found 3 out of the 5 charges proved and I only need to refer to one, namely one called Sara. The Judge found that Mr Ahmed had invited Sara to open an account with a deposit of £200; that Mr Sara was a Syrian who gave only an address in London (which proved to be an hotel); that no enquiries about creditworthiness were made; that Mr Sara then drew £5,000 in cash and was never heard of again. The Judge gave Judgment for these three sums, that is including this £5,000, as damages caused by negligence of Mr Ahmed as Assistant General Manager in London. No question arose of the repayment of the overdraft.

5

It was submitted, however, on behalf of Mr Ahmed that a claim by an employer against an employee for damages for negligence in the course of his work did not lie. The only duty implied by law in a contract of employment, it was submitted, was a duty to indemnify the employer in respect of tortious liability of the employer to a third party caused by the employee's negligence. This, it was submitted, was the effect of the decision of Lister -v- Romford Ice and Cold Storage Ltd (1957) A.C. 555.

6

Mr Pardoe on behalf of Mr Ahmed argued that this decision must be so limited and supported this argument by reference to the dissenting Judgment of Lord Justice Denning in the Court of Appeal and by reference to a passage in the Judgment of Lord Denning in Morris -v- Ford (1973) Q.B. 792. In Lister -v- Romford Ice and Cold Storage Co. Viscount Simonds said at page 573: "I have already said that it does hot appear to me to make any difference to the determination of any substantive issue in this case whether the respondents' cause of action lay in tort or breach of contract. But, in defence to Denning L.J. I think it right to say that I concur in what I understand to be the unanimous opinion of Your Lordships that the servant owes a contractual duty of care to his master, and that the breach of that duty founds an action for damages for breach of contract, and that this (apart from any defence) is such a case. It is trite law that a single act of negligence may give rise to a claim either in tort or for breach of a term express or implied in a contract. Of this the negligence of a servant in performance of his duty is a clear example. I conclude then, the first stage of the argument by saying that the appellant was under a contractual obligation of care in the performance of his duty, that he committed a breach of it, that the respondents thereby suffered damage and they are entitled to recover damage from him, unless it is shown either that the damage is too remote or that there is some other intervening factor which precludes the recovery" And Viscount Simonds had already said, at 572,. "It is, in my opinion, clear that it was an implied term of the contract that the appellant would perform his duties with proper care. The proposition of law stated by Willes J. in Harmer -v- Cornelius has never been questioned. 'When a skilled labourer', he said 'artizan, or artist is employed, there is on his part an implied warranty that he is of skill reasonably competent to the task he undertakes, Spondes peritiam artis. Thus, if an apothecary, a watchmaker, or an attorney be employed for reward, they each impliedly undertake to possess and exercise reasonable skill in their several arts….. An express promise or express representation in the particular case is not necessary". I see no ground for excluding from, and every ground for including in, this category a servant who is employed to drive a lorry which driven without care, may become an engine of destruction and involve. his master in very grave liability. Nor can I see any valid reason for saying that a distinction is to be made between possessing skill and exercising it. No such distinction is made in the cited case: On the contrary "possess" and "exercise" are there conjoined. Of what advantage to the employer is his servant's undertaking that he possesses skill unless he undertakes also to use it? I have spoken of using skill rather than using care, for "skill is the word used in the cited case, but this embraces care. For even in so-called unskilled operations an exercise of care is necessary to the proper performance of duty". This is a clear statement of the law, it follows from the speech of Viscount Simonds that it was not a statement of new law because he quotes and adopts the words of Mr Justice Willes in 1858. Lord Radcliffe, although dissenting on the main issue, at 586, said this: "On the first point I think it plain that the law does impute to an employee a duty to exercise reasonable care in his handling of his employer's property. It is the fact of such employment that places the property within his control; and if, as must be the case, he owes a general duty to all concerned not to be negligent in his exercise of that control, it would be a surprising anomaly that, merely because there was also a contractual relationship between himself and his employer, the standard of his obligation to his employer were to be somehow lower than the standard of his obligation to the outside world. I cannot see any good reason why we should uphold the existence of such an anomaly. If the contract of employment is viewed as a general legal relationship in which the law imputes certain rights and responsibilites to each side, it would assign a very undignified position to the employee to suppose that the employer takes him' swith all faults' and that the employee does not by virtue of his engagement impliedly undertake to use all reasonable care in the conduct of his...

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