Kay v I.T.W. Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE DANCKWERTS,LORD JUSTICE SACHS |
| Judgment Date | 24 April 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J0424-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 April 1967 |
[1967] EWCA Civ J0424-2
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Justice Paull - London)
Lord Justice Sellers
Lord Justice Danckwerts
and
Lord Justice Sachs
Mr. JOHN STOCKER, Q. C. and Mr. DAVID PREBBLE (instructed by Messrs, Neil Maclean & Co.) appeared on behalf of the Appellants (Defendants).
Mr. GERSHON ELLENBOGEN (instructed by Messrs. D. Miles-Griffiths, Piercy & Co.) appeared on behalf of the Respondent (Plaintiff).
The question in this case is whether the defendants are to be held liable for the negligence of their servant Ord whose most blameworthy conduct caused serious injury to the plaintiff. Mr. Justice Paull has held that they are so liable and has entered judgment for the plaintiff for £2,250 damages.
The plaintiff was chief storekeeper with the defendants. Ord was employed under him in the warehouse with the duties of generally assisting in loading goods on to vehicles, of driving a fork lift truck within the defendants' premises when required and of driving a light van, on occasions, for the delivery of goods outside.
On the 5th January, 1965, in the morning, a 5-ton Diesel lorry belonging to Werrall & Co. Limited. was collecting goods from the defendants' warehouse and for this purpose the driver Copland had backed the lorry up the ramp leading to the warehouse and to within a few feet of its doorway. When the goods had been brought out and whilst loading on to the lorry was being carried out the doors were closed in order to keep the cold air from the warehouse.
The driver Copland was in the lorry, stacking the cases towards the bulkhead which separated the interior from the driver's cab and the plaintiff was standing behind assisting in the loading. Whilst this was taking place Ord returned to the warehouse with an empty fork lift truck intending to take it up the ramp into the warehouse where it was usually kept when not working. Ord left his truck and without any enquiry or attempt at enquiry of the plaintiff or of the driver of the Diesel lorry, who were both available at the back of the lorry, he got into the driving seat of the lorry and turned the key which started the motor. The vehicle was in reverse gear on account of the slope of the ramp and the lorry suddenly went back and pinned the plaintiff between the door and the lorry.
Ord did not give evidence but the learned judge has foundthat Ord was seeking to move the lorry so that he could get his truck up the ramp and into the warehouse. This may have been his intention and the appellants accepted that it was so. There does not seem to have been any express order to bring the truck back into the warehouse and there is no evidence of any urgency to do so. The warehouse was however the normal place for the truck and this was the only available entrance. On arrival there some other work for it might have been forthcoming.
The appellants have contended that Ord in seeking to remove this large Diesel lorry by starting it up and driving it was acting outside the scope of his employment with the defendants - that is, he was doing something he was not employed to do and was arrogating to himself a task which he was neither engaged nor entitled to perform. Ord might properly have moved some light or small obstruction which could readily and safely have been placed on one side but, it was submitted, to enter the cab of a visiting lorry, particularly of a large lorry with a Diesel engine of which he had apparently no knowledge or experience, and to set it in motion was such an extreme, unforeseeable and dangerous thing to do that it ought not to be held to be incidental to the work for which Ord was employed and that an accident resulting there from ought not to bring liability to his employers.
The case of McKenzie v. McLeod, relied on before the learned judge, was recognised on appeal as a doubtful authority for the defendants' contentions. It was a decision of a jury and might well have been viewed differently by a judge in more modern times. In this Court the appellants relied on cases decided under the old Workmen's Compensation Acts and the principles enunciated in them and in particular on a recent case before the Divisional Court where the similar provisions of the National Insurance (Industrial Injuries) Acts which have replaced the old Compensation Acts called for consideration. In The Queen v. d'Albuquerque, ex parte Bresnahan (on the 11th November, 1965, unreported) the Court refused certiorari where the DeputyCommissioner had held, reversing a finding of the Local Appeal Tribunal, that Bresnahan had not met his death by an accident arising out of or in the course of his employment. The circumstances as stated by the Lord Chief Justice were as follows: "The deceased was a dock labourer working with others on the loading of a ship in the Liverpool Docks. A time came when there were some pallet boards on the quay which were in the way of the loading and had to be removed. There was a man also employed in the gang, if I may use that expression, engaged in this loading whose duty it was to drive a fork lift truck. A time came when he left that fork lift truck with the engine running while he went to effect repairs to another. At that moment the deceased took the fork lift truck and endeavoured with it to remove the pallet boards. In so doing he overshot the side of the quay and the machine with the deceased on it went down into the water, striking the side of the ship, and as a result he was drowned".
The Deputy Commissioner's decision was on the ground that at the time of the accident the deceased was not authorised or permitted to drive the truck and the issue was whether the accident arose out of the employment as well as in the course of it. The Divisional Court's decision was on certiorari and not on an appeal and the claim was by the widow of the deceased man for compensation for his death. It was not a case where a fellow-servant had been injured whilst Bresnahan was driving the truck in question. The finding in that case, and in the present case, was that what the servant was doing at the time of the accident was for the purposes of and in connection with the employers' business. Bresnahan was clearing the quay of cargo to facilitate loading and in the present case Ord was intending to remove the lorry from the ramp in order to get access for his truck into the warehouse. Bresnahan was one of a small team working on the quay in the process of loading and what he was doing was forwarding the work and avoiding delay by using the mechanical device provided for the work in the temporary absence of its allotteddriver. If that case had come on appeal instead of on the more limited procedure of certiorari the decision might - I do not say more - have been different. At least if a passer-by on the quay had been injured while Bresnahan was using the truck the employers might have been held responsible for him for the negligence, if established, of their servant.
The plaintiff here was a fellow-servant and the question arises whether he is in a more unfavourable position than a stranger, say Copland himself, if he had been in the plaintiff's place and the plaintiff had been inside the lorry where Copland in fact was.
A master's duty to his servant is to employ reasonably competent servants so that each servant is not confronted with the risk of a wholly incompetent colleague. It is not possible for a master to fulfill this duty unless he knows the duties a servant is to perform and these the master fixes, perhaps broadly, in the contract of employment. If he employs a man to do labouring it may be argued that the master should not be liable if the labourer voluntarily undertakes, albeit for the master's purposes as he sees it, the driving of a motor vehicle or an aero plane. Perhaps in an extreme case the finding would be that the hazardous and unauthorised task undertaken could not be for the master's purposes but should be regarded as an adventure of the servant.
It would seem unsatisfactory law which, now that common employment is no defence, would relieve the defendants of liability to the plaintiff if on similar facts they would have been held liable to Copland, a stranger to them, if he had met like injuries.
It was submitted that the defendants would not be liable in either case. ( Beard v. London General Omnibus Company 1900 2 Queen's Bench page 530) was relied on as showing no liability to a member of the public when the conductor of a horse-drawn omnibus drove the vehicle whilst the driver went to his dinner and feeling unwell delayed his return for a short time. The judges had ruled that there was no case to go to the jury andthe Court of Appeal upheld that view. If the conductor had merely been turning the vehicle round at the terminus in preparation for the next journey in the circumstances of the driver's absence it is doubtful whether the decision, at least in these days, would have gone the same way. It appears that the conductor was driving at 8 miles an hour round some neighbouring streets when the omnibus injured the plaintiff, which would hardly have seemed necessary in Order to turn the horse-drawn vehicle round and may have been regarded as a wholly unauthorised jaunt by the conductor and not incidental to his employment.
We were referred to two older cases reported in 7 Best and Smith Reports (1886). In Page v. Defries at page 137 (I read the headnote) "the defendants sent a barge under the management of their lighterman to a wharf for the purpose of being loaded; he was unable to get up to it in consequence of a barge belonging to the plaintiffs lying in the way without anyone in charge of it; the foreman of the wharf told him to shove the other barge away as it had no business there, and to...
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