Launchbury v Morgans

JurisdictionEngland & Wales
JudgeTHE MASTER of THE ROLLS,LORD JUSTICE EDMUND DAVIES,LORD JUSTICE MEGAW
Judgment Date20 January 1971
Judgment citation (vLex)[1971] EWCA Civ J0120-2
Date20 January 1971
CourtCourt of Appeal (Civil Division)

Appeal by third-named defendant, Sarah Morgans (widow) from Judgment of Mr. Justice Stirling at Swansea on 24th April, 1970.

Between
Thomas Michael Launchbury
First Plaintiff
and
Diane Helen Mary Launchbury (his wife)
Second Plaintiff
and
Michael Phillips
Third Plaintiff
and
Sarah Morgans (Widow) (Administratrix of the Estate of David Glyn Morgans Deceased)
First Defendant
and
Thomas Glenville Davies (Appointed By Order Dated 24th June 1067 to Represent The Estate of Daniel James Cawfield
Second Defendant
and
Sarah Morgans (Widow)
Third Defendant

[1971] EWCA Civ J0120-2

Before

The Master of the Rolls, (Lord Dinning)

Lord Justice Edmund Davies and

Lord Justice Megaw

In The Supreme Court of Judicature

Court of Appeal

Mr. J.D. May, Q.C., and Mr. Bertrand Richards (instructed by Messrs. Berrymans) appeared on behalf of the third defendant, appellant.

Mr. J. Davies, Q.C., and Mr. T. Lewis-Bowen (instructed by Messrs. Trevor Thomas Scott & Jenkins of Swansea) appeared on behalf of the Respondent Plaintiffs.

THE MASTER of THE ROLLS
1

On 4th August 1964, there was a serious motor accident near Swansea; A Jaguar motor car ran head on into a bus coming the other way. There were five people in the car. Two were killed, and the others injured. It was solely the fault of the driver of the oar. He was killed in the accident. His estate is worth nothing. He was not the owner of the car. The question is whether the owner can be made liable for his negligence.

2

The particular facts are these: the Jaguar car was owned by Mrs. Morgans. It was registered in her name and insured in her name. Her husband was killed in the accident. She and he were married in 1955. At that time each had a car, but after a year they decided it was unnecessary to have two cars. So they sold the husband's car and kept hers. They got a new car from time to time, trading in the former car in part exchange but each new car continued to be registered in her name and insured in her name. We do not know which of them paid the money for the new car, nor who paid the insurance premiums or the road fund license, nor who paid for the petrol or repairs. They both went out to work, so I expect they both contributed. But it did not matter so far as they were concerned. It was regarded by both of them as the family car. She said: "It was registered in my name, but quite honestly I never thought of it as my car. It was our car". He used it more than she, because he used it every day to go to work. She knew that he might occasionally stay out late to have a drink and she was worried about it. He told her: "Don't worry; I will not drive unless I am fit to drive. I will get some friend to drive, or I willtelephone to you to fetch me". She said, "Mind, then, that you choose a friend who is absolutely sober". On that understanding she left it.

3

On 4th August, 1964, Mr. Morgans went to work as usual in the car. He was the manager of a bank in Amman ford. They lived at Brynamman, which is about seven miles away. His wife expected him home to supper. But she was busy herself that evening, as she was a pharmacist and had late surgery. So she arranged for her sister to get his meal. At 5.30 p. m. he telephoned his wife. He said he was having some trouble with the petrol pump in the car and was at a garage getting it put right. He said that her sister was not to get a meal because he would not be back for it. At 7 p. m. he telephoned his wife again and said that he was going out for the evening. She was to expect him home between 9.30 and 10 p. m. But he never came. What happened? is told by others.

4

About 7.30 p. m. Mr. Morgans was in a public house - the Cao Gurwen Arms at Gwaun Cae Gurwen. Had been drinking. Mr. Jones came in. Mr. Morgans knew him. He pulled his keys out of his pocket and said to Mr. Jones: "Will you run me to Ammanford?" He was about to hand the keys over to Mr. Jones when he saw a Mr. Cawfield in the door of the bar. Danny Cawfield he was called. Mr. Morgans pulled the keys back and said: "I'm all right now. I have got Danny to drive me tonight". A little later the innkeeper saw Mr. Morgans and said to him: "You are not in a fit state to drive tonight". He said: "It is not I that is driving tonight. I have a chauffeur", indicating Danny Cawfield. At that time Mr. Cawfield appeared to be sober: so the innkeeper did not worry any more.

5

Later on that evening, Mr. Morgans and Mr. Cawfield were in the Old Star Inn at Cwmgors. There came in a young couple - Mr.and Mrs. Launchbury. She was going to have a baby before very long. With them was a young man Mr. Michael Phillips. They chatted to Mr. Cawfield until closing time. Mr. Cawfield said he would give them a lift home. They went out to the car park and got into the Jaguar car. Mr. Cawfield got into the driving seat. Mr. Launchbury sat next to him. Mr. Phillips and Mrs. Launchbury sat behind. They waited for Mr. Morgans. He eventually came out and sat in the back scat behind the driver. He was obviously under the influence of drink. He dropped his head down as if to go to sleep. They started off, but soon Mrs. Launchbury realised they were not driving her home. She asked: "Where are we going?". Mr Cawfield said: 'We are going for a meal in Swansea". She was upset and cried. She wanted to go home. Mr. Cawfield still won't on. He was doing about 90 miles an hour. He ran into an oncoming bus. It was a dreadful crash. Mr. Cawfield and Mr. Morgans were both killed. Mr. Launchbury was very severely injured. His wife also, but fortunately not so badly. Her baby was born three months later, quite unharmed. Mr. Phillips was injured too, but not very badly.

6

The three surviving passengers, Mr. and Mrs. Launchbury and Mr. Phillips then sued the representatives of Mr. Morgans and Mr. Cawfield for damages alleging that Mr. Cawfield was the servant oragent of Mr. Morgans to drive the car. But the plaintiffs must have been advised that there might be difficulty about insurance of those defendants. So they added Mrs. Morgans herself personally as defendant. They alleged that she was the owner of the Jaguar car and that "at all material times the said Cawfield deceased was the servant or agent" of Mrs. Morgans herself. The Judge found in favor of the plaintiffs against all the defendants, i. e. therepresentatives of Mr. Morgans and Mr. Cawfield and also Mrs. Morgans personally. Now the only one to appeal is Mrs. Morgans herself. She appeals from the judgment against her personally. But it would be unrealistic to suppose that she is herself financially concerned to appeal. It must at he insurance company who insured the car. I know that this matter of insurance is of no direct concern in this case, but, as it is of such practical importance, I feel it only right to mention it. Mr. May was reluctant to tell me about it, but it is not difficult to draw conclusions. No doubt the policy was in the usual form and covered injury to passengers. If Mrs. Morgans is liable to compensate the passengers, the insurance company will have to indemnify her. But, if she is not liable, the insurance company may hope to escape altogether. They may seek to contend that the car was not being driven with her permission and so they are not liable. If the insurance company are not liable, the passengers will get no compensation at all for their injuries. It would be no use their making a claim on the Motor Insurers Bureau. The Bureau is not obliged to pay for injury to passengers. So the injured passengers may get nothing unless Mrs. Morgans is vicariously liable for the driving on that evening.

7

The appeal raises directly the question of liability for the family car. It may be registered in the name of the husband or of the wife, and insured likewise. It may be pure chance in whose name it is, as it was in this very case. If an accident happens when the wife is driving, is the husband liable? and vice versa? This all depends on the doctrine of vicarious liability.

8

What is the basis of this doctrine of vicarious liability? To answer it, I would first ask: What does "vicarious" mean? I turn to the Shorter Oxford Dictionary. It means one "that takesor supplies the place of another". So vicarious liability means that one person takes the place of another so far as liability is concerned. Familiar instances arc where the master shoulders the liability of his servant; or the principal shoulders the liability of his agent: and so forth. Whenever the law imposes vicarious liability, it does so for reasons of social policy reasons which commend themselves to the people at large. If a servant injures another by his negligence, his master should answer for it. If an agent deceives another by his fraud, his principal should make good the lose. It does not matter whether the servant or agent is acting for the benefit of his master or principal, or not. Suffice it that the master or principal has put him in a position whore he may do injury to another: and should be liable for the way in which he conducts himself therein. It is true that the master or principal is not personally at fault. But it is only right that he should be made vicariously liable. Otherwise it would mean that the injured person would get no redress: for, more often than not, the servant or agent has not the means to pay: whereas his master or principal has the means: or, at any rate, ought to insure against the liability so as to get the means to pay. In this way the innocent victim is not left to bear the whole loss himself. It is distributed amongst the community in a way that is fair to all.

9

Such being the policy underlying vicarious liability, the law has been developed to implement it. Motor vehicles are the prime example. A motor vehicle is a powerful engine of death and destruction. It is capable of doing much damage to persons and to property unless it is driven with duo care and attention. As the...

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71 cases
3 books & journal articles
  • Tort, Insurance and Ideology: Further Thoughts
    • United Kingdom
    • The Modern Law Review No. 75-3, May 2012
    • 1 May 2012
    ...mutual associations ofshipowners – Protection and Indemnity (P&I) Clubs – in the eighteenth century,118 Megaw LJ in Launchbury vMorgans [1971] 2 QB 245, 263 wasundoubtedly cor rect to referto thecontent of insurance as ‘speculative’.119 n 1 above at 826–828.120 As in Jones vKaney, n 41 abov......
  • Some reflections on vicarious liability and dishonest employees
    • South Africa
    • Juta Acta Juridica No. , August 2019
    • 29 May 2019
    ...can be advanced for holding a third party liable who neither committed the tort nor authorized it. 68 See Launchbury v Morgans [1971] 2 QB 245 254; see also Salmond and Heuston on the Law of Torts 21ed by R F V Heuston and R A Buckley (1996) 431. 69 This contrasts sharply with dicta in the ......
  • VICARIOUS LIABILITY
    • Nigeria
    • DSC Publications Online Sasegbon’s Judicial Dictionary of Nigerian Law. First edition V
    • 6 February 2019
    ...been defined to mean the case of one person taking the place of another in so far as liability is concerned. See: Launchbury v. Morgan (1971) 2 Q.B. 245 at 252. Accordingly, in motor traffic cases, the driver of the offending vehicle may be sued together with the owner of the vehicle if it ......

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