Launchbury v Morgans

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Wilberforce,Viscount Dilhorne,Lord Pearson,Lord Cross of Chelsea,Lord Salmon
Judgment Date09 May 1972
Judgment citation (vLex)[1972] UKHL J0509-3
Date09 May 1972

[1972] UKHL J0509-3

House of Lords

Lord Wilberforce

Viscount Dilhorne

Lord Pearson

Lord Cross of Chelsea

Lord Salmon

Morgans (Widow)
and
Launchbury (A.P.) and Others (A.P.)

Upon Report from the Appellate Committee, to whom was referred the Cause Morgans (Widow) v. Launchbury (A.P.) and others (A.P.), that the Committee had heard Counsel as well on Monday the 20th, as on Tuesday the 21st and Wednesday the 22d, days of March last, upon the Petition and Appeal of Sarah Morgans (Widow) of Danycoed, Station Road, Brynamman, in the County of Carmarthen, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 20th of January 1971, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or Altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; as also upon the Case of Thomas Michael Launchbury, Diane Helen Mary Launchbury (his Wife) (Assisted Persons), and Michael Phillips, 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 Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 20th day of January 1971, complained of in the said Appeal, be, and the same is hereby, Reversed, and that Judgment be entered for the Defendant: And it is further Ordered, That the Costs of the First and of the Second Respondents Thomas Michael Launchbury and Diane Helen Mary Launchbury, incurred by them in respect of the said Appeal to this House, be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act 1949, as amended by the Legal Aid Act 1960, the amount of such Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

Lord Wilberforce

My Lords,

1

This appeal arises out of a motor car accident in which the three Respondents were injured. They were passengers in a Jaguar saloon which was registered in the name of the Appellant; she was not using the car at the time. The other persons in it were the Appellant's husband and a friend of his, Mr. D. J. Cawfield, who was driving: both were killed. It is not disputed that the accident was caused by the negligence of Mr. Cawfield. At first instance, the Appellant was sued both in her personal capacity and as administratrix for her deceased husband: judgment was given against her in both capacities on the ground that both she personally and her husband, were vicariously liable for Mr. Cawfield's negligence. It is only in her personal capacity that she brings the present appeal and the question involved is therefore whether as owner of the car, and in the circumstances in which it came to be used and driven, she can be held vicariously liable for the negligence of the driver.

2

Some further facts require to be stated. Before their marriage the Appellant and her husband each had their own car, but after they had been married about a year they decided to sell one, and the one sold was the husband's. The Jaguar was, in the Appellant's words, regarded as "our car". It was freely used by either husband and wife; the husband normally used it every day to drive to and from his place of work seven miles from his home.

3

On the day of the accident, the husband had driven in the car to work. In the evening he telephoned to the Appellant to say that he would not be returning home for his evening meal and that he was going out with friends. He visited a number of public houses and had drinks. At some stage he realised that he was unable to drive safely and he asked Mr. Cawfield to drive and gave Mr. Cawfield the keys. Mr. Cawfield drove the husband to other public houses. After the last one had been visited Mr. Cawfield offered the three Respondents, one of whom was a friend of his, a lift in the car; and, soon after, the husband got into the back of the car and fell asleep: he was certainly and heavily intoxicated. Mr. Cawfield then drove off, not in the direction of the husband's home, but in the opposite direction, suggesting a meal before he finally drove the passengers home. Soon after, with Mr. Cawfield driving at 90 m.p.h., the car collided with an omnibus.

4

There was some important evidence as to the circumstances in which the Appellant's husband may have asked Mr. Cawfield to drive. According to the Appellant's evidence, her husband often liked to stay out and visit public houses. In her words, "We had an understanding, he had always told me he would never drive if he thought there was any reason he should not drive" and "it was an understanding, he told me, 'You need not worry, I would not drive unless I was fit to drive'". Some further questions were put to her and the judge felt entitled to find "that he promised her he never would drive himself if he had taken more drink than he left he should have but would do one of two things, either get a friend to drive him or ring her up and she would come and fetch him." We must accept the tenor of this finding but it was to be understood in the context of discussion between husband and wife. It is unlikely that it was so crysal clear as it appears from the finding to have been. One other fact: there was no question of the Appellant knowing that Mr. Cawfield drove or might drive the car that evening, and he was to her merely an acquaintance.

5

It is on these facts that liability for the injuries sustained by the passengers must be considered. Who could they sue? In the first place, there was the estate of Mr. Cawfield as the negligent driver; in the second, the estate of the husband who requested Mr. Cawfield to drive, this resting upon the normal principle of the law of agency. But the Respondents seek to go further and to place vicarious liability upon the Appellant. As to this, apart from the special circumstances of the "understanding" there would seem, on accepted principle, to be insuperable difficulties in their way. The car cannot by any fair process of analysis be considered to have been used for the Appellant's purposes at the time of the accident. During the whole of the evening's progress it was as clearly used for the husband's purposes as any car should be: and if there was any doubt about this the separation from any possible purpose of the Appellant's at the time of the accident can only be intensified by the fact that Mr. Cawfield, the husband's agent, was taking the car away from the Appellant's (and the husband's) home for some fresh purpose. It seems clear enough that this was the purpose of Mr. Cawfield but even if one attributes this to her husband, I am unable to formulate an argument for attributing it to the wife.

6

It is said, against this, that there are authorities which warrant a wider and vaguer test of vicarious liability for the negligence of another: a test of "interest or concern". Skilled counsel for the Respondents at the trial was indeed able to put the word "concerned" and "interest" into the wife's mouth and it was on these words that he mainly rested his case.

7

On the general law, no authority was cited to us which would rest vicarious liability on so vague a test, but it was said that special principles applied to motor cars. I should be surprised if this were so, and I should wish to be convinced of the reason for a special rule. But in fact there is no authority for it. The decisions will be examined by others of your Lordships and I do not find it necessary to make my own review. For I regard it as clear that in order to fix vicarious liability upon the owner of a car in such a case as the present, it must be shown that the driver was using it for the owner's purposes, under delegation of a task or duty. The substitution for this clear conception of a vague test based on "interest" or "concern" has nothing in reason or authority to commend it. Every man who gives permission for the use of his chattel may be said to have an interest or concern in its being carefully used, and, in most cases if it is a car, to have an interest or concern in the safety of the driver, but it has never been held that mere permission is enough to establish vicarious liability. And the appearance of the words in certain judgments ( Ormrod v. Crosville Motor Services Ltd. [1953] 1 W.L.R. 409 per Devlin J. ibid 1120 per Denning L.J.) in a negative context (no interest or concern, therefore no agency) is no warrant whatever for transferring them into a positive test. I accept entirely that "agency" in contexts such as these is merely a concept, the meaning and purpose of which is to say "is vicariously liable" and that either expression reflects a judgment of value— respondeat superior is the law saying that the owner ought to pay. It is this imperative which the common law has endeavoured to work out through the cases. The owner ought to pay, it says, because he has authorised the act, or requested it, or because the actor is carrying out a task or duty delegated, or because he is in control of the actor's conduct. He ought not to pay (on accepted rules) if he has no control over the actor, has not authorised or requested the act, or if the actor is acting wholly for his own purposes. These rules have stood the test of time remarkably well. They provide, if there is nothing more, a complete answer to the Respondents' claim against the Appellant.

8

I must now consider the special circumstance on which the judge relied—the understanding between the Appellant and...

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