Mulholland v William Reid & Leys
| Jurisdiction | Scotland |
| Judgment Date | 28 May 1958 |
| Docket Number | No. 26. |
| Date | 28 May 1958 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
ReparationNegligenceMaster and ServantVicarious liabilityLiability of master for fault of fellow servantScope of fellow servants employmentVan driven by apprenticeAct not authorised by masterWhether act within scope of apprentice's employment.
A blacksmith employed by a firm of agricultural implement makers was killed by one of the firm's vans which was being driven at the time by an apprentice who was also an employee of the firm. The apprentice had no driving licence and was not an authorised driver. He had not been instructed to drive the van. Prior to driving it he and another apprentice had been assisting a journeyman to move a piece of agricultural equipment into a workshop by hand. The way was blocked by the van. The apprentice volunteered to shift the van. He proceeded to do so by driving it backwards out of control into the workshop where it collided with a piece of agricultural equipment which in turn struck the blacksmith at his bench causing him fatal injuries. In an action of damages brought by the widow of the deceased blacksmith against his employers the main question at issue between the parties was whether the employers were vicariously responsible for the negligence of the apprentice, or whether, at the material time, he was acting outwith the scope of his employment.
Held that the actings of the apprentice, though not authorised, were reasonably incidental to the work he had to do and so fell within the scope of his employment; and that the employers were therefore vicariously responsible for his negligence which resulted in the death of the deceased.
Mrs Margaret Summers Or Mulholland, widow of Thomas Alexander Mulholland, brought an action in the Sheriff Court at Aberdeen against William Reid & Leys Limited, her deceased husband's employers, in which she claimed damages for the death of her husband through the negligence of a fellow workman acting in the course of his employment. The facts of the case are set forth in the following extracts from the findings in fact made by the Sheriff-substitute (J. Aikman Smith):"(1) The pursuer is the widow of Thomas Alexander Mulholland who died on 15th March 1956 as a result of the accident hereinafter described. She sues as an individual and as tutrix and administratrix-at-law of her two pupil children. The defenders are a firm of agricultural implement makers in Aberdeen (3) On 13th March 1956 the deceased Thomas Alexander Mulholland was working as a blacksmith in the employment of the defenders at a bench in the workshop at the defenders' premises in Back Hilton Road, Aberdeen. (4) These premises include a front yard and a back yard. Opening on to the back yard there is a paint shop and the said workshop. There is a gate leading into the back yard from Back Hilton Road. (5) The bench at which the deceased was working was situated inside the said workshop and opposite an open door leading into the back yard. (6) Shortly after 3p.m. on said date William Allan, a journeyman, and John James Stewart and Frank Shand, two apprentices, all in the defenders' employment, in the course of their duties were engaged in moving a harrow yoke from the front yard to the paint shop in the back yard. They wheeled this harrow yoke round by the public street to the gate in Back Hilton Road. (7) On arriving at the gate they found that a Morris van belonging to the defenders was parked in the back yard in such a position that they were unable to take the harrow yoke past it into the paint shop. (8) The van was parked on a slight incline with its rear pointing downhill towards the open workshop door. It had been left there not more than ten minutes before by its regular driver who was an employee of the defenders named Reid. (9) The distance from the back gate to the workshop door is approximately ten yards. (10) Stewart said to Allan and Shand that he would shift the van. (11) Stewart left Allan and Shand at the gate and entered the van. He sat down in the driver's seat. Allan and Shand remained at the gate with the harrow yoke which was halted in Back Hilton Road. Both Allan and Shand saw Stewart enter the van. Neither of them attempted in any way to dissuade Stewart from interfering with the van. Stewart as an apprentice was subject to the immediate orders and control of Allan who was the journeyman under whom he was working. Allan knew that Stewart was intending to drive the van. (12) Stewart had no training from the defenders in driving motor vehicles and did not hold a driving licence. He had never driven the van before but had travelled in it several times as a passenger. His father owned a motor car. He had moved the van previously by pushing it without starting the engine. (13) After entering the van Stewart switched on the ignition and started the engine. The van immediately moved backwards towards and into the workshop and Stewart pressed the accelerator in mistake for the brake. The van collided with a manure distributor which was standing on trestles behind it. This manure distributor was knocked against Mulholland, crushing him against the bench and causing severe and very painful injuries from which he died two days later. (14) The harrow yoke could not have been taken into the paint shop so long as the van remained in the position in which it stood before the accident. (15) When he entered the van and started the engine Stewart's only object was to clear a passage for the harrow yoke into the paint shop. He did not intend to drive the van more than a few yards and...
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Williams v A. & W. Hemphill Ltd
...21 6 C. & P. 501. 22 Counsel also referred to Kirby v. National Coal BoardSC, 1958 S. C. 514, and Mulholland v. William Reid and LeysSC, 1958 S. C. 290. 23 Joel v. MorisonENR, 6 C. & P. 501, Parke, B., at p. 503; Salmond on Torts, (13th ed.) p. 133; Wallace v. Morrison & Co., 1927 S. N. 170......
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...tasks. Compare London County Council v Cattermoles (Garages) Ltd [1953] 1 WLR 997 (CA) ([1953] 2 All ER 582) and Mulholland v Reid 1958 SC 290. In casu it is common cause that Mvimbi's prescribed task was to off-load the drums of filter powder in the plaintiff's cellar next to the filter. H......
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Romansrivier KoöPeratiewe Wynkelder Bpk v Chemserve Manufacturing (Pty) Ltd
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