Twine V. Bean's Express, Ltd.
| DOI | http://doi.org/10.1111/j.1468-2230.1954.tb00257.x |
| Published date | 01 March 1954 |
| Author | F. H. Newark |
| Date | 01 March 1954 |
TWINE
v.
BEAN’S
EXPRESS,
LTD.
DECISIVE cases in the development of the law are of two kinds.
There is the weighty cause which passes leisurely frcm High Court
to House of Lcrds, argued
at
length from a multitude of authorities
at every stage of its progress, while onlookers in the Inns of Court
and the universities eagerly canvass the result. Equally decisive
may be the obscure case, Fasually decided and even more casually
reported. All lawyers are familiar with half a dozen
or
so
cases
which must have appeared to the judges who tried them to be
so
straightforward and lacking in novelty that they were doubtless
surprised when the case was reported
at
all, and would
be
astounded
to learn later that they were supposed to have played
a
part in the
formulation of new doctrines.’
Twine
v.
Baan’s
Express,
Ltd.,*
would seem to fall into this
second category.
It
was decided by Uthwatt
J.
sitting as an
additional judge of the King’s Bench Division. One day was
devoted
to
the hearing and argument and the reserved judgment
was delivered five days later. The editor of the Incorporated
Council’s Law Reports ignored the case but
it
was reported in the
All England Reports, the Times Law Reports and the Law Times
Reports.
An
appeal was taken to the Court of Appeal which spent
one day
on
the case and did not reserve judgment. The appeal
was reported
in
the Times Law Reports and Law Times Reports,
but the All England Reports ignored it-perhaps repenting that
they had touched the case
at
all-and the Incorporated Council’s
series still remained aloof. A master
owns
a
van driven by his servant. The master expressly forbids
the servant to give lifts and reinforces the prohibitions by two
notices in the van: one
on
the dashboard reads,
‘‘
No
unauthorised
person is allowed
on
this vehicle. By order,” and another on the
roof above the driver’s seat states that the driver has instructions
not
to
allow unauthorised passengers and that the master will not
be
liable for damage happening to them. When the driver is
on
a
journey which is clearly in the course
of
his employment the
passenger begs a lift from the driver. The driver gives the lift
but informs the passenger that he travels
at
his own risk. Owing
to the driver’s negligent driving the passenger is killed. Uthwatt
J.
The facts of the case are short and uncomplicated.
1
Such
cwes
are
Tarry
v.
Ashton
(1876)
1
Q.B.D.
314;
Bridges
V.
Hawkesworth
(1851) 21
L.J.Q.B.
75;
Blacker
v.
Lake
d
Elliott
(1912)
106 L.T. 533.
2
[1946] 1
All
E.R.
202;
174 L.T. 239, 175 L.T. 131;
62
T.L.R. 156,
458.
102
MARCH
1954
TWINE
v.
BEAN’S
EXPRESS,
LTD.
103
held that the deceased’s widow (suing as legal personal represen-
tative) failed in her action against the master, and this judgment
was upheld on appeal.
Although it is difficult to reconstruct the course of events from
the sketchy reports it would seem that before Uthwatt
J.
the
defendants disclaimed any intention
of
fighting the case made out
by the plaintiff, but in effect rewrote the plaintiff’s case for her
and then argued that this case was a bad one. The plaintiff’s
case was put in the form that the servant owed
a
duty to take
care, that he failed in this and was accordingly guilty of negligence,
and that this was
a
tort committed in the course of his employment
for
which the master was vicariously responsible.
It
seems, in
argument at any rate, not to have been denied that the servant
committed the tort of negligence in the course
of
his employment,
but
the defendants’ case was that the question to be decided
“
was not whether the driver owed a duty to his passenger to take
care, but whether the employers owe that duty.” As this argument
was accepted by Uthwatt
J.
and formed the ground of his
judgment we will proceed to examine
it
at once.
The judge’s view may
be
best gathered by piecing together a
number
of
propositions to be found in the third paragraph of his
judgment. “The law attributes to the employer the acts of the
servant done in the course of his employment
.
. .
The law does
not attribute to the employer the liability which attaches to the
servant
.
.
.
The general question in an action against the
employer, such as the present, is technically: Did the employer
in the circumstances which affected him owe a duty?
”
It
will be seen immediately that this goes to the very root
of the nature of vicarious liability.
It
denies, in effect, that there
is such a thing as true vicarious liability, at least as far as the
action for negligence is concerned. All such actions of negligence
are direct actions brought in respect of the employer’s own tort.
It
is certainly a view
of
the nature of vicarious liability not
recognised by the great masters in the field of tort. Pollock noted
the rule as being “that a master is liable for the acts, neglects,
and defaults of his servants,” and in
a
passage where he distin-
guishes cases where “a man is held answerable for wrongs not
committed by himself’’ from cases where the duty breached is
a
duty primarily imposed on the principal he cites examples of
the latter, but never does he suggest that the action for negligence
in driving
a
vehicle is incl~ded.~ Salmond speaks repeatedly of
the master being
“
responsible for the servant’s tort
”
and when
he contrasts liability in respect of servants with liability in respect
Pollock,
Torts,
15th
ed.,
p.
62.
Salmond,
Torts,
10th
ed.,
pp.
83
et
seq.
4
Ibid.,
p.
50.
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