Vandyke v Fender
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SACHS |
| Judgment Date | 05 March 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0305-1 |
| Date | 05 March 1970 |
| Court | Court of Appeal (Civil Division) |
[1970] EWCA Civ J0305-1
The Master of the Rolls (Lord Denning).
Lord Justice Sachs and
Lord Justice Karminski.
In The Supreme Court of Judicature.
Court of Appeal.
Appeal of first and second defendants and third party from judgment of Mr. Justice Paull on 19th May, 1969.
Mr. PATRICK MAYHEW and Mr. G. R. SANKEY (instructed by Messrs. W. H. Thompson) appeared on behalf of the Plaintiff Respondent.
Mr. H. TUDOR EVANS, Q. C., and Mr. DESMOND PERRETT (instructed by Messrs. R. I. Lewis & Co.) appeared on behalf of the First Party Appellant.
Mr. ROY BELDAM, Q. C. (instructed by Messrs; Tuck & Mann & Geffen & Co.) appeared on behalf of the Second Defendants, Appellants.
Mr. HUGH GRIFFITHS, Q. C., and Mr. JOHN GRIFFITHS (instructed by Messrs. Berrymans) appeared on behalf of the Third Party, Appellant.
This case raises an important point: When a company provides a car for its employees to come and go to and from work — and there is an accident on the road — is the risk to be borne by the employer's liability insurance? or by the road traffic insurance?
1. THE FACTS
The facts of this case itself are somewhat special: Mr. Pender and Mr. Vandyke are skilled moulders. They are cousins. Up till 1965 they worked in a small foundry at Lewisham. But in 1965 a Mr. Simmons persuaded them to come and work at a foundry at Maidstone which was run by his company, Reddington Foundries Limited. It was agreed that the two of them should continue to live at Lewisham and travel each day to Maidstone and back. It was thirty miles each way. It was a journey which could be done by train but it was much more convenient by car. So. Mr. Simmons told them that he would lend to Mr. Pender one of the Reddington Company's cars and pay him ten shillings a day to cover the cost of the petrol. The Reddington Company had two other employees living near Lewisham. The understanding was that Mr. Pender would use the Reddington Company's car and he would pick up, not only Mr. Vandyke, but also these other two employees and take them to their work at Maidstone and back. It was too much for Mr. Fender to drive both ways. So it was arranged for Mr. Fender to drive going and Mr. Vandyke coming back: or vice versa. Mr. Pender kept the car at his home over the week-ends and used it as he wished.
The Judge found that the arrangement for the car was part of Mr. Fender's contract of service, but that it did not mean that he was obliged to use the car, or that it was a term of the contract that he must use it. He was not bound to use it if it was foggy or for any other reason he did not want to use it. But it did mean that, if he used the Gar, he was to bring the other three if they desired to come by car. Again, Mr. Vandyke was not obliged to go by the car. Re could have gone by train if he wanted. So with the other two.
The arrangement was put into effect, Each morning Mr. Pender did the round and collected the other three men, and drove them to work. Each evening Mr. Vandyke drove back. Each week the Reddington Company paid Mr. Pender the petrol money, £2 10s. 0d. or £3 0s. 0d., according to. whether it was a 5-day or 6-day week
There were three different cars provided in turn. The first was a Cortina registered in Mr. Simmon's name. The second was a Morris 1100. The third was a Cortina owned by a Mr. Read who was the Secretary to the Reddington Company. Neither Mr. Pender nor Mr. Vandyke realised that it was Mr. Read's car. They only knew that it was provided by the Reddington Company for their use.
On 7th December 1965, when they were driving to work in Mr. Read's car, there was an accident. Mr. Pender was driving. Mr. Vandyke was severely injured. The Judge found that it was due to Mr. Pender's negligence. He assessed the damages to Mr. Sender at £5, 750 C., 0d. general damages, and £556 0s. 0d. - special damages,
1. DAMAGES
There is an appeal as to the amount of damages. It was a serious injury. Mr. Vandyke was thrown through the windscreen. He was unconscious for five days. His nose was broken in two places. He had severe internal injuries. His liver and spleen wore ruptured. His liver was sewn up. His spleen was removed. His left knee was badly injured. The left patella was removed. He has made a fair recovery, but he is much incapacitated. He cannot walk more than half-a-mile. He cannot bend his knees. He was off work for nine months. I think the award made by the Judge of £5, 750 general damages was on the high side, but not so entirely erroneous that we should interfere.
2. THE LIABILITY OF THE REDDINGTON COMPANY TO MR. VANDYKE.
Mr. Pender was not a paid driver. He was not driving this car as the servant of the Reddington Company. But he was driving it for their purposes - so as to bring himself and his fellow- employees in to their work. He was the agent of the Reddington Company. They are, therefore, liable for his negligence, see Ormrod v. Croasville (1953 1 W. L. R. 1120); and can claim over against Mr. Fender, see Lister v. Romford Ice Co. (A. C. 555).
3. THE INSURENCE POLICIES
The employers, the Reddington Company, were insured with the Sun Insurance Company against employers' liability risks. The car and its driver were insured against road traffic risks. The question is whether the damages payable to Mr. Vandyke should be borne by the employers' liability insurance or by the road traffic insurance.
The risks were covered as follows:
(i) The driver of the car, Mr. Fender, was covered for third-party liability by the Fire Auto and Marine Insurance Company in respect of his own car. His policy covered him also when he was driving someone else's car. It covered him for passengers carried by reason of or in pursuance of a contract of employment. But the Fire Auto and Marine Insurance Company had been liquidated. So there was nothing to come from that policy.
(ii) The owner of the car, Mr. Read, was covered for third- party liability by the Agriculturaland General Insurance Society Limited in respect of its use by him, or anyone driving with his permission, for social, domestic and pleasure purposes; and also use by Mr. Read in person in connection with his business of a buyer. But it did not cover use by anyone else in connection with business. So it did not cover this case.
(iii) Although the road traffic policies did not cover this case, nevertheless if it was a case where the injury should have been covered by road traffic insurance (in accordance with thecompulsory insurance provisions of the Statute) the Motor Insurers Bureau will guarantee payment in accordance with the agreement set out in the note to Hardy, v., Motor Insurance Bureau (1964 2 Q. B. 770).
This brings me to the crucial point in the case. The Road Traffic Acts did not require the injury to Mr. Vandyke to be covered by the motor-car insurance if it was an injury sustained by him "arising out of and in the course of his employment"; see Section 36(i)(b)(i) of the 1930 Act and Section 203(4)(b) of the 1960 Act. The reason why it was not made compulsory in that case was, no doubt, because the Legislature expected an injury "arising out of and in the course of his employment" to be covered by the employers' liability policy.
(iv) There was one employers' liability policy in force. The Reddington Company were insured with the Sun Insurance Office Limited for employers' liability insurance. The policy. said that:
"…………. if any person under a contract of service or apprenticeship with the insured shall sustain bodily injury or disease caused during any period of insurance and arising out of and in the course of such person's employment by the insured in the business"
the Sun Insurance Office will indemnify the insured against liability at law for damages and costs.
(v) The upshot of it all is this: If the injury to Mr. Vandyke arose "out of and in the course of his employment" by the Reddington Company, it was covered by the Employers' Liability policy with the Sun Insurance Office. If it did not arise "out of and in the course of his employment" it ought to have been covered by the road traffic policies.
Seeing that the road traffic insurers were so much concerned, we were glad to have the assistance of Mr. Tudor Evans on their behalf, and to treat them as if they been parties to the proceedings. This is in accordance with the useful practice approved in Vandervell's Trusts, (1969 3 W. L. R. 458).
4. " ARISING OUT OF AND IN THE COURSE OF HIS EMPLOYMENT"
The words injury "arising out of and in the course of his employment" were used in the old Workmen's Compensation Acts from 1897 to 1945. The selfsame words have been used in the Road Traffic Acts 1930 and 1960. They have also been used in employers' liability policies. In my opinion they should receive the sale interpretation in all three places; for they are all so closely connected that they ought, as matter of commonsense, to receive the same interpretation in each. The words were construed and applied in thousands of cases under the Workmen's Compensation Acts: and I think we should follow those cases. The two leading cases, most apposite for present purposes, are St. Helens Colliery Co. v. Hewitson, (1924 A. C. 59); and Weaver v. Tredegar Iron & Coal Co., (1940 A. C. 955). They show, to my mind quite conclusively, that when a man is going to or coming from work, along a public road, as a passenger in a vehicle provided by his employer, he is not then in the course of his employment - unless he is obliged by the terms of his employment to travel in that vehicle. It is not enough that he should have the right to travel in...
To continue reading
Request your trial
- Chan You Young; Union Insurance (M) Sdn Bhd
- Nancollas v Insurance Officer
- Mary Colete John v South East Asia Insurance Bhd
-
University of Technology, Mauritius v Gopeechand
...an obligation on Mr Gopeechand to travel in Mr Ramtohul's car. UTM sought to support this submission by referring to the English case of Vandyke v Fender [1970] 2 QB 292 and the Mauritian case of The Mauritian Eagle Insurance Co Ltd v Corona Clothing Co Ltd [1999] SCJ 70. In the Board's vie......