Twine v Bean’s Express Ltd

 

Twine v Bean’s Express Ltd

TORTS; Negligence: EMPLOYMENT; Other Employment

KING’S BENCH DIVISION

UTHWATT J, SITTING AS AN ADDITIONAL JUDGE OF THE KING’S BENCH DIVISION

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

6, 11 DECEMBER 1945

Negligence – Duty to take care – Negligent driving of commercial van – Fatal accident to unauthorised passenger – Trespasser – Duty of driver’s employers.

Master and Servant – Liability of master for negligence of servant – Fatal accident to unauthorised passenger in commercial van – Trespasser – Extent of

duty to take care.

Under an agreement between B Ltd and the Post Office Savings Bank, B, Ltd, provided a commercial van and driver for use by the Bank, the driver remaining

the servant of B, Ltd. It was further agreed that B Ltd, accepted no responsibility for injury suffered by persons riding in the van who were not in their

employment. They expressly instructed their driver that no one was to be allowed to travel on the van. Owing to the driver’s negligent driving, an accident

occurred and T was fatally injured. It was contended by T’s personal representative that, since the 􀂭 202􀀉 accident happened while the driver was engaged on

an authorised job, the acts of the driver were done in the course of his employment notwithstanding that T was an unauthorised passenger, and therefore B Ltd

as the driver’s employers, were liable to T for the driver’s negligence:—

Held – (i) The duty of B Ltd as the driver’s employers, to take care in the driving of the van was only to persons who might reasonably be anticipated by B

Ltd as likely to be injured by negligent driving of the van at the time and place in question.

(ii) in the circumstances of the case, T was a trespasser in the van in relation to B, Ltd. B Ltd therefore, owed no duty to T to take care in the driving of

the van, because they could not reasonably anticipate that he would be a passenger in the van at the time and place of the accident.

Notes

The duty owed by an employer to persons who may be injured by the negligent driving of his servant is limited to those who can reasonably be anticipated as

being possible subjects of injury. In the circumstances considered in this case the servant, having express orders not to take passengers, was acting outside the

scope of his authority. The employer could not, therefore, anticipate the presence of any passenger and he is held not liable for the injury. Reference may be

made to Lewys v Burnett ([1945] 2 All ER 555), on the question of liability of gratuitous passengers, but this case is argued only upon the liability of the

employer. Lewys’ case may well be distinguishable in view of the fact that the plaintiff was there an invitee, while in the case under consideration he was, by

reason of the instructions given to the driver, a trespasser.

As to the Duty to Take Care, see Halsbury, Hailsham Edn, Vol 23, pp 571, 572, para 825; and for Cases, see Digest, Vol 36, pp 12–16, Nos 33–60.

Cases referred to in judgment

Tolhausen v Davies (1888), 58 LJQB 98, 36 Digest 14, 47.

Walker v Midland Ry Co (1886), 55 LT 489, 29 Digest 9, 118.

Action

Action for damages for negligence brought under the Fatal Accidents Acts 1846–1908, and the Law Reform (Miscellaneous Provisions) Act, 1934. The

plaintiff was suing as legal personal representative of her husband, who was fatally injured owing to the negligent driving of a van driver employed by the

defendants. The facts are fully stated in the judgment.

Sir Charles Doughty KC and R T Monier-Williams for the plaintiff.

Serjeant Sullivan KC and Valentine Holmes KC for the defendants.

Cur adv vult

11 December 1945. The following judgment was delivered.

UTHWATT J. Under an arrangement between Bean’s Express Ltd, and the Post Office Savings Bank, Bean’s provided for use by the bank a commercial van

and a driver—Harrison—on terms under which the driver of the van remained the servant of Bean’s, it being part of the bargain between Bean’s and the bank

that Bean’s accepted no responsibility for injury suffered by persons riding in the van who were not in the employment of Bean’s. The standing instructions to

Bean’s drivers, which had been duly brought to the attention of Harrison, provided that no persons (with certain exceptions not applicable in this case) were

allowed to travel on the company’s commercial vehicles. On 6 April 1944, Twine, a mail porter employed by the bank, who had occasion in the course of his

duties to go from the bank’s headquarters at Hammersmith to a branch office in Kensington, took a lift back from the branch office in the van which was duly

engaged on an authorised journey. Twine did so with the assent of the driver, but Twine was not authorised by the bank to travel on the van. He had, in fact,

drawn 3d to cover his bus fare to the branch and back. Twine had travelled on the van on several prior occasions. There was, at all material times, on the

dashboard of the van a notice:

‘No unauthorised person is allowed on this vehicle. By order. Bean’s Express, Ltd.’

On the roof of the van, above the driver’s seat, was another notice stating that drivers had instructions not to allow unauthorised travellers on the van, and that

in no event would Bean’s be responsible for damage happening to them. The driver had, on the occasion of a former ride in the van by Twine, told him, in

substance, that he travelled at his own risk. He probably put his point more crisply. His descretion to the court was that he was not going to take any blame

home with him. Unfortunately, owing to the negligent driving of the driver, an accident occurred resulting in Twine’s death.

􀂭 203􀀉

Those are the facts as I find them. The plaintiff is the widow and legal personal representative of Twine and brings the action against Bean’s, claiming

damages for the benefit of herself and her two infant children under the Fatal Accident Act, 1846 to 1908, and damages for the benefit of Twine’s estate under

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

the Law Reform (Miscellaneous Provisions) Act, 1934. The argument for the plaintiff was put on the following lines. It was said that the driver was negligent

and owed to Twine a duty to take care, that the accident happened while the driver was engaged on a duly authorised job in the course of his employment, and

that the acts of the driver were done in the course of his employment, notwithstanding the unauthorised presence in the van of the passenger: the employer,

therefore, was liable.

The complete accuracy of the second limb of the first proposition may well be questioned in light of the driver’s warning to the passenger and the

surrounding circumstances, but the defendants were content to fight the case on the lines that the question to be decided was not whether the driver owed a

duty to the passenger to take care, but whether the employers owed that duty. In this, I think, the defendants are right. The law attributes to the employer the

acts of a servant done in the course of his employment and fastens upon him responsibility for those acts. In determining the duty of the employer and the

duty of the servant on any occasion, all the circumstances have to be considered. In the general run of cases, the duty of both is the same; but that is a

coincidence, not a rule of law. The general question in an actio against the employer, such as the present, is technically: “Did the employer in the

circumstances which affected him owe a duty?“—for the law does not attribute to the employer the liability which attaches to the servant. To accord with my

view of the law, the first proposition, to be relevant, should be stated thus: “The driver was negligent and the employers owed to Twine a duty (in this case to

be performed by the driver) to take care.”

On the facts as I have stated them, it was outside the scope of the driver’s employment for him to bring within the class of persons to whom a duty to take

care was owed by the employer, a man to whom, contrary to his instructions, he gave a life on a commercial van. On this basis, Twine, vis-a-vis Bean’s,

remained simply a trespasser on the van, who came there in particular circumstances, and the question is whether Bean’s, in the circumstances in which Twine

was a passenger, owed to him any duty to take care as to the proper driving of the van. In my opinion, they did not.

Bean’s did not owe a duty to the world at large to take care, but they did owe that duty to all persons who might reasonably be anticipated by them as

likely to be injured by negligent driving of the van at the time and place in question, and no others. It is unnecessary here to consider the general question

whether a stray passenger, picked up by a driver to whom no contrary instructions had been given, falls within that class of person. The particular facts must

be considered, and I do not propose to travel outside them. Here a commercial vehicle was concerned, and by the instructions to the driver, the provision and

fixing of the notices, and the terms of their contract with the bank, Bean’s had taken every step reasonably practicable to secure that there should be none but

duly authorised persons on their van. Bean’s could not reasonably anticipate that there would be this passenger in the van at the time and place of the

accident, and, in my view, therefore, they owed to the passenger no duty to take care in the driving of the van. My conclusion upon this is, I think, supported

by Tolhausen v Davies, and Walker v Midland Ry Co.

It is unnecessary for me to consider whether or not the effect of the notices and the driver’s warning operated, as a matter of bargain, to deprive the

passenger of any right of action against the employers. On the pleadings this point was not open to the defendants, and, indeed, was not argued by them.

There will, therefore, be judgment for the defendants.

Judgment for the defendants. No order as to costs.

Solicitors: Simpson, Palmer & Winder (for the plaintiff); A E Wyeth & Co (for the defendants).

R Boswell Esq Barrister.

􀂭 204􀀉

[1946] 1 All ER 205