Chesire & Another V HZ & Company Limited EKLR
|Civil Appeal 55 of 1981||22 Oct 1982|
Eric John Ewen Law, Alister Arthur Kneller, Kenneth D Potter
Court of Appeal at Nakuru
Chesire and another v HZ & Company Limited
Chesire & another v HZ & Company Limited eKLR
Chesire and another v HZ & Company Limited
Court of Appeal, at Nakuru
October 22, 1982
Law, Potter JJA & Kneller Ag JA
Civil Appeal No 55 of 1981
Negligence - vicarious liability - liability of employer for employee’s negligence - employee hired to drive shoveller vehicle within construction camp and designated area - employee drove shoveller on main road to report accident to the police station - whether trip to the police station was within the scope of his employment - whether trip to police station was contrary to employer’s instructions - whether employer was vicariously liable - onus of proof to establish escape was in connection with employment - Fatal Accidents Act (Cap 32) - Evidence Act (Cap 80) Section 47A.
In December 1979, the respondent’s vehicle, while being driven by its employee, collided with a motor-car owned by the first appellant and driven by one Chesire, who died as a result of the collision. Both the first appellant and a widow of the deceased filed separate suits claiming damages from the respondent. The suits were later consolidated. Among the issues for determination was whether the respondent’s employee had been acting in the course of his employment at the material time so as to make the respondent liable.
The respondent’s vehicle was a shoveller designed to scoop up earth and to deposit it into lorries. It was licensed to be driven on public roads like any ordinary motor vehicle.
The evidence for the respondent was that the employee driver had for an unknown reason driven the shoveller to a roadside camp occupied by other employees of the respondent where he was forced to reverse in flight after angry people cast stones at him for knocking down some overhead wires. As he reversed the shoveller to the main road, he knocked and seriously injured a man and thereafter drove for 36 kilometres to the nearest police station. It was during this journey that the shoveller was involved in seven collisions, two of which led to the consolidated suits. It was contended that the employee had been acting outside the scope of his duty and so the employer was not vicariously liable for his negligence.
The learned judge found that the employee had at the material time used the shoveller for personal transport purposes to report an accident and this purpose was not within the scope of his employment, and he dismissed the two suits. From that decision, the plaintiffs appealed and the defendants made a cross-appeal. Three witnesses had testified that the respondent’s employee had been in the habit of driving the shoveller on a public road and from quarry to quarry.
- The onus of proving, on a balance of probabilities, that the employee was acting outside the scope of his employment was on the employer, which onus was not discharged.
- The employee was in the habit of driving the shoveller on a public road and from quarry to quarry with the knowledge of the employer and he had not been issued any specific instructions not to do so. The shoveller was always therefore driven on the public road for duties auxillary to those of his employment. The respondent’s employee may have undertaken the journey to the police station to seek protection from the stone-throwing people but it was also to report to the police an accident he had caused in the course of his employment. Where a vehicle is negligently driven for the purposes of both the employer and a third party, the employer is liable.
- Having regard to the evidence, in driving the shoveller to the police station, the employee had, at least in part, engaged in his employer’s business and the employer was accordingly liable for his employee’s negligence.
- As regards the cross-appeal, the learned High Court judge had not misdirected himself in law in considering whether the employee had or had not been given specific instructions as to where he was required to perform his duties.
- Admitting in evidence by consent a record of previous proceedings does not mean that all the contents of those proceedings automatically become evidence in subsequent proceedings.
- (Obiter Law JA) the employee should have been called as a witness to shed more light on why he drove on the public road and to assist the employer to discharge his burden.
Appeal allowed with costs. Cross appeal dismissed with costs.
- McKean v Raynor Bros Ltd  2 All ER 650 at p 652 Disapproved
- Muwonge v Attorney General of Uganda  EA 17 Applied & Approved
- Limpus v London General Omnibus Company  1 H & C 526 Referred
- A & W Hemphill Ltd v Williams  2 Lloyd’s LR 101 Approved
- Jivandas & Co Ltd v Nakadama  EA 489 Applied
RF Heuston, Salmond on the Law of Torts, Sweet & Maxwell: London, 13th Edn (1961) p 133
- Fatal Accidents Act (Cap 32)
- Evidence Act (Cap 80) Section 47A
- Traffic Act (Cap 403) Sections 2, 73
- Mr AB Shah & Mr KM Patel for Appellants
- Mr Barasa for Respondent