Martha Shighadai v Kenya Power & Lighting Co Ltd & another

High Court at Mombasa

March 18, 1988

Bosire J

Civil Case No 55 of 1986

Vicarious Liability – liability of vehicle owner for the negligence of its driver – circumstances in which such liability may be imposed – vehicle given to employee for the performance of his duties - employee instructed not to carry unauthorized passengers – employee giving lift to a passenger – vehicle involved in accident – passenger suing for damages for personal injuries – whether vehicle owner liable in negligence to passenger.

Damages – general damages – for pain and suffering arising from personal injuries - cut wounds and lacerations on face and back, bruising on chest and sprain of the lumbosacral spine – quantum of damages.

The first defendant company gave its car to the second defendant for his use in the performance of his duties as its employee. One of the rules brought to his attention at the time he was assigned the vehicle was that he was to transport only authorized persons in the vehicle.

On the material day, the second defendant was driving back to his place of stay after finishing his work for his employer when he picked up seven persons and carried them in the vehicle. One of those persons was the plaintiff.

The vehicle was involved in an accident in which the plaintiff suffered cut wounds and lacerations on her face and back, bruising and abrasions over her chest and sprain of the lumbosacral spine. She filed a suit against the defendants seeking general and special damages.

The second defendant failed to enter appearance in the suit within the prescribed time and the plaintiff obtained interlocutory judgment against him. The question which fell for determination was whether the first defendant was vicariously liable for the negligence of the second respondent.

Held:

1. The owner of a vehicle is liable not only for the negligence of a driver if that driver is his servant acting in the course of his employment, but also if the driver is his agent, that is to say, if the driver is, with the owner’s consent, driving the car on the owner’s business or for the owner’s purposes.

2. It was not part of the second defendant’s employment to carry passengers in the vehicle. He could carry those people who were in the employment of the first defendant. The lifting of the plaintiff was not authorized by the first defendant and it was done not for purposes of his employer, the first defendant, but for his own purposes.

3. The plaintiff knew that the vehicle was not ordinarily used for carrying people for hire or reward and by accepting to be carried in it, she knew that she was taking a risk. The first defendant did not owe a duty of care to persons who, like the plaintiff, were carried in its vehicles as unauthorized passengers.

4. If the second defendant’s act of giving the plaintiff a lift fell outside the scope of his employment, the absence of a notice on the vehicle’s dashboard to the effect that unauthorized persons were not permitted in it would not, of itself without more, bring the act of lifting the plaintiff within the scope of his employment.

5. The first defendant was therefore not liable for the injuries sustained by the appellant in the accident.

6. As there was interlocutory judgment in favour of the plaintiff against the second defendant, the plaintiff was entitled to Shs 60,000 in general damages for pain and suffering.

Suit against the First Defendant dismissed, judgment given against the Second Defendant.

Cases

1. Ormond v Crossville Motor Service [1953] 2 All ER 753

2. Rose v Plenty & another [1976] 1 All ER 97; 1 WLR 141

3. Limpus v London General Omnibus Co (1862)1 H & C 526

4. Twine v Bean’s Express Ltd [1946] 1 All ER 202

5. Conway v George Wimpey & Co Ltd [1951] 1 All ER 363

6. Kesi v Sedya [1973] EA 251 (U)

7. Ndoo t/a Ngomeni Bus Services v Kakuzi Ltd [1984] KLR 554

8. May (or Bourhill) v Young [1942] 2 All ER 396

9. Allen, Walter & others v Karen Ostensson & another High Court Civil Case No NAI No 1810 of 1978 (unreported)

10. Lalji v Toka & another [1981] KLR 325

Statutes

No statutes referred.

Advocates

Mr. Juma for the Plaintiff

Mr. Nanji for the First Defendant