IN THE COURT OF APPEAL FOR EAST AFRICA
AT KAMPALA
CORAM (DUFFUS, P., LAW, AG. V.-P AND LUTTA JA)
CIVIL APPEAL NO 30 OF 1971
BETWEEN
PATEL}……………………………………..APPELLANT
AND
YAFESI MUKASA }
HARBANS SINGH }
CHRISTINA ALUBULYA }
AVTAR KAUR } ……………………………………RESPONDEN'I'S
[Appeal from the judgment and preliminary decree of the High Court of Uganda at Kampala (Jones J ) dated 26th October, 1970 in Civil Suit No. 281 of 1969]
19thOctober, 1971
The following Judgments were read:-
LAW AG V-P.
This appeal arises out of a traffic accident which occurred on the Bombo to Kampala Road, 7 miles from Kampala, on the 27th May, 1967, at about 8 p.m. Three vehicles were involved, an Austin lorry belonging to the appellant ("the lorry’”), a Peugeot station wagon belonging to car the second respondent (lithe Peugeot\!) and a Fiat motor car belonging to the third respondent (“the Fiat”).
The third respondent was completely exonerated from blame at the trial, and this finding is not challenged on this appeal. The first and fourth respondents are persons suing in respect of the deaths of two persons who died in the accident.
They were not represented at the hearing of the appeal 'when we heard arguments of Mr. Deobhakta for the appellant and Mr. Hunt for the second respondent who also cross-appealed. The facts can be briefly stated.
The lorry had broken down and was parked on the left verge facing Kampala, but at a slight angle so that the right rear end of the lorry protruded onto the tarmac surface of the road, which was 24 feet wide at this point, to the extent of two feet. The road towards Kampala was uphill, but straight for about half a mile behind the lorry and for several hundred yards in front of it. The Peugeot was being driven towards Kampala by a driver employed by the second respondent.
It contained seven other people in addition to the driver, six being fellow employees of the driver’s and the seventh a woman said to be the wife of one of the employees. The Peugeot was being driven at a speed described by the judge as “tremendous”, and estimated by an eye witness Mr. Kabwama, as being between 70 and 80 miles an hour.
The fiat was being driven in the opposite direction, towards Bombo, on its proper side of the road at a reasonable speed. When the Fiat was approximately opposite the parked lorry there was ample space for the Peugeot to pass safely as it overtook the lorry.
The lorry was fitted with chevrons and reflectors, but whether its parking lights had been switched on or not is one of the matters in issue in this appeal. The driver of the lorry had gone to Kampala for help, at about 6.30 p.m leaving the turn boy in charge with instructions to switch on the parking lights at 7 p.m. when it got dark. Instead of passing through the available space, the Peugeot collided with the lorry and rebounded onto the Fiat.
The impact was extremely violent. The Peugeot was virtually demolished. Three passengers in it were killed outright and two died later. The driver, who survived, admitted in evidence that he did not see the lorry until he was 5 or 6 yards from it.
He also admitted that he was not comfortable driving, as there were two people in the single seat next to him. On the issue of negligence, the appellant's case is that he should have been exempted from liability, alternatively that the proportions found by the learned judge of 60% liability against the second respondent and 40% against the appellant were manifestly wrong and should be altered in of the appellant.
The second respondent's case is that he should not have been found liable, alternatively that his liability should have been fixed at a lesser degree than that of the appellant.
Mr. Deobhakta, for the appellant, submitted that the lorry could not have been parked more carefully, having regard to the fact that it had broken down and the pressure-assisted brakes were consequently not functioning, so that any attempt to allow the lorry to roll further down the hill under its momentum ,would d have been fraught with danger.
He also challenged the learned judge's finding that the parking lights on the lorry were not on at the time of the accident. Mr. Hunt, for the second respondent, did not seriously contend that the failure of the driver of the Peugeot to see the lorry until he was only a few yards away was not evidence of negligence, but he submitted that the leaving of the lorry unlit, and partly on the roadway, constituted gross negligence which justified a substantial alteration of the ratios of negligence in favour of the second respondent.
In deciding this point, much turns on whether the learned judge's finding as to the parking lights not being switched on can be supported. The evidence on this point was largely negative; the driver of the Peugeot did not notice any rear lights and the driver of the Fiat did not notice any lights in front of the parked lorry. The turn-boy, who claimed to have switched the parking lights on at 7 p.m. admitted in evidence that when the driver left at 6.30 p.m. he had gone to sleep on the bags which formed the lorry's load, although he subsequently retracted this statement and said he was merely lying on the bags.
In these circumstances I do not see, on a balance of probabilities, how the learned judge's finding that the parking lights on the lorry had not been switched on can be impugned.
This finding supports the learned judge's holding of negligence against the lorry driver. Failure to illuminate, at night, a lorry which is partly obstructing the highway undoubtedly constitutes negligence.
At the same time I have no doubt that the learned judge's finding that the driver of the Peugeot was more to blame than the lorry-driver was correct. The former was grossly negligent in failing to see the lorry on a straight road in time to avoid it, even if its parking lights were not on; he was travelling much too fast especially having regard to the fact that his freedom of action as a driver was to some extent impeded by the presence of too many passengers in the vehicle. Personally I think, with respect, that learned judge's apportionment of liability at 60% - 40% was unduly favourable to the second respondent, but it is settled law in East Africa that a trial judge's apportionment will not be interfered with on appeal save in exceptional cases as where there is some error of principle or the apportionment is manifestly erroneous: see Khambi v. Nahithi [1969] E.A 70. There has been no error of principle in this case, nor can it in my view be said that the apportionment was so manifestly erroneous as to require interference by this Court. I consider that both the appeal and cross-appeal fail on this issue.
The other issue for determination in this appeal is whether the learned judge was right in holding that three passengers in the Peugeot were trespassers. It was part of the driver's duties to carry employees of the second respondent, but he was not supposed to carry more than five. One of these passengers was a woman, said to be the wife of an employee. The driver's authority did not extend to carrying persons other than employees, and Mr. Deobhakta was unable to challenge the learned judge's finding that, in relation to the second respondent, the woman was a trespasser. The position of the other two passengers is however quite different. They had been provided with money by their employer, the second respondent, for their bus fares to Kampala. They had missed the bus, and would have had to wait for an hour for the next bus. Instead they stopped the Peugeot and were allowed to get in, shortly before the accident.
The learned judge's finding in relation to these two men was as follows: -
"Having regard to all the evidence I am of the opinion that Harbans Singh (that is to say, the second respondent) had discharged his duty to these two men when he dropped them at Bombo, and had given them the wherewithal to return to Kampala, which arrangement they seem to have accepted. I think therefore that they also were unauthorised passengers in that Peugeot for that particular part of the journey. They were not invitees.”
With respect, the test applied by the learned judge was not the proper test. The test is not whether the second respondent had discharged his duties by providing the two men with their bus fares, it is whether in allowing them into the Peugeot as passengers the driver was acting within or outside the scope of his employment. Mr. Hunt has submitted that in carrying more passengers then he was allowed to carry the driver was acting outside the scope of his employment and his employer should not be held responsible.
Mr. Deobhakta submitted that the driver was performing his duty but in an unauthorised manner. This was an improper mode of carrying out his duties, but it did not exempt the employer from liability.
Mr. Deobhakta relied on L.C.C. v. Cattermoles Ltd. (1953) 2 A.E.R. 582, in which case an employee who had no driving licence, was given explicit instructions to push vehicles from place to place and not to drive them. In breach of these instructions, he drove a vehicle and was involved in a collision with another. It was held that while this was a wrongful and un authorised way of performing an Act which he was employed to perform, his employers were liable.
In the course of his judgment, the Master of the Rolls (Sir Raymond Evershed) cited with approval the following passage from Canadian Pacific Railway vs. Lockhart (1942) 2 All E.R. 467
“… a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised provided they are so connected with acts which he has authorised that they may rightly be regarded as modes - although improper modes - of doing them. In other words, a master is responsible not only for what he authorises a servant to do, but also for the way in which he does it "
In Young v. Edward Box & Co. Ltd. (1951) 1 T.L.R. 789, a lorry-driver, who was not authorised to carry fellow-employees, gave a fellow-employee a lift. It was held that the driver was acting in the course of his employment, and within his ostensible authority, in giving the lift, and that was sufficient to make the employers liable.
In Conway v. George Wimpey & Co. (1951) 1 All E.R. 363, where a driver carried passengers who were not fellow-employees, in defiance of strict orders not to do so, it was held that the employers were not liable.
In the course of his judgment, Asquith L.J. said – “I should hold that taking men other than the defendants' employees on the vehicle was not merely a wrongful mode of performing an act of the class which the driver ….was employed to perform, but was the performance or an act of a class which he was not employed to perform at all”.
In other words, had the men carried been fellow employees, the act would have been within the scope of the driver's employment, but one performed in a wrongful ,way and the employer would have been liable.
In my opinion on a consideration of these and other authorities, I think with respect that the learned judge erred in holding that the two follow-employees in this case were trespassers.
In giving them a lift, the driver of the Peugeot was acting in the course of his employment and within his ostensible authority.
He did wrong in exceeding the maximum number of passengers he was allowed to carry, but this was only a wrongful mode of performing the work he was employed to do, and cannot absolve the second respondent from liability.
I would allow the appeal to this limited extent and amend the decree appealed from by deleting the reference to David Mpoza and Abdu Sewava Lwasa as being unauthorisod passengers in the second respondent's vehicle.
I would dismiss the cross-appeal, with costs, As the appeal has in my opinion succeeded to a very limited extent, I would award the appellant one-fifth of his costs against the second respondent.
DUFFUS, P.
I have had the advantage of reading the judgment of the learned Acting Vice-President.
I agree that this is not a case in which we would interfere with the discretion of the learned trial judge in his assessment of the apportionment of liability.
I also agree that the correct test on the issue as to whether the three extra passengers in the Peugeot car were trespassers is whether or not the driver of the Peugeot car was acting within the course of his employment.
In this respect the law in Uganda was: clearly stated by Newbold P. in his judgment in Muwonge vs. Attorney General of Uganda [1967] E.A 17 C.A “when he said:
"It is not in dispute that the principles of law governing the liability of the Attorney General of Uganda in respect of the acts of a member of… is liable for the acts of his servant committed within the course of his employment or, to be more precise in relation to a policeman, within the exercise of his duty. The master remains so liable whether the acts of the servant are negligent or deliberate or wanton or criminal. The test is: were the acts done in the course of employment or, in this case within the exercise of the policeman's duty. The acts may be so...done even though they are done contrary to the orders of the master.”
In this case the second Respondent Harbans Singh, the owner of the Peugeot car, agreed that the driver was authorized to carry his employees, and said that he would have had no objection to his picking up the two workmen David Mpoza and Abdu Sewava Lwasa if this had not been in excess of the amount of passengers the car was licenced to carry, but the fact that the picking up of these two passengers amounted to a criminal offence, would Dot absolve the master of liability if the act was done within the course of the servant’s employment.
I agree that this doctrine would not apply to the third passenger the woman Mary Namakula who was not an employee and would in the circumstances be a trespasser.
I agree therefore with the acting Vice-President's judgment, and with the orders he proposes and as Lutta J. also agrees there will be judgment in the terms of his order,
LUTTA, J.A.
I also agree.
