England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE

		Royal Courts of Justice,
		6th June 1973

(Revised)

LORD JUSTICE MEGAW: This is an appeal from the judgment of Mr Justice Brabin delivered on the 1st December of last year, whereby he dismissed a claim for damages for personal injuries brought by the plaintiff, Mr Mohammad Iqbal, against the defendants, his employers the London Transport Executive.

The plaintiff, at the relevant time and for some tine beforehand, had been employed by the defendants as a bus conductor. He worked from the Streatham Garage. The accident which he sustained on the 24th November, 1970, happened in that garage. The plaintiff, when the accident happened, was standing at the back of his own bus, the bus which he was going to take out to drive on its normal service, and while he was so standing he was struck and trapped between the rear of his own bus and the front of another bus and he sustained injuries. In the circumstances it is not necessary to go into the nature of his injuries, but it seems that although they were undoubtedly unpleasant, they were not as grave, fortunately, as this court sometimes has to consider.

The accident happened because the conductor of the bus which the plaintiff was about to drive - a man named Mr Carberry - had got into another bus in the garage and, not knowing how to drive and never having driven a bus before, he had succeeded in starting it, but starting it in such a way that he could not stop it until it had, as I said, crashed the plaintiff between the two buses. There is no doubt - and this is wholly accepted by the plaintiff -that My Carberry was forbidden by the defendants to drive a bus in any circumstances. That prohibition had been conveyed to him and made clear to him not once but in numerous occasions and as has been found - and no doubt rightly found, and no attempt was made on behalf of the plaintiff to challenge this finding - Mr Carberry himself was well aware that he was so prohibited.

The point which arises in the appeal is whether, despite that prohibition, Mr Carberry in doing what he did was acting within the scope of his employment so as to make his employers (the defendants vicariously liable for what was unquestionably a negligent act on the part of Mr Carberry.

There is no serious dispute now on any question of fact. I should say a little more about the accident. The accident happened at about 5 past 7 in the morning on that day the 24th November, 1970. The bus was due to go out on its first run of the day from Streatha Garage shortly after 5 past 7. Both the plaintiff, the driver of the bus, and his conductor Mr Carberry had reported to the garage at least ten minutes before the bus was due to go out on its first run. The plaintiff then found that his bus could not be moved out of the garage to go into service until another bus had been moved because the other bus was parked directly at the rear of Mr Iqbal's bus. He therefore asked Mr Carberry, his conductor, or told him, it matters not which, to get someone from the engineering department te move the bus. That, there is no doubt, was a perfectly proper request or instruction, whichever it was, for the plaintiff to give or make to Mr Carberry. Mr Carberry himself as has been said, was not entitled to move the bus and was well aware of that fact. There were, as has been found, engineers in the garage available at the time who were entitled to drive the other bus and who would have been available to do so at once. What Mr Carberry ought to have done is to have gone and obtained one of these engineers who would then have driven the bus and no accident would have happened. Mr Carberry, for some reason best known to himself, decided not to do so but decided to try to drive the bus himself, with the consequences which I have already mentioned.

This is, I think, sufficient as to the unfortunate facts of the case other than the evidence relating to the duties of conductors which, of course, is relevant in considering Mr Carberry's employment. Evidence was given en behalf of the defendants by a Mr Sinden, who was the Garage Manager of Streatham Garage at the relevant time. He produced in evidence a number of circulars which were put on a noticeboard so as to be seen by employees at the garages and those circulars included on each occasion express instructions that in no circumstances is a conductor allowed to drive a bus. There was also produced by Mr Sinden the rule book: at any rate, some version, whether an up-to-date one or not, of the rule book for drivers and conductors of London Transport buses published by the defendants. I shall come back to that rule book in a moment.

Mr Sinden was asked in examination-in-chief this question, at page 9 of the evidence in the transcript:

"We have heard from the plaintiff that ha instructed the conductor to find a member of the engineering staff to move that bus. Was that the right thing for him to do?

(A) Well, it is rather debatable. As far as I am concerned, it would be his responsibility to find the man, but there is no reason why he should not ask his conductor.

(Q) Would a member of the engineering staff be the right person to move the bus?

(A) Oh yes, yes.

Then Mr Sinden was cross-examined on behalf of the plaintiff and I should read some passages from that cross-examination because they are relied upon by the plaintiff in this appeal. At page 12 at C there is a passage which begins with this question:

"(Q) Circumstances could vary of course infinitely but the overall principle is that it is his job to co-operate with the driver in the manoeuvring of the bus?

(A) On the reversing of the bus, yes.

(Q) And he would be expected to use his initiative, would he not again in service, whenever the bus is held up by some obstruction or another. He has got to co-operate and use his initiative; all the time of course obeying the instructions not to drive?

(A) Yes.

(Q) You agree with that ?

(A) Yes.

(Q) I do not think there is anywhere laid down a strict instruction as to who is in charge of a bus, whether it be the driver or the conductor ?

(A) I have never seen it laid down but it is normally accepted the conductor.

(Q) Now, the conductor sometimes takes over a bus while it is already in service. He boards it at a certain stage; but just as often he joins his bus when it is at the garage?

(A) It can happen, yes.

(Q) And would not the situation be generally the same that once he has come on duty and joined his bus, his job is again to co-operate with the driver in the manoeuvring of the bus inside the garage, to get it, for example, out on to the road ?

(A) That is correct, yes."

Then it was suggested to Mr Sinden that if there was an obstruction in the way of the bus in the garage, such as a box of spare parts or something like that, the conductor would be expected as part of his job to remove that obstruction, and Mr Sinden said "No; I would doubt if he would. He would call an engineer". And when ha was challenged about that ha said that "conductors are expected to keep clean and tidy and handling greasy parts is not a way of going into service with the public". He also referred, as another reason, to the possibility that there night be trade union objections to touching other people's work. Then at D this question is asked:

"You say, at any rate, that in answer to my learned friend Mr Ground that there would be no reason why that plaintiff Mr Iqbal should not ask his conductor to find a member of the engineering staff to move the bus?

(A) No reason at all.

(Q) And we can take it from that, I suppose, that that is because it was part of his overall job to co-operate with the driver in getting the bus out on to the road?

(A) Yes".

Then towards the end of the cross-exanimation at H on page 13 there is this passages

"(Q) Just take this example of one bus blocking the exit of another. There is nothing specific that I have found in the rules to say that a conductor must go and get it shifted. You would expect him to use his initiative in that respect, would you not, not by driving it himself but by getting a member of the engineering staff, even if he was not told to do so by his driver?

(A) Basically, I would expect the driver to do this. He is paid10 minutes to prepare his bus for service.

(Q) So is the conductor, is he not ? He has got 10 minutes?

(A) To prepare his ticket machine and other parts of the conducting duties for service.

(Q) But if his bus does not get away on time he has get to provide an explanation ?

(A) Yes; he would probably be reported by an official and have to supply an explanation".

So much for the evidence.

In my view, nothing, really of any great significance emerges from that evidence although counsel for the plaintiff sought to build a good deal upon it as to part of the conductor's duties being to co-operate in getting the bus out of the garage ready to start the service.

As to the rules, to which I have already referred, I do not propose to go into them in detail or, indeed, to refer to very many of them. It is, however, right to note that in the book rules 48 to 68 are within the section Part II, "Rules for drivers", and rule 48 sets out the main duties of drivers. It shows, as one would expect, that their main duty is to drive and as to the manner of their driving. Part III of the rules beginning with rule 69 and carrying through to rule 106 is "Rules for Conductors". It starts with rule 69 "Conductors' Main duties" and, as would be expected, the rules show that conductors' duties are not in any way related to the driving operation, but are related to such matters as looking out for intending passengers, signalling to the driver to stop and start when required, attending to the safety and convenience of passengers in a courteous manner, issuing the necessary tickets and collecting all money due from passengers to London Transport, paying in all money collected, and so on. Rule 41, which is contained in Part I described as "General Rules", is headed "Unauthorised persons not allowed to drive" and provides:

"Employees other than an authorised driver must not in any circumstances drive a bus in service, and no one except an authorised person must enter the driver's cabin of a bus in service. Note. In no circumstances may a member of the engineering staff be prohibited to drive a service bus with passengers on board".

The prohibition in that rule in relation to any employee other than a driver driving is quite clear.

The learned judge in his judgment goes in some detail into the considerable number of authorities to which he was referred in relation to this question of the scope of the servant's employment; particularly in relation to cases where, there having been a prohibition on the part of the employers from doing a particular kind of work, the employee nevertheless, in breach of that prohibition, has done that particular kind of work and has done it in such a way that another employee was injured thereby. The judge came to the conclusion that this was a case in which it was not within the scope of Mr Carberry's employment to drive a bus and, therefore, what he was doing on the occasion when the plaintiff was injured was something which was not within the scope of his employment and that, therefore, the defendants were not vicariously liable.

That judgment has been criticised in a number of grounds to which I shall refer hereafter. I think it is desirable to consider the matter by going first to a passage in the well-known textbook Salmond on Torts, the 15th Edition. I go to this passage because, substantially in the same form, it is carried through from earlier editions and a substantial part of what I am going to read, at any rate, has been specifically approved on numerous occasions by various courts as setting out accurately the principle which has to be applied in eases such as this. In the 15th Edition it is page 620, the paragraph headed "The course of employment" paragraph 174:

"A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master. It is clear that the master is responsible for acts actually authorised by him for liability would exist in this ease, even if the relation between the parties was merely one of agency, and not one of service at all. But 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 merely for what he authorises his servant to do, but also for the way in which he does it. If a servant does negligently that which ha was authorised to do carefully, or if ha does fraudulently that which ha was authorised to do honestly, or if he does mistakenly that which ha was authorised to do correctly, his master will answer for that negligence, fraud or mistake. On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible for in such a case the servant is not acting in the course of his employment, but has no gone outside of it. He can no longer be said to be doing, although a wrong and unauthorized way, what he was authorised to do: he is doing what he was not authorised to do at all".

Then the learned author goes on:

"As is often the case in torts, the principle is easy to state but difficult to apply. All that can be done is to provide illustrations of cases on either side of the line… Once it is conceded that the servant was doing something in his working hours, on his employers' premises and that his act had a close connection with the work which he was employed to do, then the onus shifts to the employers to show that the act was one for which they were not responsible".

Then later in paragraph 175 the learned author refers to the "Effect of express prohibition" and I do not think it is necessary for me to read any of that paragraph except to refer to one sentence ea page 626, where he says:

"Further illustrations are unnecessary for in every case it is a question of fact whether a servant is acting within the scope of his employment".

That, again, is a sentiment which, whether or not in precisely these words, has received approval from numerous courts on numerous occasions.

I should, perhaps, refer to passages in which part of what I have read form Salmond on Torts had been mentioned with approval. For example, in 1942 Appeal Cases, in the Privy Council case of Canadian Pacific Railway Company v. Lockhart, the judgment of the court was delivered by Lord Thankerton. He, at page 599, quoted with approval the statement in Salmond on Torts as it then was, which is in substance what I have read. Lord Thankerton also refers, in the same passage of his judgment, to the well-known dictum of Lord Dunedin in Plumb v. Cobden Flour Mills Co. Ltd (reported in 1914 Appeal Cases, page 62 at page 67) where Lord Dunedin said:

"there are prohibitions which limit the sphere of employment, and prohibitions which only deal with conduct within the sphere of employment".

Again the passage in Salmond which I quoted was referred to with approval by Lord Justice Willner in the case of Ilkiw v. Samuels, which is reported in 1963 1 Weekly Law Reports, page 991, the passage in Lord Justice Willmer's judgment being at page 997; and again in the same case Lord Justice Diplock at page 1004 approved of the same passage. Most recently Lord Justice Sellers referred to the passage with approval in Kay v. I.T.W. Ltd, reported in 1968 1 Queen's Bench Division at page 153 G.

The question, to put it in the form of the test stated by Lord Dunedin, is: is this a prohibition which limits the sphere of employment, or is it a prohibition which only deals with conduct within the sphere of employment?

For the plaintiff Mr Mayhew contends that the prohibition which prohibited Mr Carverry from driving a bus was only a prohibition which dealt with conduct within his sphere of employment. The sphere of employment, he says, as I understand it, is to be taken widely and is to be regarded here as being the duty of the conductor to co-operate with the driver in getting the bus into service on the road. If one takes that as being the duty of the conductor then what Mr Carberry did, it is said, was not to go outside his sphere of employment, even though he was prohibited from driving the bus, but was to do that which his employment authorised and required him to do, namely, to co-operate in getting this bus out on the road in time, and his method of doing that was to break the prohibition against driving himself.

As has been said again and again, and as I have already mentioned, the test here, really, is one which depends essentially upon the facts of a particular case and very little assistance is to be obtained in my view, from looking at the facts of other eases. Here an important feature, which was properly stressed by the learned judge, was the definition in the rules of the duties respectively of drivers and conductors and the express provision in these rules of the prohibition. In my judgment, taking this case as a whole and giving the fullest weight in favour of the plaintiff that I can of the evidence which was given by Mr Sinden which I have read, it seems to me to be clear that, whether one looks at this case by first ignoring the specific prohibition and considering what the duties of the conductor weald have been without that prohibition, or whether one looks at it as a whole including the prohibition, in either event the answer must be that this case falls on the side of the line in which the driving of the bus was not within the scope of employment of Mr Carberry. The prohibition that the conductor is not to drive the bus limited the sphere of employment. It is not properly to be regarded, on the facts and circumstances here, as a prohibition which deals only with conduct within the sphere of employment. The driving of a bus was not within the sphere of employment.

I reach that conclusion, let it be said, with some regret because it nay be thought that it is unfortunate that the law has developed in the way in which it has developed. It might be thought that the law would be better, and weald lead to fewer anomalies — although those can never be wholly avoided - if it were to be such that an employer was vicariously liable for the negligent acts of his servant injuring a fellow servant if the negligent servant was seeking to do that which was in the employer's interests and was intending to do something which was a part of his duty to his employer even though he might have been mistaken in that or even though he might have done it either accidentlly or deliberately in breach of a particular prohibition.

It does seem odd and anomalous that an employer should be vicariously liable for the injury done to a person by a servant when that servant is engaged in fraud against the employer's interests; whereas the employer would not be vicariously liable in a ease such as the present when Mr Carberry, although he was disobeying instructions, was not, apparently, seeking to forward his own interests as against the interests of his employers, but was doing - or failing to do - a job which ought to have been done by another employee within whose scope of employment the job was. However, while that is a view which it is possible to take as to what the law should be, it is a view which does sot accord with the law as it stands; because the eases show, beyond argument, that an employer is not vicariously liable merely because an employee, who is acting outside the scope of his employment, was intending to do something for the employer's benefit.

I said earlier that I would refer to the criticisms that have been made by counsel on behalf of the plaintiff of the learned judge's judgment. I can deal with that, I think, quite briefly.

She first of the criticisms is that the judge, not expressly but by implication, adopted a wrong test in deciding the matter which he had to decide - that is in deciding if Mr Carberry was acting outside the scope of his employment rather than merely doing an authorised act in an unauthorised manner. The judge undoubtedly did refer on various occasions (which counsel has particularised) to the fact that Mr Carberry well knew that he was not entitled to drive. That, of course, was something which was vital from the point of view of the defendants' case, because if the employers had not brought home to the employee in question that there was a limitation, than they would have been in great difficulty in saying that the scope of the employment did not include driving. It was said by Mr Mayhew, on behalf of the plaintiff, that while that was something which was part of the defendants' case, the judge referred to it so often and with such emphasis that it looks as though the judge was treating that as being the criterion or as being itself conclusive. It looked, Mr Mayhew submitted, as though the judge was saying "The fact that Mr Carberry was informed of and did know of the prohibition on driving was in itself sufficient to defeat the plaintiff's claim that the defendants were vicariously liable. I do not think myself that that is a legitimate criticism of the learned judge's judgment. I think that it is clear that the learned judge, in going through the authorities did apply his mind to the proper test and did direct himself properly in respect of the matter which is succinctly set out by Lord Dunedin in the passage which I have cited.

Then it was said that the judge was unduly influenced by his view of the case of Beard v. London General Omnibus Company (1900 2 Queen's Bench, page 530). It is said that the judge dealt with that case wrongly and that on its true view it really turned solely on the fact that a submission of no case was accepted, because the plaintiff produced no evidence that the bus conductor did not have authority to drive buses. But whatever the true view of Beard, I do not think it can be said that the learned judge in this case reached his decision in any way on a mistaken view of the ratio decidendi of that case.

Thirdly and lastly it was said on behalf of the plaintiff that the judge was wrong in distinguishing the case of London County Council v. Cattermoles Garages Ltd (reported in 1953 1 Weekly Law Reports, page 997), a decision of this court. It was said by Mr Mayhew that that case was in fact very close to the facts of the present case and that the judge had made some distinctions which were not justified. I do not think it is necessary to go into that case in any detail because, in my view, Cattermoles case is one which is not of any real assistance on the facts in relation to the facts of this case. That was a case in which a servant was employed by a garage and after his employment they discovered that he did not have a driving license and he was, apparently, therefore forbidden to drive vehicles in the garage. In breach of that prohibition he did drive a vehicle in order to get it out of the way, and in so doing he was involved in an accident. It was held that the employers were vicariously liable for his negligent driving. The clear distinction, to my mind, between that case and the present case is that in that case there was indeed much ground for supposing that, in the absence of this specific prohibition relating to a specific matter concerning this specific employee, anyone would ordinarily assume that it was within the scope of the duty of an employee in a garage to drive vehicles in that garage and to move them about. In my judgment, the decision in that case has no real bearing on the present case.

I do not think it is necessary to refer to the other authorities t which we were referred. There are in them various statements of the principle applicable; but so far as the facts are concerned I do not think they are really sufficiently close to help in the decision upon the facts of this case. Accordingly, I would dismiss the appeal.

LORD JUSTICE BUCKLEY: I agree that the appeal should be dismissed and I agree with the reasons which my Lord has given far so holding. The prohibition in this case is a prohibition forbidding any conductor employed by the defendants driving a bus in any circumstances and is a prohibition which excluded entirely from the scope of employment of conductors the function of driving buses. It is not a prohibition which forbade the use of any particular mode of performing some function which was not expressly excluded from the employee's - that is to say the conductor's - duties and which could properly be regarded as falling within the scope of his employment. Accordingly, for the reasons which my Lord has developed, I tee would dismiss this appeal.

LORD JUSTICE ORR: I also agree.

MR TUDOR-EVANS: I ask that the appeal should be dismissed with costs. This is a Union case, not a legal aid case.

MR MAYHEW: I cannot resist that application, my Lord.

LORD JUSTICE MEGAW: Then the appeal will be dismissed with costs.

(Order: appeal dismissed with costs)