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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Launchbury v Morgans [1972] UKHL 5 (09 May 1972)
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Cite as: [1972] UKHL 5, [1973] AC 127
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that apparently advocated by the Master of the Rolls of a
" matrimonial " car, the theory being that all purposes for which
it is used by either spouse are or presumed to be matrimonial
purposes;that adopted in some American States of a " family " car, the
theory being that any user by any member of the family is the
owner's " business " (see Prosser I.c.)that any owner (including hire purchaser) who permits another
to use his motor vehicle on the highway should be liable by the
fact of permission. This principle has been adopted by statute
in certain Australian States (e.g. The Motor Vehicles Insurance
Acts, 1936-45, Queensland, s. 3 (2)).Whatever may have been the situation in 1913 in the youth of the
motor car, it is very different now, when millions of people of all ages
drive for a vast variety of purposes and when there is in existence a
complicated legislative structure as to insurance—who must take it out,
what risks it must cover, who has the right to sue for the sum assured.
Liability and insurance are so intermixed that judicially to alter the basis
of liability without adequate knowledge (which we have not the means to
obtain) to as the impact this might make on the insurance system would
be dangerous and, in my opinion, irresponsible.To declare as from the date of the decision in this House, that a
new and greatly more extensive principle of liability was to be applied,
in substitution for well-known and certain rules might inflict great hard-
ships on a number of people, and at least would greatly affect their
assumed legal rights. We cannot, without yet further innovation, change
the law prospectively only: and in any event this accident occurred in
1964, so any change if it were to be relevant to this case would have to
date back till then. Such is the number of accidents now occurring, and
the time which elapses before the damages are settled, that any decision
in this case would affect, at the least, cases over the last eight years, the
parties to which could justly expect to look to the established law to
guide them, and whose insurances were arranged on the basis of
established law.First he says "If it is being used wholly or partly in the owner's
" business or in the owner's interest, the owner is liable for any negligence on
" the part of the driver ". This would include a case in which some eager
or officious person drove the car on the owner's business or in the owner's
interest but without any prior authority or subsequent ratification from the
owner. There would be no agency in the normal sense of the word, and the
owner would not have caused or even permitted the driving of the car by
that person, It would be a novelty in the law if the owner were held liable
in such a case and some new principle would have to be invented.Secondly, the Master of the Rolls treats permission by the owner for a
person to drive his car as being in most cases sufficient to impose upon the
owner liability for that person's negligent driving of the car. That is the
rule proposed for " most cases " and an exception is stated—" The owner
" only escapes liability when he lends it out or hires it out to a third person to
" be used for purposes in which the owner has no interest or concern ".
Apart from that exception the proposed rule is stated broadly. The Master
of the Rolls says " The reason behind this principle is at bottom the principle
" which lies behind all vicarious liability. It is to put the responsibility on
" to the person who ought in justice to bear it. Now the owner or hirer of the
" vehicle is in most cases the person who ought to bear the responsibility.
" He is the one who puts it on the road where it is capable of doing damage.
" He is the one who causes or permits it to be used. He is the one who is,
" or ought to be, insured in respect of it. ... Suffice it that, by himself or by
" proxy, he allowed the driver to drive it on the fatal occasion. He ought,
" therefore, at common law to shoulder the responsibility. . . . The owner or
" hirer is at common law responsible for all injury or damage done by his
" permitted driver in the negligent driving of the car. . . . But the owner or
" hirer can, of course, at common law excuse himself from responsibility if
" it was being used without his permission on an occasion in which he had
" no interest or concern ". The exact scope of the proposed new principle
of owner's liability is not fully explored in this passage, but it seems clear
that a new principle is being proposed, whereby permission rather than agency
would be the basis of liability.
[SECOND FINAL]
Die Martis, 9° Maii 1972
Parliamentary
Archives,
HL/PO/JU/4/3/1235
HOUSE OF LORDS
MORGANS (WIDOW)
v.
LAUNCHBURY (A.P.) AND OTHERS (A.P.)
Lord Wilberforce
Viscount
Dilhorne
Lord
Pearson
Lord
Cross of Chelsea
Lord
Salmon
Lord Wilberforce
my
lords,
This appeal arises out of a motor car accident in which
the three
Respondents were injured. They were passengers in a
Jaguar saloon which
was registered in the name of the Appellant;
she was not using the car at the
time. The other persons in it
were the Appellant's husband and a friend of
his, Mr. D. J.
Cawfield, who was driving: both were killed. It is not disputed
that
the accident was caused by the negligence of Mr. Cawfield. At
first
instance, the Appellant was sued both in her personal
capacity and as
administratrix for her deceased husband: judgment
was given against her in
both capacities on the ground that both
she personally and her husband, were
vicariously liable for Mr.
Cawfield's negligence. It is only in her personal
capacity that
she brings the present appeal and the question involved is
there-
fore whether as owner of the car, and in the circumstances
in which it came
to be used and driven, she can be held
vicariously liable for the negligence
of the driver.
Some further facts require to be stated. Before their
marriage the Appellant
and her husband each had their own car, but
after they had been married
about a year they decided to sell one,
and the one sold was the husband's.
The Jaguar was, in the
Appellant's words, regarded as " our car ". It was
freely
used by either husband and wife; the husband normally used it
every
day to drive to and from his place of work seven miles from
his home.
On the day of the accident, the husband had driven in
the car to work.
In the evening he telephoned to the Appellant to
say that he would not be
returning home for his evening meal and
that he was going out with friends.
He visited a number of public
houses and had drinks. At some stage he
realised that he was
unable to drive safely and he asked Mr. Cawfield to
drive and gave
Mr. Cawfield the keys. Mr. Cawfield drove the husband to
other
public houses. After the last one had been visited Mr. Cawfield
offered
the three Respondents, one of whom was a friend of his, a
lift in the car ; and,
soon after, the husband got into the back
of the car and fell asleep: he was
certainly and heavily
intoxicated. Mr. Cawfield then drove off, not in the
direction of
the husband's home, but in the opposite direction, suggesting a
meal
before he finally drove the passengers home. Soon after, with
Mr.
Cawfield driving at 90 m.p.h., the car collided with an
omnibus.
There was some important evidence as to the
circumstances in which the
Appellant's husband may have asked Mr.
Cawfield to drive. According to
the Appellant's evidence, her
husband often liked to stay out and visit public
houses. In her
words, " We had an understanding, he had always told me he
"
would never drive if he thought there was any reason he should not
drive "
and " it was an understanding, he told me,' You
need not worry, I would not
" ' drive unless I was fit to
drive' ". Some further questions were put to her
and the
judge felt entitled to find " that he promised her he never
would
" drive himself if he had taken more drink than he left
he should have but
" would do one of two things, either get a
friend to drive him or ring her up
" and she would come and
fetch him." We must accept the tenor of this
finding but it
was to be understood in the context of discussion between hus-
band
and wife. It is unlikely that it was so crysal clear as it appears
from
the finding to have been. One other fact: there was no
question of the
Appellant knowing that Mr. Cawfield drove or might
drive the car that
evening, and he was to her merely an
acquaintance.
2
It is on these facts that liability for the injuries
sustained by the passengers
must be considered. Who could they
sue? In the first place, there was the
estate of Mr. Cawfield as
the negligent driver; in the second, the estate of
the husband who
requested Mr. Cawfield to drive, this resting upon the
normal
principle of the law of agency. But the Respondents seek to
go
further and to place vicarious liability upon the Appellant.
As to this, apart
from the special circumstances of the "
understanding " there would seem,
on accepted principle, to
be insuperable difficulties in their way. The car
cannot by any
fair process of analysis be considered to have been used for
the
Appellant's purposes at the time of the accident. During the whole
of
the evening's progress it was as clearly used for the husband's
purposes as
any car should be: and if there was any doubt about
this the separation from
any possible purpose of the Appellant's
at the time of the accident can only
be intensified by the fact
that Mr. Cawfield, the husband's agent, was taking
the car away
from the Appellant's (and the husband's) home for some fresh
purpose.
It seems clear enough that this was the purpose of Mr. Cawfield
but
even if one attributes this to her husband, I am unable to formulate
an
argument for attributing it to the wife.
It is said, against this, that there arc authorities
which warrant a wider and
vaguer test of vicarious liability for
the negligence of another: a test of
" interest or concern ".
Skilled counsel for the Respondents at the trial
was indeed able
to put the word " concerned " and " interest"
into the wife's
mouth and it was on these words that he mainly
rested his case.
On the general law, no authority was cited to us which
would rest vicarious
liability on so vague a test, but it was said
that special principles applied
to motor cars. I should be
surprised if this were so, and I should wish to
be convinced of
the reason for a special rule. But in fact there is no
authority
for it. The decisions will be examined by others of your
Lordships
and I do not find it necessary to make my own review.
For I regard it as
clear that in order to fix vicarious liability
upon the owner of a car in such
a case as the present, it must be
shown that the driver was using it for
the owner's purposes, under
delegation of a task or duty. The substitution
for this clear
conception of a vague test based on " interest" or "
concern "
has nothing in reason or authority to commend it.
Every man who gives
permission for the use of his chattel may be
said to have an interest or
concern in its being carefully used,
and, in most cases if it is a car, to have
an interest or concern
in the safety of the driver, but it has never been held
that mere
permission is enough to establish vicarious liability. And
the
appearance of the words in certain judgments (Ormrod v.
Crosville Motor
Services Ltd. [1953] 1 W.L.R. 409 per
Devlin J. ibid 1120 per Denning L.J.)
in a negative context (no
interest or concern, therefore no agency) is no
warrant whatever
for transferring them into a positive test. I accept entirely
that
" agency " in contexts such as these is merely a concept,
the meaning
and purpose of which is to say " is vicariously
liable " and that either
expression reflects a judgment of
value—respondeat superior is the law
saying that the
owner ought to pay. It is this imperative which the common
law has
endeavoured to work out through the cases. The owner ought to
pay,
it says, because he has authorised the act, or requested it, or
because
the actor is carrying out a task or duty delegated, or
because he is in control
of the actor's conduct. He ought not to
pay (on accepted rules) if he has
no control over the actor, has
not authorised or requested the act, or if the
actor is acting
wholly for his own purposes. These rules have stood the
test of
time remarkably well. They provide, if there is nothing more,
a
complete answer to the Respondents' claim against the Appellant.
I must now consider the special circumstance on which
the judge relied—
the understanding between the Appellant
and her husband. What does it
amount to? In my opinion, it is
nothing more than the kind of assurance that
any responsible
citizen would give to his friends, any child would give to
his
parent, any responsible husband would give to his wife: that
he intends to
do what is his legal and moral duty ; not to drive
if in doubt as to his sobriety.
The evidence is that this
assurance originated from the husband and no doubt
it was welcomed
by the wife. But it falls far short of any authority by the
3
wife to drive on her behalf or of any delegation by her
of the task of driving.
If the husband was, as he clearly was,
using the car for his own purposes, I
am unable to understand how
his undertaking to delegate his right to drive
to another can turn
the driver into the wife's agent in any sense of the word.
The
husband remains the user, the purposes remain his.
So if one applies accepted principles of the law, the
case is clear; I only
wish to add that I agree with the judgment
of Megaw LJ. in the Court of
Appeal both on the law and the facts.
This is not the end of the case. The Respondents
submitted that we should
depart from accepted principle and
introduce a new rule, or set of rules,
applicable to the use of
motor vehicles, which would make the Appellant liable
as owner.
The Master of the Rolls in the Court of Appeal formulated one
such
rule, based on the conception of a matrimonial car, a car used
in
common by husband and wife for the daily purposes of both. All
purposes, or
at least the great majority of purposes, he would say
are matrimonial
purposes: shopping, going to work, transporting
children, all are purposes of
the owner, the car was bought and
owned for them to be carried out.
And, consequently (this is the
critical step) the owner is ipso jure liable
whatever the
other spouse is using the car for, unless, it seems, though the
scope
of the exception is not defined, the latter is " on a frolic of
his own ".
Indeed the Master of the Rolls seems to be willing
to go even further and to
hold the owner liable on the basis
merely of permission to drive, actual or
assumed.
My Lords, I have no doubt that the multiplication of
motor cars on our
roads, their increasing speed, the severity of
the injuries they may cause,
the rise in accidents involving
innocent persons, give rise to problems of
increasing social
difficulty with which the law finds it difficult to keep
abreast.
And I am willing to assume (though I think that more evidence
is
needed than this one case) that traditional concepts of
vicarious liability,
founded on agency as developed in relation to
less dangerous vehicles, may
be proving inadequate. I think, too,
though counsel for the Appellant argued
eloquently to the
contrary, that some adaptation of the common law rules to
meet
these new problems of degree is capable of being made by judges. I
do
not have to depend on my own judgment for this for it can be
seen that in
the United States, so long ago as 1913, the judges in
the State of Washington
developed, without legislative aid, a new
doctrine of the family car (Biron v.
Abercrombie, 74
Wash. 486, 133 P.1020) and some other States have, with
variations,
followed the same road (see Prosser on Torts p. 494 ff). Other
States
have resorted to statute. To be similarly creative, even seventy
years
later, has its attraction.
But I have come to the clear conclusion that we cannot
in this House
embark on the suggested innovation. I endeavour to
state some reasons:
1. Assuming that the desideratum is to fix
liability in cases of negligent
driving upon the owner of the car
(an assumption which may be disput-
able), there are at least
three different systems which may be adopted—
Yet another possibility would be to
impose liability upon the owner
in all cases regardless of whether
he had given permission or not.
My Lords, I do not know on what
principle your Lordships acting
4
judicially can prefer one of these systems to the others
or on what basis
any one can be formulated with sufficient
precision or its exceptions
defined. The choice is one of social
policy; there are arguments for
and against each of them. If any
one is preferable on purely logical
grounds, to me it is the
third, for I am unable to state with any precision
a rational (as
opposed to a policy) preference for drawing a line at either
of
the alternative points, the spouses or the family. But apart from
the
unsupported statement by the Master of the Rolls in the
present case I
know of no judicial pronouncement in favour of the
third; indeed the
cases, amongst them the judgments of Edmund
Davies L.J. and Megaw
L.J. below, contain statements to the
contrary, i.e. that mere permission
is not in law a sufficient
basis of liability. I do not doubt that this is
the existing law
nor the validity of the Australian position that to base
liability
on permission would be a matter for legislation.
My Lords, we may be grateful to the learned Master of
the Rolls for turning
our thoughts in a new direction, a direction
perceived, if not with unity of
vision, by courts beyond the seas
so long ago ; but I must invite your Lordships
to state that his
judgment does not state the law. Any new direction, and it
may be
one of many alternatives, must be set by Parliament.
I would allow the appeal and dismiss the action.
Viscount Dilhorne
MY LORDS,
The only question for determination in this appeal is
whether the Appellant,
Mrs. Morgans, is vicariously liable for the
negligent driving of a Mr. Cawfield
on the 4th August, 1964. The
Respondents were passengers in the car and
sustained injuries. Mr.
Cawfield and Mr. Morgan the Appellant's husband,
who was also a
passenger in the car, were killed. The Respondents claimed
damages
against the representative of Mr. Cawfield's estate, against
Mrs.
Morgans as administratrix of her husband's estate and against
her personally.
Presumably she was sued personally in the hope
that claims against her by
passengers were covered by a policy of
insurance whereas the claims against
the other defendants were
unlikely to be.
Mrs. Morgans was the owner of the Jaguar car being
driven at the time
of the accident by Mr. Cawfield. After her
marriage, she and her husband
each had cars but, finding that they
did not need two cars, her husband's
5
was sold. In her evidence she said " quite honestly
I never thought of it
" as my car. It was our car."
Her husband may well have thought the
same and have used the car
as if it was owned jointly.
Mrs. Morgans was by law required to insure against
claims by third
parties but not against claims by passengers, and
whether or not she insured
against such claims is irrelevant to
the question whether she is vicariously
liable for Mr. Cawfield's
negligence. If she was not insured against claims
by passengers,
then she would, if liable, have, so far as she could, to meet
the
damages out of her own pocket.
Although not in any way to blame for Mr. Cawfield's
negligent driving,
she is responsible for his negligent acts if he
was at the time of the accident
driving the car as her servant or
agent. In my view, the legal principle
was correctly and
accurately stated by MacKinnon L.J. in Hewitt v. Bonvin
[1940]
1 K.B. 188. He said at p. 191 : —
" If A suffers damage by the wrongful act of B, and
seeks to say that
" C is liable for that damage he must
establish that in doing the act B
" acted as the agent or
servant of C. If he says that he was C's agent
" he must
further show that C authorised the act. If he can establish
"
that B was the servant of C the question of authority need not
arise."
It is not, and in my opinion has never been, the law of
this country that
the owner of a chattel is responsible in law for
damage done by the negligence
of a person to whom he has lent it
or whom he has permitted to use it. (See
Quarman v. Burnett
[1840] 6 M. & W. 499 per Parke B. at p. 510: Ormrod
v.
Crosville Motor Services Ltd. [1953] 1 W.L.R. 1120 at p. 1122
per
Singleton L.J.) If all that had to be shown to establish
liability on the part
of the owner of a vehicle, was that he had
permitted its use by the person
who was negligent, then Hewitt
v. Bonvin was wrongly decided. There
the son was
permitted to use the car and it was held that the father was
not
responsible for the son's negligent driving as the son was not
his servant
or agent at the time.
That was a unanimous decision of the Court of Appeal and
I cannot
reconcile the view expressed by Lord Denning in this case
with it. Lord
Denning said ([1971] 2 W.L.R. at p. 608): —
" The owner or hirer is at common law responsible
for all injury
" or damage done by his permitted driver in
the negligent driving of
" the car."
With great respect, in my opinion that is not the law
now. I cannot rind
any authority which supports that statement.
Whether it should be the law,
or indeed should have been the law,
is a matter for argument on which
views may well differ.
In Hewitt v. Bonvin it was argued in the
Court of Appeal for the Respon-
dent, the plaintiff in the action,
that the car was the family car and that,
when the car was driven
by a member of the family with permission, the
driver was to be
regarded as driving as the agent of the owner. This argu-
ment was
rejected by the Court. MacKinnon L.J. considered the case on
the
basis that the son was alleged to have been acting as the
servant of his father,
pointing out that a person could act as a
servant though not remunerated.
He said that the definition of
servant in Salmond on Torts could hardly be
bettered: " A
servant may be defined as any person employed by another
" to
do work for him on the terms that he, the servant, is to be subject
to
" the control and directions of his employer in respect of
the manner in
" which his work is to be done."
He went on to say: —
" before any question as to the right of control
and direction over the
" tortfeasor arises at all, it must be
established that in doing the act
" complained of, he was
employed by the third party to do work for him.
" This cannot
be established by mere proof that the tortfeasor is using
" a
chattel, or driving a vehicle, which is the property of a third
party,
6
" though that may, in the absence of any further
explanation, be some
"evidence of the proposition."
and
" even a man who is in every sense a servant, to
make his undoubted
" employer liable for his negligent act,
must at the moment of his act
" be doing work for his
employer ".
Du Parcq L.J., as he then was, thought that the better
way of putting
the Respondent's case was on the basis of agency,
and said: —
" The driver of the car may not be the owner's
servant, and the owner
" will be nevertheless liable for his
negligent driving if it be proved that
" at the material time
he had authority, express or implied, to drive
" on the
owner's behalf. Such liability depends not on ownership, but
"
on the delegation of a task or duty ".
Thus, it was held that whether it be alleged that the
driver was the servant
or that he was the agent, to establish
liability on the part of the employer
or the principal, it must be
shown that the driver was acting for the owner
and that it does
not suffice to show that the driving was permitted.
Just as the inference may be drawn, from proof that the
vehicle was owned
by another, that the driver was driving as
servant or agent of the owner
(Barnard v. Sully)
(1931) 47 T.L.R. 557) so may a presumption arise, where it
is
proved that the driver at the time of the negligence was doing
something
which was in the interest of the owner or for his
benefit, that the driver
was then acting as a servant or agent of
the owner. But when the full facts
are known as they were in
Hewitt v. Bonvin and as they are in the present
case,
such an inference and presumption may be unwarranted. A
person
permitted to drive another's car does not become the
latter's agent if, on his
own volition, he uses it for the owner's
benefit; a son driving his father's
car with permission does not
become his father's agent because, remembering
that his father has
a suit at the cleaners, he uses the car to collect it. Whether
or
not the driver is acting as agent of the owner is a question of fact.
If the
journey is at the owner's request as in Ormrod v.
Crosville Motor Services
Ltd. (supra) or where the owner
asks someone to bring the car down to the
station to meet him,
then the driver is doing an act for the owner and acting
as his
agent. In my view, the phrase qui facit per alium, facit per se
correctly
expresses the principle on which vicarious liability
is based.
Turning now to the facts of the present case, I do not
consider that there
was any evidence to show that when Mr. Morgans
drove the car from his
home to where he worked and when he drove
it home in the evening he was
acting as his wife's agent. He was
not driving for her. He was not doing
anything for her. Nor was he
doing anything for her when he chose, on the
day in question, to
visit a number of public houses, to go on what may be
called a "
pub crawl ", before he returned home.
The question is, however, not whether her husband that
day drove as her
agent, but whether Mr. Cawfield did so. Mr.
Morgans asked and permitted
him to drive. Let me assume that he
had authority to do so. That does not
suffice to make Mr. Cawfield
her agent. He was not doing anything for her
or at her request.
When the accident happened, he was not bringing her
husband home
but driving him away from home to Swansea for a meal.
Much was sought to be made of the conversation which
Mrs. Morgans
had had with her husband when he promised her that he
would never drive
himself if he had taken more drink than he felt
he should have but would
either get a friend to drive, or
telephone her to come and fetch him. Such
a conversation could
well be had between husband and wife without either of
them having
in mind anything more than the husband's safe return home
and the
fact that they had such a conversation does not, in my opinion,
estab-
lish that Mr. Cawfield, when asked to drive, drove on her
behalf and as her
agent.
For these reasons I would allow the appeal.
7
Lord Pearson
MY LORDS,
8
However that may be, it seems to me that when Mr.
Cawfield undertook this
journey to Swansea he was clearly not
acting as agent for the wife.
The Master of the Rolls, with the object of ensuring
that compensation
will be available for injured persons, has
sought to extend the liability of a
car owner for negligent
driving of his car by other persons, because the car
owner is the
person who has or ought to have a motor insurance policy. The
Master
of the Rolls has done this in ways which, I think, really amount to
a
departure from the agency principle (qui facit per alium
facit per se) and the
introduction of new bases of a car
owner's liability.
It seems to me that these innovations, whether or not
they may be desirable,
are not suitable to be introduced by
judicial decision. They raise difficult
questions of policy, as
well as involving the introduction of new legal
principles rather
than extension of some principle already recognised and
operating.
The questions of policy need consideration by the Government
and
Parliament, using the resources at their command for making
wide
enquiries and gathering evidence and opinions as to the
practical effects
of the proposed innovations. Apart from the
transitional difficulty of current
policies of insurance being
rendered insufficient by judicial changes in the
law, there is the
danger of injustice to owners who for one reason or another
are
not adequately covered by insurance or perhaps not effectively
insured
at all, (e.g., if they have forgotten to renew their
policies or have taken out
policies which are believed by them to
be valid but are in fact invalid, or
have taken their policies
from an insolvent insurance company). Moreover,
lack of insurance
cover would in some cases defeat the object of the
proposed
innovation, because uninsured or insufficiently insured
owners would often
be unable to pay damages awarded against them
in favour of injured plaintiffs.
Any extension of car owners'
liability ought to be accompanied by an
extension of effective
insurance cover. How would that be brought about?
9
And how would it be paid for? Would the owner of the car
be required to
take out a policy for the benefit of any person who
may drive the car? Would
there be an exception for some kinds of
unlawful driving? A substantial
increase in premiums for motor
insurance would be likely to result and to
have an inflationary
effect on costs and prices. It seems to me that if the
proposed
innovations are desirable, they should be introduced not by
judicial
decision but by legislation after suitable investigation
and full consideration
of the questions of policy involved.
I would allow the appeal.
Lord Cross of Chelsea
MY LORDS,
The facts of this case are simple. Mr. and Mrs. Morgans
lived at
Brynamman. He worked in a bank at Ammanford some seven
miles away.
They had a Jaguar car which was registered in the name
of Mrs. Morgans
but each made use of it freely. She said in
evidence that she did not look
on it as her car any more than his
car; it was " our car ". Some time—
one does not
know how long—before the 4th August, 1964, the subject of
Mr.
Morgans driving the car after he had been drinking was
discussed
between them. On that occasion, as the judge found, he
promised her that
he would never drive himself if he had taken
more drink than he felt that
he should have taken. He would do one
of two things; either get a friend who
was absolutely sober to
drive him or ring her up so that she could make
arrangements for
his safe transport home. He had originally intended to come
home
to supper on the evening of the 4th August but he rang up his wife
to
say that he had decided to spend the evening out. One has to
reconstruct
the history of the evening as best one can from
isolated scraps of evidence.
Mr. Morgans, alone and driving the
car, was at a public house at Glanammon
about 7 p.m. Some twenty
minutes later he was at a public house at a
place popularly known
as G—C—G. He was then somewhat under the influ-
ence
of drink and conscious that he ought not to drive the car himself
any
longer. At this public house he met a Mr. Cawfield—who
Mrs. Morgans
said she hardly knew—and asked him to act as
his chauffeur for the rest of
the evening. They proceeded to visit
several public houses together, the last
of which was at Cwmgors.
There they met the Respondents who were friends
of Cawfield. They
stayed drinking until closing time when the Respondents
realised
that they had missed their last bus home. Cawfield said that he
would
give them a lift and the whole party got into the car. Mr. Morgans,
who
was by that time very much the worse for drink, got into one
of the rear seats
and fell asleep. Cawfield—despite the
protests of the Respondents who wanted
to be taken straight
home—decided that it would be a good thing for them all
to
have a meal in Swansea and drove off in that direction at high
speed.
Shortly afterwards the car crashed into a bus. The judge
found that the
evidence did not show that even at the end of the
evening Cawfield was not
sufficiently sober to drive the car. The
Respondents recovered judgment
against Mrs. Morgans both in her
capacity as administratrix of her husband's
estate and personally.
The appeal, of course, relates only to the judgment
given against
her personally as the owner of the car.
Before this case the law as to the vicarious liability
of the owner of a chattel
for damage caused by its use by another
person was, I think well settled. The
owner of the chattel will be
liable if the user of it was using it as his servant
or in the
strict sense of the word, his agent, Hewitt v. Bonvin
[1940] 1 K.B.
188. As the cases of Ormrod v. Crosville
Motor Services Ltd. [1953] 1 W.L.R.
1120 and Carberry v.
Davies [1968] 1 W.L.R. 1103 show the user is in
pursuance
of a contract. It is enough if the chattel is being used at the
relevant
time in pursuance of a request made by the owner to which
the user has
acceded. In deciding whether or not the user was or
was not the agent
of the owner it may no doubt be relevant to
consider whether the owner had
any interest in the chattel being
used for the purpose for which it was being
10
used. If he had no such interest that fact would tell
against the view that
the user was his agent while conversely the
fact that the owner had an
interest might lend support to the
contention that the user was acting as the
owner's agent. But
despite the way in which the matter is put by Denning L.J.
(as he
then was) in the Ormrod case at page 1123 I do not think that
the law
has hitherto been that mere permission by the owner to use
the chattel coupled
with the fact that the purpose for which it
was being used at the relevant
time was one in which the owner
could be said to have an interest or concern
would be sufficient
to make the owner liable in the absence of any request by
the
owner to the user to use the chattel in that way.
11
the car. I cannot see that it
does. To my mind, the very fact that each
joint owner has an equal
right to use the car shows that when one joint
owner is driving
it, otherwise than in pursuance of a request by another, he
ought
to be regarded as driving it on his own behalf.
I turn now to consider whether the Respondents can make
Mrs. Morgans
personally liable to them by reason of the
understanding between her and
Mr. Morgans. If the facts had been
that he had rung her up that night,
telling her that he had drunk
so much that he felt unfit to drive and asking
her to arrange for
his transport home; that she had said that it would be
inconvenient
for her to do that and asked whether there was not someone
with
him who was fit to drive him home ; that he had mentioned Cawfield
and
that she had told him to ask Cawfield to act as his chauffeur
on the homeward
journey, then I can see that it could be argued
that she should be held
vicariously liable for Cawfield's
negligent driving; though even so it might
be argued on the other
side that exactly the same conversation might have
taken place if
the car had been in his name and not in hers and that as they
were
in substance joint owners of it his request to Cawfield to drive him
home
ought not to be regarded as making Cawfield her agent as well
as his agent
for the purpose of the journey. But even assuming
that in such circumstances
she would have become vicariously
liable for the consequences of Cawfield's
negligence I am wholly
unable to see how the promise which her husband
gave her on that
earlier occasion, which is just the sort of promise which
hundreds
of husbands must have given to their wives, constituted him her
agent
to make her, without any prior consultation with her and very
likely
without having his promise in mind, personally liable for
the negligent
driving of any man, provided only that he was sober,
whom he might select
to drive him about for the rest of the
evening. I cannot help thinking that
those who have held Mrs.
Morgans personally liable by reason of this
" understanding "
have been unconsciously influenced by the belief, probably
well
founded, that her liability would be covered by insurance. Had it
been
an admitted fact that Mrs. Morgans had no insurance which
covered the
Respondents' claim I think that everyone—lawyer
and layman alike—would
have said: " You were Cawfield's
friends; you trusted to his driving; you
" did not know that
the car belonged to Mrs. Morgans or even that there was
" a
Mrs. Morgans; and much as we sympathise with you, it would not be
"
fair that she should have to pay for Cawfield's negligence."
I would allow the appeal.
Lord Salmon
MY LORDS,
Mr. and Mrs. Glyn Morgans were married in 1955. At that
time each
owned a car. After about a year they decided that they
needed only one
car between them and that Mr. Morgans's car should
be disposed of and
Mrs. Morgans's retained. Thereafter this car
was changed from tune to time.
In 1964 the car was a Jaguar. It
could fairly be described as the family
car. According to Mrs.
Morgans's evidence it was regarded as " our car ".
There
was no question of either asking the other for permission to use
it
and certainly no evidence that Mrs. Morgans asked her husband
to go to and
12
from his work in it. It was
registered and insured in the name of Mrs.
Morgans. We do not know
whether it was brought outright or acquired
on hire purchase
terms, nor by whom the price or hire purchase instalments
were
paid. The same is true of the insurance premiums, the road
fund
licence and the repairs and other running costs.
13
The learned Lord Justice accordingly concluded that on
those grounds Mrs.
Morgans was vicariously liable for Mr.
Cawfield's negligence.
Lord Denning M.R. based his judgment on a much broader
basis, namely,
that this Jaguar of Mrs. Morgans was the family
car. that she was the head
of the family so far as this car was
concerned and as such was responsible
for the use of the car on
the road by her husband. Lord Denning held that
when her husband
was using the car "he was using it as her 'agent' in
"
this sense that, if he was involved in an accident, she ought to bear
the
" responsibility, especially as she was the one who was
insured." Lord Denning
concluded that " the
understanding or arrangement between Mr. and Mrs.
" Morgans
to which I have referred made Mr. Cawfield her 'agent' just as
"
much as her husband was " and indeed " even if she had not
had that
" conversation with her husband, still Mr. Cawfield
would be her ' agent'
" because he was driving (the car) in
her interest as well as his own."
As I understand the authorities the law at present makes
the owner or bailee
of a car vicariously responsible for the
negligence of the person driving it;
if, but only if, that person
is (a) his servant and driving the car in the course of
his
employment or (b) his authorised agent driving the car for and
on his
behalf—Hewitt v. Bonvin [1940] 1 K.B.
188 at pp. 194, 5. Thus, mere
permission to drive is not enough to
create vicarious responsibility for
negligence. Nor are you
responsible for the negligent driving of an independent
contractor
(or his servant) who, e.g., hires a car to you or delivers goods
you
have bought from him. Ex hypothesi he is not your
agent. It is a different
matter, however, if you issue orders to
the driver which you should reasonably
foresee involve danger and
as a result of carrying out your orders damage
ensures (Quarman
v. Burnett 6 M. & W. 499). Liability may arise because
you
have assumed control or because issuing such orders was in
itself negligent
and damage flows from that negligence.
No one has suggested that either Mr. Morgans or Mr.
Cawfield was Mrs.
Morgans's servant. Accordingly, unless your
Lordships are prepared radically
to extend the ambit of vicarious
liability, the result of this appeal must turn
upon whether Mr.
Cawfield can properly be regarded as Mrs. Morgans's duly
authorised
agent to drive the car on her behalf at the time of this
tragic
accident.
So far as I know, until the present case, du Parcq
L.J.'s statement of the
law in Hewitt v. Bonvin (supra)
at p. 194, has never been questioned. "The
" driver of a
car may not be the owner's servant, but the owner will be
"
nevertheless liable for his negligent driving if it be proved that at
the material
" time he had authority, express or implied, to
drive on the owner's behalf.
" Such liability depends not on
ownership, but on the delegation of a task or
" duty . . .".
That is the principle to be applied, but as du Parcq L.J.
pointed
out, ultimately the question is always one of fact. Facts
vary infinitely from
case to case and it is easy, as du Parcq L.J.
indicated, to think of facts which
would fall just on one side of
the line or the other. I agree with Megaw L.J.
that there is
nothing in Ormrod v. Crosville Motor Services Ltd. [19531
1
W.L.R. 1120 or in Carberry v. Davies [1968] 1
W.L.R. 1103 which differs
from or extends the principle enunciated
by du Parcq L.J. The short judgments
in Ormrod's case must
be read against the background of its essential facts.
The owner
of a car wanted it to be driven for him from Birkenhead to arrive
in
Monte Carlo to meet him there before a certain date. He arranged with
a
friend for the friend to drive the car for him on this journey.
The friend's
wife was to accompany him and they were to bring a
suitcase for the owner
with them. The plan was that after the car
had arrived in Monte Carlo, the
owner, the friend and his wife
should all go in the car for a holiday together
in Switzerland.
The owner agreed that the friend might make a slight detour
on the
journey through France to visit an acquaintance whilst en route
for
Monte Carlo. Soon after the car had left Birkenhead on its
journey to
Monte Carlo it collided with an omnibus through the
negligence of the
owner's friend. It was held that the car was
being driven by the friend for
and on behalf of the owner at his
request. And so, obviously, it was, in spite
of the fact that it
was also being driven partly for the purposes of the friend.
14
Devlin J. (as he then was) pointed out that whilst the
agreement or arrange-
ment between the owner and his friend
remained executory either party could
have resiled from it, for it
was not a legal contract or agency. This, however,
was irrelevant
for it was more than a mere permission by the owner for his
friend
to drive. It amounted to a request and express authority by the
owner
to his friend to drive the car to Monte Carlo for and on
behalf of the owner.
Accordingly, the owner was vicariously liable
for the friend's negligent
driving.
I find insuperable difficulty in understanding how the
case against Mrs.
Morgans can succeed on the basis of the law as
laid down in the authorities
to which I have referred. I gravely
doubt whether Mr. Morgans was driving
the car on his wife's behalf
as her agent even when travelling to and from
his work. It is true
that Mrs. Morgans had an interest in the purpose of the
journey
because her husband's earnings no doubt kept or helped to keep
the
family home. She also had an interest in the manner in which the
car
was driven because she had an interest in her husband's safety
and that of
the family car. But so has every wife. I suspect that
du Parcq L.J. would
have been surprised that his judgment in
Hewitt v. Bonvin could be regarded
as any authority
for holding a wife vicariously liable for her husband's
negligent
driving on his way to or home from work, and incredulous
that
anything he has said could support the judgment against Mrs.
Morgans on
the facts of the present case. Can it realistically be
said that every husband
is driving as his wife's agent on his way
to and from work? I suspect that
if any wife were asked " Is
your husband driving the car for you to-day or
" for any
purpose of yours? " she would immediately reply " No, of
course
" not. As usual he has taken it to work and left me to
do the shopping by
" bus or on foot ". I do not think
that it makes any practical difference for
this purpose whether
the car is registered in the name of the husband or the
wife.
Even if it were possible to assume
that Mr. Morgans, when driving the car
home from work, was doing
so on his wife's behalf and as her agent, I do
not consider that
such an assumption could help the plaintiffs, much as I
sympathise
with them ; and great as is my respect for Edmund Davies
L.J.'s
judgment I cannot accept that it is possible to infer that
at the time of the
accident Mr. Morgans was '' returning
from his work albeit after some
"social entertainment".
He had left his work just before 5.30 p.m. The
accident occurred
just after 10.40 p.m.—about five hours later—and when
the
car was heading for Swansea away from home. The interval between
5.30
p.m., or at any rate 7 p.m., and 10.40 p.m. had been occupied in
the
manner which I have described. If during the course of that
evening Mr.
Morgans had been asked " Are you out on your
wife's behalf or for her
" purposes? Are you on your way
home? ", the answer to both questions,
had Mr. Morgans been
able to understand them, might well have been
" Not likely,
you must be joking ". And if the same questions had been
asked
of Mrs. Morgans about her husband (always assuming that she
knew
where he was or what he was doing, which of course she did
not) she would
probably have given precisely the same answers to
what after all are
questions of pure fact. Nor do I think that the
tenuous evidence about the
understanding or arrangement between
Mr. and Mrs. Morgans can be relied
on as a basis for holding, as
did the learned trial judge, that Mr. Cawfield
had been delegated
with authority to drive the car to Swansea on Mrs.
Morgans behalf.
We do not know if Mr. Morgans even had the under-
standing or
arrangement in mind when he handed the ignition key to Mr.
Cawfield.
There is no reason to imagine that Mr. Cawfield ever thought
that
he might be driving on behalf of Mrs. Morgans. The conversation
which
occurred between Mr. and Mrs. Morgans as to what he should do
if
he ever found that he had taken too much to drink when out with the
car
is the sort of conversation which must often occur between
husbands and
wives. It seems absurd to me to hold that if ever
thereafter the husband,
when slightly intoxicated, asks a friend
to take over the driving, he is appoint-
ing the friend, with his
wife's authority, as her agent to drive the car on her
behalf. not
do I think that but for the insurance aspect of the case (which
for
this purpose is admittedly irrelevant) would it ever be so held.
Suppose
15
that Mrs. Morgans were an indigent widow living modestly
on her small
capital, and uninsured against passenger risks. I
cannot believe that anyone
would consider it fair or reasonable
that she should be completely ruined
by being held vicariously
liable for Mr. Cawfield's negligence.
It follows that, in my opinion, applying the principles
of law hitherto
accepted, the circumstances of this case cannot
justify the judgment against
Mrs. Morgans. The question is.
however, whether that principle ought to
be extended by accepting
the proposition favoured by Lord Denning, M.R.,
namely, that the
owner of a family car should be held responsible for the
negligent
driving of any member of the family household whom he allows
to
drive it and also apparently for the negligent driving of any friend
of a
member of the household who drives the car home in the
interest of the
head of the household. This proposition has never
yet been considered by
your Lordships' House. In Rambarran v.
Gurrucharran [1970] 1 W.L.R.
556, however, the Privy
Council apparently approved of the decision in
Manawatu County
v. Rowe [1956] N.Z.L.R. 78 which rejected even the
first
limb of the proposition favoured by Lord Denning M.R. No
doubt the
proposition, for the reasons so lucidly explained by
Lord Denning, may have
much to commend it on the grounds of public
policy. It has, at any rate
in part, been adopted in a number of
the States constituting the United States
of America either by the
State Legislature or by decisions of the State Courts.
I have
always recognised that it is an important function of this House
to
develop and adapt the common law to meet the changing needs of
time.
In an appropriate case we should not shrink from doing so.
In the present
case, however, the proposed " development"
constitutes such a radical and
far-reaching departure from
accepted principle that it seems to me to smack
of naked
legislation. Moreover, the considerations of public policy which
may
support a change suggest that there is no logical reason why the
change,
if it is to be made, should stop short at the family car.
Why should not the
owner of any motor vehicle be vicariously
liable for the negligence of anyone
whom he permits to drive it or
indeed for the negligence of anyone who drives
it even without his
permission? The law could compel an owner to be insured
against
such risks. It seems to me that before any change resembling
that
proposed by Lord Denning is made in our law, it is most
important that
full and careful investigations into all aspects of
the question should be
carried out, and perhaps the arrangements
with the Motor Insurers Bureau
considered, so that a new code may
be devised which will be fair for all and
ensure that everyone who
has been damaged by negligent driving shall be
paid the damages to
which he is entitled. This is a task which can hardly
be
undertaken by your Lordships' House sitting in its judicial capacity.
In
my view, this is essentially a matter for the Legislature.
I would accordingly allow the appeal.
325074 Dd 197094 100 5/72 St.S.