Vicarious Liability Cases | Negligence

Morgans Appellant and Launchbury and Others Respondents

[On appeal from LAUNCHBURY v. MORGANS]1972 March 20, 21, 22; May 9 Lord Wilberforce, Viscount Dilhorne, Lord Pearson, Lord Cross of Chelsea and Lord Salmon A motor car was owned by and registered and insured in the name of a wife but was regarded by her and her husband as "our car." The husband used it to go to work, the wife for shopping at the weekends. The husband told the wife that if ever he was unfit to drive through drink he would get a sober friend to drive him or else telephone for her to come and fetch him. On the day in question the husband telephoned the wife after work and told her 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 asked a friend, C, to drive. C drove them to other public houses. After the last had been visited C offered the three respondents a lift and they got in, together with the husband who was in a soporific condition. C then proceeded, at his own suggestion, to drive in a direction away from the husband's home to have a meal. On the way, due to C's negligent driving, an accident occurred in which the husband and C were killed and the respondents injured. The respondents brought an action against the wife both in her personal capacity and as administratrix of the husband's estate. Stirling J. gave judgment for the respondents. The Court of Appeal (Megaw L.J. dissenting) dismissed an appeal by the wife in her personal capacity, holding that she was vicariously liable for the negligent driving of C, Lord Denning M.R. saying that the principle of vicarious liability was to put responsibility on to the person, namely, in the case of a motor car, the owner, who ought in justice to bear it, and that in the case of a "family car" the owner was responsible for the use of it by the other spouse.

On appeal by the wife:

Held, allowing the appeal, that to fix vicarious liability on the owner of a motor car in a case such 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; that the owner's interest in or concern for the safety of the car or its occupants was not sufficient; and that, on the facts, it was impossible to hold that C had been the wife's agent in driving the husband about as he had been doing at the time of the accident (post, pp. 135B, F-H, 138D-E, 140C-E, F-G, 141G-H, 144C-F, 146C-E, 149A-C, 150G-H).

• Hewitt v. Bonvin [1940] 1 K.B. 188, C.A. approved.
• Ormrod v. Crosville Motor Services Ltd. [1953] 1 W.L.R. 1120, C.A. considered.
• Per curiam. To extend the doctrine of vicarious liability in the way suggested by Lord Denning M.R. in the instant case, if that is a desirable course, is a matter for the legislature to consider as a matter of policy and not for the courts (post, pp. 137F-G, 138G-H, 142H - 143A, 145G - 146A, 151D-G).
• Decision of the Court of Appeal [1971] 2 Q.B. 245; [1971] 2 W.L.R. 602; [1971] 1 All E.R. 642 reversed.

The following cases are referred to in their Lordships' opinions:

• Barnard v. Sully (1931) 47 T.L.R. 557, D.C.
• Birch v. Abercrombie (1913) 74 Wash. 486; 133 P. 1020.
• Carberry v. Davies [1968] 1 W.L.R. 1103; [1968] 2 All E.R. 817, C.A.
• Gregory v. Piper [1829] 9 B & C 591
• Hewitt v. Bonvin [1940] 1 K.B. 188, C.A.
• Hilton v. Thomas Burton (Rhodes) Ltd. [1961] 1 W.L.R. 705; [1961] 1 All E.R. 74.
• Klein v. Caluori [1971] 1 W.L.R. 619; [1971] 2 All E.R. 701.
• Manatee County v. Rowe [1956] N.Z.L.R. 78.
• Norton v. Canadian Pacific Steamships Ltd. [1961] 1 W.L.R. 1057; [1961] 2 All E.R. 785, C.A.
• Ormrod v. Crosville Motor Services Ltd. [1953] 1 W.L.R. 409; [1953] 1 All E.R. 711; [1953] 1 W.L.R. 1120; [1953] 2 All E.R. 753, C.A.
• Quarman v. Burnett (1840) 6 M. & W. 499.
• Rambarran v. Gurrucharran [1970] 1 W.L.R. 556; [1970] 1 All E.R. 749, P.C.
• The following additional cases were cited in argument:
• Beard v. London General Omnibus Co. [1900] 2 Q.B. 530, C.A.
• Hart v. Hogan (1933) 24 P. (2d) 99.
• Herrington v. British Railways Board [1972] 2 W.L.R. 537; [1972] 1 All E.R. 749, H.L.(E.).
• Hobson v. Bartram & Sons Ltd. [1950] 1 All E.R. 412, C.A.
• Nottingham v. Aldridge [1971] 2 Q.B. 739; [1971] 3 W.L.R. 1; [1971] 2 All E.R. 751.
• Pentonville Motors (King's Cross) Ltd. v. A. D. Thompson Ltd., February 17, 1958, C.A.; Bar Library Transcript No. 75.
• Pratt v. Patrick [1924] 1 K.B. 488.
• Samson v. Aitchison [1912] A.C. 844, P.C.
• Soblusky v. Egan (1959) 103 C.L.R. 215.
• Storey v. Ashton (1869) L.R. 4 Q.B. 476.
• Wheatley v. Patrick (1837) 2 M. & W. 650.

APPEAL from the Court of Appeal

This was an appeal by Sarah Morgans (widow) by leave of the Court of Appeal (Lord Denning M.R., Edmund Davies L.J. and Megaw L.J.) from their majority decision (Megaw L.J. dissenting) on January 20, 1971, by which they dismissed her appeal from the judgment of Stirling J. at Swansea on April 24, 1970. By his judgment Stirling J. gave judgment against the appellant in favour of the respondents, Thomas Michael Launchbury, Diane Helen Mary Launchbury (his wife) and Michael Phillips, for damages for personal injuries caused by the negligent driving of the wife's car by Daniel James Cawfield, deceased. The facts are stated in their Lordships' opinions. By her written reasons on appeal the appellant contended (1) that at the time of the accident Mr. Cawfield had been driving the car neither as her servant nor as her agent nor in any circumstances sufficient in law to render her vicariously liable for his negligence; (2) that the law relating to vicarious liability in respect of the use of motor vehicles was no different from that in respect of the use of any other chattel. Michael Ogden Q.C. and S. C. Desch for the appellant. Before Hewitt v. Bonvin [1940] 1 K.B. 188 vicarious liability in respect of the use of a chattel was based on control: see Quarman v. Burnett (1840) 6 M. & W. 499; Wheatley v. Patrick (1837) 2 M. & W. 650; Samson v. Aitchison [1912] A.C. 844; Pratt v. Patrick [1924] 1 K.B. 488 and Barnard v. Sully (1931) 47 T.L.R. 557. There was no basis for saying that a motor car was in any different position from that of any other chattel. With Hewitt v. Bonvin [1940] 1 K.B. 188 the motor car introduced considerable confusion into the legal situation; dicta in that case (see especially per du Parcq L.J., at pp. 194-195) went beyond the principle of control as set out in the earlier cases, and it is difficult to reconcile them with that basis of liability without introducing a further element. This may be that the user of the chattel has to be acting in a genuinely representative capacity, or that a reasonable man must be able to infer an intention to create a legal relationship with regard to the act and user in question. Alternatively, there may be a distinction between lending someone a chattel and giving someone instructions to do something with one's chattel, or between a request and an instruction. These latter three possible further elements are difficult to apply; the old control basis of liability was more satisfactory. The decision in Hewitt v. Bonvin was right, but the court should have said that there was no question of the owner having retained any kind of control. [Reference was made to Ormrod v. Crosville Motor Services Ltd. [1953] 1 W.L.R. 1120; Soblusky v. Elan (1959) 103 C.L.R. 215, 228 - 231; Carberry v. Davies [1968] 1 W.L.R. 1103; Nottingham v. Aldridge [1971] 2 Q.B. 739 and Norton v. Canadian Pacific Steamships Ltd. [1961] 1 W.L.R. 1057.] On "interest or benefit," Hilton v. Thomas Burton (Rhodes) Ltd. [1961] 1 W.L.R. 705 shows that not merely permission, but also benefit, is not enough. [Reference was made to Hobson v. Bartrum & Sons Ltd. [1950] 1 All E.R. 412; Pentonville Motors (King's Cross) Ltd. v. A. D. Thompson Ltd., February 17, 1958; Bar Library Transcript No. 75; and Klein v. Caluori [1971] 1 W.L.R. 619.] If interest or benefit were sufficient one would have to consider the position of hired cars, cars on hire purchase and the "transfer of employment" cases, where the "interest or benefit" principle would have led to different results. The "frolic" cases really say the same, namely, that the vehicles are not being used for the owner's purposes. [Reference was made to Storey v. Ashton (1869) L.R. 4 Q.B. 476 and Beard v. London General Omnibus Co. [1900] 2 Q.B. 530.] The respondents' case here fails on the facts, even if it were to be held that vicarious liability was a matter of fact and degree. If this accident had occurred on the husband's way to work, the appellant would not have been liable. The fact that she was interested in the husband earning his living does not mean that he was driving the car for her purposes in pursuance of a task or duty delegated by her to him. The husband here, however, was not on his way to work, and there is no question of the car having been used for the appellant's purposes, or even benefit, at the material time. Mr. Cawfield cannot have been in a better position than the husband, whatever the "understanding" between the appellant and the husband may have been.

"Family Car" Proposition

There is no authority for Lord Denning M.R.'s. "family car" proposition, nor any reason in law why a family car should be in any special position. If the proposition were to be applied logically, every member of a family, including children, would be liable for the driving of each of the others. Where each spouse owned a car each would be liable whichever car was being used and whichever of them was driving. The proposition would also mean that, for example, Manawatu County v. Rowe [1956] N.Z.L.R. 78 and Rambarran v. Gurrucharran [1970] 1 W.L.R. 556 were wrongly decided, and there would be a major departure of our law from that of Australia and New Zealand. The whole of the law of tort would be distorted because of the motor car, especially unfortunate as the position with regard to passengers is to be dealt with in January 1973: see the Road Traffic Act 1972, s. 148 (3). The proposition would, logically, have to be extended to a wide variety of other chattels. and it would apply to two spinsters living together or to men or girls sharing flats. It is not necessary for vicarious liability to arise that there should be a contract, but there must be the legal relationship of principal and agent. The distinction between a legal relationship and a mere friendly relationship is well known to the law: see, for example, Balfour v. Balfour [1919] 2 K.B. 571; Coward v. Motor Insurers' Bureau [1963] 1 Q.B. 259; Buckpitt v. Oates [1968] 1 All E.R. 1145 and Jones v. Padavatton [1969] 1 W.L.R. 328 (cases not cited).

There is no universal criterion for vicarious liability

John Davies Q.C. and T. E. Lewis-Bowen for the respondents. There is no universal criterion for vicarious liability. The common law has always been very careful about dangers in the highway, putting especial responsibility on those who create them. The principle which justifies differentiating a motor vehicle from other chattels is that a motor vehicle is on the highway where it is productive of very great injury. As soon as other chattels, for example, guns, present a similar threat to society then no doubt the common law will be equal to the occasion and evolve a stricter rule than it at present applies. Since Read v. J. Lyons & Co. Ltd. [1947] A.C. 156 (not cited) the old distinction between chattels dangerous per se and chattels dangerous sub modo is of doubtful validity. The common law is always evolving to meet the needs of the day. Attempted rationalisations of vicarious liability, on the basis, for example, of control, right of control or "non-delegable duty," are all ex post facto. Nor do the concepts of service or agency assist. Agency, in tort, is only a shorthand way of describing a situation in which A is held in law liable for the act of B. As to service, the question is always what is the definition of "service" which will fix liability in the particular case, Vicarious liability enables the giving of an additional right against another person who is better able to pay or insure. In this light it is a worthy concept. A father who lets his son drive his car will be more to blame for an accident than the injured party: he is partly responsible for putting the car on the road. It is essential to bear in mind also that whether or not there should be vicarious liability in a particular case is a question of fact: see, for example, per du Parcq L.J. in Hewitt v. Bonvin [1940] 1 K.B. 188, 194. The "frolic" aspect does not come into this case at all. The understanding between the appellant and her husband postulated a frolic: it was directed to what was to be done in the event of a frolic on the part of the husband. The law as to the criterion of liability which should be applied in the present case has been fairly settled for a number of years. There are small differences between the cases, but the principles deducible are fairly clear. They are: (1) Mere permission to drive is not enough. (2) The owner must have an interest or concern in the use to which the car is being put. (3) That interest need not be exclusive. (4) Whether or not the owner has a sufficient interest is a question of fact. It is quite impossible to predicate in the abstract what is a sufficient interest; one has to have the actual facts of the particular case before one. While, however, agency, de facto service and other possible tests still leave one in difficulty, either a man has an interest or concern or he has not, and this is therefore a more suitable criterion. In the present case, the facts are strong; they undoubtedly gave the appellant an interest. Even on du Parcq L.J.'s test in Hewitt v. Bonvin [1940] 1 K.B. 188, 194-195, there was a delegation by the appellant to the husband or to Mr. Cawfield of a task or duty which was hers in the sense that if the husband did not get someone to drive him she might have had to go out and fetch him or get someone else to. This was not such an out-and-out bailment as to rid the appellant of liability. The appellant's interest negatived an out-and-out bailment. Devlin J. in Ormrod v. Crosville Accouter Services Ltd. [1953] 1 W.L.R. 409, 410-411 construed the arrangement in that case as being something between a legal contract of agency and mere permission: the situation is the same in the present case. [Reference was made to Carberry v. Davies [1968] 1 W.L.R. 1103; Rambarran v. Gurrucharran [1970] 1 W.L.R. 556 and Manawatu County v. Rowe [1956] N.Z.L.R. 78.] Stirling J. here found as a fact that the appellant had an interest in the husband's driving, and it is difficult to see how he can be said to have erred in law. As to whether the fact that Mr. Cawfield was driving to Swansea for a meal rather than taking the husband home makes any difference, the arrangement was that the husband would get someone "to drive him," rather than "to drive him home." The question is whether the appellant had an interest in the driving: any distinction between an interest in the manner in which the car was driven and an interest in the purpose for which it was driven is irrelevant. Even on the basis of strict agency (as per MacKinnon L.J. in Hewitt v. Bonvin [1940] 1 K.B. 188, 191) the appellant here would be liable. Turning to the wider ground on which liability is based in this case, Denning L.J. in Ormrod v. Crosville Motor Services Ltd. [1953] 1 W.L.R. 1120, 1123, said that a car was a dangerous thing requiring special treatment. Nowadays, this is even more clear. Once there is a gap between the needs of society and the law, the law ceases to perform its function. [Reference was made to Salmond on Torts, 15th ed. (1969), p. 616.] it might be said that this is a matter for the legislature, but it ought not to be the case that the common law ought not to do something because the legislature might do something in the future, except in the case of a radical departure. What is contended for here is not a radical departure but a logical development from the present position in that a family car owner retains a sufficient interest when the car is used by other members of the family to make him vicariously liable in respect of that use. [Reference was made to Herrington v. British Railways Board [1972] A.C. 877.] There is nothing unorthodox or unfair or onerous in this; the owner is only penalised to the extent of the impecuniosity of the driver, about Which he can be expected to have known. The concept of a family car has been accepted to quite a considerable extent in the United States: see Prosser on Torts, 3rd ed. (1964), p. 494; Hart v. Hogan (1933) 24 P. (2d.) 99 and Birch v. Abercrombie (1913) 74 Wash. 486; 133 P. 1020. In this country the concept has, on the whole, met with favour in the Modern Law Review and the Law Quarterly Review: see (1970) 86 L.Q.R. (July), pp. 299 et seq., commenting on Rambarran v. Gurrucharran [1970] 1 W.L.R. 556. Ideally, the principle would be that the owner of a car (and the respondents do not say that this goes further than ownership) who permitted any other person to drive it would be responsible for that person's negligent driving, but that may be further than this House could go without legislation. With regard to the family car, however, the development which the respondents seek is a very short one. The rationale of the distinction between the family car concept and that of permission is that if a family has a family asset all the family intend using it and decide that it shall be put in the name of one person. [Reference was made to Barnard v. Sully, 47 T.L.R. 557 and Soblusky v. Again, 103 C.L.R. 215.] Ogden Q.C. in reply. As to what social justice requires, the appellant did not know that Mr. Cawfield was driving: she hardly knew him. The respondents, by contrast, were friends or acquaintances of his. It was he who offered them a lift, and they trusted him as their driver. They were not concerned with the husband. There was no evidence that they knew that the car was the appellant's. They were taking a risk with their eyes open both as to Mr. Cawfield's competence as a driver and as to his financial standing. Prosser on Torts, 3rd ed., p. 494 says that there is an element of fiction in the family car concept. This is right. It is unblushing fiction which the courts of this country should be loath to adopt. It is a question of policy for the legislature. The appellant does not accept the "twilight" conception of Devlin J. in Ormrod v. Crosville Motor Services Ltd. [1953] 1 W.L.R. 409, 410-411, between true agency and interest. This is pure semantics. The appellant does not ask for costs. Their Lordships took time for consideration. May 9. 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 therefore 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 or 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 miles per hour, 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 felt 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 husband and wife. It is unlikely that it was so crystal 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. It is on these facts that liability for the injuries sustained by the passengers must be considered. Whom 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 could 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 are 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 words "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.; [1953] 1 W.L.R. 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 citisen 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 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 L.J. in the Court of Appeal [1971] 2 Q.B. 245 both on the law and on 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. Lord Denning M.R. 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 Lord Denning M.R. 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 eloque