Wakilii

Owen Thomas and Company v Hansraj and Another (Civil Appeal No. 7 of 1939)

East African Court of Appeal · [1939] EACA 169 · 1938 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from decision of Resident Magistrate, Mombasa, holding appellants liable for negligence of driver of hired motor lorry
Decision
Judgment of the lower court upholding liability of appellants affirmed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Where a motor lorry owner hires out the vehicle with a driver whom the owner employs and pays, the owner remains liable for the driver's negligence during the hire period. The hirer is not liable unless they exercise actual control over the manner of driving. The test of liability is control at the moment of the negligent act.

Outcome

Judgment of the lower court upholding liability of appellants affirmed

Facts

Appellants hired a motor lorry with driver to the Vacuum Oil Company at a fixed daily rate. Appellants employed and paid the driver. On 14 March 1939, while the lorry was on hire, it collided with the first respondent, causing personal injury and damage to his bicycle. The collision was due to the driver's negligence. The first respondent sued both appellants and the Vacuum Oil Company. The Resident Magistrate found the driver negligent and gave judgment for Sh. 600 against the appellants, dismissing the suit against the Vacuum Oil Company. Appellants appealed, contending that the Vacuum Oil Company should be held liable as the driver was under their control at the time of the accident.

Issues

  1. Whether the owner of a motor lorry who hired it out with a driver is liable for the driver's negligence during the period of hire.
  2. Whether the hirer of a motor lorry with driver is liable for the driver's negligence where the hirer does not control the manner of driving.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Vicarious Liability — Master and Servant — Test of Control
The test of vicarious liability for a servant's negligence is whether the alleged master had the right to control the doing of the act at the moment the negligent act was committed.
Vicarious Liability — Hiring of Vehicle with Driver — Liability of Owner
Where the owner of a motor vehicle hires it out with a driver whom the owner employs and pays, the owner remains liable for the driver's negligence during the period of hire, as the owner retains control over the selection and employment of the driver.
Vicarious Liability — Hiring of Vehicle with Driver — Liability of Hirer
The hirer of a motor vehicle with driver is not liable for the driver's negligence merely because the hirer may direct where the vehicle should go and what loads it should carry, unless the hirer exercises actual control over the manner and method of driving.
Vicarious Liability — Duty of Care in Selection of Servant
The person who selects and employs a servant has a duty to exercise due care that the person selected is careful and competent, and bears responsibility for the servant's negligence in the absence of control passing to another.
Vicarious Liability — Distinction Between Contract and Tort
An agreement between the owner and hirer of a vehicle regarding insurance against third party risks does not affect the question of liability to an injured third party, which is a matter of tort and not contract.

Cases cited (19)

  • Quarman v Burnett (1840) 9 LJ (NS) Ex 308
  • Bush v. Steinman
  • Sly v. Edgiey
  • Randleson v. Murray
  • Laugher v. Pointer
  • Jones v Liverpool Corporation (1885) 14 QBD 890
  • Dewar v Tasker and Sons Ltd (1907) 23 TLR 259
  • Poulson v John Jarvis and Sons Ltd (1919) 89 LJKB 305
  • Donovan v Laing (1893) 1 QBD 629
  • Sadler v. Henlock
  • Rourke v. White Moss Colliery Co.
  • Johnson v. Lindsay and Co.
  • Jones v Scullard (1898) 2 QB 565
  • SS Devonshire v Barge Leslie [1912] AC 634
  • Honeywill and Stein Ltd v Larkin Bros Ltd [1934] 1 KB 191
  • Societe Maritime Francaise v Shanghai Dock and Engineering Co (1921) 90 LJ PC 85
  • Bain v Central Vermont Railway Co [1921] 2 AC 412
  • Bull and Co v West African Shipping Agency and Lighterage Co [1927] AC 686
  • Leggot v Normanton (1928) 45 TLR 155

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Owen Thomas and Company v Hansraj and Another (Civil Appeal No. 7 of 1939) [1938] EACA 169 (1 January 1938)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.