Wakilii

Patel and Another v Tandree and Another (C.C. 44- 1935 (Mombasa))

East African Court of Appeal · [1937] EACA 207 · 1937 Judgment for First Defendant; Damages Awarded Against Second Defendant AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for damages arising from motor vehicle accident
Decision
First defendant not liable. Second defendant held personally liable for negligence and ordered to pay damages totalling Sh. 8,000 plus costs.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that an employer is not vicariously liable for the negligent acts of an employee who takes the employer's vehicle without permission on a public holiday for a personal outing. The employee was not acting in the course of employment or within the scope of authority. The master is only responsible when the servant is doing an act in the course of employment. The second defendant was found personally liable for negligent driving at excessive speed, failing to keep proper lookout, and failing to give warning. Damages were awarded against the second defendant only: Sh. 2,000 to the husband and Sh. 6,000 to the injured wife.

Outcome

First defendant not liable. Second defendant held personally liable for negligence and ordered to pay damages totalling Sh. 8,000 plus costs.

Facts

The first defendant owned a motor truck and employed the second defendant as a clerk and driver for business deliveries. On 6 May 1935, a public holiday, the second defendant took the truck without the first defendant's knowledge or authority for a personal excursion with friends to see a ngoma. While driving around Mombasa with seven passengers, the second defendant rounded a corner by the Health Office at excessive speed, lost control, left the road, struck a tree, and ran over the second plaintiff (wife of the first plaintiff), causing serious leg injuries. The second defendant did not stop but drove away via unlit roads. He was subsequently prosecuted and pleaded guilty to dangerous driving and failing to stop after an accident. The plaintiffs sued both defendants for damages arising from negligence.

Issues

  1. Whether the second defendant was acting in the course of his employment or within the scope of his authority when he drove his employer's motor truck on a public holiday for his own purposes without the employer's knowledge or authority.
  2. Whether the first defendant (employer) is vicariously liable for the negligent driving of the second defendant (employee) in circumstances where the employee took the vehicle without permission for a personal outing.
  3. Whether the second defendant was negligent in the driving of the motor truck.
  4. What quantum of damages should be awarded to each plaintiff for injuries sustained in the accident.

Orders

  • Judgment for the first defendant (Tandree) with costs.
  • Judgment against the second defendant (Modley) for the first plaintiff for Sh. 2,000.
  • Judgment against the second defendant (Modley) for the second plaintiff for Sh. 6,000.
  • Modley to pay the plaintiffs' costs.

Rules and key headnotes

Vicarious Liability — Scope of Employment — Unauthorised Use of Employer's Vehicle
A master is not vicariously liable for the negligent acts of a servant who takes the master's vehicle without knowledge or authority on a non-working day for the servant's own purposes. The servant must be acting in the course of employment and within the scope of authority for vicarious liability to attach.
Negligence — Master and Servant — Course of Employment Test
The true rule is that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant. If the servant is going on a frolic of his own without being at all on his master's business, the master will not be liable.
Negligence — Burden of Proof — Prima Facie Evidence of Agency
Where a plaintiff proves that damage has been caused by a defendant's motor vehicle, the fact of ownership is prima facie evidence that the vehicle was being driven by the owner or by his servant or agent. This evidence is liable to be rebutted by proof of the actual facts.
Negligence — Motor Vehicle Accidents — Excessive Speed and Failure to Keep Lookout
A driver who takes a corner at such excessive speed that he loses control of the vehicle, leaves the road, and strikes pedestrians off the tarmac is negligent. Failure to keep a proper lookout and failure to give audible warning of approach constitute additional grounds of negligence.
Personal Injury — Assessment — Husband and Wife Claims
Where both husband and wife sue for injuries to the wife, the husband is not entitled to the same measure of damages as the wife who was the actual physical sufferer. The husband's damages will be assessed at a substantially lower amount than the wife's.
Personal Injury — Mitigation — Premature Removal from Hospital
The conduct of a plaintiff in removing an injured party from hospital at an early date, contrary to medical advice, must be taken into consideration in the assessment of damages and may reduce the quantum recoverable.

Cases cited (15)

  • Barnard v Suiley (47 TLR 557)
  • Beard v London General Omnibus Co [1900] 2 QB 530
  • Sleath v Wilson (9 C & P 607)
  • Storey v Ashton (4 QB 476)
  • Mitchell v Crassweller (138 ER 1189)
  • Rayner v Mitchell (2 CPD 357)
  • Patten v Rea (140 ER 554)
  • Ruddiman and Co v Smith and others (60 LTR 708)
  • Joel v Morison (6 C & P 501)
  • Britt v Galmoye (44 TLR 294)
  • Sanderson v Collins [1904] 1 KB 628
  • Reichardt v Shard (31 TLR 24)
  • Jones v Walney, Combe, Reid and Co (28 TLR 399)
  • Powell v Streatham Manor Nursing Home [1935] AC 243
  • Aitchison v Page Motors Ltd (52 TLR 137)

Full judgment

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

Patel and Another v Tandree and Another (C.C. 44- 1935 (Mombasa)) [1937] EACA 207 (1 January 1937)
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.