Wellwood v Alexander King Ltd

Judgment Date07 February 1921
Date07 February 1921
Docket Number(1919. No. 5092.)
CourtCourt of Appeal (Ireland)

K. B. Div.


(1919. No. 5092.)
Wellwood v. King.
ALEXANDER KING, Ltd., Defendants (1)

Negligence - Collision between motor cars - Joint negligence of bailee and third

party - Bailor's right to damages - Doctrine of identification.

Motion on behalf of the defendants that the judgment entered for the plaintiff be set aside, and judgment be entered for the defendants, or, in the alternative, that a new trial be ordered. There was a cross-motion on behalf of the plaintiff, if necessary, to have the finding in answer to one of the questions submitted to the jury set aside.

The action was brought to recover damages for injuries caused to plaintiff's motor oar by the alleged negligence of the defendants' servant in driving and managing a motor lorry the property of the defendants.

The defendants by their defence denied any negligence by themselves or their servants, or that it was by reason of any such negligence that the plaintiff's motor oar was damaged. They also denied that the motor oar was the property of the plaintiff, or that any expenses were incurred by him. (But the questions as to ownership and expense were not relied on at the trial.) Defendants also pleaded contributory negligence on the part of the plaintiff, his servants, or agents, and said that the injury to the car was caused solely by the negligence of the plaintiff, his servants, or agents.

At the trial the parties agreed that if a verdict should be found for the plaintiff, the damages should be assessed at £320. It appeared that the motor oar had been handed over by the plaintiff to Messrs. Chambers for overhaul and repair; that an employee of Messrs. Chambers, named Montgomery, had taken out the car for the purpose of testing it; and that whilst being driven by him the collision with the defendants' motor lorry, driven by Whan, took place. It was not disputed that Montgomery was not a servant of the plaintiff, and the contention for the plaintiff was that he was not liable for any negligence of Montgomery, as he was not his servant. The action was tried before Gordon J. and a special jury of the City of Belfast on 26th July, 1920.

The questions submitted to the jury and the answers to them were as follows:—

1. Was the defendants' driver negligent (a) in driving at an excessive speed at the place and under the circumstances? Answer,"Yes." (b) In not keeping a sufficient look-out? Answer, "No."(c) In not sounding his horn or giving proper warning when approaching the end of the Stranmillis Road? Answer, "No."(d) In not applying his brakes in proper time? Answer, "No."(e) In not applying his brakes with reasonable care and skill? Answer, "No."

2. Was Montgomery negligent (a) in emerging from stranmillis Road at too great a speed? Answer, "No." (b) In emerging on his wrong side? Answer, "No." (c) In not keeping a proper look-out at the place and under the circumstances? Answer, "Yes."

3. If Montgomery was negligent, could the driver of the lorry, by the exercise of reasonable care and caution, have avoided the accident? Answer, "No. If anything could be done to make the corner safe, we recommend to the City Council to do it."

The Judge gave judgment for the plaintiff for the said sum of £320 and costs, but directed a stay of execution until 16th October, 1920; and if in the meantime the defendants served notice to set aside the verdict and for a new trial, or that judgment be entered for defendants, a further stay till motion disposed of.

The plaintiff appealed to the Court of Appeal.

A entrusted his motor oar to C for repairs. The car was taken out by a servant of C for the purpose of testing its engines. It came into collision with a lorry belonging to B, driven by B's servant. In an action for damages brought by A against B, the jury found that the driver of the lorry had driven at an excessive speed, and that the driver of the motor oar was negligent in not keeping a proper look-out. They also found that the driver of the lorry could not, by the exercise of reasonable care and caution, have avoided the consequences of the other driver's negligence. On these findings Gordon J. gave judgment for the plaintiff. This judgment was set aside by the King's Bench Division on the ground that the bailor was so far identified with the bailee as to disentitle him to recover damages in respect of injuries to the subject-matter of the bailment resulting from the joint negligence of the bailee and a third party.

Held (reversing the King's Bench Division and restoring the judgment of Gordon J.), that the doctrine of identification of bailor and bailee is not applicable in relation to liability for negligence.

Cur. adv. vult.

Gibson J.:

Though the defence treated Montgomery as the plaintiff's servant, it was at once at the trial admitted that he was not, and the controversy all through was whether Montgomery's contributory negligence, if any, was imputable to the plaintiff. The argument before us has been addressed to the following points:— 1. Was the contract with Chambers one which from its character would make the plaintiff responsible for negligence in its performance? 2. If it was not, can the contributory negligence of the servant of Chambers, an independent contractor, give the defendants a defence as against the plaintiff who employed Chambers? 3. If contributory negligence found in the second and third answers might entitle the defendants to a verdict on the questions and answers, was there evidence to support these answers? 4. Is the case one in which there should be a new trial, which would be the third? At the first trial before the Lord Chief

Justice the jury disagreed, failing to answer any of the questions left to them. At the trial now under consideration, the plaintiff's counsel asked for a direction. The learned Judge, however, drafted questions which he thought appropriate if the plaintiff's view of law was erroneous, and there was no objection to them or to his charge, or to his explanation of the effect of the questions. Serjeant Hanna, for the defendants, asked for other questions, such as indicated in Neenan v. Hosford(1), but they need not be considered if on the present findings the defendants can have judgment.

1. On the first point, to which attention was mainly directed at the trial and before us, and on which my brother Gordon ruled against the defendant, in my opinion rightly, many authorities were cited for the defendants which I shall not examine in detail. They were successfully distinguished by Mr. Andrews as relating to use of land, or to public duty, or to matters and things dangerous in execution if extreme care was not exercised. The plaintiff handed over his oar to chambers to do what was necessary. If testing was required, the mode and place was for Chambers to decide. If he selected a crowded and unfit thoroughfare, or if his man was negligent, that could not affect his employer, the plaintiff. I see no evidence which would establish actionable liability against the plaintiff for default of Chambers, which would be merely collateral negligence, not flowing from the nature of the plaintiff's contract.

2. Assuming that no action or counter-claim against the plaintiff could have been supported by Montgomery's negligence, the plaintiff's counsel contend that, the relation of master and servant not existing between the plaintiff and Chambers, and there being no actionable liability on the plaintiff, the defendant cannot rely on Montgomery's contributory negligence, as no contributory negligence, however gross, of the contractor can, it is said, touch the plaintiff, for which proposition counsel citedThe Bernina(2). The Judge accepted this proposition, and, notwithstanding the findings, entered judgment for the plaintiff. If the law was as supposed, no example of the kind at Common Law has been cited by counsel, and it would lead to some strange

and inconvenient results, of which illustrations were suggested during the argument such as a country gentleman getting on loan for the season from a distant friend his horse and carriage, and the borrower's driver by contributory negligence causing injury; or a racehorse trainer receiving a horse and injuring it by contributory negligence of his groom by running into another owner's horse in his own ground or elsewhere. In either of such cases, would a third party who had been guilty of negligence be deprived of the protection of the contributory negligence which would have been a complete defence against the borrower or horsetrainer? The case is one of bailor and bailee at Common Law. The bailor can sue the bailee if by his negligence he has caused damage to the property bailed. If the third party has caused the injury, the bailee, being in possession, can recover as if owner damages according to the value of the article destroyed or injured, and such damages will be held by him, in part at least, for the benefit of the bailor: The Winkfield Case(1). Such action could not succeed if the plaintiff bailee was guilty of direct contributory negligence. Can it be (as the plaintiff's argument demands) that the bailee, having been defeated on that ground, the bailor, as being free from that defence, could bring a new action? What if the bailor recovered judgment against the negligent third party, unprotected as by the hypothesis he would the by the bailee's fault, could such third party in turn make the bailee responsible? and what damages could he get? In early law the right of action was confined to the bailee where the chattel in his possession was taken or injured, but later the bailor also was allowed to sue.

In Nicolls v. Bastard(2) Parke B. thought that whichever, bailor or bailee, first obtained damages, that would be a full satisfaction. This would be true as to the bailee's action, but might not apply to the bailor's action, to the full extent, as the bailee might have suffered individual special...

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