Nicholls v Tutt

• Jurisdiction: Saint Kitts and Nevis
• Judge: Floissac, C.J.,Joseph, J.,Matthew, J.
• Judgment Date: 27 March 1992
• Neutral Citation: KN 1992 CA 8
• Docket Number: Civil Appeal No. 2 of 1989
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 27 March 1992

Court of Appeal

Floissac, C.J., Joseph, J. (Ag.), Matthew, J. (Ag.)

Civil Appeal No. 2 of 1989

Nicholls

and

Tutt

Appearances:

Mrs. Claudette Jenkins, Dr. Henry Browne with her for the Appellant

Mrs. Lilian Benjamin-Matthew for the Respondent:

Tort - Negligence — Vicarious liability — Mechanic engaged by appellant to install water pump in motor car — Mechanic test drove motor car negligently and it collided with respondent's vehicle and injured respondent — Appellant held vicariously liable — Whether trial judge erred in holding that appellant was vicariously liable for mechanics's negligence.

JUDGMENT OF THE COURT:

1 On the 1st April 1987, the appellant engaged a mechanic to instal a new water-pump in the appellant's motor-car. After installing the pump, the mechanic drove the car in order to test it. He drove the car so negligently that it collided with and damaged the respondent's vehicle and injured the respondent. Whereupon the respondent sued the appellant for the negligence of the mechanic.

2 Williams J. found that the appellant had instructed and authorised the mechanic to drive the car and that at the time of the accident, the mechanic was the agent of the appellant. The learned Judge held the appellant vicariously liable for the mechanic's negligence and by judgment dated 1st July 1989 ordered that the appellant do pay the respondent special damages in the sum of $16,802.00, general damages in the sum of $4,000.00 and costs to be agreed or taxed.

3 The issue in this appeal against that judgment is whether the learned judge erred in law or in fact in holding the appellant vicariously liable for the mechanic's negligence in the circumstances of this case.

4 In Morgans v Launchbury [1972] 2 All E.R. 606 at 609, Lord Wilberforce said:–

“For I regard it as clear that in order to fix vicarious liability on 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”.

5 Lord Pearson said at pp. 613 and 614:–

“My Lords, in my opinion, the principle by virtue of which the owner of a car may be held vicariously liable for the negligent driving of the car by another person is the principle qui facit per alium, facit per se. If the car is being driven by a servant of the owner in the course of the employment or by an agent of the owner in the course of the agency, the owner is responsible for negligence in the driving. The making of the journey is a delegated duty or task undertaken by the servant or agent in pursuance of an order or instruction or request from the owner and for the purposes of the owner. For the creation of the agency relationship it is not necessary that there should be a legally binding contract of agency, but it is necessary that there should be an instruction or request from the owner and an undertaking of the duty or task by the agent. Also the fact that the journey is undertaken partly for...