C. DUCLAUD V. MRS M. H. GINOUX
In the Supreme Court of Nigeria
Friday, January 10, 1969
Case Number: SC.19/1968
JUSTICES:
ADEMOLA, CHIEF JUSTICE, NIGERIA
LEWIS, JUSTICE, SUPREME COURT
COKER, JUSTICE, SUPREME COURT
APPELLANTS
C. DUCLAUD.
BETWEEN
RESPONDENTS
MRS. M. H. GINOUX
RATIO
VICARIOUS LIABILITY
“Cases of this type are but instances of vicarious liability for the tortious act of a servant or an agent; the owner of a car or other chattel in the circumstances delegates for the relevant period or purpose to another the responsibility for a task or duty which normally is his. The evidence must establish either that there was a bailment so as to negative any suggestion that the owner had a right to control the use of the chattel or that there was merely a handing over of the chattel for use at the owners direction or control. Learned counsel for the plaintiffs submitted that the duty need not be a legal one and that such duty might be a moral or social duty. We do not exclude the possibility of giving the word duty or task in this context such an extended import. However much the connotation of duty or task is extended, the general principle remains the same and the owner only becomes vicariously liable if the evidence established that he had in fact entrusted to another the performance of a duty or task which primarily is his own responsibility.” –Per Coker, J.S.C.
DUTY OF COURT IN ASCERTAINING THE PRINCIPLE OF VICARIOUS LIABILTY
“The result of the cases is that a task or duty must have been delegated by the owner of the car in order to fix him with liability and that the purpose of the journey may indicate the presence or otherwise of such delegation. The difficulty in every case lies in the application of the principle. Indeed, such difficulty must vary with the circumstances of each case and it is the duty of the court to ascertain in every case what the actual purpose of a journey is in order to decide on the issue of vicarious liability.” –Per Coker, J.S.C.
SHIFT OF BURDEN OF PROOF BY PARTIES TO SUIT
“If a plaintiff relies on res ipsa loquitur as a basis for proving the negligence of a defendant then the primary facts of the occurrence having been accepted, as they were in this case, the burden shifts on to the defendant to establish a defence and, as in this case, to establish a defence of “inevitable accident and act of God.” Where, however, a plaintiff pleads and relies on negligence by conduct or action, it is his duty to prove by evidence the conduct or action and the circumstances of its occurrence, giving rise to the breach of a duty of care. Then and only then does the burden shift to the defendant to adduce evidence to counter the inference of negligence.” -Per Coker, J.S.C.
The appellant has appealed from the judgment of the High Court, Kano State (Holden, J.) given on the 14th March, 1966, whereby he was adjudged to pay to the respondents a total amount of £3,150 representing assessed damages for negligence and 350 guineas costs. In the High Court the plaintiffs’ writ was endorsed as follows:- “The plaintiffs’ claim is for damages arising out of a road accident in which the plaintiff Mrs M. H. R. Ginoux suffered severe injuries whilst travelling as a passenger in a car driven negligently by the defendant’s wife and as a result of which the plaintiff R. A. Ginoux has lost the society and services of his wife and has been put to consider-able trouble, inconvenience and expense”. The case of the plaintiffs at the trial was that on the 2nd May, 1964, the second plaintiff was a passenger in the defendant’s car which was then being driven by the wife of the defendant. The first plaintiff (husband of the second plaintiff) was joined in the action because it was claimed on his behalf that in the events which had happened he too had suffered damage through the loss of the services of his wife and the consequent inconvenience to which he had been put. PAGE| 2 The two women (i.e. the wife of the defendant who was driving his car and the second plaintiff who was given a lift in the defendant’s car) were travelling along Club Road, Kano, and were stated to be returning home to put their respective babies to bed in time for them to get dressed up for the christening ceremony which a neighbour of theirs had arranged for her child. They were both in a hurry to get back home and so were admittedly driving rather fast. At a point on the road the car skidded, zig zagged for some distance and eventually crashed into a tree causing the second plaintiff substantial injuries for which she had been receiving medical attention and treatment on an extensive scale. The wife of the defendant denied that she was at any time negligent in her driving of the car and the defendant himself, whilst admitting that his wife had his general authority and consent to drive his car always denied any liability for the damage caused by the accident. The learned trial judge concluded that the defendant’s wife was, on the evidence, negligent; that the injuries suffered by the second plaintiff were caused by her negligence and that in the circumstances the defendant was vicariously liable for the negligence of his wife and the damages resulting therefrom. He therefore gave judgment in favour of the plaintiffs as stated above. Two points of objection to the judgment were taken on appeal before us. There was a third point relating to the measure of damages. Learned counsel for the appellant had sought to argue that the damages awarded were excessive and that the judge employed a wrong test of assessment in making the award. We were not impressed by counsel’s argument on this point and counsel was justified in taking the rather prudent course, which indeed he then took, to abandon that point. If the premises on which the assessment and the award were based are correct, we cannot conceive that it could be argued with propriety that the award was either manifestly too high or the employment of a wrong principle or test had resulted in an unjustifiable award. Adverting now to the points raised on appeal, it is convenient to set them out first and then deal with them one by one. They may be summarised as follows:- (i) that the judgment is erroneous in law as in the circumstances of the case the defendant could not be vicariously liable for the negligence of his wife; and (ii) there was no proof of negligence and so the judge erred in law to have given judgment against the defendant condemning him in damages. Dealing with the first point, learned counsel for the appellant submitted that at the time of the accident the wife of the defendant, who drove his car, was neither his agent nor his servant. The undisputed evidence in this case is that the two women were returning home in order to get dressed up in time for a ceremony which they had both hoped to attend. On the other hand, learned counsel for the plaintiffs contended that there was evidence that at the time of the accident a little child of the defendant was also in the car with the mother and that the fact that the child too was being taken home should be regarded as a matter of interest to the father (i.e. the defend-ant) thereby implying that he was interested in the purpose of the journey. PAGE| 3 The case raises a problem of immense importance and it is necessary to state clearly the legal position. In Hewitt v. Bonvin & Anor [1940] 1 KB. 188, a son had obtained from his mother, who had the authority to grant it, permission to drive his father’s car. The son wanted the car for his own purposes in order to drive two girl-friends home. The girl-friends were not known to the parents and it was no concern of either of the parents that the girls should be driven back home. On the way back, through his negligence, the car was overturned and a road accident occurred in which a friend who had accompanied the party was killed. The administrator of the estate of the dec
