MORGANS (WIDOW)
v.
LAUNCHBURY (A.P.) AND OTHERS (A.P.)
Lord Wilberforce
Viscount Dilhorne
Lord Pearson
Lord Cross of Chelsea
Lord Salmon
Lord Wilberforce
my lords,
This appeal arises out of a motor car accident in which the three
Respondents were injured. They were passengers in a Jaguar saloon which
was registered in the name of the Appellant; she was not using the car at the
time. The other persons in it were the Appellant’s husband and a friend of
his, Mr. D. J. Cawfield, who was driving: both were killed. It is not disputed
that the accident was caused by the negligence of Mr. Cawfield. At first
instance, the Appellant was sued both in her personal capacity and as
administratrix for her deceased husband: judgment was given against her in
both capacities on the ground that both she personally and her husband, were
vicariously liable for Mr. Cawfield’s negligence. It is only in her personal
capacity that she brings the present appeal and the question involved is there-
fore whether as owner of the car, and in the circumstances in which it came
to be used and driven, she can be held vicariously liable for the negligence
of the driver.
Some further facts require to be stated. Before their marriage the Appellant
and her husband each had their own car, but after they had been married
about a year they decided to sell one, and the one sold was the husband’s.
The Jaguar was, in the Appellant’s words, regarded as ” our car “. It was
freely used by either husband and wife; the husband normally used it every
day to drive to and from his place of work seven miles from his home.
On the day of the accident, the husband had driven in the car to work.
In the evening he telephoned to the Appellant to say that he would not be
returning home for his evening meal and that he was going out with friends.
He visited a number of public houses and had drinks. At some stage he
realised that he was unable to drive safely and he asked Mr. Cawfield to
drive and gave Mr. Cawfield the keys. Mr. Cawfield drove the husband to
other public houses. After the last one had been visited Mr. Cawfield offered
the three Respondents, one of whom was a friend of his, a lift in the car ; and,
soon after, the husband got into the back of the car and fell asleep: he was
certainly and heavily intoxicated. Mr. Cawfield then drove off, not in the
direction of the husband’s home, but in the opposite direction, suggesting a
meal before he finally drove the passengers home. Soon after, with Mr.
Cawfield driving at 90 m.p.h., the car collided with an omnibus.
There was some important evidence as to the circumstances in which the
Appellant’s husband may have asked Mr. Cawfield to drive. According to
the Appellant’s evidence, her husband often liked to stay out and visit public
houses. In her words, ” We had an understanding, he had always told me he
” would never drive if he thought there was any reason he should not drive ”
and ” it was an understanding, he told me,’ You need not worry, I would not
” ‘ drive unless I was fit to drive’ “. Some further questions were put to her
and the judge felt entitled to find ” that he promised her he never would
” drive himself if he had taken more drink than he left he should have but
” would do one of two things, either get a friend to drive him or ring her up
” and she would come and fetch him.” We must accept the tenor of this
finding but it was to be understood in the context of discussion between hus-
band and wife. It is unlikely that it was so crysal clear as it appears from
the finding to have been. One other fact: there was no question of the
Appellant knowing that Mr. Cawfield drove or might drive the car that
evening, and he was to her merely an acquaintance.
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It is on these facts that liability for the injuries sustained by the passengers
must be considered. Who could they sue? In the first place, there was the
estate of Mr. Cawfield as the negligent driver; in the second, the estate of
the husband who requested Mr. Cawfield to drive, this resting upon the
normal principle of the law of agency. But the Respondents seek to go
further and to place vicarious liability upon the Appellant. As to this, apart
from the special circumstances of the ” understanding ” there would seem,
on accepted principle, to be insuperable difficulties in their way. The car
cannot by any fair process of analysis be considered to have been used for
the Appellant’s purposes at the time of the accident. During the whole of
the evening’s progress it was as clearly used for the husband’s purposes as
any car should be: and if there was any doubt about this the separation from
any possible purpose of the Appellant’s at the time of the accident can only
be intensified by the fact that Mr. Cawfield, the husband’s agent, was taking
the car away from the Appellant’s (and the husband’s) home for some fresh
purpose. It seems clear enough that this was the purpose of Mr. Cawfield
but even if one attributes this to her husband, I am unable to formulate an
argument for attributing it to the wife.
It is said, against this, that there arc authorities which warrant a wider and
vaguer test of vicarious liability for the negligence of another: a test of
” interest or concern “. Skilled counsel for the Respondents at the trial
was indeed able to put the word ” concerned ” and ” interest” into the wife’s
mouth and it was on these words that he mainly rested his case.
On the general law, no authority was cited to us which would rest vicarious
liability on so vague a test, but it was said that special principles applied
to motor cars. I should be surprised if this were so, and I should wish to
be convinced of the reason for a special rule. But in fact there is no
authority for it. The decisions will be examined by others of your Lordships
and I do not find it necessary to make my own review. For I regard it as
clear that in order to fix vicarious liability upon 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. Every man who gives
permission for the use of his chattel may be said to have an interest or
concern in its being carefully used, and, in most cases if it is a car, to have
an interest or concern in the safety of the driver, but it has never been held
that mere permission is enough to establish vicarious liability. And the
appearance of the words in certain judgments (Ormrod v. Crosville Motor
Services Ltd. [1953] 1 W.L.R. 409 per Devlin J. ibid 1120 per Denning L.J.)
in a negative context (no interest or concern, therefore no agency) is no
warrant whatever for transferring them into a positive test. I accept entirely
that ” agency ” in contexts such as these is merely a concept, the meaning
and purpose of which is to say ” is vicariously liable ” and that either
expression reflects a judgment of value—respondeat superior is the law
saying that the owner ought to pay. It is this imperative which the common
law has endeavoured to work out through the cases. The owner ought to
pay, it says, because he has authorised the act, or requested it, or because
the actor is carrying out a task or duty delegated, or because he is in control
of the actor’s conduct. He ought not to pay (on accepted rules) if he has
no control over the actor, has not authorised or requested the act, or if the
actor is acting wholly for his own purposes. These rules have stood the
test of time remarkably well. They provide, if there is nothing more, a
complete answer to the Respondents’ claim against the Appellant.
I must now consider the special circumstance on which the judge relied—
the understanding between the Appellant and her husband. What does it
amount to? In my opinion, it is nothing more than the kind of assurance that
any responsible citizen would give to his friends, any child would give to his
parent, any responsible husband would give to his wife: that he intends to
do what is his legal and moral duty ; not to drive if in doubt as to his sobriety.
The evidence is that this assurance originated from the husband and no doubt
it was welcomed by the wife. But it falls far short of any authority by the
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wife to drive on her behalf or of any delegation by her of the task of driving.
If the husband was, as he clearly was, using the car for his own purposes, I
am unable to understand how his undertaking to delegate his right to drive
to another can turn the driver into the wife’s agent in any sense of the word.
The husband remains the user, the purposes remain his.
So if one applies accepted principles of the law, the case is clear; I only
wish to add that I agree with the judgment of Megaw LJ. in the Court of
Appeal both on the law and the facts.
This is not the end of the case. The Respondents submitted that we should
depart from accepted principle and introduce a new rule, or set of rules,
applicable to the use of motor vehicles, which would make the Appellant liable
as owner. The Master of the Rolls in the Court of Appeal formulated one
such rule, based on the conception of a matrimonial car, a car used in
common by husband and wife for the daily purposes of both. All purposes, or
at least the great majority of purposes, he would say are matrimonial
purposes: shopping, going to work, transporting children, all are purposes of
the owner, the car was bought and owned for them to be carried out.
And, consequently (this is the critical step) the owner is ipso jure liable
whatever the other spouse is using the car for, unless, it seems, though the
scope of the exception is not defined, the latter is ” on a frolic of his own “.
Indeed the Master of the Rolls seems to be willing to go even further and to
hold the owner liable on the basis merely of permission to drive, actual or
assumed.
My Lords, I have no doubt that the multiplication of motor cars on our
roads, their increasing speed, the severity of the injuries they may cause,
the rise in accidents involving innocent persons, give rise to problems of
increasing social difficulty with which the law finds it difficult to keep
abreast. And I am willing to assume (though I think that more evidence is
needed than this one case) that traditional concepts of vicarious liability,
founded on agency as developed in relation to less dangerous vehicles, may
be proving inadequate. I think, too, though counsel for the Appellant argued
eloquently to the contrary, that some adaptation of the common law rules to
meet these new problems of degree is capable of being made by judges. I do
not have to depend on my own judgment for this for it can be seen that in
the United States, so long ago as 1913, the judges in the State of Washington
developed, without legislative aid, a new doctrine of the family car (Biron v.
Abercrombie, 74 Wash. 486, 133 P.1020) and some other States have, with
variations, followed the same road (see Prosser on Torts p. 494 ff). Other
States have resorted to statute. To be similarly creative, even seventy years
later, has its attraction.
But I have come to the clear conclusion that we cannot in this House
embark on the suggested innovation. I endeavour to state some reasons:
1. Assuming that the desideratum is to fix liability in cases of negligent
driving upon the owner of the car (an assumption which may be disput-
able), there are at least three different systems which may be adopted—
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that apparently advocated by the Master of the Rolls of a
” matrimonial ” car, the theory being that all purposes for which
it is used by either spouse are or presumed to be matrimonial
purposes; -
that adopted in some American States of a ” family ” car, the
theory being that any user by any member of the family is the
owner’s ” business ” (see Prosser I.c.) -
that any owner (including hire purchaser) who permits another
to use his motor vehicle on the highway should be liable by the
fact of permission. This principle has been adopted by statute
in certain Australian States (e.g. The Motor Vehicles Insurance
Acts, 1936-45, Queensland, s. 3 (2)).
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-
Yet another possibility would be to impose liability upon the owner
in all cases regardless of whether he had given permission or not.
My Lords, I do not know on what principle your Lordships acting
4
judicially can prefer one of these systems to the others or on what basis
any one can be formulated with sufficient precision or its exceptions
defined. The choice is one of social policy; there are arguments for
and against each of them. If any one is preferable on purely logical
grounds, to me it is the third, for I am unable to state with any precision
a rational (as opposed to a policy) preference for drawing a line at either
of the alternative points, the spouses or the family. But apart from the
unsupported statement by the Master of the Rolls in the present case I
know of no judicial pronouncement in favour of the third; indeed the
cases, amongst them the judgments of Edmund Davies L.J. and Megaw
L.J. below, contain statements to the contrary, i.e. that mere permission
is not in law a sufficient basis of liability. I do not doubt that this is
the existing law nor the validity of the Australian position that to base
liability on permission would be a matter for legislation.
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Whatever may have been the situation in 1913 in the youth of the
motor car, it is very different now, when millions of people of all ages
drive for a vast variety of purposes and when there is in existence a
complicated legislative structure as to insurance—who must take it out,
what risks it must cover, who has the right to sue for the sum assured.
Liability and insurance are so intermixed that judicially to alter the basis
of liability without adequate knowledge (which we have not the means to
obtain) to as the impact this might make on the insurance system would
be dangerous and, in my opinion, irresponsible. -
To declare as from the date of the decision in this House, that a
new and greatly more extensive principle of liability was to be applied,
in substitution for well-known and certain rules might inflict great hard-
ships on a number of people, and at least would greatly affect their
assumed legal rights. We cannot, without yet further innovation, change
the law prospectively only: and in any event this accident occurred in
1964, so any change if it were to be relevant to this case would have to
date back till then. Such is the number of accidents now occurring, and
the time which elapses before the damages are settled, that any decision
in this case would affect, at the least, cases over the last eight years, the
parties to which could justly expect to look to the established law to
guide them, and whose insurances were arranged on the basis of
established law.
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My Lords, we may be grateful to the learned Master of the Rolls for turning
our thoughts in a new direction, a direction perceived, if not with unity of
vision, by courts beyond the seas so long ago ; but I must invite your Lordships
to state that his judgment does not state the law. Any new direction, and it
may be one of many alternatives, must be set by Parliament.
I would allow the appeal and dismiss the action.
Viscount Dilhorne
MY LORDS,
The only question for determination in this appeal is whether the Appellant,
Mrs. Morgans, is vicariously liable for the negligent driving of a Mr. Cawfield
on the 4th August, 1964. The Respondents were passengers in the car and
sustained injuries. Mr. Cawfield and Mr. Morgan the Appellant’s husband,
who was also a passenger in the car, were killed. The Respondents claimed
damages against the representative of Mr. Cawfield’s estate, against Mrs.
Morgans as administratrix of her husband’s estate and against her personally.
Presumably she was sued personally in the hope that claims against her by
passengers were covered by a policy of insurance whereas the claims against
the other defendants were unlikely to be.
Mrs. Morgans was the owner of the Jaguar car being driven at the time
of the accident by Mr. Cawfield. After her marriage, she and her husband
each had cars but, finding that they did not need two cars, her husband’s
5
was sold. In her evidence she said ” quite honestly I never thought of it
” as my car. It was our car.” Her husband may well have thought the
same and have used the car as if it was owned jointly.
Mrs. Morgans was by law required to insure against claims by third
parties but not against claims by passengers, and whether or not she insured
against such claims is irrelevant to the question whether she is vicariously
liable for Mr. Cawfield’s negligence. If she was not insured against claims
by passengers, then she would, if liable, have, so far as she could, to meet the
damages out of her own pocket.
Although not in any way to blame for Mr. Cawfield’s negligent driving,
she is responsible for his negligent acts if he was at the time of the accident
driving the car as her servant or agent. In my view, the legal principle
was correctly and accurately stated by MacKinnon L.J. in Hewitt v. Bonvin
[1940] 1 K.B. 188. He said at p. 191 : —
” If A suffers damage by the wrongful act of B, and seeks to say that
” C is liable for that damage he must establish that in doing the act B
” acted as the agent or servant of C. If he says that he was C’s agent
” he must further show that C authorised the act. If he can establish
” that B was the servant of C the question of authority need not arise.”
It is not, and in my opinion has never been, the law of this country that
the owner of a chattel is responsible in law for damage done by the negligence
of a person to whom he has lent it or whom he has permitted to use it. (See
Quarman v. Burnett [1840] 6 M. & W. 499 per Parke B. at p. 510: Ormrod
v. Crosville Motor Services Ltd. [1953] 1 W.L.R. 1120 at p. 1122 per
Singleton L.J.) If all that had to be shown to establish liability on the part
of the owner of a vehicle, was that he had permitted its use by the person
who was negligent, then Hewitt v. Bonvin was wrongly decided. There
the son was permitted to use the car and it was held that the father was not
responsible for the son’s negligent driving as the son was not his servant
or agent at the time.
That was a unanimous decision of the Court of Appeal and I cannot
reconcile the view expressed by Lord Denning in this case with it. Lord
Denning said ([1971] 2 W.L.R. at p. 608): —
” The owner or hirer is at common law responsible for all injury
” or damage done by his permitted driver in the negligent driving of
” the car.”
With great respect, in my opinion that is not the law now. I cannot rind
any authority which supports that statement. Whether it should be the law,
or indeed should have been the law, is a matter for argument on which
views may well differ.
In Hewitt v. Bonvin it was argued in the Court of Appeal for the Respon-
dent, the plaintiff in the action, that the car was the family car and that,
when the car was driven by a member of the family with permission, the
driver was to be regarded as driving as the agent of the owner. This argu-
ment was rejected by the Court. MacKinnon L.J. considered the case on the
basis that the son was alleged to have been acting as the servant of his father,
pointing out that a person could act as a servant though not remunerated.
He said that the definition of servant in Salmond on Torts could hardly be
bettered: ” A servant may be defined as any person employed by another
” to do work for him on the terms that he, the servant, is to be subject to
” the control and directions of his employer in respect of the manner in
” which his work is to be done.”
He went on to say: —
” before any question as to the right of control and direction over the
” tortfeasor arises at all, it must be established that in doing the act
” complained of, he was employed by the third party to do work for him.
” This cannot be established by mere proof that the tortfeasor is using
” a chattel, or driving a vehicle, which is the property of a third party,
6
” though that may, in the absence of any further explanation, be some
“evidence of the proposition.”
and
” even a man who is in every sense a servant, to make his undoubted
” employer liable for his negligent act, must at the moment of his act
” be doing work for his employer “.
Du Parcq L.J., as he then was, thought that the better way of putting
the Respondent’s case was on the basis of agency, and said: —
” The driver of the car may not be the owner’s servant, and the owner
” will be nevertheless liable for his negligent driving if it be proved that
” at the material time he had authority, express or implied, to drive
” on the owner’s behalf. Such liability depends not on ownership, but
” on the delegation of a task or duty “.
Thus, it was held that whether it be alleged that the driver was the servant
or that he was the agent, to establish liability on the part of the employer
or the principal, it must be shown that the driver was acting for the owner
and that it does not suffice to show that the driving was permitted.
Just as the inference may be drawn, from proof that the vehicle was owned
by another, that the driver was driving as servant or agent of the owner
(Barnard v. Sully) (1931) 47 T.L.R. 557) so may a presumption arise, where it
is proved that the driver at the time of the negligence was doing something
which was in the interest of the owner or for his benefit, that the driver
was then acting as a servant or agent of the owner. But when the full facts
are known as they were in Hewitt v. Bonvin and as they are in the present
case, such an inference and presumption may be unwarranted. A person
permitted to drive another’s car does not become the latter’s agent if, on his
own volition, he uses it for the owner’s benefit; a son driving his father’s
car with permission does not become his father’s agent because, remembering
that his father has a suit at the cleaners, he uses the car to collect it. Whether
or not the driver is acting as agent of the owner is a question of fact. If the
journey is at the owner’s request as in Ormrod v. Crosville Motor Services
Ltd. (supra) or where the owner asks someone to bring the car down to the
station to meet him, then the driver is doing an act for the owner and acting
as his agent. In my view, the phrase qui facit per alium, facit per se correctly
expresses the principle on which vicarious liability is based.
Turning now to the facts of the present case, I do not consider that there
was any evidence to show that when Mr. Morgans drove the car from his
home to where he worked and when he drove it home in the evening he was
acting as his wife’s agent. He was not driving for her. He was not doing
anything for her. Nor was he doing anything for her when he chose, on the
day in question, to visit a number of public houses, to go on what may be
called a ” pub crawl “, before he returned home.
The question is, however, not whether her husband that day drove as her
agent, but whether Mr. Cawfield did so. Mr. Morgans asked and permitted
him to drive. Let me assume that he had authority to do so. That does not
suffice to make Mr. Cawfield her agent. He was not doing anything for her
or at her request. When the accident happened, he was not bringing her
husband home but driving him away from home to Swansea for a meal.
Much was sought to be made of the conversation which Mrs. Morgans
had had with her husband when he promised her that he would never drive
himself if he had taken more drink than he felt he should have but would
either get a friend to drive, or telephone her to come and fetch him. Such
a conversation could well be had between husband and wife without either of
them having in mind anything more than the husband’s safe return home
and the fact that they had such a conversation does not, in my opinion, estab-
lish that Mr. Cawfield, when asked to drive, drove on her behalf and as her
agent.
For these reasons I would allow the appeal.
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Lord Pearson
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 contrac
of agency, but it is 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 purposes of the agent as well
as for the purposes of the owner does not negative the creation of the agency
relationship. Hewitt v. Bonvin [19401 1 K.B. 188, 194, 195 ; Ormrod v.
Crosville Motor Services Ltd. [19531 1 W.L.R. 409 (Devlin J.) and 1120
(C.A.,; Hilton v. Thomas Burton (Rhodes) Ltd. [1961] 1 W.L.R. 705, 707;
Norton v. Canadian Pacific Steamships Ltd. [1961] 1 W.L.R. 1057, 1063;
Klein v. Calnori [19711 1 W.L.R. 619, 621. I think there has to be an accept-
ance by the agent of a mandate from the principal though neither the
acceptance nor the mandate has to be formally expressed or legally binding.
In the present case the car was registered and insured in the wife’s name,
but it was regarded and treated by the husband and the wife as ” our car “,
belonging to both of them, and it was driven more by him than by her.
In particular he used it regularly for driving himself between their home in
Brynamman and his place of work in Ammanford, where he was the manager
of a bank. The management of the bank was his duty, not hers, and the
journeys to and from the bank were for his purposes, not hers, and if he asked
some friend on some occasions to drive him to or from the bank the friend
would be driving for the husband’s purposes and as his agent, and not for the
wife’s purposes or as her agent. Similarly, if he went out in the evening on a
drinking expedition, he would be making the journeys for his purposes, not
hers and if he asked a friend to drive for him the friend would be his agent not
hers. I do not think the understanding between the husband and the wife,
of which evidence was given, can rightly be held to alter this position. The
understanding was that if at any time he had had too much to drink he
would not drive himself but ask a friend to drive him or telephone to his
wife and ask for her help. It seems to me that in reaching this understanding
the wife was acting as a solicitous wife counselling her husband to take reason-
able precautions for his own safety and the safety of others, and she was not
acting as a car owner authorising the delegation or sub-delegation of authority
to drive the car. The car was the husband’s car, though also the wife’s car,
and the friend would naturally be asked to drive it on the husband’s behalf
and therefore as his agent.
Moreover, there is an important additional factor. A public house at
Cwmgors was the last to be visited on that evening by the husband and his
friend, Mr. Cawfield, whom he had asked to drive for him. Cwmgors is on
the road between Brynamman and Swansea. At this public house the husband
and Mr. Cawfield met Mr. and Mrs. Launchbury and Mr. Phillips, who
were afterwards plaintiffs in the action. Mr. Cawfield offered them a lift,
and they accepted the offer, as they thought the lift would be to their homes
in the vicinity of Brynamman. There entered the car Mr. Cawfield as driver,
the husband in a somnolent condition, Mr. and Mrs. Launchbury and Mr.
Phillips. When the car emerged on to the road Mr. Cawfield, instead of
turning right towards Brynamman, turned left towards Swansea and in answer
to protests from the Launchburys explained that they would all have a meal
in Swansea. It was on the journey towards Swansea that the fatal accident
occurred. Whether the decision to drive to Swansea was taken by Mr.
Cawfield or by the husband or by both of them in consultation is not known.
325074 A4
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However that may be, it seems to me that when Mr. Cawfield undertook this
journey to Swansea he was clearly not acting as agent for the wife.
The Master of the Rolls, with the object of ensuring that compensation
will be available for injured persons, has sought to extend the liability of a
car owner for negligent driving of his car by other persons, because the car
owner is the person who has or ought to have a motor insurance policy. The
Master of the Rolls has done this in ways which, I think, really amount to a
departure from the agency principle (qui facit per alium facit per se) and the
introduction of new bases of a car owner’s liability.
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First he says “If it is being used wholly or partly in the owner’s
” business or in the owner’s interest, the owner is liable for any negligence on
” the part of the driver “. This would include a case in which some eager
or officious person drove the car on the owner’s business or in the owner’s
interest but without any prior authority or subsequent ratification from the
owner. There would be no agency in the normal sense of the word, and the
owner would not have caused or even permitted the driving of the car by
that person, It would be a novelty in the law if the owner were held liable
in such a case and some new principle would have to be invented. -
Secondly, the Master of the Rolls treats permission by the owner for a
person to drive his car as being in most cases sufficient to impose upon the
owner liability for that person’s negligent driving of the car. That is the
rule proposed for ” most cases ” and an exception is stated—” The owner
” only escapes liability when he lends it out or hires it out to a third person to
” be used for purposes in which the owner has no interest or concern “.
Apart from that exception the proposed rule is stated broadly. The Master
of the Rolls says ” The reason behind this principle is at bottom the principle
” which lies behind all vicarious liability. It is to put the responsibility on
” to the person who ought in justice to bear it. Now the owner or hirer of the
” vehicle is in most cases the person who ought to bear the responsibility.
” He is the one who puts it on the road where it is capable of doing damage.
” He is the one who causes or permits it to be used. He is the one who is,
” or ought to be, insured in respect of it. … Suffice it that, by himself or by
” proxy, he allowed the driver to drive it on the fatal occasion. He ought,
” therefore, at common law to shoulder the responsibility. . . . The owner or
” hirer is at common law responsible for all injury or damage done by his
” permitted driver in the negligent driving of the car. . . . But the owner or
” hirer can, of course, at common law excuse himself from responsibility if
” it was being used without his permission on an occasion in which he had
” no interest or concern “. The exact scope of the proposed new principle
of owner’s liability is not fully explored in this passage, but it seems clear
that a new principle is being proposed, whereby permission rather than agency
would be the basis of liability.
It seems to me that these innovations, whether or not they may be desirable,
are not suitable to be introduced by judicial decision. They raise difficult
questions of policy, as well as involving the introduction of new legal
principles rather than extension of some principle already recognised and
operating. The questions of policy need consideration by the Government
and Parliament, using the resources at their command for making wide
enquiries and gathering evidence and opinions as to the practical effects
of the proposed innovations. Apart from the transitional difficulty of current
policies of insurance being rendered insufficient by judicial changes in the
law, there is the danger of injustice to owners who for one reason or another
are not adequately covered by insurance or perhaps not effectively insured
at all, (e.g., if they have forgotten to renew their policies or have taken out
policies which are believed by them to be valid but are in fact invalid, or
have taken their policies from an insolvent insurance company). Moreover,
lack of insurance cover would in some cases defeat the object of the proposed
innovation, because uninsured or insufficiently insured owners would often
be unable to pay damages awarded against them in favour of injured plaintiffs.
Any extension of car owners’ liability ought to be accompanied by an
extension of effective insurance cover. How would that be brought about?
9
And how would it be paid for? Would the owner of the car be required to
take out a policy for the benefit of any person who may drive the car? Would
there be an exception for some kinds of unlawful driving? A substantial
increase in premiums for motor insurance would be likely to result and to
have an inflationary effect on costs and prices. It seems to me that if the
proposed innovations are desirable, they should be introduced not by judicial
decision but by legislation after suitable investigation and full consideration
of the questions of policy involved.
I would allow the appeal.
Lord Cross of Chelsea
MY LORDS,
The facts of this case are simple. Mr. and Mrs. Morgans lived at
Brynamman. He worked in a bank at Ammanford some seven miles away.
They had a Jaguar car which was registered in the name of Mrs. Morgans
but each made use of it freely. She said in evidence that she did not look
on it as her car any more than his car; it was ” our car “. Some time—
one does not know how long—before the 4th August, 1964, the subject of
Mr. Morgans driving the car after he had been drinking was discussed
between them. On that occasion, as the judge found, he promised her that
he would never drive himself if he had taken more drink than he felt that
he should have taken. He would do one of two things; either get a friend who
was absolutely sober to drive him or ring her up so that she could make
arrangements for his safe transport home. He had originally intended to come
home to supper on the evening of the 4th August but he rang up his wife
to say that he had decided to spend the evening out. One has to reconstruct
the history of the evening as best one can from isolated scraps of evidence.
Mr. Morgans, alone and driving the car, was at a public house at Glanammon
about 7 p.m. Some twenty minutes later he was at a public house at a
place popularly known as G—C—G. He was then somewhat under the influ-
ence of drink and conscious that he ought not to drive the car himself any
longer. At this public house he met a Mr. Cawfield—who Mrs. Morgans
said she hardly knew—and asked him to act as his chauffeur for the rest of
the evening. They proceeded to visit several public houses together, the last
of which was at Cwmgors. There they met the Respondents who were friends
of Cawfield. They stayed drinking until closing time when the Respondents
realised that they had missed their last bus home. Cawfield said that he
would give them a lift and the whole party got into the car. Mr. Morgans, who
was by that time very much the worse for drink, got into one of the rear seats
and fell asleep. Cawfield—despite the protests of the Respondents who wanted
to be taken straight home—decided that it would be a good thing for them all
to have a meal in Swansea and drove off in that direction at high speed.
Shortly afterwards the car crashed into a bus. The judge found that the
evidence did not show that even at the end of the evening Cawfield was not
sufficiently sober to drive the car. The Respondents recovered judgment
against Mrs. Morgans both in her capacity as administratrix of her husband’s
estate and personally. The appeal, of course, relates only to the judgment
given against her personally as the owner of the car.
Before this case the law as to the vicarious liability of the owner of a chattel
for damage caused by its use by another person was, I think well settled. The
owner of the chattel will be liable if the user of it was using it as his servant
or in the strict sense of the word, his agent, Hewitt v. Bonvin [1940] 1 K.B.
188. As the cases of Ormrod v. Crosville Motor Services Ltd. [1953] 1 W.L.R.
1120 and Carberry v. Davies [1968] 1 W.L.R. 1103 show the user is in
pursuance of a contract. It is enough if the chattel is being used at the relevant
time in pursuance of a request made by the owner to which the user has
acceded. In deciding whether or not the user was or was not the agent
of the owner it may no doubt be relevant to consider whether the owner had
any interest in the chattel being used for the purpose for which it was being
10
used. If he had no such interest that fact would tell against the view that
the user was his agent while conversely the fact that the owner had an
interest might lend support to the contention that the user was acting as the
owner’s agent. But despite the way in which the matter is put by Denning L.J.
(as he then was) in the Ormrod case at page 1123 I do not think that the law
has hitherto been that mere permission by the owner to use the chattel coupled
with the fact that the purpose for which it was being used at the relevant
time was one in which the owner could be said to have an interest or concern
would be sufficient to make the owner liable in the absence of any request by
the owner to the user to use the chattel in that way.
Counsel for the Respondents submitted that even on this view—which
he described as the ” narrow ” view—of the law the judge was right in giving
judgment for his clients against Mrs. Morgans personally because of the
understanding reached between her husband and herself as to his driving
when under the influence of drink. But he also submitted that in the case of
motor cars, the law should in certain circumstances hold the owner liable
even thought the driving was not being done by the owner’s servant or agent.
I will deal with this aspect—which was called the ” wider ” aspect—of the
appeal before coming to the narrower aspect which turns on the understanding.
On the wider aspect of the case counsel advanced two arguments: first
what I may call the ” interest and concern ” argument and, secondly, the
” family car ” argument which was the foundation of the judgment of the
Master of the Rolls.
The first argument, as I understood it, was that the owner of a car can
only free himself from liability for the user of it by someone whom he has
permitted to use it if he has no interest or concern in the purposes for which
it is being used. I cannot think that this would be at all a satisfactory test.
In the first place, the owner may have an interest in the purpose for which
the car is being used at one moment but not in the purpose for which it is
being used at another. Mrs. Morgans, for example, may perhaps be said
to have had an interest in the car being used to take her husband to work
that morning; but it would be absurd to say that she had any interest in
the purposes for which he was using it or causing it to be used that evening.
In the second place, opinions might well differ as to whether some purpose
for which the car was being used was or was not one in which the owner had
an interest. Has a husband, for example, an interest in his wife’s paying a
visit to friends of hers whom he dislikes? It would seem from his judgment
that the Master of the Rolls was conscious of these difficulties and that his
concept of the ” family car ” was an attempt to meet them.
The ” family car “, as that expression is used by the Master of the Rolls,
is a car which—like the Jaguar in this case—in truth belongs both to the
husband and to the wife. Each uses it for his or her own purposes. In
those circumstances the spouse who is the registered owner of the car, as
well as being liable for any damage done by him or her when driving it
ought, it is said, in justice to be vicariously responsible for any damage done
by the other spouse when driving it, whatever the purpose for which he or
she was then using it. If one puts out of mind, as one should, all questions
of insurance I cannot see why if the car is in substance owned by the spouses
jointly and it is more or less a matter of chance that it is registered in the
name of one rather than in the name of the other, it is only the spouse who
is the registered owner who should be vicariously liable for the driving of
the other. If the principle is sound I would think that each spouse should
be vicariously liable for the driving of the other; and Megaw L.J. obviously
thought that the Respondents’ argument did in fact involve this consequence
(see [1971] 1 W.L.R. 614 at F). But why should the principle be confined
to the case of husband and wife? If it is sound it ought, I would think,
to extend to all cases in which a car though registered in the name of one
person is in substance the joint property of two or more—say, for example,
of two spinsters living together in a cottage in the country or of three girls
sharing a flat in Chelsea- I ask myself, therefore, whether public policy
requires that in cases of joint ownership each joint owner should be
vicariously liable for damage done by any other joint owner when driving
11
the car. I cannot see that it does. To my mind, the very fact that each
joint owner has an equal right to use the car shows that when one joint
owner is driving it, otherwise than in pursuance of a request by another, he
ought to be regarded as driving it on his own behalf.
If it is thought that the existing law as to liability of the owner of a
chattel for damage done while it is being used by someone else is not adequate
to deal with the problem created by the driving of motor cars by persons
who are not the servants or agents of the owners then our law should be
changed to provide, as the laws of some other countries do provide, that if
the registered owner of a car permits it to be used by anyone else that other
person shall ipso facto be deemed to be driving as his agent. But I am sure
that we cannot make such a change in the law by judicial decision, and
indeed it was not suggested that we should do so. Such a change could
only be effected by legislation passed after careful consideration of all the
consequences involved.
I turn now to consider whether the Respondents can make Mrs. Morgans
personally liable to them by reason of the understanding between her and
Mr. Morgans. If the facts had been that he had rung her up that night,
telling her that he had drunk so much that he felt unfit to drive and asking
her to arrange for his transport home; that she had said that it would be
inconvenient for her to do that and asked whether there was not someone
with him who was fit to drive him home ; that he had mentioned Cawfield and
that she had told him to ask Cawfield to act as his chauffeur on the homeward
journey, then I can see that it could be argued that she should be held
vicariously liable for Cawfield’s negligent driving; though even so it might
be argued on the other side that exactly the same conversation might have
taken place if the car had been in his name and not in hers and that as they
were in substance joint owners of it his request to Cawfield to drive him home
ought not to be regarded as making Cawfield her agent as well as his agent
for the purpose of the journey. But even assuming that in such circumstances
she would have become vicariously liable for the consequences of Cawfield’s
negligence I am wholly unable to see how the promise which her husband
gave her on that earlier occasion, which is just the sort of promise which
hundreds of husbands must have given to their wives, constituted him her
agent to make her, without any prior consultation with her and very likely
without having his promise in mind, personally liable for the negligent
driving of any man, provided only that he was sober, whom he might select
to drive him about for the rest of the evening. I cannot help thinking that
those who have held Mrs. Morgans personally liable by reason of this
” understanding ” have been unconsciously influenced by the belief, probably
well founded, that her liability would be covered by insurance. Had it been
an admitted fact that Mrs. Morgans had no insurance which covered the
Respondents’ claim I think that everyone—lawyer and layman alike—would
have said: ” You were Cawfield’s friends; you trusted to his driving; you
” did not know that the car belonged to Mrs. Morgans or even that there was
” a Mrs. Morgans; and much as we sympathise with you, it would not be
” fair that she should have to pay for Cawfield’s negligence.”
I would allow the appeal.
Lord Salmon
MY LORDS,
Mr. and Mrs. Glyn Morgans were married in 1955. At that time each
owned a car. After about a year they decided that they needed only one
car between them and that Mr. Morgans’s car should be disposed of and
Mrs. Morgans’s retained. Thereafter this car was changed from tune to time.
In 1964 the car was a Jaguar. It could fairly be described as the family
car. According to Mrs. Morgans’s evidence it was regarded as ” our car “.
There was no question of either asking the other for permission to use it
and certainly no evidence that Mrs. Morgans asked her husband to go to and
12
from his work in it. It was registered and insured in the name of Mrs.
Morgans. We do not know whether it was brought outright or acquired
on hire purchase terms, nor by whom the price or hire purchase instalments
were paid. The same is true of the insurance premiums, the road fund
licence and the repairs and other running costs.
Mr. Morgans was employed in a bank and Mrs. Morgans as a pharmacist.
He usually left his work at 5.30 p.m.; she not until about 7 p.m. Mr.
Morgans used the car much more frequently than his wife. He daily travelled
to and from his work in it—a distance of some seven miles there and
back. Sometimes he used it in the evenings. She used it occasionally for
shopping and other purposes ; and no doubt they quite often used it together-
He told her that she need never worry; he would not drive the car if he
was not fit to drive it. There was in fact an understanding or arrangement
between them that if he thought that he had taken more drink than he
should, he would not drive the car but would get one of his friends to drive
him home.
On the 4th August, 1964, Mr. Morgans had as usual gone to work in
the car. He left the bank at about 5.30 p.m. We know that at 7 p.m. he
had arrived at one public house in the car and thereafter visited a number
of others. In fact, he spent the evening, as Megaw L.J. indicates, in going
on what might be inelegantly but not inaccurately described as a protracted
” pub crawl “. At a fairly early stage he realised that he was in a condition
in which it would be unwise for him to drive and he very sensibly handed his
ignition key to a friend, a Mr. Cawfield. There is no evidence of the
conversation that passed between them. He was heard, however, to describe
Mr. Cawfield as his chauffeur for the evening. At their last port of call,
they met the three plaintiffs. After closing time at 10.30 p.m. the plaintiffs
realised that they had missed their last bus home. Mr. Cawfield offered to
drive them, and the plaintiffs, Mr. Cawfield and Mr. Morgans then got into
the car. Mr. Cawfield set off for Swansea which was in the opposite direction
to that in which Mr. Morgans lived and to that in which the plaintiffs wished
to be driven. The praintiffs protested by Mr. Cawfield drove on saying
that he was taking them to Swansea to have something to eat. He drove
at a great speed and crashed into an omnibus. This was at about 10.40 p.m.
Mr. Morgans and Mr. Cawfield were killed and the three plaintiffs all injured,
one of them very seriously. They brought this action against the estates
of Mr. Morgans and Mr. Cawfield and against Mrs. Morgans personally,
claiming damages for negligence. After a trial lasting two days, judgment
was entered for the three plaintiffs for £5,348, £520 and £487 respectively
against all the defendants. The judgment against the estates of Mr. Morgans
and Mr. Cawfield has not been questioned. Mrs. Morgans, however, appealed
from the judgment against her in her personal capacity. That appeal was
dismissed, Megaw L.J. dissenting. Mrs. Morgans now appeals to your
Lordships’ House.
We know nothing for certain about the terms of Mrs. Morgans’s insurance
policy. In all the circumstances, however, the inference drawn by Lord
Denning M.R., that it covered injury to passengers seems to me to be fully
justified. Nevertheless, the question as to whether she is liable to the plaintiffs
cannot in any way be affected by whether or not her liability would be
covered by insurance.
Each of the three judges who decided this case against Mrs. Morgans
seems to have done so on different grounds.
The learned trial judge held that Mrs. Morgans had authorised her husband
to ask Mr. Cawfield to drive, presumably on her behalf and that therefore she
was vicariously liable for Mr. Cawfield’s negligence.
Edmund Davies L.J. held (a) that when Mr. Morgans did his daily journey
to and from his work he was driving his wife’s car not only with her permission
but also at her request (express or implied) and for her benefit as well as
his, and (b) that ” when he procured Cawfield’s services as a substitute driver
” on the fatal night, he was doing it not only with her permission but for the
” purpose of returning from his work, albeit after some social entertainment.”
13
The learned Lord Justice accordingly concluded that on those grounds Mrs.
Morgans was vicariously liable for Mr. Cawfield’s negligence.
Lord Denning M.R. based his judgment on a much broader basis, namely,
that this Jaguar of Mrs. Morgans was the family car. that she was the head
of the family so far as this car was concerned and as such was responsible
for the use of the car on the road by her husband. Lord Denning held that
when her husband was using the car “he was using it as her ‘agent’ in
” this sense that, if he was involved in an accident, she ought to bear the
” responsibility, especially as she was the one who was insured.” Lord Denning
concluded that ” the understanding or arrangement between Mr. and Mrs.
” Morgans to which I have referred made Mr. Cawfield her ‘agent’ just as
” much as her husband was ” and indeed ” even if she had not had that
” conversation with her husband, still Mr. Cawfield would be her ‘ agent’
” because he was driving (the car) in her interest as well as his own.”
As I understand the authorities the law at present makes the owner or bailee
of a car vicariously responsible for the negligence of the person driving it;
if, but only if, that person is (a) his servant and driving the car in the course of
his employment or (b) his authorised agent driving the car for and on his
behalf—Hewitt v. Bonvin [1940] 1 K.B. 188 at pp. 194, 5. Thus, mere
permission to drive is not enough to create vicarious responsibility for
negligence. Nor are you responsible for the negligent driving of an independent
contractor (or his servant) who, e.g., hires a car to you or delivers goods you
have bought from him. Ex hypothesi he is not your agent. It is a different
matter, however, if you issue orders to the driver which you should reasonably
foresee involve danger and as a result of carrying out your orders damage
ensures (Quarman v. Burnett 6 M. & W. 499). Liability may arise because you
have assumed control or because issuing such orders was in itself negligent
and damage flows from that negligence.
No one has suggested that either Mr. Morgans or Mr. Cawfield was Mrs.
Morgans’s servant. Accordingly, unless your Lordships are prepared radically
to extend the ambit of vicarious liability, the result of this appeal must turn
upon whether Mr. Cawfield can properly be regarded as Mrs. Morgans’s duly
authorised agent to drive the car on her behalf at the time of this tragic
accident.
So far as I know, until the present case, du Parcq L.J.’s statement of the
law in Hewitt v. Bonvin (supra) at p. 194, has never been questioned. “The
” driver of a car may not be the owner’s servant, but the owner will be
” nevertheless liable for his negligent driving if it be proved that at the material
” time he had authority, express or implied, to drive on the owner’s behalf.
” Such liability depends not on ownership, but on the delegation of a task or
” duty . . .”. That is the principle to be applied, but as du Parcq L.J. pointed
out, ultimately the question is always one of fact. Facts vary infinitely from
case to case and it is easy, as du Parcq L.J. indicated, to think of facts which
would fall just on one side of the line or the other. I agree with Megaw L.J.
that there is nothing in Ormrod v. Crosville Motor Services Ltd. [19531 1
W.L.R. 1120 or in Carberry v. Davies [1968] 1 W.L.R. 1103 which differs
from or extends the principle enunciated by du Parcq L.J. The short judgments
in Ormrod’s case must be read against the background of its essential facts.
The owner of a car wanted it to be driven for him from Birkenhead to arrive
in Monte Carlo to meet him there before a certain date. He arranged with a
friend for the friend to drive the car for him on this journey. The friend’s
wife was to accompany him and they were to bring a suitcase for the owner
with them. The plan was that after the car had arrived in Monte Carlo, the
owner, the friend and his wife should all go in the car for a holiday together
in Switzerland. The owner agreed that the friend might make a slight detour
on the journey through France to visit an acquaintance whilst en route for
Monte Carlo. Soon after the car had left Birkenhead on its journey to
Monte Carlo it collided with an omnibus through the negligence of the
owner’s friend. It was held that the car was being driven by the friend for
and on behalf of the owner at his request. And so, obviously, it was, in spite
of the fact that it was also being driven partly for the purposes of the friend.
14
Devlin J. (as he then was) pointed out that whilst the agreement or arrange-
ment between the owner and his friend remained executory either party could
have resiled from it, for it was not a legal contract or agency. This, however,
was irrelevant for it was more than a mere permission by the owner for his
friend to drive. It amounted to a request and express authority by the owner
to his friend to drive the car to Monte Carlo for and on behalf of the owner.
Accordingly, the owner was vicariously liable for the friend’s negligent
driving.
I find insuperable difficulty in understanding how the case against Mrs.
Morgans can succeed on the basis of the law as laid down in the authorities
to which I have referred. I gravely doubt whether Mr. Morgans was driving
the car on his wife’s behalf as her agent even when travelling to and from
his work. It is true that Mrs. Morgans had an interest in the purpose of the
journey because her husband’s earnings no doubt kept or helped to keep
the family home. She also had an interest in the manner in which the car
was driven because she had an interest in her husband’s safety and that of
the family car. But so has every wife. I suspect that du Parcq L.J. would
have been surprised that his judgment in Hewitt v. Bonvin could be regarded
as any authority for holding a wife vicariously liable for her husband’s
negligent driving on his way to or home from work, and incredulous that
anything he has said could support the judgment against Mrs. Morgans on
the facts of the present case. Can it realistically be said that every husband
is driving as his wife’s agent on his way to and from work? I suspect that
if any wife were asked ” Is your husband driving the car for you to-day or
” for any purpose of yours? ” she would immediately reply ” No, of course
” not. As usual he has taken it to work and left me to do the shopping by
” bus or on foot “. I do not think that it makes any practical difference for
this purpose whether the car is registered in the name of the husband or the
wife.
Even if it were possible to assume that Mr. Morgans, when driving the car
home from work, was doing so on his wife’s behalf and as her agent, I do
not consider that such an assumption could help the plaintiffs, much as I
sympathise with them ; and great as is my respect for Edmund Davies L.J.’s
judgment I cannot accept that it is possible to infer that at the time of the
accident Mr. Morgans was ” returning from his work albeit after some
“social entertainment”. He had left his work just before 5.30 p.m. The
accident occurred just after 10.40 p.m.—about five hours later—and when
the car was heading for Swansea away from home. The interval between
5.30 p.m., or at any rate 7 p.m., and 10.40 p.m. had been occupied in the
manner which I have described. If during the course of that evening Mr.
Morgans had been asked ” Are you out on your wife’s behalf or for her
” purposes? Are you on your way home? “, the answer to both questions,
had Mr. Morgans been able to understand them, might well have been
” Not likely, you must be joking “. And if the same questions had been
asked of Mrs. Morgans about her husband (always assuming that she knew
where he was or what he was doing, which of course she did not) she would
probably have given precisely the same answers to what after all are
questions of pure fact. Nor do I think that the tenuous evidence about the
understanding or arrangement between Mr. and Mrs. Morgans can be relied
on as a basis for holding, as did the learned trial judge, that Mr. Cawfield
had been delegated with authority to drive the car to Swansea on Mrs.
Morgans behalf. We do not know if Mr. Morgans even had the under-
standing or arrangement in mind when he handed the ignition key to Mr.
Cawfield. There is no reason to imagine that Mr. Cawfield ever thought
that he might be driving on behalf of Mrs. Morgans. The conversation
which occurred between Mr. and Mrs. Morgans as to what he should do
if he ever found that he had taken too much to drink when out with the car
is the sort of conversation which must often occur between husbands and
wives. It seems absurd to me to hold that if ever thereafter the husband,
when slightly intoxicated, asks a friend to take over the driving, he is appoint-
ing the friend, with his wife’s authority, as her agent to drive the car on her
behalf. not do I think that but for the insurance aspect of the case (which
for this purpose is admittedly irrelevant) would it ever be so held. Suppose
15
that Mrs. Morgans were an indigent widow living modestly on her small
capital, and uninsured against passenger risks. I cannot believe that anyone
would consider it fair or reasonable that she should be completely ruined
by being held vicariously liable for Mr. Cawfield’s negligence.
It follows that, in my opinion, applying the principles of law hitherto
accepted, the circumstances of this case cannot justify the judgment against
Mrs. Morgans. The question is. however, whether that principle ought to
be extended by accepting the proposition favoured by Lord Denning, M.R.,
namely, that the owner of a family car should be held responsible for the
negligent driving of any member of the family household whom he allows
to drive it and also apparently for the negligent driving of any friend of a
member of the household who drives the car home in the interest of the
head of the household. This proposition has never yet been considered by
your Lordships’ House. In Rambarran v. Gurrucharran [1970] 1 W.L.R.
556, however, the Privy Council apparently approved of the decision in
Manawatu County v. Rowe [1956] N.Z.L.R. 78 which rejected even the first
limb of the proposition favoured by Lord Denning M.R. No doubt the
proposition, for the reasons so lucidly explained by Lord Denning, may have
much to commend it on the grounds of public policy. It has, at any rate
in part, been adopted in a number of the States constituting the United States
of America either by the State Legislature or by decisions of the State Courts.
I have always recognised that it is an important function of this House to
develop and adapt the common law to meet the changing needs of time.
In an appropriate case we should not shrink from doing so. In the present
case, however, the proposed ” development” constitutes such a radical and
far-reaching departure from accepted principle that it seems to me to smack
of naked legislation. Moreover, the considerations of public policy which
may support a change suggest that there is no logical reason why the change,
if it is to be made, should stop short at the family car. Why should not the
owner of any motor vehicle be vicariously liable for the negligence of anyone
whom he permits to drive it or indeed for the negligence of anyone who drives
it even without his permission? The law could compel an owner to be insured
against such risks. It seems to me that before any change resembling that
proposed by Lord Denning is made in our law, it is most important that
full and careful investigations into all aspects of the question should be
carried out, and perhaps the arrangements with the Motor Insurers Bureau
considered, so that a new code may be devised which will be fair for all and
ensure that everyone who has been damaged by negligent driving shall be
paid the damages to which he is entitled. This is a task which can hardly
be undertaken by your Lordships’ House sitting in its judicial capacity. In
my view, this is essentially a matter for the Legislature.
I would accordingly allow the appeal.
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