FACTS:-

In this case the Claimant sues as administrator of his son, Charles Hewitt, deceased. There are two defendants, John Bonvin and Candide Bonvin his father. Very early in the morning on 23 August 1937, John Bonvin aged 18, was driving a motor-car from Wisbech towards Ely. Charles Hewitt was a passenger in the car. Through the negligent driving of John Bonvin the car was upset and Charles Hewitt was killed.

The father’s car had on previous occasions been driven by the son John, and by his brother, Edgar. Owing to an incident in July 1937, the father told them they were never to drive his car without his permission. Late on the night of 22 August, John Bonvin wanted to borrow the car. His father was away from his London home. John asked to his mother. She had authority from her husband to permit him to drive the car, and she gave him permission. John wanted to use the car solely for his own purposes, in fact to drive Hewitt and two girl friends from London to Wisbech. Neither the father nor the mother knew the girls, and it was no concern of either of them that the girls should be driven to Wisbech. John Bonvin took the girls and Hewitt to Wisbech. The disaster happened when he was bringing Hewitt back to London in the car.

The claim was made against the father Candide Bonvin because the car was his property.  The judge held that John Bonvin was driving the car as the servant or agent of his father.

The Claimant claimed damages against the two Defendants and Lewis J. awarded him 747l.

The father appealed.

HELD:-

It was held by the Court of Appeal, that the son was not driving the car as his father’s servant or agent or for his father’s purposes, and that therefore the father was not liable for his son’s tortious act. The decision of Lewis, J was reversed and the appeal was allowed. 

Mackinnon stated that the question was whether upon the facts, the father is liable for the damages resulting from young Bonvin’s negligent driving.  A master is jointly and severally liable with his servant for any tort committed by the servant in the course of his employment. If in this case the plaintiff is to make Bonvin the father liable for the damages he claims he must establish that the son was driving the car as the servant of his father, and in the course of his employment.

Mackinnon found the definition of a servant in Salmond on Torts: “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.”

But 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, though that may, in the absence of any further explanation, be some evidence of the proposition. If I lend my bicycle to a friend for him to ride on his concerns he is not my servant to ride the bicycle as work for me. On the other hand, if a grocer provides his errand boy with a bicycle on which to carry parcels to his customers, the boy is no doubt employed by the grocer to ride the bicycle as work for his employer.

Mackinnon L.J. found the essential passage in the judgment of Lewis J. is the following sentence: “It seems to me clear that the boy was driving this car with the consent of the owner. Therefore he was on that journey the servant or agent – the agent – of Mr. Bonvin.” Mackinnon held that this was an erroneous statement of the law and concluded that the appeal should be allowed with costs.

Du Parcq found the question in dispute was whether the evidence proved that the son was driving in such circumstances as to make the appellant liable for the consequences of his negligent.  Du Parcq stated that the ownership of the car cannot impose liability on the Father.  The case of Laugher v Pointer 1826) 5B was referred to.  The case distinguishes between the responsibility of the owner of moveable property and that of the occupier of a house or land.  Du Parcq therefore found if a Claimant proves that a vehicle was negligently driven and that the Defendant was its owner, and the Court is left without further information, it is legitimate to draw the inference that the negligent driver was either the owner himself, or some servant or agent of his (Barnard v. Sully (47 Times L.R.557) but in the present case all the facts were ascertained and the judge was not left to draw an inference from incomplete data.

Du Parcq held that the Claimant failed to show more than a bailment of the car by the appellant to the person responsible for driving it negligently. That was not enough to make the appellant liable, and held that the appeal must be allowed.

Bennett. J agreed with the other judgements and held that the appeal should be allowed. 

Related posts:

1. Ormrod v Crosville Motor Services Ltd 1953
2. Klein v Caluori [1971]