Klein v Caluori [1971]

FACTS:-

The Claimant, Mr Jack Klein, was the owner of a Rover motorcar which was standing stationary, when a Ford motorcar, owned by the Defendant, Anthony Caluori, and driven by a Mr Freshwater, crashed into it and “damaged it beyond economical repair”.

Mr Freshwater had earlier taken and driven away the Defendant’s car without the Defendant’s knowledge or consent. After a few hours Mr Freshwater subsequently telephoned the Defendant to tell him what he had done whereupon the Defendant peremptorily ordered him to “bring the bloody thing back”. It was whilst Mr Feshwater was driving the car back following this conversation that the accident occurred.

The Claimant argued that the Defendant was vicariously liable for negligent driving of Mr Freshwater on the ground that at the time of the accident he was driving the car as the defendant’s agent, in that he was returning the car in accordance with the defendant’s instructions and hence for his purposes.

The judgement was delivered by Justice Lyell in the Queen’s Bench Division.

HELD:-

Justice Lyell was not satisfied with the Claimant’s submissions that Mr Freshwater was the Defendant’s agent. He held that instructions by the Defendant to return the car was in effect a reminder to Mr Freshwater of his duty and did not transform the journey into one which was the owner’s purposes. Accordingly the Defendant was not vicariously liable for the negligent driving of Mr Freshwater.

The real issue in this case was whether the Defendant’s instructions to “bring the bloody thing back” conferred agent status on to Mr Freshwater and whether the returning of the car was for the purposes of the Defendant.

Justice Leyell stated that in order to become liable for the driving of a car, the owner of the car who has general control of it, and who allows someone else to drive it, must either have authorised that other person to drive wholly or partly for the purposes of the owner. A mere permission to drive a car will not of itself constitute the driver the agent of the person who grants permission and who as the right either by way of ownership of as a balee to control a car.

Counsel for the Claimant suggested that if the owner of the car gives any instructions as to the time of return or a direction of that kind, that is enough to make him liable, because if the borrower follows that direction he is not following his own purposes, but the purposes of the owner, and thereby becomes his agent, because he is, in part at least, acting to carry out the owners purposes.

Lyell J could not accept this submission, he believed that the return journey is part and parcel of the whole enterprise for which the loan was made, and the fact that that the journey is made an hour or so earlier is irrelevant. The returning of the vehicle is taken simply and solely for the completion of the activites which the borrower wished to carry out entirely for his own purposes.

He conclude that if it be a matter of genuine borrowing with consent, that carries by implication a duty to return, and the return journey, although it benefit the owner, is done in his view for the sole purpose of discharging the duty of the borrower to return it. Where the borrowing is without consent, the return journey is carries our simply and solely in order that the borrower may restore it to the owner and so avoid still further his own criminal liability i.e. by reducing the taking from theft to the lessor offence of taking and driving away a motor car without the owner’s consent

It was irrelevant and did not make a slightest degree of difference that the borrower was reminded of this duty.

Related posts:

1. Ormrod v Crosville Motor Services Ltd 1953
2. Martin v Dean and Another [1971]
3. Hewitt v Bonvin [1940]
4. R v Phipps 1970 and R. V Mcgill [1970]