Rogers v Night Riders [1983]

FACTS:-

The First and Third Defendants (“the Defendants”) were two firms under the same management and control who operated a minicab service. They hired radios to car-hire drivers. On receiving a telephone call from a member of the public who wished to hire a car and driver, the Defendants contacted one of the drivers on their list by radio and directed him to the appropriate destination. The Defendants ensured that drivers on the list had held a licence for at least two years and had their own private hire insurance. The drivers owned, maintained and controlled their own vehicles.

The Claimant’s mother telephoned the Defendants on the Claimant’s behalf and asked for a minicab to take the plaintiff and her father to the railway station. The telephonist answered the call giving the name ‘Night Riders’ and told the mother that a vehicle would be on its way. A vehicle subsequently arrived at the Claimant’s home. In the course of the journey to the station, the door on the Claimant’s side of the vehicle flew open, struck a stationary vehicle and rebounded, injuring the Claimant. She brought an action in the County Court against the Defendants in which she claimed damages for the injuries thus sustained, alleging that the Defendants were in breach of their duty of care, owed to the Claimant, to ensure, as far as it was reasonably practicable to do so, that the driver was equipped with a vehicle in good and efficient working order. The driver of the vehicle, who was joined in the action as the second defendant, could not be traced and the action against him was discontinued.

On the trial of the action, the judge found that the driver had been negligent in failing properly to maintain the vehicle, but that the relationship between the driver and the Defendants was that of independent contractor and principal and, accordingly, that the Defendants were not liable for his negligent acts. The action was therefore dismissed.

The Claimant’s appealed on the grounds that having found as a fact that a mini cab attended on the Claimant as a result of the Claimant’s request for a cab to the Defendants, the judge erred in law and in fact in holding that the Defendants were not negligent and in breach of their duty of care owed to the Claimant, when they sent a driver who was not a fit and proper person to carry out the hiring safely and one who was driving a motor vehicle certain parts of which were in a defective state and unsuitable and unsafe for the hiring.  The judge erred in law in holding that no relationship of principle and agent, giving rise to vicariously liability on the part of the Defendants, and the judge erred in law in holding that the Defendant’s were not, on principal and agent basis, vicariously liable for the negligence of the minicab driver and the defective state of his vehicle at the time of the injury to the Claimant. 

HELD:-

The Claimant’s appeal was allowed.

The firm had undertaken to provide a vehicle and driver for the passenger.  The Defendant’s had held themselves to the general public as a car-hire firm.    The firm could therefore foresee that, in those circumstances, a passenger might be injured should the vehicle provided be defective.  Therefore the firm owned the primary duty to the passenger to make sure that the vehicle was properly maintained and reasonably fit for its purpose.  Accordingly the firm was liable for the breach of duty which it owed to the passenger.

Eveleigh LJ stated in his judgment that this is not a case where we are concerned to consider vicarious liability or whether there is liability for the act of an independent contractor.  The concern in the case was the primary duty on the part of the defendants.  It was never suggested and it was not put to the Claimant that she knew the Defendants were simply ‘a kind of post box to put her in touch with someone else with whom she would be able to make an independent contract.  In this case the Defendant’s did not undertake and neither did the Claimant request the defendants to put her in touch with someone else who would undertake this obligation.  Therefore there was a duty of care and such a duty cannot be delegated.  Eveleigh LJ concluded the judgment by saying ‘it is clear that the principle that a person who undertakes a duty to another is liable if that is negligently performed by the person to whom he delegates that duty is one which governs the case.  Therefore Eveleigh LJ allowed the appeal.

Dunn LJ agreed with the judgement and found that the Defendants did owe the Claimant a duty of care to ensure the car was reasonably fit for purpose.  Dunn stated ‘It matters not whether the duty is put in contract or in tort, either way it is a duty they could not delegate to a third person so as to evade responsibility if the car was not fit for that purpose….the claimant was dealing with a car-hire firm and not a mere booking agency….the defendants were under a primary duty to her.’ 

The appeal was allowed and the case was sent back to Brentford County Court for damages to be assessed.

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