Supreme Court
Action No. 246 of 1981
15th February, 1983.
Moe, C.J.

Mr. Lionel Welch, for the Plaintiff.
Mr. Derek Courtenay S. C., for the second Defendant.

Traffic accident - Second Defendant's low-boy colliding with Plaintiff's motor vehicle while under the control of the First Defendant but being driven by a third party - First Defendant an employee of the Second Defendant - Whether First Defendant was acting as the servant or agent of the Second Defendant at the time of the occurrence of the accident - Whether Second Defendant was liable for the negligence of the First Defendant.

J U D G M E N T

The Plaintiff seeks to recover from the second Defendant damages for loss and damage caused to her motor vehicle through the negligent use by the first Defendant of a motor vehicle namely a low-boy owned by the second Defendant. There was no dispute that there was an accident on Toucan Street, Belmopan, between the Plaintiff's motorcar and a low-boy owned by the second Defendant. It was agreed between the Parties that at the time of the accident the low-boy was being driven by one Blanca Valdez with the permission of the first Defendant and in his presence and that the accident occurred as a result of the negligent driving of the low-boy.

The first question which arose for determination was whether at the time of the accident the first Defendant was acting as servant or agent of the second Defendant. The evidence is that the first Defendant was and is employed by the second Defendant to drive the low-boy. It is used for hauling heavy equipment, such as tractors and loaders. The first Defendant is the only employee of the second Defendant allowed to drive the low-boy and he has specific instructions to this effect. The first Defendant's normal working hours are 7:00 a.m. to 4:00 p.m. Mondays to Thursdays and 7:00 a.m. - 12:00 midday on Fridays. When the low-boy is not being used for hauling, it is parked, according to the second Defendant's instructions either, in a yard by his supermarket or in a yard by his distillery.

On the 5th June, 1981, a Friday, sometime after 12:00 midday the first Defendant drove the low-boy to his house on Sibun Street, where he parked it and had his lunch. About 4:00 p.m., he drove the low-boy to the supermarket to pick up a parcel his brother sent from Belize City to him. On his way he picked up Blanca Valdez to go with him. At the supermarket he collected his package and on returning to the low-boy, Blanca was sitting behind the steering wheel. He sat beside her and allowed her to drive. While she was driving the low-boy it collided with the Plaintiff's motor car.

There was also evidence obtained from cross-examination of the two Defendants that when Mr. Mena is away (which he was on 5th June, 1981) no one can stop the first Defendant from using the low-boy, that he is boss of the truck, he runs the trucking business and can take the truck anywhere.

I found that the purpose for which the low-boy was being driven on the road at the time was for the first Defendant's own purpose. He was using it for a purpose in which the second Defendant had no interest or concern. When he allowed Blanca Valdez to drive the low-boy, he was not using it to haul equipment, to return from a job, to go and park it, to grease it or any purpose connected with his employment. He not only was using it to run an errand for himself, but also in the course of that, committed a prohibited act - allowed someone else to drive the low-boy.

The principle to be applied in these circumstances is set out in cases referred to by both counsel for the Plaintiff and the Defendant. In Hilton v. Thomas Burton (Rhodes) Ltd. and Another [1961] 1 A. E. R. 74, it was held that the test whether an employer was liable for an employee's negligence was whether the employee was doing at the time something that he was employed to do. Diplock J. pointed out that it may be misleading to say that vicarious liability attached to the master where the act is an act, or falls within the class of act which the servant is authorised to do. I follow the principle as enunciated by Lynskey J. in Marsh v. Moores [1949] 2 A. E. R. 27 and set out in Ilkiw v. Samuels [1963] 2 A. E. R. at page 884: "It is well settled law that a master is liable even for acts which he has authorised provided that they are so connected with the acts which he has not authorised that they might rightly be regarded as modes, although improper modes, of doing them. On the other hand if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible, for in such case the servant is not acting in the course of his employment but has gone outside it." In the latter case Willmer L. J. pointed out that the employer escapes liability if, but only if, at the time of the negligent act, the vehicle was being used by the driver for the purpose of what has been called a "frolic" of his own.

I do not find that Blanca Valdez was engaged in doing the second Defendant's business or was in any way assisting the first Defendant in doing the second Defendant's business at the time the negligent act was committed and I must therefore hold that the second Defendant is not liable for the negligence and its consequences.

Judgment entered for the second Defendant with costs.

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