OSEI vs. STATE FARMS CORPORATION AND ANOTHER [1964]DLHC1939

Date	1964-11-27
Suit No.
Citation No.	[1964]DLHC1939

DJABANOR J.

K. A. K. ERSKINE FOR THE PLAINTIFF.

J. OFORI-BOATENG FOR THE FIRST DEFENDANTS.

[1964]DLHC1939
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													<main id="main" class="content" style="min-height: 60rem" >OSEI <o:p></o:p>vs. <o:p></o:p>STATE FARMS CORPORATION AND ANOTHER <o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p>[1964] GLR 649<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
27 NOVEMBER 1964.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

K. A. K. ERSKINE FOR THE PLAINTIFF.<o:p></o:p>

J. OFORI-BOATENG FOR THE FIRST DEFENDANTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DJABANOR J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF DJABANOR J.<o:p></o:p>On 4
September 1963 the deceased, Samuel Kojo Akyeampong and his friend Robert Yaw
Eshun, were selling their wares not far from the workshops of the Sese State
Farms Corporation on the pavement behind the drain at the side of the road,
when one of the corporation’s lorries was driven out of that yard. It was
driven very inexpertly and so fast that it ran into the drain and hit and
killed Akyeampong. From the evidence, which was not disputed, the driver was
very negligent. It was discovered, after due interrogation, that the person
driving the vehicle, one Kwame Essel, was in fact not a licensed driver. He did
not know how to drive. He was employed by the State Farms Corporation as an
apprentice fitter. But at the time of the accident, fifteen minutes to two o’clock
in the afternoon, a driver employed by the State Farms Corporation was sitting
in the lorry with this fitter.<o:p></o:p><o:p>&nbsp;</o:p>Upon this
evidence the plaintiff’s counsel submitted, relying on the case of Ricketts v.
Thomas Tilling, Ltd.,1 that the State Farms Corporation is vicariously liable
because there was negligence on the part of the driver in allowing the lorry to
be negligently driven by the fitter.<o:p></o:p><o:p>&nbsp;</o:p>The first
defendants did not call evidence. Counsel relied upon the case of Poulton v.
London &amp; South Western Railway2 and submitted that the State Farms
Corporation cannot be held responsible for the act of the qualified driver who
was sitting in the lorry with the fitter because there is no possible ground
for supposing that the corporation will authorise their driver who would in
turn authorise an unlicensed person to drive the vehicle, because the
corporation itself cannot authorise an unlicensed person to drive their
vehicle. In the Poulton case (supra) the railway company were authorised by
statute to arrest a passenger who did not pay his fare. The stationmaster
arrested a passenger who had paid his fare but did not pay the freight for his
horses. I think that the ratio decidendi in that case was that it was
completely outside the scope of his authority to arrest passengers who had paid
their fare. There is also authority for saying that the mere fact that the act
of a servant amounts to a criminal offence will not exonerate the master if it
is done in the course of the employment. See Dyer v. Munday.3<o:p></o:p><o:p>&nbsp;</o:p>I think
that the real issue of this case is whether or not the fitter was acting in the
course of his employment, and also whether the driver was acting in the course
of his employment. I will take the fitter first. Clearly an apprentice fitter
is not employed to drive, and in this case where the evidence suggests that a
driver was available, there will appear to be no reason why the fitter should
drive. Counsel suggested that perhaps the fitter wanted to try out the lorry
which he had repaired. This suggestion is not based on any evidence. The case
of Worrow v. General Steam Navigation Co.4 is in point. In that case a
steamship arrived at Butler’s wharf and the second engineer went ashore as he
was quitting the ship. At his request the third engineer, the next day, purely
as a favour to the second engineer, arranged to put ashore a case belonging to
the latter. The third engineer used the ship’s crane for this purpose. It was
his duty to maintain the engine of the crane but he had no duty or authority to
work it. This would require the permission of the mate. He was not properly
capable of working the crane and in the unloading negligently injured a lorry
driver on the wharf. The lorry driver sued the shipowners. It was held that the
third engineer was not acting within the scope of his employment because he was
doing an act which was not in any way authorised or within the scope of his
employment, either by implied authority or by practice or in any other way. The
verdict was for the defendants. In my view the fitter was clearly acting
outside the course of his employment when he drove the vehicle out of the
workshop yard. There is a judgment against him already.<o:p></o:p><o:p>&nbsp;</o:p>According
to the evidence, a driver employed by the defendants was seated beside the
fitter when the accident occurred. The plaintiff, therefore, relying on the
Ricketts case (supra), submitted that there is evidence of negligence on the
part of the driver in allowing the lorry to be negligently driven by the
fitter. The case of Ilkiw v. Samuels5 is similar to the Ricketts case (supra).
In that case the defendant’s lorry was driven to the premises of the plaintiff‘s
employers to load bags of su</main>