Drivers Who Give Lifts
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Thoughts on Damages
By Our Legal Advist
Liability of Employers for Injuries to Passengers in Lorries : Responsibility for Unauthorized Lifts Depends on Whether the Driver was Acting Within the Scope of I His Employment
SOME of the observations on liability for the safety of• fare-paying passengers, which appeared in last • week's issue, will not apply in general to the case of the gratuitous passenger, with whom this article deals. This individual may set vehicle owners 'quite a problem and it is useless to pretend that his presence is so rare as to be unimportant, as the habit of hitch-hiking whieli grew up during the war is now widespread. Apart from casual " pick-ups " on the roadside, there ,are always the cases of the driver's friends arid-fellow workmen who are given free rides, to be considered.
All these cases may be conveniently discussed under two headings: (a) Where the driver's employer (or owner-driver) does not object to casual lifts being given, and(b) where he does.
Where the lift is authorized, or even where, if not specifically authorized, it is not Unauthorized, the-passenger is not in the same position as a paying passenger, whose rights naturally stand on a higher plane. He is, in fact, what is known as a mere licensee—one who is given permission to use the facilities offered him and who must take the situation as he finds it, subject 1,4•1 his right to be warned of any hidden dangers.
Legal Anomaly On the other hand, by one of those anomalies so common in our law, he is in a slightly better position when accepting a lift than if he is merely a licensee permitted to use someone's premiseS. It has been held on more than one occasion that a licensee when being carried is entitled not merely to be warned of anything in•the nature of a " trap " which might irijure him in or about the vehicle, but also of any possible danger to he met with en route.
This is well illustrated by a remarkable—but not altogether unique—case in 1945, when a soldier asked for, and was given, a lift in the back of an empty open lorry, both the driver and mate of which knew that the road they were taking passed beneath a railway bridge with a headroom clearance of only 8 ft. 9 in. At the end of the journey the unfortunate soldier was found on the floor of the lorry dying from head wounds caused—it was admitted—by contact with the bridge.
It was held that both the driver and mate were guilty of negligence in not warning the dead man of-a danger of which they knew and he did not.. Whilst this is an . extreme case, it is not difficult to think of somewhat similar instances where a person travelling in the rear of a vehicle' might suffer injury from, for instance, overhanging trees, the presence of which would be known to the driver and unknown to him.
As already indicated, the licensee is, in any event, entitled to be warned of any hidden dangers about the vehicle itself. • I recall a case in which such a passenger was injured by the collapse of a faulty tailboard against which he had leaned.
Where a driver is not permitted by his employer to
give lifts inhis vehicle, it Will be a question of answe ing that hoary ON problem of whether the driver m actingwithin the scope of his employment to decide there is liability to such a casual passenger for injui to him. There are several leading cases on this partici lar aspect of that problem and the general drift of a decisions is much in favour of holding the giving c unauttioriied lifts tO be outside the scope of a driver employment.
Twice Warned
Thus, in one case,. the driver of a trade vehicle wills: had no provision for passengers in the ordinary sens gave a lift to a pedestrian who sat on a sort of CO1 initiation of . the driver's seat. . The driver had be twice warned by his employer that he was not to tal passengers.. .It was held that the driver had no authori to take passengers, nor had he been held out as havir such authority, nor was it to be implied. The case sisq an example of a prohibition which limited the sphe. of employment itself, and not a prohibition of condu within the sphere of employment.
A case in which the facts were not so simple was th of Conway v. George Wirripey and Co., Ltd. (1950). workman employed by another contractor on the sart site had hailed a lorry belonging to the defehdants, w; permitted by the driver to ride on it and was injurt by the negligence of the driver. It was not unusual fc men not employed by the defendants to get lifts on the lorries, but it did not appear that the drivers in gener knowingly carried men other than their fello employees, or that this particular driver knew that ti plaintiff was not in the same employ as himself.
Unauthorized Action The defendants were unaware of the practice of givir lifts to men other than their own employees. It w; urged that the passenger could notbe a trespasser unle he knew he was one and that the driver had a.ppare; authority—so far as he was concerned—to offer a lii it was held that the act of taking men other than ti defendant's employees on the vehicle was not merely wrongful mode of performing an act of the class with the driver was employed to perform, but was an act a class which he was not employed to perform at all.
The Court of Appeal laid down that the casual passe; ger of this kind who suffered injury from the riegligeni of the driver of the vehicle in which he was riding mu show three things before he could succeed in establishir an apparent authority, in the driver to give lifts in fa( of a prohibition of his employers: (1) knowledge by ti employers of a practice by their drivers of disregardir the prohibition; (2) acquiescence by them in the practic and (3) acquiescence in such a manner as to represe; to the passenger that the driver's authority was nl limited as to the class or person whom he could carr
It is interesting to consider a more recent 'case tvhe ie employers were held liable. There the plaintiff was mployed at a quarry by the defendants and for Sunday Forking it was difficult for him to reach the quarry. he foreman arranged for him to be picked up by a wry and this. took place on several occasions before an ccident occurred. •
The defendants' traffic manager denied that he had iven permission and it was argued that the foreman had o authority to arrange the lift as he had done. The '.o.urt of Appeal held by a majority that it was clearly ithin the authority of the foreman, to permit the laintiff to ride on the lorry. The minority judge condered it was not in the foreman's scope of authority, ut the defendants were none the less liable, because the driver was acting in the course of his employment in giving a fellow employee a lift to his job. It was !quite distinguishable from giving a lift to a hitch-hiker.'
It appears, therefore, that where there is an express prohibition on the driver's giving casual lifts, it will be unlikely that his employers will be liable in damages for injury to 'a passenger through the driver's negligence. To make assurance doubly sure, it is always advisable to have some form of notice displayed on the vehicle to the effect that unauthorized persons are not allowed on it. In the face of such a direct notification it Would be well-nigh impossible for a plaintiff to establish the three requirements mentioned by the Court of Appeal in Conway's case.