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When Can an Operator.
Page 85
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Sue a Driver?
The Law on Negligence and Relationship Between Master and Servant Illuminated by Court Award by Our Legal Adviser
THE recent decision of Mr. Justice Finnemore at Birmingham Assizes, in which an employee of a large company was ordered to reimburse his employers to the extent of over £9,000 which they had been forced to pay to various third parties on account of his negligent driving, has created wide interest. The fact that the employee was in the 0-per-week class and there was not the remotest chance that he would ever be able to satisfy the judgment personally, was entirely irrelevant when reviewing the legal principles.
In fact, as the judge remarked, although there had been drawn "a harrowing picture of this unfortunate man having his house—if he has one—sold over his head, being driven with his wife and children into the gutter and forced into bankruptcy, it is perfectly obvious that this is a contest between much more seasoned warriors, and that behind the scenes are two well-known insurance companies."
The judgment merely applied to a particular case, certain established legal principles affecting the relation ship of master and servant. This relationship arises out of a contract freely entered into, but it is commonplace for the precise terms to be left in the air except for such obviously important matters as the rate of pay and the nature of the work expected of the employee. Nevertheless, the law imports into every such contract certain " implied " terms which it considers must have been intended by both parties to be fundamental to the contract.
It was said in the case of Robb v. Green in 1895 that "a necessary implication must be engrafted on a contract of service that the servant undertakes to serve his master with good faith and fidelity." There are many obvious illustrations of the effective working of this implied term of every contract of service between master and servant, but one outstanding example may be sufficient.
Working for Rival
It has been held that workmen engaged upon the manufacture of certain products, as a result of which they had acquired inside knowledge of their master's methods, were in breach of their implied promise of fidelity when they worked in their spare time for a trade rival. So also when an employee is engaged full time, it is his duty to serve his master during his working hours and not take time off to work for iomeone else.
There are, however, reciprocal duties and promises :o be implied on the part of the master, and Gregory. v. Ford in 1951 was an interesting example of such a Juty. In that case an employee, in the course of his .rriployment, injured a third party by his negligent hiving, and the third party sued the employee and his raster, and the worker had to pay heavy damages. The master had failed to insure the vehicle against hird-party risks, as required by the Road Traffic Act, 930, and when the employee, in turn, sued the master or the latter's failure to insure him against liability or such damages, it was held that he was entitled to ecover. There was, the court said, an implied term in
the contract of service that the servant should not be required to do an unlawful act such as driving an uninsured motor vehicle.
There is also an implied term in any contract of service that the servant, in carrying out his duties, will exercise the normal and reasonable degree of care which the master is entitled to expect of a reasonable workman. If he is negligent in those duties, he has fallen below that necessary degree of care. In such cases, if the result of the negligence is to make the master liable to a third party, the master is entitled to be indemnified by his negligent servant.
An illustration of the working of the principle of recovering against one's servant is afforded by an accident before the war in which Miss Merle Oberon. the film actress, was involved. Miss Oberon was a passenger in a car driven by her own chauffeur when it collided with another car, because—so the court found—of the combined negligence of both drivers. Although a passenger in a car is not " identified " with the driver in a normal case, where the• driver is in the passenger's employ the ordinary principles of vicarious liability apply.
Damages Against Driver
Accordingly, Miss Oberon was liable in damages for that part of the damage attributable to her driver's negligence, and, as she was injured herself, she was unable to claim damages against the third party. As a result, she recovered damages against her chauffeur.
The defence in the recent case attempted to • argue that it was not only an implied term of the contract that the employer would carry out his obligations under the 1930 Act with regard to third-party insurance, but also that it should be implied that the employee was entitled to be indemnified against any personal liability and that the employer should effect an insurance to cover this possibility.
It was pointed out in the judgment that the employee was, in effect, asking to be indemnified against his own negligence and that the employer's statutory liability stopped short of such a requirement, It was held that there was no difference in principle between an employer recovering damages against an employee whose negligence was the direct cause of his injuries—Miss Oberon's case—and the present case where the " damage " that the employer had suffered was having to foot the bill for injuries caused to a third party through the employee's negligence.
It is, of course, clear that if a servant wishes to have the right to claim indemnity against having, in turn, to indemnify his employer, he can stipulate this when entering into the contract of service. If such a term is expressly provided for, there is nothing to render it nugatory, but it is equally clear that the law will not imply any such term without any evidence to support it. The fact that, unless he wins the "pools," an employee may never be able to satisfy a judgment against him by his own employer is immaterial, but a wise and generous employer would insure the drivers of his vehicles so that there would be such an indemnity.