When is a Haulier By Our Legal Advise

8th November 1957, Page 148

8th November 1957

Page 148

Page 148, 8th November 1957 — When is a Haulier By Our Legal Advise

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LIABLE FOR THEFT'.

THEFTS from lorry loads range from mere petty pilfering during loading, unloading or in transit, to

organized crime on the grand scale, when the vehicle with its load is stolen, possibly—but not alwaysto be found abandoned and empty many miles away.

Some thefts of laden vehicles are planned either directly with the driver's willing participation or at the least his connivance: Obviously, where a driver does no more than park in a convenient place and absent himself for a few minutes, it is extremely difficult to prove that he is implicated. But enough drivers and other employees are cOnvicted by the courts to make it worth while to consider the whole question of dishonesty by them, with particular reference to the haulier's civil liability to third parties in respect of it.

When, if ever, is a master held liable for the crime of his servant against a third party? And what responsibility, if any, attaches to the master to make sure that his servants are not crooks? The general rule can be simply stated, but, as so often in law, it is in its application that difficulties appear.

It is clear law that a master is not to be made liable for his servant's crime unless it was committed in the course of his employment. The test is "in the course of," and not " during." This golden rule has received further affirmation in the Privy Council appeal of United Africa Co., Ltd., versus Saka Owoade.

But it might well be asked, how can any crime he in the course of• a servant's employment? Clearly, if a master employs a man to do criminal acts that is another matter, and the employer will not only be liable civilly, but also as a fellow criminal in the conspiracy, or as an aider and abettor. But no master other than a criminal or a lunatic would permit his servant to indulge in crime, so why should it be in the course of employment?

The answer is best given by two illustrations. If a driver uses his employer's vehicle to enable him to carry out a robbery or a burglary, no possible liability can attach to the employer. He is doing something wholly outside the range of his employment—just as much a if he took his girl friend off to the races on a joy ride or a "frolic of his own," as the law calls it, instead of delivering goods—even though he carries out his Crime during working hours.

For the facts illustrating the contrary situation we need go no further than the United Africa case. There the employer was a transport operator and in seeking work he Solicited from a company of general merchants. He introduced his driver and clerk to the merchants and on two subsequent occasions these two called for valuable loads For carriage to the merchants' agents up-country. The goods were never delivered and the driver and clerk were subsequently convicted of stealing them.

The reason why their employer was held liable was that the two men were merely failing to carry out the task for

-which they were employed—to carry and deliver the good The distinction, in other words, is between something th employee is not engaged to do at all—the robbery c burglary unconnected with his work—and an improper wa of carrying out his work by pilfering or outright theft.

There is another ground upon which an employer migl find himself liable, even if there were some doubt whetht the acts complained of were carried out in the cour5 of the man's employment. An employer might be liable ft the criminal activities of his servant if he has been negl gent in employing a man with a bad record in a positio of trust where he had ample opportunity to indulge h criininal ways.

Thus, the proprietors of a residential club were hel liable for the theft of some jewellery belonging to a gun handed to the manager -for sal keeping which was stolen by it night watchman. The watchma had produced two references upo engagement, but the employers ha made no inquiries as to his previa'. career. • In fact, he was an old an I dangerous criminal which caul have been ascertained— and d 1 employers were accordingly negl gent in engaging him.

There seems to be a two-fol moral attached to all this: (. Always make careful inquiries a man's previous history where an real trust is going to be placed i him. (2) Not only insure against tl loss of goods in transit, but mak sure the cover is adequate and doi not exclude theft by one's ow employees.

There is much misunderstandir about references to departin employees even at employmel exchanges and agencies. An employer is not under an legal obligation whatever to provide a character referenc however long a man may have worked for him satisfactoril It must be admitted that this may cause difficulty ft employees in seeking a new job, for a failure to produc a reference may be assumed—perhaps wrongly— to impl a bad character.

If a character reference is given, however, the employ( runs the risk of a libel action if any adverse comment in is not held bona fide. A communication between tw employers on this subject is "privileged," but this priv Iege will be lost if the opinion expressed in the reference not honestly and reasonably held, in which case it is sai to be malicious.

Nor should it be forgotten—to look at the other side the coin—that to give a eulogistic character reference i respect of someone whom one knows is unworthy of and untrustworthy may be asking for trouble. It has bee held that to give such a reference, intending or knowing thl it will be acted upon by another person who later suffei damage from the dishonesty of the subject of the refereno will lay the giver open to an action for damages for decei The only absolutely safe course is, as a matter of prir ciple, to refuse to give references at all or to give thy which are purely factual.

When is a Haulier By Our Legal Advise

Page 148

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