Harun Hashim SCJ:

In this appeal the respondent was the driver of a bus operated by a local authority (the appellants). In the course of his employment the respondent injured a passenger who was attempting to board the bus. The passenger sued the respondent and obtained damages. The respondent paid the passenger the damages awarded and then requested reimbursement from his employers (the appellants) but they refused, whereupon he sued the appellant. His claim was dismissed by the Sessions Court. He appealed to the High Court. The learned Judge allowed the appeal. Hence the present appeal. The facts in this case are not in dispute. Both in the Sessions Court and in the High Court, the issue was one of a question of law. The same issue is before us. The learned Judge put the issue thus:

if through a servant's negligence in the driving of a motor vehicle in the course of his employment on the highway, a third party is injured and sues the servant alone and recovers damages, which the servant pays, may the servant in subsequent proceedings compel a reimbursement from the master?

The learned President of the Sessions Court answered the question in favour of the master, relying upon the majority judgment of the House of Lords in Lister v. Ice & Cold Storage Co. Ltd. [1957] The LR AC 555. The learned Judge in the High Court in allowing the appeal preferred the minority judgment of Lord Denning in the Court of Appeal and that of the minority judgments of Lord Radcliffe and Lord Somervell in the House of Lords in respect of the same case.

This is a unique case in the sense that there has been no precedent of such a case in this country. The Lister case was also unique because it was also the first case of its kind in England. In that case, father and son were employed by the same company. The son was employed as a lorry driver and while driving in the course of his employment, injured his father. The father claimed damages from the employer (company) based on the negligence of the driver. The claim succeeded. Thereafter, in a separate case the employers claimed indemnity or contribution from the driver for the amount it had paid to the father as damages for breach of:

(a) an implied term of the contract of service that the driver would exercise reasonable care; and

(b) a duty at common law to take care.

The Lister case was decided in December 1956. Lord Denning in March 1973 (and by then the Master of the Rolls) had occasion to refer to Lister's case in Morris v. Ford Motor Co. Ltd. [1973] CA 1 QBD 792 to which we will refer to later. For now, we would observe that the present case is again unique because it was filed in 1985 to raise the ghost of its again.

In the normal course of events in a running-down case, the third party would sue both the driver and the employer. If he succeeds in his claim, the insurance company will pay because the employer is vicariously liable for the acts of his servants as against third parties and also because the law says so, the Road Traffic Ordinance having enacted by s. 74 that all motor vehicle owners shall take out third party risk insurance.

The object of this law is to protect members of the public from the negligent acts of motor vehicle users from injury or death. Again, in the normal course, after the insurance company has paid to the third party, the employer does not sue the driver to recover the amount paid. One reason for this non-action is that paid drivers are wage earners who are generally poor and do not have the resources to satisfy any judgments that may be recovered against them. The other reason is that insurance companies recognise this situation and adjust their premiums accordingly. The general recognition of this state of affairs is, in our view, the cause of the resulting confusion in the present case.

At common law, if a person through his negligence causes injury to another, he is liable to pay damages to the injured person. This law has been in existence for centur