CHAMPIKA DE SILVA

CHAMPIKA DE SILVA

Vs

NEVILLE KODITHUWAKKU AND OTHERS

SUPREME COURT
B.P. ALUWIHARE P.C.J.
UPALY ABEYRATHNE J.
ANIL GOONERATNE
SC/APPEAL/172/2012
SC/HCCA/LA/271/2012
SP/HCCA/K AG/781 A/2012(F)
DC/Mawanella No./1143/MR
18.07.2016

Accident - Vicarious Liability -Prison Officer - Independent Act-Collided with Van - Inter Parte -Scope of employment -Official Function - Specific-Authority - Nature of Duty

A bus belonging to the Prisons Department, driven by the 1al defendant, collided with a van driven by the appellant's husband. The husband succumbed to injuries. The appellant filed action claiming Rs. 1,500,00 as damages due to the death of her husband. Damages caused to the said van claimed in a sum of Rs.200,000/- and the inability to use the vehicle for 6 months. Money claimed in a sum of Rs. 120,000/-. District Court held in favour of the plaintiff awarding damages against the 1st Defendant Respondent and dismissed the case of the 2nd and 3rd Defendants. The Appellant and the 1st defendant appealed to the High Court. The High Court dismissed both appeals. Plaintiff- Appellant - appealed to the Supreme Court.

HELD:

1. Authority clearly demonstrate that the answer to the question whether the master is vicariously liable for the act of his servant depends on the facts and circumstances of each case. In the present case before me, the question before the court was whether the 1st Defendant Respondent was acting within the scope of his employment by taking the said bus outside the 2nd Respondent's premises for the wedding function. Having regard to the above legal authorities and also bearing in mind the specific

regulations stipulated in 3 R and 2 and 3 R 3, is it possible to say that the 1st Defendant Respondent was acting under the implied authority or ostensible authority of the 2nd Defendant Respondent. My answer is "no".

2. Having regard to the facts and circumstances relevant to the instant case enumerated above, in particular the specific instructions stipulated in 3 R 2 and 3 R 3,1 conclude that taking the said bus to Mawanella is contrary to the Regulations stipulated in 3 R 2 and 3 R 3 and was an unauthorized act. I accordingly hold that the 1st Defendant Respondent are thus not vicariously liable for the alleged act of the 1st Defendant respondent.

APPLICATION for Leave to Appeal from the judgment of the High Court of Civil Appeal.

Cases referred to :-

1. Young Vs. Edward Box Co, Ltd (1951) 1 TLR 789,793
2. De Silva Vs. Dharmasena 59 C.LW. 92
3. Twine Vs. Beans Express Ltd. (1946) 1 All RE 202, (1946) 175 LT 131 CA
4. Conway Vs. George Wimpey & Co. Ltd., (1951) 2 KB 266
5. Sarath Kumara Perera Vs. Winifred Keerthiwansa and Others (1993 2 SLR 274 SC)

Sudarshany Cooray for the Plaintiff Appellant - Appellant

Rajitha Perera SSC for the 2nd & 3rd Defendant Respondent-Respondent

Cur.adv.vult.

January 24, 2017
UPALY ABEYRATHNE, J.

The Plaintiff Appellant-Appellant (hereinafter referred to as the Appellant) has sought leave to appeal to this Court from the judgment of the Provincial High Court of Civil Appeal of the Sabaragamuwa Province holden at Kegalle dated 31.05.2012, and leave was granted on the following questions of law set out in paragraph 13(a), (b), (c), (d) and (h) of the petition of appeal dated 08.07.2012.

(a) Did the learned High Court Judges err in holding that the 1st Defendant in his own evidence has proved that the accident occurred outside the scope of his employment?

(b) Did the learned High Court Judges err in holding that the 2nd and 3rd Defendants are not liable vicariously since the 1st Defendant had not obtained permission from the chief jailer or the senior jailor although the 1st Defendant had been ordered to take such bus on such day?

(c) Did the learned High Court Judges err in holding that the 1st Defendant was not acting within the scope of his employment since he had not obtained specific permission to

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