De Silva, T.H.I. V. Trust Co., Ltd.

1953 Present: Gratiaen J. and H. A. de Silva J.

T. H. I. DE SILVA, Appellant, and TRUST CO., LTD., Respondent

S. C, 229-D. C. Colombo, 23,098
 

Delict-Master and servant-Distinction between " servant " and " independent contractor "-Servant vested with discretion as to how he should carry out his duties- Negligence-Scope of master's liability-" Course of employment".

An employer cannot escape liability for his servant's torts by pleading that he had vested in the servant a discretion as to how he should carry out his duties. In distinguishing between a servant and an independent contractor, " the ultimate question is not what specific orders, or whether any specific orders, were given but who is entitled to give the orders as to how the work should be done ".

The owner of a vehicle may be responsible for the consequences of the negligence of a person who was driving it if the owner had an interest in the journey being undertaken, i.e., if the vehicle was " being used wholly or partly on the owner's business or for the owner's purposes ".

Plaintiff, when he was travelling in a motor car belonging to the defendant insurance Company, was seriously injured when the car went off the road in consequence of the negligent driving of one of the occupants of the car. There was evidence that the car had been placed by the Company at the disposal of an employee under a " contract of loan " but that, at the time of the accident, the employee was travelling in the ear together with the plaintiff on the Company's business. There was also evidence that the Company had vested in the employee a discretion as to how he should carry out his duties.

Held, that the defendant Company was liable to compensate the plaintiff for the injuries which he sustained in the accident.

APPEAL from a judgment of the District Court, Colombo.

N. E. Weerasooria, Q. C., with H. W. Jayewardene and D. R. P. Goonetilleke, for the plaintiff, appellant.

H. V. Perera, Q. C., with P. Navaratnarajah and W. D. Gunasekera, for the defendant, respondent.

Cur. adv. vult.

 October 29, 1953. GRATIAEN J.-

The plaintiff is a medical practitioner. On 27th April, 1950, he was travelling from Colombo to Jaffna in a Ford motor-car belonging to the defendant Company which does business in life insurance. The other occupants of the car were J. A. Pereira (an employee of the Company performing the duties of a " field-officer "), E. Holsinger (a free-lance insurance " canvasser ") and a chauffeur directly employed by Pereira. Pereira, Holsinger and the chauffeur took turns at driving and, shortly

before the car reached Anuradhapura, when Holsinger was driving, it suddenly went off the road and the plaintiff was seriously injured. Holsinger had apparently fallen asleep at the wheel.

It is no longer disputed that Holsinger's negligence was the effective cause of the accident. The learned District Judge assessed the damages payable to the plaintiff (in the event of the Company being held liable) at Its. 50,000, and no complaint has been made against this assessment. The only issue which therefore calls for our decision is whether or not, in the circumstances of this case, the Company is vicariously responsible for the consequences of Holsinger's negligence The plaintiff had since about November, 1949, been engaged from time to time to examine persons proposing to take out policies of life insurance with the Company. He was paid a fee of Rs. 15 by the Company for each case, and as a general rule the examinations were carried out in his own place of business.

The plaintiff alleged in his plaint that the Company had " engaged {his) services to proceed to Jaffna to examine certain prospective (clients) " and that the accident occurred while he was being conveyed in the Company's motor-car for that purpose. The Company in its answer admitted " that the plaintiff went to Jaffna on the day in quest

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