MORGANS APPELLANT AND LAUNCHBURY AND OTHERS RESPONDENTS

[On appeal from LAUNCHBURY v. MORGANS]1972 March 20, 21, 22; May 9 Lord Wilberforce, Viscount Dilhorne, Lord Pearson, Lord Cross of Chelsea and Lord Salmon

Vicarious Liability - Agency - Negligence - Motor car - Car owned by wife and used by husband - Understanding that husband would get friend to drive if himself unfit through drink - Accident when car driven negligently by friend - Injury to passengers - Whether wife vicariously liable

A motor car was owned by and registered and insured in the name of a wife but was regarded by her and her husband as "our car." The husband used it to go to work, the wife for shopping at the weekends. The husband told the wife that if ever he was unfit to drive through drink he would get a sober friend to drive him or else telephone for her to come and fetch him. On the day in question the husband telephoned the wife after work and told her that he was going out with friends. He visited a number of public houses and had drinks. At some stage he realised that he was unable to drive safely and asked a friend, C, to drive. C drove them to other public houses. After the last had been visited C offered the three respondents a lift and they got in, together with the husband who was in a soporific condition. C then proceeded, at his own suggestion, to drive in a direction away from the husband's home to have a meal. On the way, due to C's negligent driving, an accident occurred in which the husband and C were killed and the respondents injured. The respondents brought an action against the wife both in her personal capacity and as administratrix of the husband's estate. Stirling J. gave judgment for the respondents. The Court of Appeal (Megaw L.J. dissenting) dismissed an appeal by the wife in her personal capacity, holding that she was vicariously liable for the negligent driving of C, Lord Denning M.R. saying that the principle of vicarious liability was to put responsibility on to the person, namely, in the case of a motor car, the owner, who ought in justice to bear it, and that in the case of a "family car" the owner was responsible for the use of it by the other spouse.

On appeal by the wife:

Held, allowing the appeal, that to fix vicarious liability on the owner of a motor car in a case such as the present it must be shown that the driver was using it for the owner's purposes under delegation of a task or duty; that the owner's interest in or concern for the safety of the car or its occupants was not sufficient; and that, on the facts, it was impossible to hold that C had been the wife's agent in driving the husband about as he had been doing at the time of the accident (post, pp. 135B, F-H, 138D-E, 140C-E, F-G, 141G-H, 144C-F, 146C-E, 149A-C, 150G-H).

  • Hewitt v. Bonvin [1940] 1 K.B. 188, C.A. approved.
  • Ormrod v. Crosville Motor Services Ltd. [1953] 1 W.L.R. 1120, C.A. considered.
  • Per curiam. To extend the doctrine of vicarious liability in the way suggested by Lord Denning M.R. in the instant case, if that is a desirable course, is a matter for the legislature to consider as a matter of policy and not for the courts (post, pp. 137F-G, 138G-H, 142H - 143A, 145G - 146A, 151D-G).
  • Decision of the Court of Appeal [1971] 2 Q.B. 245; [1971] 2 W.L.R. 602; [1971] 1 All E.R. 642 reversed.

The following cases are referred to in their Lordships' opinions:

  • Barnard v. Sully (1931) 47 T.L.R. 557, D.C.
  • Birch v. Abercrombie (1913) 74 Wash. 486; 133 P. 1020.
  • Carberry v. Davies [1968] 1 W.L.R. 1103; [1968] 2 All E.R. 817, C.A.
  • Hewitt v. Bonvin [1940] 1 K.B. 188, C.A.
  • Hilton v. Thomas Burton (Rhodes) Ltd. [1961] 1 W.L.R. 705; [1961] 1 All E.R. 74.
  • Klein v. Caluori [1971] 1 W.L.R. 619; [1971] 2 All E.R. 701.
  • Manatee County v. Rowe [1956] N.Z.L.R. 78.
  • Norton v. Canadian Pacific Steamships Ltd. [1961] 1 W.L.R. 1057; [1961] 2 All E.R. 785, C.A.
  • Ormrod v. Crosville Motor Services Ltd. [1953] 1 W.L.R. 409; [1953] 1 All E.R. 711; [1953] 1 W.L.R. 1120; [1953] 2 All E.R. 753, C.A.
  • Quarman v. Burnett (1840) 6 M. & W. 499.
  • Rambarran v. Gurrucharran [1970] 1 W.L.R. 556; [1970] 1 All E.R. 749, P.C.
  • The following additional cases were cited in argument:
  • Beard v. London General Omnibus Co. [1900] 2 Q.B. 530, C.A.
  • Hart v. Hogan (1933) 24 P. (2d) 99.
  • Herrington v. British Railways Board [1972] 2 W.L.R. 537; [1972] 1 All E.R. 749, H.L.(E.).
  • Hobson v. Bartram & Sons Ltd. [1950] 1 All E.R. 412, C.A.
  • Nottingham v. Aldridge [1971] 2 Q.B. 739; [1971] 3 W.L.R. 1; [1971] 2 All E.R. 751.
  • Pentonville Motors (King's Cross) Ltd. v. A. D. Thompson Ltd., February 17, 1958, C.A.; Bar Library Transcript No. 75.
  • Pratt v. Patrick [1924] 1 K.B. 488.
  • Samson v. Aitchison [1912] A.C. 844, P.C.
  • Soblusky v. Egan (1959) 103 C.L.R. 215.
  • Storey v. Ashton (1869) L.R. 4 Q.B. 476.
  • Wheatley v. Patrick (1837) 2 M. & W. 650.


APPEAL from the Court of Appeal

This was an appeal by Sarah Morgans (widow) by leave of the Court of Appeal (Lord Denning M.R., Edmund Davies L.J. and Megaw L.J.) from their majority decision (Megaw L.J. dissenting) on January 20, 1971, by which they dismissed her appeal from the judgment of Stirling J. at Swansea on April 24, 1970. By his judgment Stirling J. gave judgment against the appellant in favour of the respondents, Thomas Michael Launchbury, Diane Helen Mary Launchbury (his wife) and Michael Phillips, for damages for personal injuries caused by the negligent driving of the wife's car by Daniel James Cawfield, deceased.

The facts are stated in their Lordships' opinions. By her written reasons on appeal the appellant contended (1) that at the time of the accident Mr. Cawfield had been driving the car neither as her servant nor as her agent nor in any circumstances sufficient in law to render her vicariously liable for his negligence; (2) that the law relating to vicarious liability in respect of the use of motor vehicles was no different from that in respect of the use of any other chattel.

Michael Ogden Q.C. and S. C. Desch for the appellant. Before Hewitt v. Bonvin [1940] 1 K.B. 188 vicarious liability in respect of the use of a chattel was based on control: see Quarman v. Burnett (1840) 6 M. & W. 499; Wheatley v. Patrick (1837) 2 M. & W. 650; Samson v. Aitchison [1912] A.C. 844; Pratt v. Patrick [1924] 1 K.B. 488 and Barnard v. Sully (1931) 47 T.L.R. 557. There was no basis for saying that a motor car was in any different position from that of any other chattel. With Hewitt v. Bonvin [1940] 1 K.B. 188 the motor car introduced considerable confusion into the legal situation; dicta in that case (see especially per du Parcq L.J., at pp. 194-195) went beyond the principle of control as set out in the earlier cases, and it is difficult to reconcile them with that basis of liability without introducing a further element. This may be that the user of the chattel has to be acting in a genuinely representative capacity, or that a reasonable man must be able to infer an intention to create a legal relationship with regard to the act and user in question. Alternatively, there may be a distinction between lending someone a chattel and giving someone instructions to do something with one's chattel, or between a request and an instruction. These latter three possible further elements are difficult to apply; the old control basis of liability was more satisfactory. The decision in Hewitt v. Bonvin was right, but the court should have said that there was no question of the owner having retained any kind of control. [Reference was made to Ormrod v. Crosville Motor Services Ltd. [1953] 1 W.L.R. 1120; Soblusky v. Elan (1959) 103 C.L.R. 215, 228 - 231; Carberry v. Davies [1968] 1 W.L.R. 1103; Nottingham v. Aldridge [1971] 2 Q.B. 739 and Norton v. Canadian Pacific Steamships Ltd. [1961] 1 W.L.R. 1057.]

On "interest or benefit," Hilton v. Thomas Burton (Rhodes) Ltd. [1961] 1 W.L.R. 705 shows that not merely permission, but also benefit, is not enough. [Reference was made to Hobson v. Bartrum & Sons Ltd. [1950] 1 All E.R. 412; Pentonville Motors (King's Cross) Ltd. v. A. D. Thompson Ltd., February 17, 1958; Bar Library Transcript No. 75; and Klein v. Caluori [1971] 1 W.L.R. 619.] If interest or benefit were sufficient one would have to consider the position of hired cars, cars on hire purchase and the "transfer of employment" cases, where the "interest or benefit" principle would have led to different results. The "frolic" cases really say the same, namely, that the vehicles are not being used for the owner's purposes. [Reference was made to Storey v. Ashton (1869) L.R. 4 Q.B. 476 and Beard v. London General Omnibus Co. [1900] 2 Q.B. 530.]

The respondents' case here fails on the facts, even if it were to be held that vicarious liability was a matter of fact and degree. If this accident had occurred on the husband's way to work, the appellant would not have been liable. The fact that she was interested in the husband earning his living does not mean that he was driving the car for her purposes in pursuance of a task or duty delegated by her to him. The husband here, however, was not on his way to work, and there is no question of the car having been used for the appellant's purposes, or even benefit, at the material time. Mr. Cawfield cannot have been in a better position than the husband, whatever the "understanding" between the appellant and the husband may have been.

"Family Car" Proposition

There is no authority for Lord Denning M.R.'s. "family car" proposition, nor any reason in law why a family car should be in any special position. If the proposition were to be applied logically, every member of a family, including children, would be liable for the driving of each of the others. Where each spouse owned a car each would be liable whichever car was being used and whichever of them was driving. The proposition would also mean that, for example, Manawatu County v. Rowe [1956] N.Z.L.R. 78 and Rambarran v. Gurrucharran [1970] 1 W.L.R. 556 were wrongly decided, and there would be a major departure of our law from that of Australia and New Zealand. The whole of the law of tort would be distorted because of the motor car, especially unfortunate as the position with regard to passengers is to be dealt with in January 1973: see the Road Traffic Act 1972, s. 148 (3). The proposition would, logically, have to be extended to a wide variety of other chattels. and it would apply to two spinsters living together or to men or girls sharing flats.

It is not necessary for vicarious liability to arise that there should be a contract, but there must be the legal relationship of principal and agent. The distinction between a legal relationship and a mere friendly relationship is well known to the law: see, for example, Balfour v. Balfour

[1919] 2 K.B. 571; Coward v. Motor Insurers' Bureau [1963] 1 Q.B. 259; Buckpitt v. Oates [1968] 1 All E.R. 1145 and Jones v. Padavatton [1969] 1 W.L.R. 328 (cases not cited).

There is no universal criterion for vicarious liability

John Davies Q.C. and T. E. Lewis-Bowen for the respondents. There is no universal criterion for vicarious liability. The common law has always been very careful about dangers in the highway, putting especial responsibility on those who create them. The principle which justifies differentiating a motor vehicle from other chattels is that a motor vehicle is on the highway where it is productive of very great injury. As soon as other chattels, for example, guns, present a similar threat to society then no doubt the common law will be equal to the occasion and evolve a stricter rule than it at present applies. Since Read v. J. Lyons & Co. Ltd. [1947] A.C. 156 (not cited) the old distinction between chattels dangerous per se and chattels dangerous sub modo is of doubtful validity. The common law is always evolving to meet the needs of the day. Attempted rationalisations of vicarious liability, on the basis, for example, of control, right of control or "non-delegable duty," are all ex post facto. Nor do the concepts of service or agency assist. Agency, in tort, is only a shorthand way of describing a situation in which A is held in law liable for the act of B. As to service, the question is always what is the definition of "service" which will fix liability in the particular case, Vicarious liability enables the giving of an additional right against another person who is better able to pay or insure. In this light it is a worthy concept. A father who lets his son drive his car will be more to blame for an accident than the injured party: he is partly responsible for putting the car on the road.

It is essential to bear in mind also that whether or not there should be vicarious liability in a particular case is a question of fact: see, for example, per du Parcq L.J. in Hewitt v. Bonvin [1940] 1 K.B. 188, 194.

The "frolic" aspect does not come into this case at all. The understanding between the appellant and her husband postulated a frolic: it was directed to what was to be done in the event of a frolic on the part of the husband.

The law as to the criterion of liability which should be applied in the present case has been fairly settled for a number of years. There are small differences between the cases, but the principles deducible are fairly clear. They are: (1) Mere permission to drive is not enough. (2) The owner must have an interest or concern in the use to which the car is being put. (3) That interest need not be exclusive. (4) Whether or not the owner has a sufficient interest is a question of fact. It is quite impossible to predicate in the abstract what is a sufficient interest; one has to have the actual facts of the particular case before one. While, however, agency, de facto service and other possible tests still leave one in difficulty, either a man has an interest or concern or he has not, and this is therefore a more suitable criterion.

In the present case, the facts are strong; they undoubtedly gave the appellant an interest. Even on du Parcq L.J.'s test in Hewitt v. Bonvin [1940] 1 K.B. 188, 194-195, there was a delegation by the appellant to the husband or to Mr. Cawfield of a task or duty which was hers in the sense that if the husband did not get someone to drive him she might have had to go out and fetch him or get someone else to. This was not such an out-and-out bailment as to rid the appellant of liability. The appellant's interest negatived an out-and-out bailment. Devlin J. in Ormrod v. Crosville Accouter Services Ltd. [1953] 1 W.L.R. 409, 410-411 construed the arrangement in that case as being something between a legal contract of agency and mere permission: the situation is the same in the present case.

[Reference was made to Carberry v. Davies [1968] 1 W.L.R. 1103; Rambarran v. Gurrucharran [1970] 1 W.L.R. 556 and Manawatu County v. Rowe [1956] N.Z.L.R. 78.] Stirling J. here found as a fact that the appellant had an interest in the husband's driving, and it is difficult to see how he can be said to have erred in law. As to whether the fact that Mr. Cawfield was driving to Swansea for a meal rather than taking the husband home makes any difference, the arrangement was that the husband would get someone "to drive him," rather than "to drive him home." The question is whether the appellant had an interest in the driving: any distinction between an interest in the manner in which the car was driven and an interest in the purpose for which it was driven is irrelevant.

Even on the basis of strict agency (as per MacKinnon L.J. in Hewitt v. Bonvin [1940] 1 K.B. 188, 191) the appellant here would be liable.

Turning to the wider ground on which liability is based in this case, Denning L.J. in Ormrod v. Crosville Motor Services Ltd. [1953] 1 W.L.R. 1120, 1123, said that a car was a dangerous thing requiring special treatment. Nowadays, this is even more clear.

Once there is a gap between the needs of society and the law, the law ceases to perform its function. [Reference was made to Salmond on Torts, 15th ed. (1969), p. 616.] it might be said that this is a matter for the legislature, but it ought not to be the case that the common law ought not to do something because the legislature might do something in the future, except in the case of a radical departure. What is contended for here is not a radical departure but a logical development from the present position in that a family car owner retains a sufficient interest when the car is used by other members of the family to make him vicariously liable in respect of that use. [Reference was made to Herrington v. British Railways Board [1972] A.C. 877.]

There is nothing unorthodox or unfair or onerous in this; the owner is only penalised to the extent of the impecuniosity of the driver, about Which he can be expected to have known. The concept of a family car has been accepted to quite a considerable extent in the United States: see Prosser on Torts, 3rd ed. (1964), p. 494; Hart v. Hogan (1933) 24 P. (2d.) 99 and Birch v. Abercrombie (1913) 74 Wash. 486; 133 P. 1020. In this country the concept has, on the whole, met with favour in the Modern Law Review and the Law Quarterly Review: see (1970) 86 L.Q.R. (July), pp. 299 et seq., commenting on Rambarran v. Gurrucharran [1970] 1 W.L.R. 556. Ideally, the principle would be that the owner of a car (and the respondents do not say that this goes further than ownership) who permitted any other person to drive it would be responsible for that person's negligent driving, but that may be further than this House could go without legislation. With regard to the family car, however, the development which the respondents seek is a very short one. The rationale of the distinction between the family car concept and that of permission is that if a family has a family asset all the family intend using it and decide that it shall be put in the name of one person. [Reference was made to Barnard v. Sully, 47 T.L.R. 557 and Soblusky v. Again, 103 C.L.R. 215.]

Ogden Q.C. in reply. As to what social justice requires, the appellant did not know that Mr. Cawfield was driving: she hardly knew him. The respondents, by contrast, were friends or acquaintances of his. It was he who offered them a lift, and they trusted him as their driver. They were not concerned with the husband. There was no evidence that they knew that the car was the appellant's. They were taking a risk with their eyes open both as to Mr. Cawfield's competence as a driver and as to his financial standing.

Prosser on Torts, 3rd ed., p. 494 says that there is an element of fiction in the family car concept. This is right. It is unblushing fiction which the courts of this country should be loath to adopt. It is a question of policy for the legislature.

The appellant does not accept the "twilight" conception of Devlin J. in Ormrod v. Crosville Motor Services Ltd. [1953] 1 W.L.R. 409, 410-411, between true agency and interest. This is pure semantics.

The appellant does not ask for costs.

Their Lordships took time for consideration.

May 9. LORD WILBERFORCE. My Lords, this appeal arises out of a motor car accident in which the three respondents were injured. They were passengers in a Jaguar saloon which was registered in the name of the appellant; she was not using the car at the time. The other persons in it were the appellant's husband and a friend of his, Mr. D. J. Cawfield, who was driving; both were killed. It is not disputed that the accident was caused by the negligence of Mr. Cawfield. At first instance, the appellant was sued both in her personal capacity and as administratrix for her deceased husband: judgment was given against her in both capacities on the ground that both she personally and her husband were vicariously liable for Mr. Cawfield's negligence. It is only in her personal capacity that she brings the present appeal and the question involved is therefore whether as owner of the car, and in the circumstances in which it came to be used and driven, she can be held vicariously liable for the negligence of the driver.

Some further facts require to be stated. Before their marriage the appellant and her husband each had their own car, but after they had been married about a year they decided to sell one, and the one sold was the husband's. The Jaguar was, in the appellant's words, regarded as "our car." It was freely used by either husband or wife; the husband normally used it every day to drive to and from his place of work seven miles from his home.

On the day of the accident, the husband had driven in the car to work. In the evening he telephoned to the appellant to say that he would not be returning home for his evening meal and that he was going out with friends. He visited a number of public houses and had drinks. At some stage he realised that he was unable to drive safely and he asked Mr. Cawfield to drive and gave Mr. Cawfield the keys. Mr. Cawfield drove the husband to other public houses. After the last one had been visited Mr. Cawfield offered the three respondents, one of whom was a friend of his, a lift in the car; and, soon after, the husband got into the back of the car and fell asleep: he was certainly and heavily intoxicated. Mr. Cawfield then drove off, not in the direction of the husband's home, but in the opposite direction, suggesting a meal before he finally drove the passengers home. Soon after, with Mr. Cawfield driving at 90 miles per hour, the car collided with an omnibus.

There was some important evidence as to the circumstances in which the appellant's husband may have asked Mr. Cawfield to drive. According to the appellant's evidence, her husband often liked to stay out and visit public houses. In her words, "We had an understanding, he had always told me he would never drive if he thought there was any reason he should not drive" and "it was an understanding, he told me, 'You need not worry, I would not drive unless I was fit to drive.'" Some further questions were put to her and the judge felt entitled to find:

"that he promised her he never would drive himself if he had taken more drink than he felt he should have, but would do one of two things, either get a friend to drive him, or ring her up and she would come and fetch him."

We must accept the tenor of this finding but it was to be understood in the context of discussion between husband and wife. It is unlikely that it was so crystal clear as it appears from the finding to have been. One other fact: there was no question of the appellant knowing that Mr. Cawfield drove or might drive the car that evening, and he was to her merely an acquaintance.

It is on these facts that liability for the injuries sustained by the passengers must be considered. Whom could they sue? In the first place, there was the estate of Mr. Cawfield as the negligent driver; in the second, the estate of the husband who requested Mr. Cawfield to drive, this resting upon the normal principle of the law of agency. But the respondents seek to go further and to place vicarious liability upon the appellant. As to this, apart from the special circumstances of the "understanding" there would seem, on accepted principle, to be insuperable difficulties in their way. The car cannot by any fair process of analysis be considered to have been used for the appellant's purposes at the time of the accident. During the whole of the evening's progress it was as clearly used for the husband's purposes as any car could be: and if there was any doubt about this the separation from any possible purpose of the appellant's at the time of the accident can only be intensified by the fact that Mr. Cawfield, the husband's agent, was taking the car away from the appellant's (and the husband's) home for some fresh purpose. It seems clear enough that this was the purpose of Mr. Cawfield, but, even if one attributes this to her husband I am unable to formulate an argument for attributing it to the wife.

It is said, against this, that there are authorities which warrant a wider and vaguer test of vicarious liability for the negligence of another: a test of "interest or concern." Skilled counsel for the respondents at the trial was indeed able to put the words "concerned" and "interest" into the wife's mouth and it was on these words that he mainly rested his case.

On the general law, no authority was cited to us which would rest vicarious liability on so vague a test, but it was said that special principles applied to motor cars. I should be surprised if this were so, and I should wish to be convinced of the reason for a special rule. But in fact there is no authority for it. The decisions will be examined by others of your Lordships and I do not find it necessary to make my own review. For I regard it as clear that in order to fix vicarious liability upon the owner of a car in such a case as the present it must be shown that the driver was using it for the owner's purposes, under delegation of a task or duty. The substitution for this clear conception of a vague test based on "interest" or "concern" has nothing in reason or authority to commend it. Every man who gives permission for the use of his chattel may be said to have an interest or concern in its being carefully used, and, in most cases if it is a car, to have an interest or concern in the safety of the driver, but it has never been held that mere permission is enough to establish vicarious liability. And the appearance of the words in certain judgments (Ormrod v. Crosville Motor Services Ltd. [1953] 1 W.L.R. 409, per Devlin J.; [1953] 1 W.L.R. 1120, per Denning L.J.) in a negative context (no interest or concern, therefore no agency) is no warrant whatever for transferring them into a positive test. I accept entirely that "agency" in contexts such as these is merely a concept, the meaning and purpose of which is to say "is vicariously liable," and that either expression reflects a judgment of value - respondeat superior is the law saying that the owner ought to pay. It is this imperative which the common law has endeavoured to work out through the cases. The owner ought to pay, it says, because he has authorised the act, or requested it, or because the actor is carrying out a task or duty delegated, or because he is in control of the actor's conduct. He ought not to pay (on accepted rules) if he has no control over the actor, has not authorised or requested the act, or if the actor is acting wholly for his own purposes. These rules have stood the test of time remarkably well. They provide, if there is nothing more, a complete answer to the respondents' claim against the appellant.

I must now consider the special circumstance on which the judge relied - the understanding between the appellant and her husband. What does it amount to? In my opinion, it is nothing more than the kind of assurance that any responsible citisen would give to his friends, any child would give to his parent, any responsible husband would give to his wife: that he intends to do what is his legal and moral duty: not to drive if in doubt as to his sobriety. The evidence is that this assurance originated from the husband and no doubt it was welcomed by the wife. But it falls far short of any authority by the wife to drive on her behalf or of any delegation by her of the task of driving. If the husband was, as he clearly was, using the car for his own purposes, I am unable to understand how his undertaking to delegate his right to drive to another can turn the driver into the wife's agent in any sense of the word. The husband remains the user, the purposes remain his.

So if one applies accepted principles of the law, the case is clear; I only wish to add that I agree with the judgment of Megaw L.J. in the Court of Appeal [1971] 2 Q.B. 245 both on the law and on the facts.

This is not the end of the case. The respondents submitted that we should depart from accepted principle and introduce a new rule, or set of rules, applicable to the use of motor vehicles, which would make the appellant liable as owner. Lord Denning M.R. in the Court of Appeal formulated one such rule, based on the conception of a matrimonial car, a car used in common by husband and wife for the daily purposes of both. All purposes, or at least the great majority of purposes, he would say are matrimonial purposes: shopping, going to work, transporting children, all are purposes of the owner; the car was bought and owned for them to be carried out. And, consequently (this is the critical step), the owner is ipso jure liable whatever the other spouse is using the car for, unless, it seems, though the scope of the exception is not defined, the latter is "on a frolic of his own." Indeed Lord Denning M.R. seems to be willing to go even further and to hold the owner liable on the basis merely of permission to drive, actual or assumed.

My Lords, I have no doubt that the multiplication of motor cars on our roads, their increasing speed, the severity of the injuries they may cause, the rise in accidents involving innocent persons, give rise to problems of increasing social difficulty with which the law finds it difficult to keep abreast. And I am willing to assume (though I think that more evidence is needed than this one case) that traditional concepts of vicarious liability, founded on agency as developed in relation to less dangerous vehicles, may be proving inadequate. I think, too, though counsel for the appellant argued eloquently to the contrary, that some adaptation of the common law rules to meet these new problems of degree is capable of being made by judges. I do not have to depend on my own judgment for this for it can be seen that in the United States, so long ago as 1913, the judges in the state of Washington developed, without legislative aid, a new doctrine of the family car (Birch v. Abercrombie (1913) 74 Wash. 486; 133 P. 1020) and some other states have, with variations, followed the same road: see Prosser on Torts, 3rd ed. (1964), pp. 494 et seq. Other states have resorted to statute. To be similarly creative, even 70 years later, has its attraction.

But I have come to the clear conclusion that we cannot in this House embark on the suggested innovation. I endeavour to state some reasons: 1. Assuming that the desideratum is to fix liability in cases of negligent driving upon the owner of the car (an assumption which may be disputable), there are at least three different systems which may be adopted: (a) that apparently advocated by Lord Denning M.R. of a "matrimonial" car, the theory being that all purposes for which it is used by either spouse are or are presumed to be matrimonial purposes; (b) that adopted in some American states of a "family" car, the theory being that any user by any member of the family is the owner's "business" (see Prosser on Torts, pp. 494 et seq.); (c) that any owner (including hire-purchaser) who permits another to use his motor vehicle on the highway should be liable by the fact of permission. This principle has been adopted by statute in certain Australian states (for example, Motor Vehicles Insurance Acts 1936-45 (Queensland), section 3 (2)). Yet another possibility would be to impose liability upon the owner in all cases regardless of whether he had given permission or not. My Lords, I do not know on what principle your Lordships acting judicially can prefer one of these systems to the others or on what basis any one can be formulated with sufficient precision or its exceptions defined. The choice is one of social policy; there are arguments for and against each of them. If any one is preferable on purely logical grounds, to me it is the third, for I am unable to state with any precision a rational (as opposed to a policy) preference for drawing a line at either of the alternative points, the spouses or the family. But apart from the unsupported statement by Lord Denning M.R. in the present case I know of no judicial pronouncement in favour of the third; indeed the cases, amongst them the judgments of Edmund Davies L.J. and Megaw L.J. below, contain statements to the contrary, i.e., that mere permission is not in law a sufficient basis of liability. I do not doubt that this is the existing law nor the validity of the Australian position that to base liability on permission would be a matter for legislation.

2. Whatever may have been the situation in 1913 in the youth of the motor car, it is very different now, when millions of people of all ages drive for a vast variety of purposes and when there is in existence a complicated legislative structure as to insurance - who must take it out, what risks it must cover, who has the right to sue for the sum assured. Liability and insurance are so intermixed that judicially to alter the basis of liability without adequate knowledge (which we have not the means to obtain) as to the impact this might make on the insurance system would be dangerous and, in my opinion, irresponsible.

3. To declare as from the date of the decision in this House that a new and greatly more extensive principle of liability was to be applied in substitution for well known and certain rules might inflict great hardship on a number of people, and at least would greatly affect their assumed legal rights. We cannot, without yet further innovation, change the law prospectively only: and in any event this accident occurred in 1964, so any change if it were to be relevant to this case would have to date back till then. Such is the number of accidents now occurring, and the time which elapses before the damages are settled, that any decision in this case would affect, at the least, cases over the last eight years, the parties to which could justly expect to look to the established law to guide them, and whose insurances were arranged on the basis of established law.

My Lords, we may be grateful to Lord Denning M.R. for turning our thoughts in a new direction, a direction perceived, if not with unity of vision, by courts beyond the seas so long ago; but I must invite your Lordships to state that his judgment does not state the law. Any new direction, and it may be one of many alternatives, must be set by Parliament.

I would allow the appeal and dismiss the action.

VISCOUNT DILHORNE. My Lords, the only question for determination in this appeal is whether the appellant, Mrs. Morgans, is vicariously liable for the negligent driving of a Mr. Cawfield on August 4, 1964. The respondents were passengers in the car and sustained injuries. Mr. Cawfield and Mr. Morgans, the appellant's husband, who was also a passenger in the car, were killed. The respondents claimed damages against the representative of Mr. Cawfield's estate, against Mrs. Morgans as administratrix of her husband's estate and against her personally. Presumably she was sued personally in the hope that claims against her by passengers were covered by a policy of insurance, whereas the claims against the other defendants were unlikely to be.

Mrs. Morgans was the owner of the Jaguar car being driven at the time of the accident by Mr. Cawfield. After her marriage, she and her husband each had cars but, finding that they did not need two cars, her husband's was sold. In her evidence she said "quite honestly I never thought of it as my car, it was our car." Her husband may well have thought the same and have used the car as if it was owned jointly

Mrs. Morgans was by law required to insure against claims by third parties but not against claims by passengers, and whether or not she insured against such claims is irrelevant to the question whether she is vicariously liable for Mr. Cawfield's negligence. If she was not insured against claims by passengers, then she would, if liable, have, so far as she could, to meet the damages out of her own pocket.

Although not in any way to blame for Mr. Cawfield's negligent driving, she is responsible for his negligent acts if he was at the time of the accident driving the car as her servant or agent. In my view, the legal principle was correctly and accurately stated by MacKinnon L.J. in Hewitt v. Bonvin [1940] 1 K.B. 188. He said, at p. 191:

"If A suffers damage by the wrongful act of B, and seeks to say that C is liable for that damage he must establish that in doing the act B acted as the agent or servant of C. If he says that he was C's agent he must further show that C authorised the act. If he can establish that B was the servant of C the question of authority need not arise."

It is not, and in my opinion has never been, the law of this country that the owner of a chattel is responsible in law for damage done by the negligence of a person to whom he has lent it or whom he has permitted to use it: see Quarman v. Burnett (1840) 6 M. & W. 499, per Parke B. at pp. 510-511; Ormrod v. Crosville Motor Services Ltd. [1953] 1 W.L.R. 1120, 1122 per Singleton L.J. If all that had to be shown to establish liability on the part of the owner of a vehicle was that he had permitted its use by the person who was negligent, then Hewitt v. Bonvin was wrongly decided. There the son was permitted to use the car and it was held that the father was not responsible for the son's negligent driving as the son was not his servant or agent at the time.

That was a unanimous decision of the Court of Appeal and I cannot reconcile the view expressed by Lord Denning M.R. in this case with it. Lord Denning M.R. said [1971] 2 Q.B. 245, 255:

"The owner or hirer is at common law responsible for all injury or damage done by his permitted driver in the negligent driving of the car; ."

With great respect, in my opinion that is not the law now. I cannot find any authority which supports that statement. Whether it should be the law, or indeed should have been the law, is a matter for argument on which views may well differ.

In Hewitt v. Bonvin [1940] 1 K.B. 188 it was argued in the Court of Appeal for the respondent, the plaintiff in the action, that the car was the family car and that, when the car was driven by a member of the family with permission, the driver was to be regarded as driving as the agent of the owner. This argument was rejected by the court. MacKinnon L.J. considered the case on the basis that the son was alleged to have been acting as the servant of his father, pointing out that a person could act as a servant though not remunerated. He said, at pp. 191-192, that the definition of servant in Salmond on Torts 9th ed. (1936), p. 89, could hardly be bettered:

"'A servant may be defined as any person employed by another to do work for him on the terms that he, the servant, is to be subject to the control and directions of his employer in respect of the manner in which his work is to be done.'"

 

He went on to say, at p. 192:

". before any question as to the right of control and direction over the tortfeasor arises at all, it must be established that in doing the act complained of he was employed by the third party to do work for him. This cannot be established by mere proof that the tortfeasor is using a chattel, or driving a vehicle, which is the property of a third party, though that may, in the absence of any further explanation. be some evidence of the proposition . even a man who is in every sense a servant, to make his undoubted employer liable for his negligent act, must at the moment of his act be doing work for his employer."

Du Parcq L.J. thought that the better way of putting the respondent's case was on the basis of agency, and said, at pp. 194-195:

"The driver of a car may not be the owner's servant, and the owner will be nevertheless liable for his negligent driving if it be proved that at the material time he had authority, express or implied, to drive on the owner's behalf. Such liability depends not on ownership, but on the delegation of a task or duty."

Thus, it was held that, whether it be alleged that the driver was the servant or the agent, to establish liability on the part of the employer or the principal it must be shown that the driver was acting for the owner and that it does not suffice to show that the driving was permitted.

Just as the inference may be drawn, from proof that the vehicle was owned by another, that the driver was driving as servant or agent of the owner (Barnard v. Sully (1931) 47 T.L.R. 557), so may a presumption arise, where it is proved that the driver at the time of the negligence was doing something which was in the interest of the owner or for his benefit, that the driver was then acting as a servant or agent of the owner. But when the full facts are known as they were in Hewitt v. Bonvin and as they are in the present case, such an inference and presumption may be unwarranted. A person permitted to drive another's car does not become the latter's agent if, on his own volition, he uses it for the owner's benefit; a son driving his father's car with permission does not become his father's agent because, remembering that his father has a suit at the cleaners, he uses the car to collect it. Whether or not the driver is acting as agent of the owner is a question of fact. If the journey is at the owner's request as in Ormrod v. Crosville Motor Services Ltd. [1953] 1 W.L.R. 1120 or where the owner asks someone to bring the car down to the station to meet him, then the driver is doing an act for the owner and acting as his agent. In my view, the phrase qui facit per alium, facit per se correctly expresses the principle on which vicarious liability is based.

Turning now to the facts of the present case, I do not consider that there was any evidence to show that when Mr. Morgans drove the car freon his home to where he worked and when he drove it home in the evening he was acting as his wife's agent. He was not driving for her. He was not doing anything for her. Nor was he doing anything for her when he chose, on the day in question, to visit a number of public houses, to go on what may be called a "pub crawl," before he returned home.

The question is, however, not whether her husband that day drove as her agent, but whether Mr. Cawfield did so. Mr. Morgans asked and permitted him to drive. Let me assume that he had authority to do so. That does not suffice to make Mr. Cawfield her agent. He was not doing anything for her or at her request. When the accident happened, he was not bringing her husband home but driving him away from home to Swansea for a meal.

Much was sought to be made of the conversation which Mrs. Morgans had had with her husband when he promised her that he would never drive himself if he had taken more drink than he felt he should have but would either get a friend to drive, or telephone her to come and fetch him. Such a conversation could well be had between husband and wife without either of them having in mind anything more than the husband's safe return home and the fact that they had such a conversation does not, in my opinion, establish that Mr. Cawfield, when asked to drive, drove on the wife's behalf and as her agent.

For these reasons I would allow the appeal.

LORD PEARSON. My Lords, in my opinion, the principle by virtue of which the owner of a car may be held vicariously liable for the negligent driving of the car by another person is the principle qui facit per alium, facit per se. If the car is being driven by a servant of the owner in the course of the employment or by an agent of the owner in the course of the agency, the owner is responsible for negligence in the driving. The making of the journey is a delegated duty or task undertaken by the servant or agent in pursuance of an order or instruction or request from the owner and for the purposes of the owner. For the creation of the agency relationship it is not necessary that there should be a legally binding contract of agency, but it is necessary that there should be an instruction or request from the owner and an undertaking of the duty or task by the agent. Also the fact that the journey is undertaken partly for purposes of the agent as well as for the purposes of the owner does not negative the creation of the agency relationship: Hewitt v. Bonvin [1940] 1 K.B. 188, 194, 195; Ormrod v. Crosville Motor Services Ltd. [1953] 1 W.L.R. 409, Devlin J.; [1953] 1 W.L.R. 1120, C.A.; Hilton v. Thomas Burton (Rhodes) Ltd. [1961] 1 W.L.R. 705, 707; Norton v. Canadian Pacific Steamships Ltd. [1961] 1 W.L.R. 1057, 1063; Klein v. Caluori [1971] 1 W.L.R. 619, 621.

I think there has to be an acceptance by the agent of a mandate from the principal, though neither the acceptance nor the mandate has to be formally expressed or legally binding.

Registered and insured in the wife's name

In the present case the car was registered and insured in the wife's name, but it was regarded and treated by the husband and the wife as "our car," belonging to both of them, and it was driven more by him than by her. In particular he used it regularly for driving himself between their home in Brynamman and his place of work in Ammanford, where he was the manager of a bank. The management of the bank was his duty, not hers, and the journeys to and from the bank were for his purposes, not hers, and if he asked some friend on some occasions to drive him to or from the bank, the friend would be driving for the husband's purposes and as his agent, and not for the wife's purposes or as her agent. Similarly, if he went out in the evening on a drinking expedition, he would be making the journeys for his purposes, not hers, and if he asked a friend to drive for him the friend would be his agent, not hers. I do not think the understanding between the husband and the wife, of which evidence was given, can rightly be held to alter this position. The understanding was that if at any time he had had too much to drink he would not drive himself but ask a friend to drive him or telephone to his wife and ask for her help. It seems to me that in reaching this understanding the wife was acting as a solicitous wife counselling her husband to take reasonable precautions for his own safety and the safety of others, and she was not acting as a car owner authorising the delegation or sub-delegation of authority to drive the car. The car was the husband's car, though also the wife's car, and the friend would naturally be asked to drive it on the husband's behalf and therefore as his agent.

Moreover, there is an important additional factor. A public house at Cwmgors was the last to be visited on that evening by the husband and his friend, Mr. Cawfield, whom he had asked to drive for him. Cwmgors is on the road between Brynamman and Swansea. At this public house the husband and Mr. Cawfield met Mr. and Mrs. Launch bury and Mr. Phillips, who were afterwards plaintiffs in the action. Mr. Cawfield offered them a lift, and they accepted the offer, as they thought the lift would be to their homes in the vicinity of Brynamman. There entered the car Mr. Cawfield as driver, the husband in a somnolent condition, Mr. and Mrs. Launch bury and Mr. Phillips. When the car emerged on to the road Mr. Cawfield, instead of turning right towards Brynamman, turned left towards Swansea and in answer to protests from the Launchburys explained that they would all have a meal in Swan sea. It was on the journey towards Swansea that the fatal accident occurred. Whether the decision to drive to Swansea was taken by Mr. Cawfield or by the husband or by both of them in consultation is not known. However that may be, it seems to me that when Mr. Cawfield undertook this journey to Swansea he was clearly not acting as agent for the wife.

Lord Denning M.R., with the object of ensuring that compensation will be available for injured persons, has sought to extend the liability of a car owner for negligent driving of his car by other persons, because the car owner is the person who has or ought to have a motor insurance policy. Lord Denning M.R. has done this in ways which, I think, really amount to a departure from the agency principle (qui facit per alium facit per se) and the introduction of new bases of a car owner's liability.

First, he says [1971] 2 Q.B. 245, 255:

"If it is being used wholly or partly on the owner's business or in the owner's interest, the owner is liable for any negligence on the part of the driver."

This would include a case in which some eager or officious person drove the car on the owner's business or in the owner's interest but without any prior authority or subsequent ratification from the owner. There would be no agency in the normal sense of the word, and the owner would not have caused or even permitted the driving of the car by that person. It would be a novelty in the law if the owner were held liable in such a case and some new principle would have to be invented.

Secondly, Lord Denning M.R. treats permission by the owner for a person to drive his car as being in most cases sufficient to impose upon the owner liability for that person's negligent driving of the car. That is the rule proposed for "most cases" and an exception is stated, at p. 255:

"The owner only escapes liability when he lends it out or hires it out to a third person to be used for purposes in which the owner has no interest or concern."

Apart from that exception the proposed rule is stated broadly. Lord Denning M.R. says, at p. 255:

"The reason behind this principle is at bottom the principle which lies behind all vicarious liability. It is to put the responsibility on to the person who ought in justice to bear it. Now the owner or hirer of the vehicle is in most cases the person who ought to bear the responsibility. He is the one who puts it on the road where it is capable of doing damage. He is the one who causes or permits it to be used. He is the one who is, or ought to be, insured in respect of it. . Suffice it that, by himself or by proxy, he allowed the driver to drive it on the fatal occasion. He ought, therefore, at common law to shoulder the responsibility: . The owner or hirer is at common law responsible for all injury or damage done by his permitted driver in the negligent driving of the car; . But the owner or hirer can, of course, at common law excuse himself from responsibility if it was being used without his permission on an occasion in which he had no interest or concern."

The exact scope of the proposed new principle of owner's liability is not fully explored in this passage, but it seems clear that a new principle is being proposed, whereby permission rather than agency would be the basis of liability.

It seems to me that these innovations, whether or not they may be desirable, are not suitable to be introduced by judicial decision. They raise difficult questions of policy, as well as involving the introduction of new legal principles rather than extension of some principle already recognised and operating. The questions of policy need consideration by the government and Parliament, using the resources at their command for making wide inquiries and gathering evidence and opinions as to the practical effects of the proposed innovations. Apart from the transitional difficulty of current policies of insurance being rendered insufficient by judicial changes in the law, there is the danger of injustice to owners who for one reason or another are not adequately covered by insurance or perhaps not effectively insured at all (for example, if they have forgotten to renew their policies or have taken out policies which are believed by them to be valid but are in fact invalid, or have taken their policies from an insolvent insurance company). Moreover, lack of insurance cover would in some cases defeat the object of the proposed innovation, because uninsured or insufficiently insured owners would often be unable to pay damages awarded against them in favour of injured plaintiffs. Any extension of car owners' liability ought to be accompanied by an extension of effective insurance cover. How would that be brought about? And how would it be paid for? Would the owner of the car be required to take out a policy for the benefit of any person who may drive the car? Would there be an exception for some kinds of unlawful driving? A substantial increase in premiums for motor insurance would be likely to result and to have an inflationary effect on costs and prices. It seems to me that, if the proposed innovations are desirable, they should be introduced not by judicial decision but by legislation after suitable investigation and full consideration of the questions of policy involved.

I would allow the appeal.

LORD CROSS OF CHELSEA. My Lords, the facts of this case are simple. Mr. and Mrs. Morgans lived at Brynamman. Mr. Morgans worked in a bank at Ammanford some seven miles away. They had a Jaguar car which was registered in the name of Mrs. Morgans but each made use of it freely. She said in evidence that she did not look on it as her car any more than his car; it was "our car." Some ptomaine does not know how long - before August 4, 1964, the subject of Mr. Morgans driving the car after he had been drinking was discussed between them. On that occasion, as the judge found, he promised her that he would never drive himself if he had taken more drink than he felt that he should have taken. He would do one of two things: either get a friend who was absolutely sober to drive him or ring her up so that she could make arrangements for his safe transport home. He had originally intended to come home to supper on the evening of August 4, 1964, but he rang up his wife to say that he had decided to spend the evening out. One has to reconstruct the history of the evening as best one can from isolated scraps of evidence. Mr. Morgans, alone and driving the car, was at a public house at Glanamman about 7 p.m. Some 20 minutes later he was at a public house at a place popularly known as "G. C. G." He was then somewhat under the influence of drink and conscious that he ought not to drive the car himself any longer. At this public house he met a Mr. Cawfield - whom Mrs. Morgans said she hardly knew - and asked him to act as his chauffeur for the rest of the evening. They proceeded to visit several public houses together, the last of which was at Cwmgors. There they met the respondents, who were friends of Cawfield. They stayed drinking until closing time when the respondents realised that they had missed their last bus home. Cawfield said that he would give them a lift and the whole party got into the car. Mr. Morgans, who was by that time very much the worse for drink, got into one of the rear seats and fell asleep. Cawfield - despite the protests of the respondents, who wanted to be taken straight home - decided that it would be a good thing for them all to have a meal in Swansea and drove off in that direction at high speed. Shortly afterwards the car crashed into a bus. The judge found that the evidence did not show that even at the end of the evening Cawfield was not sufficiently sober to drive the car. The respondents recovered judgment against Mrs. Morgans both in her capacity as administratrix of her husband's estate and personally. The appeal, of course, relates only to the judgment given against her personally as the owner of the car.

Before this case the law as to the vicarious liability of the owner of a chattel for damage caused by its use by another person was, I think, well settled. The owner of the chattel will be liable if the user of it was using it as his servant or his agent: Hewitt v. Bonvin [1940] 1 K.B. 188. As Ormrod v. Crosville Motor Services Ltd. [1953] 1 W.L.R. 1120 and Carberry v. Davies [1968] 1 W.L.R. 1103 show, the user need not be in pursuance of a contract. It is enough if the chattel is being used at the relevant time in pursuance of a request made by the owner to which the user has acceded. In deciding whether or not the user was or was not the agent of the owner it may no doubt be relevant to consider whether the owner had any interest in the chattel being used for the purpose for which it was being used. If he had no such interest that fact would tell against the view that the user was his agent while conversely the fact that the owner had an interest might lend support to the contention that the user was acting as the owner's agent. But despite the way in which the matter is put by Denning L.J. in Ormrod's case, at p. 1123, I do not think that the law has hitherto been that mere permission by the owner to use the chattel coupled with the fact that the purpose for which it was being used at the relevant time was one in which the owner could be said to have an interest or concern would be sufficient to make the owner liable in the absence of any request by the owner to the user to use the chattel in that way.

Counsel for the respondents submitted that even on this view - which he described as the "narrow" view - of the law the judge was right in giving judgment for his clients against Mrs. Morgans personally because of the understanding reached between her husband and herself as to his driving when under the influence of drink. But he also submitted that, in the case of motor cars, the law should in certain circumstances hold the owner liable even though the driving was not being done by the owner's servant or agent. I will deal with this aspect - which was called the "wider" aspect - of the appeal before coming to the narrower aspect which turns on the understanding.

On the wider aspect of the case counsel advanced two arguments: first, what I may call the "interest and concern" argument, and, secondly, the "family car" argument which was the foundation of the judgment of Lord Denning M.R. [1971] 2 Q.B. 245.

The first argument, as I understood it, was that the owner of a car can only free himself from liability for the user of it by someone whom he has permitted to use it if he has no interest or concern in the purposes for which it is being used. I cannot think that this would be at all a satisfactory test. In the first place, the owner may have an interest in the purpose for which the car is being used at one moment but not in the purpose for which it is being used at another. Mrs. Morgans, for example, may perhaps be said to have had an interest in the car being used to take her husband to work that morning; but it would be absurd to say that she had any interest in the purposes for which he was using it or causing it to be used that evening. In the second place, opinions might well differ as to whether some purpose for which the car was being used was or was not one in which the owner had an interest. Has a husband, for example, an interest in his wife's paying a visit to friends of hers whom he dislikes? It would seem from his judgment that Lord Denning M.R. was conscious of these difficulties and that his concept of the "family car" was an attempt to meet them.

The "family car," as that expression is used by Lord Denning M.R., is a car which - like the Jaguar in this case - in truth belongs both to the husband and to the wife. Each uses it for his or her own purposes. In those circumstances the spouse who is the registered owner of the car, as well as being liable for any damage done by him or her when driving it, ought, it is said, in justice to be vicariously responsible for any damage done by the other spouse when driving it, whatever the purpose for which he or she was then using it. If one puts out of mind, as one should, all questions of insurance I cannot see why, if the car is in substance owned by the spouses jointly and it is more or less a matter of chance that it is registered in the name of one rather than in the name of the other, it is only the spouse who is the registered owner who should be vicariously liable for the driving of the other. If the principle is sound I would think that each spouse should be vicariously liable for the driving of the other; and Megaw L.J. [1971] 2 Q.B. 245, 262 obviously thought that the respondents' argument did in fact involve this consequence. But why should the principle be confined to the case of husband and wife? If it is sound it ought, I would think, to extend to all cases in which a car though registered in the name of one person is in substance the joint property of two or more - say, for example, of two spinsters living together in a cottage in the country or of three girls sharing a flat in Chelsea. I ask myself, therefore, whether public policy requires that in cases of joint ownership each joint owner should be vicariously liable for damage done by any other joint owner when driving the car. I cannot see that it does. To my mind, the very fact that each joint owner has an equal right to use the car shows that when one joint owner is driving it, otherwise than in pursuance of a request by another, he ought to be regarded as driving it on his own behalf.

If it is thought that the existing law as to liability of the owner of a chattel for damage done while it is being used by someone else is not adequate to deal with the problem created by the driving of motor cars by persons who are not the servants or agents of the owners, then our law should be changed to provide, as the laws of some other countries do provide, that if the registered owner of a car permits it to be used by anyone else that other person shall ipso facto be deemed to be driving as his agent. But I am sure that we cannot make such a change in the law by judicial decision, and indeed it was not suggested that we should do so. Such a change could only be effected by legislation passed after careful consideration of all the consequences involved.

I turn now to consider whether the respondents can make Mrs. Morgans personally liable to them by reason of the understanding between her and Mr. Morgans. If the facts had been that he had rung her up that night, telling her that he had drunk so much that he felt unfit to drive and asking her to arrange for his transport home; that she had said that it would be inconvenient for her to do that and asked whether there was not someone with him who was fit to drive him home; that he had mentioned Cawfield and that she had told him to ask Cawfield to act as his chauffeur on the homeward journey, then I can see that it could be argued that she should be held vicariously liable for Cawfield's negligent driving, though even so it might be argued on the other side that exactly the same conversation might have taken place if the car had been in his name and not in hers and that as they were in substance joint owners of it his request to Cawfield to drive him home ought not to be regarded as making Cawfield her agent as well as his agent for the purpose of the journey. But even assuming that in such circumstances she would have become vicariously liable for the consequences of Cawfield's negligence I am wholly unable to see how the promise which her husband gave her on that earlier occasion, which is just the sort of promise which hundreds of husbands must have given to their wives, constituted him her agent to make her, without any prior consultation with her and very likely without having his promise in mind, personally liable for the negligent driving of any man, provided only that he was sober, whom he might select to drive him about for the rest of the evening. I cannot help thinking that those who have held Mrs. Morgans personally liable by reason of this "understanding" have been unconsciously influenced by the belief, probably well founded, that her liability would be covered by insurance. Had it been an admitted fact that Mrs. Morgans had no insurance which covered the respondents' claim I think that everyone - lawyer and layman alkyd have said: "You were Cawfield's friends; you trusted to his driving; you did not know that the car belonged to Mrs. Morgans or even that there was a Mrs. Morgans; and, much as we sympathise with you, it would not be fair that she should have to pay for Cawfield's negligence."

I would allow the appeal.

LORD SALMON. My Lords, Mr. and Mrs. Glyn Morgans were married in 1955. At that time each owned a car. After about a year they decided that they needed only one car between them and that Mr. Morgans's car should be disposed of and Mrs. Morgans's retained. Thereafter this car was changed from time to time. In 1964 the car was a Jaguar. It could fairly be described as the family car. According to Mrs. Morgans's evidence it was regarded as "our car." There was no question of either asking the other for permission to use it and certainly no evidence that Mrs. Morgans asked her husband to go to and from his work in it. It was registered and insured in the name of Mrs. Morgans. We do not know whether it was bought outright or acquired on hire-purchase terms, nor by whom the price or hire-purchase installments were paid. The same is true of the insurance premiums, the road fund licence and the repairs and other running costs.

Mr. Morgans was employed in a bank and Mrs. Morgans as a pharmacist. He usually left his work at 5.30 p.m.; she not until about 7 p.m. Mr. Morgans used the car much more frequently than his wife. He daily travelled to and from his work in it - a distance of some seven miles there and back. Sometimes he used it in the evenings. She used it occasionally for shopping and other purposes; and no doubt they quite often used it together. He told her that she need never worry; he would not drive the car if he was not fit to drive it. There was in fact an understanding or arrangement between them that if he thought that he had taken more drink than he should he would not drive the car but would get one of his friends to drive him home.

On August 4, 1964, Mr. Morgans had as usual gone to work in the car. He left the bank at about 5.30 p.m. We know that at 7 p.m. he had arrived at one public house in the car and thereafter visited a number of others. In fact, he spent the evening, as Megaw L.J. [1971] 2 Q.B. 245, 265 indicates, in going on what might be inelegantly but not inaccurately described as a protracted "pub crawl." At a fairly early stage he realised that he was in a condition in which it would be unwise for him to drive and he very sensibly handed his ignition key to a friend, a Mr. Cawfield. There is no evidence of the conversation that passed between them. He was heard, however, to describe Mr. Cawfield as his chauffeur for the evening. At their last port of call, they met the three plaintiffs. After closing time at 10.30 p.m. the plaintiffs realised that they had missed their last bus home. Mr. Cawfield offered to drive them, and the plaintiffs, Mr. Cawfield and Mr. Morgans then got into the car. Mr. Cawfield set off for Swansea which was in the opposite direction to that in which Mr. Morgans lived and to that in which the plaintiffs wished to be driven. The plaintiffs protested but Mr. Cawfield drove on, saying that he was taking them to Swansea to have something to eat. He drove at a great speed and crashed into an omnibus. This was at about 10.40 p.m. Mr. Morgans and Mr. Cawfield were killed and the three plaintiffs all injured, one of them very seriously. They brought this action against the estates of Mr. Morgans and Mr. Cawfield and against Mrs. Morgans personally, claiming damages for negligence. After a trial lasting two days, judgment was entered for the three plaintiffs for £5,348, £522 and £487 respectively against all the defendants. The judgment against the estates of Mr. Morgans and Mr. Cawfield has not been questioned. Mrs. Morgans, however, appealed from the judgment against her in her personal capacity. That appeal was dismissed, Megaw L.J. dissenting. Mrs. Morgans now appeals to your Lordships' House.

We know nothing for certain about the terms of Mrs. Morgans's insurance policy. In all the circumstances, however, the inference drawn by Lord Denning M.R. [1971] Q.B. 245, 253 that it covered injury to passengers seems to me to be fully justified. Nevertheless, the question as to whether she is liable to the plaintiffs cannot in any way be affected by whether or not her liability would be covered by insurance.

Each of the three judges who decided this case against Mrs. Morgans seems to have done so on different grounds.

The learned trial judge held that Mrs. Morgans had authorised her husband to ask Mr. Cawfield to drive, presumably on her behalf, and that therefore she was vicariously liable for Mr. Cawfield's negligence.

Edmund Davies L.J. [1971] 2 Q.B. 245, 261 held (a) that when Mr. Morgans did his daily journey to and from his work he was driving his wife's car not only with her permission but also at her request (express or implied) and for her benefit as well as his, and (b) that

"when he procured Cawfield's services as a substitute driver on the fatal night, he was doing it not only with her permission but for the purposes of returning from his work, albeit after some social entertainment."

The learned Lord Justice accordingly concluded that on those grounds Mrs. Morgans was vicariously liable for Mr. Cawfield's negligence.

Lord Denning M.R. based his judgment on a much broader basis, namely, that this Jaguar of Mrs. Morgans was the family car; that she was the head of the family so far as this car was concerned and as such was responsible for the use of the car on the road by her husband. Lord Denning M.R. held [1971] 2 Q.B. 245, 257 that when her husband was using the car

"he was using it as her 'agent' in this sense that, if he was involved in an accident, she ought to bear the responsibility, especially as she was the one who was insured."

Lord Denning M.R. concluded, at p. 257, that the understanding or arrangement between Mr. and Mrs. Morgans to which I have referred "[made] Mr. Cawfield her 'agent' just as much as her husband was," and, indeed,

"Even if she had not had that conversation with her husband, still Mr. Cawfield would be her 'agent': because he was driving [the car] in her interest as well as his own."

As I understand the authorities the law at present makes the owner or bailee of a car vicariously responsible for the negligence of the person driving it if, but only if, that person is (a) his servant and driving the car in the course of his employment or (b) his authorised agent driving the car for and on his behalf: Hewitt v. Bonvin [1940] 1 K.B. 188, 194-195. Thus, mere permission to drive is not enough to create vicarious responsibility for negligence. Nor are you responsible for the negligent driving of an independent contractor (or his servant) who, for example, hires a car to you or delivers goods you have bought from him. Ex hypothesi he is not your agent. It is a different matter, however, if you issue orders to the driver which you should reasonably foresee involve danger and as a result of carrying out of your orders damage ensues: Quarman v. Burnett, 6 M. & W. 499. Liability may arise because you have assumed control or because issuing such orders was in itself negligent and damage flows from that negligence.

No one has suggested that either Mr. Morgans or Mr. Cawfield was Mrs. Morgans's servant. Accordingly, unless your Lordships are prepared radically to extend the ambit of vicarious liability, the result of this appeal must turn upon whether Mr. Cawfield can properly be regarded as Mrs.
[1973] A.C. 127 Page 149

Morgans's duly authorised agent to drive the car on her behalf at the time of this tragic accident.

So far as I know, until the present case, du Parcq L.J.'s statement of the law in Hewitt v. Bonvin [1940] 1 K.B. 188, 194-195 has never been questioned:

"The driver of a car may not be the owner's servant, and the owner will be nevertheless liable for his negligent driving if it be proved that at the material time he had authority, express or implied, to drive on the owner's behalf. Such liability depends not on ownership, but on the delegation of a task or duty."

That is the principle to be applied, but, as du Parcq L.J. pointed out, at p. 196, ultimately the question is always one of fact. Facts vary infinitely from case to case and it is easy, as du Parcq L.J. indicated, to think of facts which would fall just on one side of the line or the other. I agree with Megaw L.J. [1971] 2 Q.B. 245, 264 that there is nothing in Ormrod v. Crosville Motor Services Ltd. [1953] 1 W.L.R. 1120 or in Carberry v. Davies [1968] 1 W.L.R. 1103 which differs from or extends the principle enunciated by du Parcq L.J. The short judgments in Ormrod's case must be read against the background of its essential facts. The owner of a car wanted it to be driven for him from Birkenhead to arrive in Monte Carlo to meet him there before a certain date. He arranged with a friend for the friend to drive the car for him on this journey. The friend's wife was to accompany him and they were to bring a suitcase for the owner with them. The plan was that after the car had arrived in Monte Carlo the owner, the friend and the friend's wife should all go in the car for a holiday together in Switserland. The owner agreed that the friend might make a slight detour on the journey through France to visit an acquaintance whilst en route for Monte Carlo. Soon after the car had left Birkenhead on its journey to Monte Carlo it collided with an omnibus through the negligence of the owner's friend. It was held that the car was being driven by the friend for and on behalf of the owner at his request. And so, obviously, it was, in spite of the fact that it was also being driven partly for the purposes of the friend. Devlin J. [1953] 1 W.L.R. 409 pointed out, at pp. 410-411, that whilst the agreement or arrangement between the owner and his friend remained executory either party could have resiled from it, for it was not a legal contract of agency. This, however, was irrelevant for it was more than a mere permission by the owner for his friend to drive. It amounted to a request and express authority by the owner to his friend to drive the car to Monte Carlo for and on behalf of the owner. Accordingly, the owner was vicariously liable for the friend's negligent driving.

I find insuperable difficulty in understanding how the case against Mrs. Morgans can succeed on the basis of the law as laid down in the authorities to which I have referred. I gravely doubt whether Mr. Morgans was driving the car on his wife's behalf as her agent even when travelling to and from his work. It is true that Mrs. Morgans had an interest in the purpose of the journey because her husband's earnings no doubt kept or helped to keep the family home. She also had an interest in the manner in which the car was driven because she had an interest in her husband's safety and that of the family car. But so has every wife. I suspect that du Parcq L.J. would have been surprised that his judgment in Hewitt v. Bonvin [1940] 1 K.B. 188 could be regarded as any authority for holding a wife vicariously liable for her husband's negligent driving on his way to or home from work, and incredulous that anything he had said could support the judgment against Mrs. Morgans on the facts of the present case. Can it realistically be said that every husband is driving as his wife's agent on his way to and from work? I suspect that if any wife were asked "Is your husband driving the car for you today or for any purpose of yours?" she would immediately reply "No, of course not. As usual he has taken it to work and left me to do the shopping by bus or on foot." I do not think that it makes any practical difference for this purpose whether the car is registered in the name of the husband or the wife.

Even if it were possible to assume that Mr. Morgans, when driving the car home from work, was doing so on his wife's behalf and as her agent, I do not consider that such an assumption could help the plaintiffs, much as I sympathise with them; great as is my respect for Edmund Davies L.J.'s judgment I cannot accept that it is possible to infer that at the time of the accident Mr. Morgans was "returning from his work, albeit after some social entertainment" [1971] 2 Q.B. 245, 261. He had left his work just before 5.30 p.m. The accident occurred just after 10.40 p.m. - about five hours later - and when the car was heading for Swansea away from home. The interval between 5.30 p.m., or at any rate 7 p.m., and 10.40 p.m. had been occupied in the manner which I have described. lf during the course of that evening Mr. Morgans had been asked -

"Are you out on your wife's behalf or for her purposes? Are you on your way home?"

The answer to both questions, had Mr. Morgans been able to understand them, might well have been "Not likely, you must be joking." And if the same questions had been asked of Mrs. Morgans about her husband (always assuming that she knew where he was or what he was doing, which of course she did not) she would probably have given precisely the same answers to what after all are questions of pure fact. Nor do I think that the tenuous evidence about the understanding or arrangement between Mr. and Mrs. Morgans can be relied on as a basis for holding, as did the learned trial judge, that Mr. Cawfield had been delegated with authority to drive the car to Swansea on Mrs. Morgans's behalf. We do not know if Mr. Morgans even had the understanding or arrangement in mind when he handed the ignition key to Mr. Cawfield.

There is no reason to imagine that Mr. Cawfield ever thought that he might be driving on behalf of Mrs. Morgans. The conversation which occurred between Mr. and Mrs. Morgans as to what he should do if he ever found that he had taken too much to drink when out with the car is the sort of conversation which must often occur between husbands and wives. It seems absurd to me that if ever thereafter the husband, when slightly intoxicated, asks a friend to take over the driving, he is appointing the friend, with his wife's authority, as her agent to drive the car on her behalf.

Nor do I think that but for the insurance aspect of the case (which for this purpose is admittedly irrelevant) it would ever be so held. Suppose that Mrs. Morgans were an indigent widow living modestly on her small capital and uninsured against passenger risks. I cannot believe that anyone would consider it fair or reasonable that she should be completely ruined by being held vicariously liable for Mr. Cawfield's negligence.

It follows that, in my opinion, applying the principles of law hitherto accepted, the circumstances of this case cannot justify the judgment against Mrs. Morgans. The question is, however, whether that principle ought to be extended by accepting the proposition favoured by Lord Denning M.R., namely, that the owner of a family car should be held responsible for the negligent driving of any member of the family household whom he allows to drive it and also apparently for the negligent driving of any friend of a member of the household who drives the car home in the interest of the head of the household. This proposition has never yet been considered by your Lordships' House.

In Rambarran v. Gurrucharran [1970] 1 W.L.R. 556, however, the Privy Council apparently approved of the decision in Manawatu County v. Rowe [1956] N.Z.L.R. 78 which rejected even the first limb of the proposition favoured by Lord Denning M.R. No doubt the proposition, for the reasons so lucidly explained by Lord Denning M.R., may have much to commend it on the grounds of public policy. It has, at any rate in part, been adopted in a number of the states constituting the United States of America either by the state legislature or by decisions of the state courts.

I have always recognised that it is an important function of this House to develop and adapt the common law to meet the changing needs of time. In an appropriate case we should not shrink from doing so.

In the present case, however, the proposed "development" constitutes such a radical and far-reaching departure from accepted principle that it seems to me to smack of naked legislation. Moreover, the considerations of public policy which may support a change suggest that there is no logical reason why the change, if it is to be made, should stop short at the family car.

Why should not the owner of any motor vehicle be vicariously liable for the negligence of anyone whom he permits to drive it or indeed for the negligence of anyone who drives it even without his permission? The law could compel an owner to be insured against such risks. It seems to me that before any change resembling that proposed by Lord Denning M.R. is made in our law it is most important that full and careful investigations into all aspects of the question should be carried out, and perhaps the arrangements with the Motor Insurers' Bureau considered, so that a new code may be devised which will be fair for all and ensure that everyone who has been damaged by negligent driving shall be paid the damages to which he should be entitled.

This is a task which can hardly be undertaken by your Lordships' House sitting in its judicial capacity.

In my view, this is essentially a matter for the legislature.

I would accordingly allow the appeal.

Appeal allowed.Legal aid taxation of first and second respondents' costs.

Solicitors: Berrymans; Theodore Goddard & Co.

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