Scottish Court of Session Decisions

At advising on 23rd March 1949,—

LORD PRESIDENT (Cooper).—On 23rd January 1948 a jury in this case returned a verdict for the pursuer and assessed damages at £650. That verdict is not now assailed as being contrary to the evidence, but it has been attacked upon the ground of five alleged misdirections by the Lord Ordinary.

Four of the points taken in the note of exceptions impress me as quite insubstantial and are capable of being briefly disposed of.

[His Lordship here dealt with these heads of the note of exceptions and gave his reasons for rejecting them.]

It remains, however, to deal with number 1, which raises a point of real substance and difficulty, and in order to deal with it I must briefly refer to the facts.

An old lady, encumbered by a parcel and a small child, was alighting from an omnibus which had been halted, not at a stopping place, but by a traffic inspector who held it up just short of a stopping place. As the old lady alighted, the omnibus moved forward and she was thrown to the ground. Several different hypotheses were presented as to the cause of the accident—some of which impressed me as very much more important than others—but the only one which is relevant for the purposes of the present exception is that the conductress rang the bell and so caused the omnibus to start. It is necessary, however, in the peculiar circumstances of this case to go a step further and to ask why the conductress rang the bell; for the extreme case which the Lord Ordinary was dealing with at this portion of his charge was that she rang the bell deliberately and out of spite. The explanation of this remarkable suggestion is that at an earlier stage of the journey between Peebles and Motherwell the conductress had accused the old lady of travelling on an old ticket (unjustifiably as the conductress herself now admits), and that an altercation ensued. The account of the occurrence, even as given by the conductress, is not greatly to her credit, for when the error was discovered she not only refrained from apologising, but proceeded to give the passenger advice which impressed me as impracticable and out of place. All this happened when the omnibus was still a long way from Motherwell; but the grievance in the old lady's mind continued to rankle, and, when the omnibus reached Motherwell where she intended to alight, the smouldering grievance broke into flame when she addressed to the conductress some observation as to the desirability of her learning to read her tickets, and this observation elicited some response which I do not doubt was lacking neither in point nor in expression. It was at that stage that the accident occurred, and the suggestion spoken to by two independent witnesses was that, immediately following this revival of the altercation, the conductress belled the omnibus away, with the result that the old lady was thrown to the ground and injured, and the evidence of the two witnesses might be summarised in the statement that the bell was deliberately rung by the conductress in order at least to embarrass the old lady, and these witnesses, or at least one of them, so stated at the time.

That was the situation with which the Lord Ordinary was dealing at the portion of his charge to which the first exception relates, and I now read it:

"He charged the jury that, if the conductress deliberately and out of spite belled the omnibus to start and so caused the accident, there was no question but that the defenders would be responsible for this very gross fault, and he refused to direct the jury, though requested to do so, that in this event the defenders would not be responsible for the conductress's act."

It is to be observed that the direction given, and the refusal of the direction sought, unquestionably had the result of treating this matter as a pure question of law and leaving nothing to the jury, once they had determined (if they did) that the conductress acted "deliberately and out of spite." The assumption must be that no question of negligence or even of recklessness is involved, but that the act was deliberate and done to gratify personal malice.

The proposition in law which would result from our affirmation of the validity of the direction given and the refusal of the direction sought must be that a master is liable for any act of his servant done while engaged at his work for the gratification of the servant's personal spite, even if this act is wrongful or it may be criminal. Mr M'Kechnie sought to rationalise the legal position by maintaining with ingenuity that liability on the employer would or would not arise according as the servant's malice did or did not arise independently of the employment, and he founded strongly on the fact that the quarrel between the conductress and the passenger was a quarrel intrinsic to the employment of the conductress, that, apart from their relationship as passenger and conductress, these two persons—so far as appears—had never met, and that the ringing of the bell was a normal function of an omnibus conductress. I find it impossible to discover any sufficient basis in precedent or principle for this formulation of the doctrine, and it is easy to figure situations in which the acceptance of Mr M'Kechnie's amended rule would lead to untenable consequences. I am of course aware that the case of Lloyd v. Grace, Smith & Co. in 1912 has created problems which after forty years are still awaiting a satisfactory solution, but I cannot discover even in that case any warrant for displacing the principles expressed in the earlier authorities to which Mr Clyde referred. Ten years after Lloyd v. Grace, Smith & Co. in the case of Percy v. Glasgow Corporation it is noteworthy that Viscount Finlay reverted to the famous statement of Mr Justice Willes, in which the distinction is drawn between acts done by a servant in the course of his employment and acts done "from any caprice of the servant." It appears to me that, if the servant's caprice might suffice to take an act out of the course of his employment, much more will his private malice or spite, even if the source of that malice or spite is to be found in a transaction intrinsic to his employment.

To put the matter rather differently, it appears from the well-known judgment of Lord Esher in Dyer v. Munday that a criminal act performed by a servant may be no more than a manifestation of over-zeal or impropriety of conduct within the scope of his employment, and that it is a question of circumstances whether that is the true view of an incident, or whether the servant was acting at the material time outside the scope and course of his employment; but that is a question for a jury suitably directed, and not a question to be formulated as a matter of law by the presiding Judge. It is because, as it seems to me, this issue was withdrawn from the jury's consideration except on one point, and because the legal proposition was formulated more widely than I find it possible to approve, that I have no option, though with regret, in moving your Lordships that the first exception must be sustained and a new trial allowed.

LORD CARMONT .—I agree. I think the Lord Ordinary was in this case in a peculiarly difficult position inasmuch as the charge involved consideration of various hypotheses. In the first exception that is taken, one of these hypotheses (indeed a double hypothesis) was being dealt with by the Lord Ordinary when charging the jury. He was dealing with the situation as to the conductress having deliberately and out of spite belled the omnibus to start, coupled with the consideration that that was what caused the accident. Viewing the evidence in this Court, I have considerable doubt in my own mind as to whether the conductress ever belled the omnibus, or, if she had belled the omnibus, whether that was the cause of the accident, but, however that may be, the Lord Ordinary had to mention that aspect of the case in his charge to the jury. He unfortunately put his charge on this matter too absolutely when referring to the defenders' liability for deliberate misconduct and—it having been put to the jury in that way—we have no alternative but to order a new trial.

LORD RUSSELL .—I am of the same opinion.

LORD KEITH .—I agree. We listened to a very interesting argument from Mr M'Kechnie, but the proposition which he put forward seems to me to be unsupported by authority and to be in much too absolute terms. His proposition was that, if a servant within and in the course of his employment commits a malicious wrong, the employer is liable though he does not benefit, unless the malice arises independently of the employment. I would make these observations upon that proposition. First, there is the question whether the servant was acting within and in the course of his employment. Secondly, there is the question as to the origin of the servant's malice. Now I think these two matters are interrelated, and the fact that the malice may arise from something that happened in the course of the employment does not, in my opinion, necessarily mean that the servant, in anything that he does in consequence of that malice, is acting in course of his employment. In this instance I cannot think that, if the conductress had propelled this old lady from the omnibus by the use of her foot instead of by ringing the bell, that would be an act within the course of her employment. The suggestion, I think, was that, because she had used a piece of mechanism, namely, the bell, which was connected with her employment, that left her as a servant acting within the course of her employment. That is a proposition which I cannot entertain. One could say exactly the same if, because of her spite and ill-will (the old lady having left the omnibus and got on to the roadway), she had instigated the driver to run the old lady down. Again the means employed would be part of the mechanism used by the driver, if not by the conductress, and I think that clearly would not be an act in the course of the conductress's employment. Your Lordship referred to the case of Dyer v. Munday . I noted there that Lord Esher said this (at p. 746):

"The question, therefore, for the jury was whether Price was employed to get back the bedstead, and did the acts complained of for the purpose of furthering that employment, and not for private purposes of his own: and there was evidence on which they might find as they have done."

I think a clear distinction was drawn there between acts in the course of a servant's employment and acts done for private purposes of the servant's own, and I consider that an act which was done to gratify spite and ill-will of the servant was not an act done in the course of the servant's employment but was an act done for the private purposes of the servant himself. That is the position as I see it in this case. Reference was made to Lloyd v. Grace, Smith & Co. as supporting Mr M'Kechnie's proposition, but that case seems to me to be in a different category altogether. That was a case where the wrong committed could be said to arise in the course of and within the limits of a business transaction. The delinquent servant there was a person who was held out as a person authorised and competent to deal with a client in the course of the principal's business. It is true that in that case the delinquent servant committed an act of fraud and embezzlement for his own benefit and not for the benefit of his employer, but I can see a clear distinction in the circumstances of that case from those of the present. A case which I think would be covered by the ratio of Lloyd v. Grace, Smith & Co. would be where a customer hands money over the counter of a bank to be credited to his account and a fraudulent teller embezzles the money. I think in that case the bank would be liable for the fraud of the servant because the wrong would be committed by a person held out as acting for the purposes of effectuating a contractual relationship. That is very different from a malicious wrong committed by a servant on a person against whom the servant has conceived spite or ill-will from something that has happened in the course of a contractual relationship between that person and the servant's master. The contract may have been the occasion of bringing the servant and the injured person into contact and of creating the ill-will, but this is in a sense accidental and outside the contract. The same wrong might be committed against a person between whom and the master no contractual relationship existed, as, for instance, in this case, a passenger who refused to pay his fare and who, I will assume, could quite properly and in lawful manner be ejected from the omnibus. Accordingly I consider that the case of Lloyd v. Grace, Smith & Co. is clearly distinguishable from the present. In the whole circumstances therefore I agree with the motion that there should be a new trial.

LORD MACKINTOSH .—I share with your Lordship in the chair regret that a new trial should have to be held in this case, because I thought at the time when the verdict was brought in, and I still think, that the verdict was a just one and that there was ample evidence to support it, quite apart from that part of the evidence with which the present exception is concerned.

The matter which has given rise to the present exception was dealt with in the opening part of my charge and was purposely there dealt with somewhat briefly—I agree now, too briefly—with a view to inviting the jury as pointedly as I felt to be proper to have great hesitation in accepting the view of the facts presented by the two M'Manus girls, for I reminded the jury of cogent considerations which came out of the rest of the evidence in the case to show that this omnibus had never been belled on at all by the conductress at the time in question and that the evidence of the two M'Manus girls that it had been stood absolutely alone. At the same time there was sufficient legal evidence for what might be called the M'Manus view of the facts, and therefore the question did arise as to whether the jury might not take the view that the evidence of the M'Manus girls was correct and that the omnibus was belled on by the conductress deliberately and out of spite engendered by the previous altercation which she had had with the old lady. I see now, and have realised more fully as this discussion proceeded, that the charge which I gave upon that hypothesis of the facts was not wholly adequate and was framed in too positive terms. As I say, at the time this aspect of the case did not impress me as being of much importance, and I was putting it to the jury in a way which I hoped would lead them to disregard it and proceed on the other and better supported evidence in the case, which raised possible issues of fault against the conductress quite other than her having belled on the omnibus as was alleged by the M'Manus girls. For my own part I have very little doubt that the jury did proceed upon this other evidence, but it is of course impossible to say that they may not have accepted the evidence given by the two M'Manus girls, and as I am satisfied that the charge was inadequate if the M'Manus version of the facts was to be accepted, I agree with regret that there must be a new trial.