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Judgment
Samerawickrame, J.—This appeal raises the question whether there is vicarious liability on the part of the first Defendant-Appellant to pay damages to the Plaintiff-Respondent for gunshot injuries inflicted on him by the conductor of its estate, the 2nd Defendant-Respondent.
The Plaintiff-Respondent and members of his family claimed a right of roadway over the 1st Defendant-Appellant's estate to gain access from their house to the main road. They had filed action to vindicate their right and had thereafter made an application for an interim injunction and had obtained an enjoining order. At an inquiry, the enjoining order had been vacated in consequence of a settlement which provided, inter alia, that pending action the Plaintiffs in that action and the members of their household would have the right to use vehicles on the roadway on the estate for their personal transport.
About three months later, a taxi was sent one morning by the Plaintiff-Respondent in order to convey his brother and some members of the brother's family to town but the 2nd Defendant-Respondent refused to allow the taxi to proceed over the roadway on the estate. He offered to pay the fare and requested the driver of the taxi to return to town. The driver declined to do so and parked the taxi on the road outside the estate and the Plaintiff's brother and the members of his family walked to the taxi. The taxi driver informed the Plaintiff in town about this incident. The Plaintiff states he contacted his proctor and it was decided that the matter would be brought out at the trial of the action. In the evening when the Plaintiff rode up to the estate on his push bicycle, he found his mother in conversation with the 2nd Defendant and learnt that he had told her that he had turned back two cars that had come in the morning. He questioned the 2nd Defendant why be had refused to allow the cars to go in and obtained the reply that he had no orders from the Company to permit them to do so. The Plaintiff informed him that he had obtained an injunction authorising cars to go in. There appears to have been a discussion and thereafter the 2nd Defendant told him that he would teach him a good lesson, ran into a house and brought out a gun. The Plaintiff did not believe that he would use it and remained seated on his bicycle with one foot on the ground. The 2nd Defendant then shot at him and caused serious injuries to the Plaintiff.
The conductor of the 1st Defendant-company the 2nd Defendant had the duty of protecting the estate from intrusion by outsiders and thus refused access to the taxis to proceed on the roadway in the estate. From his statement that he had no orders from the Company to allow cars to go in, it appears that the 1st Defendant had failed to inform of the settlement in Court and to direct him to conform to it. Persons like the Plaintiff who claimed a right to use the roadway over the estate had to assert their right to the 2nd Defendant who was the person on the spot and on behalf of the 1st Defendant either permitted the exercise of the right claimed or refused to do so. It was as a sequel to the assertion of the right by the Plaintiff and its denial by the 2nd Defendant that the shooting took place. The Plaintiff's mother spoke to the angry tones being used but there was no evidence of any other or further dispute or recrimination of a personal nature.
It is necessary to examine the principles of law which apply to the vicarious liability of a master or employer for the wrongs of a servant. According to Voet, masters are liable when the servants "have done wrong in the duty or service in charge of which they have been put by the master." The master will not be liable "if they have done wrong outside the matter in charge of which they were put by the master."-vide Voet 9-4-10. Pothier Section 4S3 states, "Whoever appoints a person to any function is answerable for the wrongs and neglects which his agent may commit in the exercise of the functions to which be is appointed."
In Mkize v. Martens 1914 A.D. 382 (393), Solomon, J.A., said, "As regards the law on this subject I do not think that there is much doubt. It is true, as pointed out by Kotze, J., in the case of Lewis v. The Salisbury G.M. Co. 1 O.R. 1, that the Roman-Dutch authorities are somewhat conflicting, but the weight of authority is in favour of the law as laid down by Voet (9, 4, 10) that masters are liable in solidum for the delicts of their servants whenever they inflict injury or damage 'in the duty of service' (in officio out ministerio) set for them by their masters, but that the masters are not liable when the delict is committed 'outside of (extra) their duty or service. This is the rule which has generally been acted upon in the South African courts, and, in my opinion, it should now be definitely accepted as stating the law on this subject. The master, therefore, should be held liable for the negligence of his servant if the latter causes injury to a third person in doing his master's work, or, in the language of the English authorities, 'in the course of his employment.' If, however, the act which caused the injury was something outside of his master's work, something which he was doing entirely on his own account for his own pleasure or in his own interest, the master would not be responsible."
In Estate Van Der Byl v. Swanepoel 1927 A.D. 141 (145), Wessels, J.A., said, "We may either adopt the view that the master's liability to third parties must be so narrowed down that he will then and then only be liable for the tortious act of his servant when the latter is carrying out the exact instructions of his master, or was engaged in an act which was reasonably necessary to carry out those instructions, or else we may adopt a wider interpretation of a master's liability and hold that the master is liable to a third party whenever the servant does an act which strictly speaking falls outside of the special instructions of the master and also outside of what was absolutely necessary to carry out those instructions but which was done whilst the servant was engaged in the affairs of his master, or in the course of the employment to which the servant was appointed."
In Suppiahpillai v. Fernando 13 CX. Rec 249 (251), Dalton, J., adopted this view and stated, "In Estate Van Der Byl v. Swanepoel the master is further considered, and the law as laid down in Mkize v. Martens 1914 A.D. 382 is approved of. The court there also refused to apply the narrow view of the general principle which would confine the master's liability strictly to acts done within the master's instructions or necessarily incidental thereto, holding the master liable to a third party for the act of his servant, so long as the latter is employed about the business of the master and does the act in the course of his employment, even though the act is an unlawful act such as trespass, or a criminal act, such as an assault, or an act which the master has specially prohibited the servant from doing."
In Feldman (Pty.) Ltd. v. Mall 1945 A.D. 733 (736), it was stated, "Provided the servant is doing his master's work or pursuing his master's ends, he is acting within the scope of his employment even if he disobeys his master's instructions as to the manner of doing the work or the means by which the end is to be attained."
McKerron on Delict (6th edition) at page 95 states, "...master may be held responsible not only for the negligence but also for the willful wrong doing of his servant. Thus he may be made liable for a fraudulent misrepresentation or a defamatory statement made by the servant in the course of his employment, and even for a criminal act, such as an assault. But for a willful wrong committed by a servant on his own behalf and for his own benefit the master is not responsible; for in such a case the servant in committing the' wrong is acting on his own business and for his own purposes, and therefore outside the scope of his employment."
In this case there can be no doubt that the 2nd Defendant-Respondent was engaged in the affairs of his employer when he was treating with the Plaintiff in regard to the right to take cars over the roadway on the estate and there is no evidence that there was any personal insult or affront offered to him which caused him to shoot the Plaintiff out of personal vengeance so as to make the shooting something done on his own account. The learned District Judge has said, "Neither the 1st nor the 2nd Defendant have chosen to give evidence. The circumstances surrounding the firing of the gun on 17th September, 1964 seem to point to the conclusion that the 2nd Defendant was acting in the interest of, his master and for his benefit when he stated 'I will teach you a lesson'. It may well be that he was trying to teach the Plaintiff a lesson in the interest of his master."
It must be remembered that the use of guns by conductors and watchers to protect the interests of their employers is not unusual and that guns are commonly provided for this purpose by their employers. I am therefore of the view that the shooting was done when the 2nd Defendant-Respondent was engaged in the affairs of the master and was not done entirely on his on account.
In Moosa v. Duma 1944 T.P.D. 30 where the facts might have been considered even more suggestive of personal animosity the employer was held liable. The Appellant's son had been denied access to a location by the 1st Respondent a Municipal policeman. Later the Appellant approached the 1st Respondent and remonstrated with him. A quarrel ensued, in the course of which the Appellant was assaulted and defamed by the 1st Respondent. It was held that he was acting within the course of his employment and that his employer, the 2nd Respondent Was consequently liable. Schreiner, J., at page 39, said, "Where a servant having had a quarrel with a member of the public as a result of an interview arising out of the servant's work assaults or defames the other party as a distinct act-doing it perhaps elsewhere than at his place of employment or after a considerable interval, one would not be disposed to hold the employer' liable simply because the quarrel arose out of a matter falling within the servant's functions. But where the quarrels arise at once out of the servant's performance of his work and is followed there and then by. the tortious act it seems to me that the proper interpretation of the servant's behavior is that he is improperly carrying out what he was employed to do and not that he was acting out of personal malice or caprice."
Applying the principles adopted by the English Law too there appears to be vicarious liability on the part of the 1st Defendant-Appellant in the circumstances of this case. The classic statement in regard to vicarious liability is found in Salmond on Torts (14th Edition) page 658:
A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master or (2) a wrongful and unauthorised mode of doing some act authorised by the master. It is clear that the master is responsible for the act actually authorised by him: for liability would exist in this case, even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised provided they are so connected with acts which he has authorised that they might be regarded as modes-although improper modes-of doing them. In other words a master is responsible not merely for what he authorises his servant to do, but also for the way in which he was authorised to do carefully, or if he does fraudulently that which he was authorised to do honestly, or if he does mistakenly that which he was authorised to do correctly, his master will answer for that negligence, fraud or mistake. "In all these cases, said Willes J., delivering the judgment of the Court of Exchequer Chamber in Barwick v. English Joint Stock Bank 1967 L.R, 2 Ex 259 (266) 'It may be said that the master had not authorised the act. It is true, he has not authorised the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act. of his master to place him in.' " He adds, "On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment, but has gone outside of it. He can no longer be said to be doing although in a wrong and unauthorised way, what he was authorised to do; he is doing what he was not authorised to do at all.
In hardly any case is the actual act complained of authorised; for it is a tort and therefore wrongful and may even be a fraudulent act or a crime. But if that act is one of a class of acts which have been authorised or forms part of or falls within the activity authorised by him the master | will be liable. And he will be liable even if the act is done contrary to his express instructions. In this case the 2nd Defendant-Respondent was placed on the estate by the 1st Defendant-Company a few months earlier for the purposes, inter alia, of protecting the estate and their proprietory rights and of preventing intrusion on it. In the course of doing the business in which the 1st Defendant-Appellant placed him and of warning off the Plaintiff-Respondent against a breach of his employer's proprietory rights he did the shooting. The 1st Defendant-Appellant is answerable for the manner in which the 2nd Defendant-Respondent conducted himself in doing the business in which it placed him and is accordingly vicariously responsible for the act of shooting.
Learned Counsel for the 1st Defendant-Appellant relied on a dictum in Poland v. Parr (John) and Sons (1927) 1 K.B. 236. In that case a carter, whilst off duty, seeing his employer's wagon apparently being robbed by boys, in order to prevent the theft struck one of the boys, who in consequence was run over and lost his leg the employers were held liable. It was stated:
To make an employer liable for the act of a person alleged to be his servant the act must be one of a class of acts which the person was authorised or employed to do. If the act is one of that class the employer is liable, though the act is done negligently or, in some cases, even if it is done with excessive violence. But the excess may be so great as to take the act out of the class of acts which the person is authorised or employed to do.
The last part of the dictum which was relied on is obiter. There is also a great difference between a carter, whilst off duty, firing a shot at a boy who was pilfering sugar from his master's wagon in England and a watcher or a conductor of an estate in Ceylon who is normally armed with a gun, firing a shot at a person in the course of a dispute as to the right of access over a roadway on the estate of his employer. The ground for the dictum may be that the possibility that a servant in England will pull out a gun is remote. The possibility that a conductor or a watcher on an estate in Ceylon will do so, having regard to the number of cases of shooting by estate watchers which come up for trial at the Assizes cannot be regarded as remote. I am therefore of the opinion that the dictum is not applicable to the facts of this case.
I am accordingly of the view that the finding of the learned District Judge that the 1st defendant Appellant is liable for the act of shooting by its employee, the 2nd Defendant-Respondent is correct. The appeal is dismissed with costs.
H.N.G. Fernando, C.J.
I agree.