Universal Arts Limited v. The Queen

CACC000136/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 136 OF 1975.

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Coram: Pickering, J.

Date of Judgment: 3rd April, 1975.

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JUDGMENT

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1. The appellant company was convicted upon a charge of using a motor vehicle on a road when there was not in force, in relation to the use of the said vehicle by the company, a policy of insurance in respect of third party risks contrary to s.4(1) of the Motor Vehicle Insurance (Third Party Risks) Ordinance (Cap. 272).

2. The company owned a private car which was normally driven by one of the directors or by a paint sprayer, in the employment of the company, by the name of Tsang. The learned magistrate found as a fact that upon the morning in question this director handed the keys of the car to another paint sprayer called Lee, with instructions to give them to Tsang when Tsang arrived, for the purpose of Tsang's driving the car to a branch factory, collecting certain goods at that branch and bringing them back in the car to the main factory. In fact Lee, who held no driving licence at the matErial time, drove the car himself upon this errand and, on the way back to the main factory, was involved in an accident.

3. No policy of insurance was produced at the trial but this is immaterial since the defendant company's defence is that the company was not in fact "using" the vehicle. Mr. Jenkins, for the defendant company, argued that Lee's deviation from his duties was so gross, that the vehicle was not being used by his employers, he being employed not as a driver, but as a paint sprayer not authorised to drive the car. In support of this proposition Mr. Jenkins cited the case of Beard v. London General Omnibus Company⁽¹⁾ where, at the end of a journey the conductor of an omnibus belonging to the defendant company, in the absence of the driver, and apparently for the purpose of turning the bus in the right direction for the next journey, drove it through some side streets at a considerable pace and whilst so doing negligently ran into and injured the plaintiff. The plaintiff gave no evidence that the conductor was autherised by the defendants to drive the bus in the absence of the driver and the defendants were held not liable.

4. Two further cases relied upon by Mr. Jenkins were Twine v. Bean's Express Limited⁽²⁾ and Conway v. George Wimpey & Company⁽³⁾. In each of those cases a driver employed by the respective defendant company had, in defiance of express instructions to the contrary, accepted as a passenger somebody other than an employee of the company. In each case the company was held not liable for injury to the passenger.

5. It is apparent that the defendant company in the present case was neither "permitting" the car to be used upon the road nor "causing" it so to be used nor indeed was the company so charged. The charge is that of "using" and, whilst the authorities are by no means unanimous, I consider that in the circumstances of this case the company was so using the vehicle. At first sight Beard v. London General Omnibus Company⁽¹⁾, although a civil case, appears to be strongly in favour of the defendant company but it is to be observed that in Kay v. I.T.W. Limited⁽⁴⁾ Sellers, L.J. expressed the view that if the conductor in Beard's case had merely been turning the vehicle round at the terminus in preparation for the next journey, in the driver's absence, it is doubtful whether the decision today would have gone the same way. What the learned lord justice is there saying is that the detour through side streets was unnecessary and amounted to "a frolic of his own" on the part of the conductor but that had he confined himself to what was necessary for his employer's purposes, that is, merely turning the vehicle at the terminus, the company would have been liable. That appears to me to be analogous to the position in the present case where Mr. Lee, although unauthorised, was driving the car upon a necessary purpose of the defendant company.

6. Moreover the two cases of Twine⁽²⁾ and Wimpey⁽³⁾ appear to me to be distinguishable from the present case upon their facts. In each of those cases the driver, in carrying passengers other than employees of the defendant company, was doing something which was not done on his master's behalf. In the present case Mr. Lee was driving the car upon a specific necessary errand of the company. He was the company's servant; he took it upon himself although unlicensed, to make this journey for that necessary purpose of the defendant company and in those circumstances, the company was "using" the vehicle upon the road. The appeal must accordingly be dismissed.

Representation:

Jenkins of Gunston & Chow for appellant

Haldane, C.C., for respondent.

(1) 1900 2 Q.B. 530

(2) (1946)175 L.T. 131

(3) 1951 2 K.B. 266

(4) 1976 3 All E.R. 22.