Hodgkiss Ltd v Queen (Criminal Appeal No. 75 of 1954) [1954] EACA 168 (1 January 1954)

# APPELLATE CRIMINAL

#### Before SIR HECTOR HEARNE, C. J.

### LOWIS & HODGKISS LTD., Appellants

## THE QUEEN, Respondent

# Criminal Appeal No. 75 of 1954

Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 233), section 4 (1) -Permitting use of an uninsured motor vehicle-Traffic Ordinance (Cap. 232), section 3—Use of an unlicensed vehicle by servant—Section 26— Permitting use of a motor vehicle without prescribed identification marks-Liability of master for act of servant in statutory offences—"Permitting" defined.

An officer of the Traffic Police stopped a lorry belonging to and driven by a servant of the accused company. The lorry was found to have no number plates and to be a new one consigned from Nairobi to the company's branch in Mombasa, and in the act of being driven to the railway goods yard. The driver could produce no insurance certificate. The vehicle carried no licence and carried no identification plates. The company had an insurance policy but it was valid only so long as the lorry carried trade number plates. The company had in its possession a number of "trade plates" and their drivers were warned on engagement to use the trade plates. The magistrate convicted on all three counts. The company appealed.

Held $(30-3-54)$ .—(1) The liability of a master for the act of his servant involving a statutory offence is governed by the terms of the statute creating the offence. There are statutes which (1) make the act of the servant the act of the master whether the master knew of it and even if he had forbidden it; (2) make the master liable for acts of his<br>servant unless he can show that he took all reasonable steps to prevent it; and (3) make the master liable for the act of his servant only if it is affirmatively proved that the<br>act of the servant is in fact the act of the master who has inspired it in some way, by counselling it or causing it or permitting it to be done.

(2) Section 3 of the Traffic Ordinance (Cap. 232) enacts that the owner and driver of any vehicle which is driven upon a road without a licence shall be severally liable. The lorry was driven on a road by a servant of the company in the course of his<br>employment and within the scope of his authority and the company was therefore<br>liable to be convicted, even if they had forbidden the act to b

(3) Indifference or omission may amount to permission where the party charged<br>knows or has reason to suspect that the particular act is to be or is likely to be done.

(4) Section 4 (1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 233) enacts that it is unlawful to cause or to permit any other person to use a motor vehicle on a road unless there is in force a policy of insurance in respect of third party risks. This provision falls within the category (3) above. On the evidence<br>there could be no finding adverse to the company that any suspicion is entertained<br>that their drivers would not obey instructions, and it cou was erroncous that constructive permission had been given because no check had been made on the vehicle because a senior employee of the company had reason to suspect<br>that the drivers would disregard their instructions.

(5) The charge under section 26 of the Traffic Ordinance having been brought under the wrong section, the Crown did not support the conviction.

Conviction on 2nd count upheld.

Cases cited: Radford v. Williams. (1910) 110 L. T. 195; McLeod v. Buchanan, 1940 2 A. E. R. 179; Goldsmith v. Deakin, (1930) 50 T. L. R. 73; Evans v. Dell, (1937) 1 A. E. R 349

#### Shaylor for appellant company.

### Bechgaard, Crown Counsel, for the Crown.

JUDGMENT.—The appellants who are dealers in motor vehicles had a general identification mark issued to them under section 12 (4), Cap. 232; they have 15 trade plates bearing the identification mark. One of their lorries, unlicensed and uninsured, was driven to the railway station at Nairobi for the purpose of entrainment. The driver of the lorry was acting in the course of his duties as a servant of the appellants. There were no trade plates bearing the identification mark issued to the appellants on the lorry. "Trade plates", however, had been issued to all drivers in the employment of the appellants, and on engagement they were warned under pain of instant dismissal that they were on no account to take out unlicensed vehicles on the road without putting on the trade plates allocated to them. There were plenty of trade plates available, one for each of the nine regular drivers and six spares.

The question is whether on these facts the appellants were properly convicted of offences *contra* section 4 (1), Cap. 233, and section 3 of Cap. 232. At the time of the alleged offences the new Traffic Ordinance had not been brought into force.

In his judgment the learned magistrate referred to a number of cases which were cited to him in court and others which were not. But, with respect, neither he nor the advocate who appeared for the appellants at the trial seemed to appreciate that the liability of a master for the act of his servant involving a statutory offence is governed by the terms of the statute creating the offence. There are (1) statutes which make the act of the servant the act of the master whether the latter knew of it and even if he had forbidden it; (2) statutes which make the master liable for the act of his servant unless he can show that he took all reasonable steps to prevent it; (3) statutes which make the master liable for the act of his servant only if it is affirmatively proved that the act of the servant is in fact the act of the master who has inspired it in some way, by counselling it or causing it or permitting it to be done. In *Radford v. Williams*, (1910) 110 L. T. 195, for instance, to which the magistrate referred, it was held that once a person has been proved to have been drunk on licensed premises. the onus of proof is on the licensee to show that he and his servants had taken all reasonable steps to prevent it. It was so held because the Act under which the accused was charged specifically provided that in the circumstances mentioned the onus of proof of having taken reasonable precautions lay on him and his servants. The case falls within (2) and it certainly has no application to the offence created by section 3 of Cap. 232 which falls within (1). Section 3 enacts that the owner and driver of any vehicle which is driven upon any road... without a licence ... shall be severally liable". The lorry was driven upon a road by a servant of the appellants in the course of his employment and within the scope of his authority, and the appellants were, therefore, liable to be convicted, even if they had forbidden the act to be done. It is unnecessary to cite various English authorities in support of (1). Had a trade plate been affixed to the lorry no offence would have been committed *contra* section 3 (section 12 (4), Cap. 232). As there was no trade plate the appellants were properly convicted.<br>The words "permitted to be used" in the "particulars" are words of surplusage.