SC2084
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 212 OF 2019

BETWEEN
JACK WALOM KANIT trading as CITI-LINK TAXI SERVICES
Appellant

AND
NATIONAL AIRPORTS CORPORATION LIMITED
Respondent

Waigani:  Kandakasi DCJ, Anis and Berrigan JJ
2020: 26 November And
2021:  31 March

APPEAL – VICARIOUS LIABILITY – Elements – To establish vicarious liability at common law it is necessary to prove that: a tort has been committed; the tort was committed by an employee; and the tort was committed in the scope or course of his or her employment - Each case to be determined on its own facts and circumstances - In determining the scope or course of employment a broad approach should be adopted – The critical question is whether the employee’s conduct is sufficiently connected with his employment - Mere opportunity will not suffice – Prohibition will not necessarily exclude liability – Here the employee was delegated the use of his employer’s vehicle and whilst driving it negligently caused damage – Employer liable - Appeal upheld.

The appellant operated a taxi service in Kokopo.  On Saturday, 24 November 2012 the respondent called out its employee on his day off to attend to an emergency.  He was required to drive around attending to various tasks including the urgent clearing of a sewerage pipe near the airport.  The respondent delegated the responsibility of controlling and driving its vehicle to its employee in the performance of that work.  The vehicle was neither licenced nor registered.  At 5:45 pm the employee was driving away from the airport when he negligently caused an accident.  He was under the influence of alcohol at the time.

The appellant appealed against the decision of the lower court dismissing its claim against the respondent for vicarious liability.

Held:

(1)	To establish vicarious liability at common law it is necessary to prove that: a tort has been committed; the tort was committed by an employee; and the tort was committed in the scope or course of his or her employment:  Guard Dog Security Services v Mathews (2019) SC1861.

(2)	A wrongful act is deemed to be done by an employee in the course of his or her employment if it is either: (a) authorised by the employer; or (b) is a wrongful and unauthorised mode of doing some act authorised by the employer. An employer will be liable even for acts which he has not authorised, provided they are sufficiently connected with acts which he has authorised: Guard Dog Security Services v Mathews (2019) SC1861; Nare v Independent State of Papua New Guinea (2017) SC1584.

(3)	It is neither possible nor desirable to define precisely when conduct will fall within the course or scope of employment.  Each case must be determined according to its own facts and circumstances.  The critical question is whether the employee’s conduct was sufficiently connected with his or her employment. In determining the nature of employment, a broad approach should be adopted.  

(4)	Mere opportunity will not suffice.  Nor will an employer be liable where the employee is on a frolic or detour of his own: Pembaro v Baki (2015) N6224.

(5)	Prohibition will not necessarily exclude liability.  Nor will the fact that the wrongful act is intentional, or even criminal:  Guard Dog Security Services v Mathews (2019) SC1861.

(6)	In this case the employee was called out to work by the respondent on his day off on the weekend to attend to an emergency.  He was required to drive around attending to various tasks including the urgent clearing of a sewerage pipe near the airport.  The respondent created a risk to other road users by delegating the responsibility of controlling and driving its vehicle to its employee in the performance of that work.  It was the duty and obligation of the respondent to ensure that the employee it called out was physically and mentally fit for work.  It was the duty and obligation of the respondent to ensure that the vehicle its employee drove was roadworthy, registered and licenced.  Each of these things it failed to do. In the afternoon, the employee was driving away from the airport when he negligently caused an accident.  He was under the influence of alcohol at the time.  His negligent driving, whilst under the influence of alcohol, was a wrongful and unauthorised mode of the driving he was authorised to do, and thus clearly occurred within the scope or course of his employment. 

(7)	Accordingly, appeal upheld.

Cases Cited:
Papua New Guinea Cases

Guard Dog Security Services v Mathews (2019) SC1861
Nare v Independent State of Papua New Guinea (2017) SC1584 
Pembaro v Baki (2015) N6224
Porter v Morrison [1973] PNGLR 717  
Roka Coffee Estate Pty Ltd v Gerebi [1973] PNGLR 486 

Overseas Cases

Bazley v Curry [1999] 2 SCR 534
Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co [1925] SC 796
Elleanor v Cavendish Woodhouse Ltd and Comerford [1973] 1 Lloyd’s Rep 313
Higbid v Hammet (1932) 49 TLR 104  
Ilkiw v Samuels [1983] 1 WLR 991 
Lister and Ors v Hesley Hall Ltd [2001] 2 All ER 769 
Lloyd v Grace, Smith & Co [1912] AC 716
Morris v C W Martin & Sons Ltd [1966] 1 QB 716 
Nancollas v Insurance Officer [1985] 1 All ER
Paterson v Costain Press (Overseas) [1979] 2 Lloyd’s Rep 204
Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 
Prince Alfred College Incorporated v ADC [2016] HCA 37
Rose v Plenty [1975] 1 WLR 141
Smith v Stages [1989] AC 928 HL 
Williams v A & W Hemphill Ltd 1966 SC(HL) 31
Vandyke v Fender [1970] 2 QB

References Cited
Section 8 of the Wrongs (Miscellaneous Provisions Act), 1975

Counsel

R. Asa, for the Appellant
R. Kawat, for the Respondent
DECISION ON APPEAL
31st March, 2021

1.	BY THE COURT: This is an appeal against that part of the decision of the National Court made on 11 November 2019 in proceedings WS No. 905 of 2013, Jack Walom Kanit trading as Citi-Link Taxi Services v Damge Sakias and National Airports Corporation Limited which dismissed the appellant’s claim against the respondent in vicarious liability for the damage caused by the negligent driving of the respondent’s employee.

Background

2.	The appellant operates a taxi service trading under the name Citi-Link Taxi Services in Kerevat.  On 24 November 2012, Damge Sakias, the respondent’s employee, whilst driving the respondent’s vehicle, collided with a vehicle owned by the appellant.  The appellant brought proceedings against the driver of the vehicle in negligence for damage caused to the motor vehicle and for loss of business, and against the driver’s employer, the respondent, in vicarious liability.

3.	The trial in the lower court was conducted on the affidavits of all parties.  At the conclusion of the trial the learned trial judge found the respondent’s employee guilty of negligence in causing the accident.  He further found that the employee was “on a frolic of his own” at the time, drinking alcohol with his colleague and using his employer’s vehicle for that purpose.  He considered that was not in the interest of the employer and outside the scope of employment.  He dismissed the claim against the respondent for vicarious liability.  This appeal lies against the dismissal of the claim in vicarious liability only.

Issue on Appeal 

4.	The Appellants’ notice of appeal contains eight grounds of appeal.  The essential question raised by the appeal is whether the learned trial judge erred in not finding the respondent vicariously liable for the negligence of its employee.

Vicarious Liability

5.	Vicarious liability at common law was recently considered by the Supreme Court in Guard Dog Security Services v Mathews (2019) SC1861.

6.	As explained by the Court in that case, it has long been established at common law that an employer will be vicariously liable for the torts of its employees that are committed in the course of employment: see [19].

7.	Vicarious liability imposes responsibility on an employer for the wrongful act or omission of its employee even though it itself is free from fault.  The requirement that the act occur in the course of employment is regarded as “a compromise between two conflicting policies: on the one end, the social interest in furnishing an innocent tort victim with recourse against a financially responsible defendant; on the other, a hesitation to foist any undue burden on business enterprise”: The Law of Torts, 9th ed (1998), pp 409-410; see also Lister and Ors v Hesley Hall Ltd [2001] 2 All ER 769; and Bazley v Curry [1999] 2 SCR 534, discussed further below.

8.	In 1907 Sir John Salmond formulated the tests for determining whether an act occurs in the course of employment, which tests have laid the foundation for the development of this area of liability in common law jurisdictions ever since.  According to those tests a wrongful act is deemed to be done by an employee in the course of their employment if it is either (a) authorised by the employer; or (b) is a wrongful and unauthorised mode of doing some act authorised by the employer.  Importantly, in respect of the latter Salmond explained that an employer would be liable “even for acts which he has not authorised, provide they are so connected with acts which he has authorised, that they may rightly be regarded as modes – although improper modes – of doing them:  Guard Dog at [20].

9.	In Guard Dog Higgins J found a security company liable for the negligent conduct of its employee in assaulting a referee of a rugby league match with a baton during a pitch invasion by spectators.  The Supreme Court had no hesitation in dismissing the appeal finding that although the security guard acted well outside the scope of his actual authority, his conduct was so closely connected with his employment as to have occurred within the course of his employment.

10.	Nare v Independent State of Papua New Guinea (2017) SC1584 is a unanimous five-member decision of the Supreme Court.  In that case, the primary court found that damage had been caused to the occupants of a village by a group of police officers conducting a raid.  Despite those findings, the learned trial judge held that he was bound to dismiss the claim on the basis that the pleadings failed to name the alleged tortfeasors as parties.

11.	The Court overturned prior Supreme Court authority to that effect and went on to find the State vicariously liable under s. 8 of the Wrongs (Miscellaneous Provisions Act), 1975, which provides:  

“[1] notwithstanding any law to the contrary the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or the purported performance or the purported performance by the person of a function (including an independent function) where the performance or purported performance by the person of a function.

(a) is in the course of the person’s service with the Crown or is an incident of the person’s service.”

12.	The Court also found that “the wrongful acts of the police officers, though unauthorized, were clearly a mode adopted, albeit gravely improperly, to carry out a function of policing, and held that the “substantive justice of the case would seem to warrant an award of damages, perhaps even exemplary damages.” 

13.	The Court said at [35]:

“Clearly both legislative provisions raise the question of the nexus between the tortuous conduct and the scope of the duties or functions the officers, servants or agents have to perform on behalf of the State. At one extreme it is plain that, if a police officer, not on duty or acting in the course of duty burgles a house alone or in company, the nexus with his or her duty to the State would be too tenuous for liability to be visited upon the State. On the other extreme, no wrongful conduct is ever lawfully directed by the State. If that be a requirement then, as no servant or agent or officer of the State can ever be lawfully instructed to commit a wrongful act, the State could never be liable. The key to the nexus required is in the words “performance or purported performance” by the wrongdoer of his or her duties or functions as delegated by the State. The onus is on the State to prove that the wrongful acts of the tortfeasors was so far removed from their ‘domain of authorised actions’ as to have no or no purported connection therewith.”

14.	Of course, Nare was concerned with vicarious liability as codified under statute.  It is not strictly binding in the case of common law liability given that it deals with the specific language and requirements under statute.  Nevertheless, as the Supreme Court in Guard Dog observed, the case remains highly instructive given its focus on the connection between the wrongful acts and the “domain of authorised actions” in determining liability. 

15.	Like the Supreme Court in Nare and Guard Dog, superior courts in other jurisdictions have increasingly focused on the question of whether there is sufficient connection between the scope of employment and the wrongful act of the employee in determining liability. 

16.	This question has received particular attention in recent years in cases where the conduct involved not just negligent but intentional, and in particular, criminal, wrongdoing on the part of the employee.   The Court referred to the following cases at [22] to [24] of Guard Dog:

“In Bazley v Curry (1999) 174 DLR the Canadian Supreme Court held that in determining this issue the court will examine: the opportunity that the enterprise afforded the employee to abuse his or her power; the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee); the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise; the extent of power conferred on the employee in relation to the victim; and the vulnerability of potential victims to wrongful exercise of the employee’s power.

The United Kingdom House of Lords followed Bazley in Lister and Ors v Hesley Hall Ltd [2001] 2 All ER 769 to hold that the question was whether the employee’s conduct was “so closely connected with his employment that it would be fair and just to hold the employer vicariously liable”. In that case a school was held liable for the sexual abuse of children committed by the warden of a boarding school.

Similarly, the High Court of Australia in Prince Alfred College Incorporated v ADC [2016] HCA 37 recently held that the “relevant approach” to take when considering the issue of vicarious liability requires a careful examination of the actual role that the employer assigns to the employee and the position in which the employee was thereby placed vis-à-vis the plaintiff. That case also concerned liability for sexual abuse in an educational setting.”

17.	Those cases concerned intentional wrongdoing.  We are not concerned with intentional wrongdoing in this case but negligence.  Nevertheless, the cases remain useful in highlighting the importance of connection between the wrongful conduct and the role of the employee.  

18.	It is also clear, however, that an employer will not be responsible for the conduct of an employee acting outside the scope of his employment on a frolic or detour of his own.  As explained by Kandakasi J (as he then was) in Pembaro v Baki (2015) N6224 citing Peter Aigilo v Sir Mekere Morauta (2001) N2102:

“It is an accepted principle that, an employer cannot be made liable for the acts of his servant, if the servant acted outside the scope of his employment. In other words, if an employee goes on a frolic and detour of his own and causes damages to a third party, the employer will not be liable for the acts of the employee. This principle has also been already applied in a number of cases in our jurisdiction: see for example Kolta Development Pty Ltd & Great Happiness Seafood Pty Ltd v. PNG defence Force and The State N1470..."

19.	Whilst the conduct must be in the course of employment, there is no requirement that the employee must act for the benefit of or at the direction of the employer.  

20.	As the Supreme Court in Nare (supra) explained no wrongful conduct is ever lawfully directed by the State. If that were the requirement then the State could never be liable. Similarly, as will be seen below, not even prohibition will necessarily preclude liability at common law.  

21.	This has been the position in England since the House of Lords decision in Lloyd v Grace, Smith & Co [1912] AC 716, in which a firm of solicitors were held liable for the dishonesty of their managing clerk who persuaded a client to transfer property to him and then disposed of it for his own advantage.  It was, in the words of Lord Steyn in Lister (supra), “an overly restrictive view and hardly in tune with the needs of society”.  Rather it is the connection between the employment and the conduct of the employee that is critical.

22.	Similarly, in In Morris v C W Martin & Sons Ltd [1966] 1 QB 716 an employee stole a mink coat delivered to his employers for cleaning.  In reversing the lower court’s decision and finding the employer liable, Diplock LJ observed, at pp 736-737:

"If the principle laid down in Lloyd v Grace, Smith & Co [1912] AC 716 is applied to the facts of the present case, the defendants cannot in my view escape liability for the conversion of the plaintiff's fur by their servant Morrissey. They accepted the fur as bailees for reward in order to clean it. They put Morrissey as their agent in their place to clean the fur and to take charge of it while doing so. The manner in which he conducted himself in doing that work was to convert it. What he was doing, albeit dishonestly, he was doing in the scope or course of his employment in the technical sense of that infelicitous but time-honoured phrase. The defendants as his masters are responsible for his tortious act."

23.	The following cases have specifically considered the liability of an employer for the actions of their drivers. 

24.	In Ilkiw v Samuels [1983] 1 WLR 991 a lorry driver was under strict instructions from his employers not to allow anyone else to drive the lorry.  He allowed a third party to do so.  His employers were held liable for the resulting accident.  Diplock LJ said that a broad approach should be taken when determining the course or scope of employment.  Furthermore, at p 1005:

“A person who makes use of a vehicle for the purpose of his business is under a duty in tort so to control it so that it is driven with reasonable care while being used for that purpose. If he delegates the performance of the acts which give rise to this duty to his servant, he is vicariously liable if the servant fails to perform it. In this sense he may be said to delegate the duty though he cannot divest himself of it, as his continuing vicarious liability shows.”

25.	Similarly, in Kewa v Lus (2007), unreported, WS 415 of 2003, 14 March 2007, Manuhu J said:

“In the context of this case, every driver is saddled with the duty to exercise reasonable care for other road users. A driver’s failure to observe that duty of care will expose him to civil liability for any damage or harm caused as a direct result of the failure to take reasonable care. In addition, the driver’s employer is vicariously liable for the same tortuous act if the employee driver was driving in the course of his employment.”
26.	In Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co [1925] SC 796, garage owners were held responsible for the conduct of their night watchman who took out a vehicle for his own purpose and damaged it in a collision with another vehicle.  Per Lord President Clyde: 

“The question is not to be answered merely by applying the test whether the act in itself is one which the servant was employed or ordered or forbidden to do. The employer has to shoulder responsibility on a wider basis; and he may, and often does, become responsible to third parties for acts which he has expressly or impliedly forbidden the servant to do. A servant is not a mere machine continuously directed by his master's hand, but is a person of independent volition and action, and the employer, when he delegates to him some duty which he himself is under obligation to discharge, must take the risk of the servant's action being misdirected, when he is, for the time, allowed to be beyond his master's control. It remains necessary to the master's responsibility that the servant's act be one done within the sphere of his service or the scope of his employment, but it may have this character although it consists in doing something which is the very opposite of what the servant has been intended or ordered to do, and which he does for his own private ends. An honest master does not employ or authorise his servant to commit crimes of dishonesty towards third parties; but nevertheless he may incur liability for a crime of dishonesty committed by the servant if it was committed by him within the field of activities which the employment assigned to him, and that although the crime was committed by the servant solely in pursuance of his own private advantage. The servant is a bad servant who has not faithfully served but has betrayed his master; still, quoad the third party injured, his dishonest act may fall to be regarded as an ill way of executing the work which has been assigned to him, and which he has been left with power to do well or ill.”

27.	In Williams v A & W Hemphill Ltd 1966 SC(HL) 31, contrary to the instructions of his employers, a driver of a lorry deviated substantially from his route. On the detour an accident occurred owing to the fault of the driver. In affirming the employer’s liability Lord Pearson with whom all the Law Lords agreed, analysed the position as follows, at p 46:

“Had the driver in the present case been driving a lorry which was empty or contained nothing of real importance, I think that so substantial a deviation might well have constituted a frolic of his own. The presence of passengers, however, whom the servant is charged qua servant to drive to their ultimate destination makes it impossible (at all events, provided that they are not all parties to the plans for deviation) to say that the deviation is entirely for the servant's purposes. Their presence and transport is a dominant purpose of the authorised journey, and, although they are transported deviously, continues to play an essential part. It was said in argument that there must be some limits to that contention and that one could not hold that, if the driver had gone to Inverness, he would still be acting on his master's business. No doubt there are such limits to the argument as common sense may set on the facts of each case. But when there are passengers whom the servants on his master's behalf has taken aboard for transport to Glasgow, their transport and safety does not cease at a certain stage of the journey to be the master's business, or part of his enterprise, merely because the servant has for his own purposes chosen some route which is contrary to his instructions…The more dominant are the current obligations of the master’s business in connection with the lorry, the less weight is to be attached to disobedient navigational extravagances of the servant…In weighing up, therefore, the question of degree, whether the admittedly substantial deviation of the vehicle with its passengers and baggage was such as to make the lorry's progress a frolic of the servant unconnected with or in substitution for the master's business, the presence of the passengers is a decisive factor against regarding it as a mere frolic of the servant. In the present case the defenders remained liable, in spite of the deviation, for their driver's negligence.”

28.	In Rose v Plenty [1975] 1 WLR 141, in which a milkman who deliberately disobeyed his employer’s order not to allow children to help on his rounds did not go beyond the scope of his employment in allowing a child to help him. Per Scarman LJ:

“The servant was, of course, employed at the time of the accident to do a whole number of operations. He was certainly not employed to give the boy a lift, and if one confines one's analysis of the facts to the incident of injury to the plaintiff, then no doubt one would say that carrying the boy on the float - giving him a lift - was not in the course of the servant's employment. 
But in Ilkiw v Samuels [1983] 1 WLR 991 Diplock LJ indicated that the proper approach to the nature of the servant's employment is a broad one. He says, at p 1004:
‘As each of these nouns implies' - he is referring to the nouns used to describe course of employment, sphere, scope and so forth - 'the matter must be looked at broadly, not dissecting the servant's task into its component activities - such as driving, loading, sheeting and the like - by asking: what was the job on which he was engaged for his employer? and answering that question as a jury would.’
Applying those words to the employment of this servant, I think it is clear from the evidence that he was employed as a roundsman to drive his float round his round and to deliver milk, to collect empties and to obtain payment. That was his job. . . He chose to disregard the prohibition and to enlist the assistance of the plaintiff. As a matter of common sense, that does seem to me to be a mode, albeit a prohibited mode, of doing the job with which he was entrusted. Why was the plaintiff being carried on the float when the accident occurred? Because it was necessary to take him from point to point so that he could assist in delivering milk, collecting empties and, on occasions obtaining payment.”

29.	Whether or not an employee’s travel is in the course of employment will again involve a consideration of the particular facts of the case, the nature of his work and whether the conduct can be seen as reasonably incidental to it: see the discussion in Clerk & Lindsell on Torts, 19th Ed, at 6-34.    

30.	In general terms an employee on his way to or from work will not be acting in the course of his employment.  An employee driving his colleague to or from work will not usually be within the scope of his employment unless the employer requires its employees to travel this way as part of their duties: Vandyke v Fender [1970] 2 QB; Paterson v Costain Press (Overseas) [1979] 2 Lloyd’s Rep 204.  In Elleanor v Cavendish Woodhouse Ltd and Comerford [1973] 1 Lloyd’s Rep 313, the Court held that where an employee is required as part of his duties to drive a colleague around the country to do their jobs as salesman, it was reasonably incidental to the employment of the driver that he takes his colleague home. 

31.	Again, the question is one of degree.  In general terms, an employee travelling between two places of work will be acting in the course of his employment.  In Smith v Stages [1989] AC 928 HL an employer was held liable for the damage caused when its employee, who had been working away from his normal place of employment, negligently drove his own vehicle to his home.  The employer was aware that the employee was using his own vehicle and the traveling day was paid as a working day.  Similarly, if work involves travelling between bases, an employee may be acting within the course of his employment even if he travels to his home between bases:  Nancollas v Insurance Officer [1985] 1 All ER.  On the other hand, an employer was not liable when his employee was negligent whilst cycling home to lunch even though he had permission to use the bicycle for that purpose:  Higbid v Hammet (1932) 49 TLR 104.  

32.	The vast majority of cases in this jurisdiction deal with the vicarious liability of the State under the Wrongs (Miscellaneous Provisions Act), 1975 Act for the conduct of its police officers.  The Supreme Court in Nare has clarified the law in that regard. 

33.	Fewer cases have considered vicarious liability at common law.  The following are most relevant.

34.	In Roka Coffee Estate Pty Ltd v Gerebi [1973] PNGLR 486 the plaintiff was killed in a motor vehicle accident.  He was one of ten persons given a lift in a pickup truck owned by the defendant and driven by one of its employees, a coffee buyer, who was under the influence of alcohol at the time.  In determining whether the driver was acting in the course of his employment, Frost SPJ, with whom the Court agreed, whilst acknowledging that it might be inferred that the driver had authority to pick up a “stray passenger” on the way to his destination, found that it could not be inferred that he had permission to pick up ten people as had occurred in that case.  If one were to consider this case now in the terms outlined above, it might be said that picking up one passenger might have been regarded as incidental to or within the scope of employment, whilst acting as a passenger service for many passengers was not.  

35.	In Porter v Morrison [1973] PNGLR 717 the plaintiff, an employee of the defendants, received injuries and consequential loss and damage when he was a passenger in a motor vehicle owned by the defendants and driven by an employee of the defendants when that motor vehicle collided with another motor vehicle which was also owned by the defendants and driven by an employee of the defendants. The collision occurred at night, between the two vehicles travelling in opposite directions.  The cause of the accident was unclear, but Williams J found that each of the drivers was at all relevant times the servant and agent of the defendants acting within the scope of his employment.  Accordingly, it was not necessary for the plaintiff to establish that a particular driver was at fault and held the defendants liable for the damage suffered.

36.	Several principles may be elicited from the above authorities.

37.	Firstly, to establish vicarious liability at common law it is necessary to prove that: a tort has been committed; the tort was committed by an employee; and the tort was committed in the scope or course of his or her employment.

38.	It is neither possible nor desirable to define precisely when conduct will fall within the course or scope of employment.  Each case must be determined according to its own facts and circumstances.  The critical question is whether the employee’s conduct was sufficiently connected with his or her employment.  In determining the nature of the employment, a broad approach should be adopted.  

39.	Mere opportunity will not suffice.  Nor will an employer be liable where the employee is on a frolic or detour of his own.  It is not necessary, however, for the employee to act for the benefit of or at the direction of the employer.  

40.	It is also clear that even express prohibition will not necessarily exclude liability.  Nor does the fact that the wrongful act is intentional or even criminal.  The question remains whether the prohibition “limits the sphere of employment or one which only deals with conduct within the sphere of employment”. 

41.	Where the employer has entrusted or delegated the duty of caring for someone or something to his employee it may be less difficult to establish liability even where there is an express prohibition.  This is entirely consistent with the policy behind vicarious liability.   The potential for liability should encourage employers to take active steps to supervise and control their employee to avoid the tort in the first place.  The fact that they do so, however, does not mean that they should escape liability if one occurs.

42.	Furthermore, whilst the time and place at which the conduct occurs will be relevant, those factors may not be conclusive as to whether or not the offending took place within the course of employment.  

Consideration 

43.	There is no issue in this case that two of the three essential ingredients for vicarious liability have been established, in particular that, the damage suffered by the appellant was caused by the negligent driving of Gamge Sakias, and that at the relevant time he was an employee of the respondent.  The only issue is whether the learned trial judge erred in finding that he was not acting in the course of his employment at the time.

44.	The evidence in this case was limited and untested.  None of the witnesses were required for cross-examination.  The respondent’s evidence was very limited, and neither the driver’s passenger nor the contractor referred to below, both of whom the respondent also employed that day, gave any evidence.  The employee did not dispute that he drove negligently in that he failed to keep a proper look out and pay due attention.  We are concerned that the same lawyers who acted for the respondent also acted for its employee when there was a clear conflict of interest between those parties, particularly as to whether the employee was under the influence of alcohol at the time, which he denied, but which his employer relied on to deny vicarious liability.  The witnesses for the appellant were not challenged on this issue by the lawyers for the employee or his employer, despite some irregularities in their evidence.   Be that as it may, we find no error in his Honour’s finding that the employee was under the influence of alcohol at the relevant time.  

45.	As the cases above demonstrate, in general terms an employee driving his own vehicle on his way to or from work, or on the way to obtain a meal during work hours, will not be acting in the course of his employment.  This case, however, is different.    

46.	Anyone using a vehicle for the purpose of his business is under an obligation to ensure that it is driven with reasonable care whilst being used for that purpose.  If he delegates the performance of the acts giving rise to the duty to his employee, he is vicariously liable if the employee fails to perform it.  

47.	In this case, the employee was called out on his day off, a Saturday, by the respondent, at a time unknown, to collect tyres from Bridgestone in Kokopo, collect another employee, and go with him to assist a contractor urgently clear a sewerage drain near the airport.  The use of the respondent’s vehicle was authorised for this work and the overwhelming inference, which does not appear to be in dispute, is that he drove the vehicle from his home.  The vehicle was unlicenced and unregistered. 

48.	The unchallenged evidence of the employee was that he was driving uphill from the airport, with his colleague, to a trade store to buy some food when the accident occurred. The essential question is whether the employee was acting in the course of his employment at the time.  

49.	The learned trial judge found that the employee’s unchallenged evidence that he was going to get food was not truthful, on the basis that: it was 5:45 pm and work would therefore have finished; the driver was “way outside” the work location at the tarmac area; he and his colleague could have bought food from stalls at the airport which would have still been open because people would still have been around the airport area; and he and his colleague were “drunk”. 

50.	With respect to the learned trial judge, the fact that it was 5:45 pm did not of itself give rise to the finding that work had finished.  The time of day was not determinative in this case given that the work included urgently clearing a sewerage pipe, something that presumably takes as long as it takes.  

51.	Contrary to the learned trial judge’s finding, the evidence did not establish that the driver was “way outside” his work location at the relevant time.  The unchallenged evidence of the employee was that he was driving up the hill from the airport.  Nor was there any evidence to show that the food stalls were still open at the time.  Whether an employee’s travel away from the immediate location of work breaks the connection with the work will always be a question of degree in any event.  Using the vehicle to obtain food at 5:45 pm from a nearby trade store was in our view reasonably incidental to the work he was performing that day. 

52.	Putting aside the issue of alcohol consumption, it is our view that the employer would clearly be vicariously liable for the negligence of its employee in those circumstances.  

53.	Furthermore, the fact that the employee was drunk at the time of the accident is not of itself enough to relieve the employer of liability.  

54.	The respondent submitted that like all companies it “would have” had a policy against alcohol consumption.  There was no evidence of any such policy.  Nevertheless, we accept that the employee was not authorised to consume alcohol whilst driving on duty, and which, depending on the extent of alcohol consumed, is also against the law.  But whether or not he was authorised to consume alcohol is not the determinative factor.  The determinative factor is whether he was still acting in the course of his employment at the time of the accident.  If, for instance, a bus driver under the influence of alcohol has an accident whilst driving his employer’s bus on the usual route, there would in general terms be no question that his employer would be liable.

55.	Here the learned judge inferred that work must have stopped because he had been drinking and that he was not going to get food but was in fact going to get more alcohol.  That is not clear to us on the evidence.   Moreover, that is not to the point.

56.	The evidence establishes that the employee was called out to work on his day off, on a weekend, by his employer to attend to an emergency.  He was required to drive around attending to various tasks including the urgent clearing of a sewerage pipe near the airport.  The respondent created a risk to other road users by delegating the responsibility of controlling and driving its vehicle to its employee in the performance of that work.  It was the duty and obligation of the respondent to ensure that the employee it called out was physically and mentally fit for work.  It was the duty and obligation of the respondent to ensure that the vehicle its employee drove was roadworthy, registered, and licenced.  Each of those things it failed to do.  At 5:45pm the employee was driving away from the airport when he negligently caused an accident.  He was under the influence of alcohol at the time.  His negligent driving, whilst under the influence of alcohol, was a wrongful and unauthorised mode of the driving he was authorised to do by his employer, and thus clearly occurred within the scope or course of his employment. 

Decision and Orders

57.	For the foregoing reasons, we find the appellant has made out its case and that the appeal should therefore be allowed with costs and consequential orders.  Accordingly, we make the following orders.  

(1)	The appeal is upheld.
(2)	The National Court decision the subject of this appeal is quashed and set aside.
(3)	Judgement on liability is entered against the respondent.
(4)	The matter is to be listed for directions hearing on the next available date.
(5)	Parties are required to have the appellant’s damages settled and failing that, the matter shall be set down for trial on the assessment of damages.
(6)	The respondent shall bear the costs of the appellant on a party/party basis, to be taxed if not agreed.

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Warner Shand Lawyers: 		Lawyer for the Appellant	
Kawat Lawyers: Lawyer for the Respondent