The Gazette 1971

case excepted. (Implying "consent" is not quite the same task as implying "authority" for the two concepts themselves are distinct; an employee may have his employer's consent to use the latter's vehicle but, il the purpose for which the vehicle is used is the employee's own, no question of implied authority arises : O'Connell v Bateman (1932) 66 I.L.T. & S.J. 202.) A stock problem is the "borrowing" of a vehicle without prior approval. One approach is to hold, without further ado, that this provides no evidence of authorised use: Dowling v Robinson (1909) 43 I.L.T.R. 210. The other is, in the apt case, to enquire into the purpose of the particular "borrowing" and, if some benefit could possibly be said to accrue to the owner from it, to hold that such user is capable of being treated as impliedly authorised. It thus becomes an issue fit to be left to a jury, as in Palles C. B.'s minority opinion in Dowling's case, where he was impressed by the evidence to the effect that the driver had used the vehicle, inter alia, to pay a debt of the owner; or the basis of the court's own ruling, as in Thompson v Reynolds [1926] N.I. 131, where the rider, the owner's brother, was returning the motor cycle to the owner from the garage in which it had been left for repairs. Brady v Morris and Igoe (1938) 73 I.L.T.R. 24, may be contrasted with these last two cases : an employer was held not responsible for the negligent driving of his delivery van by a friend of the authorised substitute for his regular driver (the friend had been permitted to drive by the substitute driver and had diverted to deliver a casual parcel). Judges who favour the issue of implied authority being left, wherever pos- sible, in the hands of the jury, are probably not un- affected by fear of perjury where the plaintiffs remedy is seen to depend on arrangements internal to a business firm : Dowling v Robinson, per Palles C. B., and Boyle v J. B. Ferguson Ltd. [1911] 2 I.R. 489, per Gibson J. An absence of information as to the relationship between the owner and the driver places the court in an impossible position. If the plaintiff is held responsible for this state of affairs, his action must fail. Such Was the result in the curious case of Powell v McGlynn and Bradlaw [19021 2 I.R. 154. The plaintiff, who had been injured by a pony and trap used by the first defendant and owned by the second, alleged in his statement of claim that he had been injured by the servant or agent of the latter. Bradlaw asked for particulars of the name of the servant or agent and received the reply that this detail lay within his own knowledge. At the trial the alleged relationship was never explained. The possi- bility of the meritorious plaintiff's defeat at the hands of the unco-operative owner has not gone unremarked and. as a result, the suggestion has been put forward that the fact of ownership, once admitted, should raise a presumption of consent (the effect of this then being (i) that a burden of leading proof that there was no consent rests with the owner and (ii) that there is an issue to go to the jury). In Powell's case the existence of an analogous presumption was stoutly denied, in particularly forceful language by Lord O'Brien G.J., but Courts in England, faced with the identical problem, have decided otherwise: Barnard v Sully (1931) 47 T.L.R. 557. Later advice given by the Judicial Com- mittee of the Privy Council ( Rambarran v Gurucharran [1970] 1 All E.R. 749) favours the placing of restric- tions on the circumstances in which the plaintiff should be permitted to avail of the presumption and expressly disapproves of certain dicta in Powell's case. Barnard v Sully and not Powell v McGlynn and Bradlaw was relied on by Judge Shannon in Irish cases in 1931 (Kiernan v Ingram [1931] L.J. Ir. 119) and 1937 (Cullen v Tracey [1937] Ir. Jur. Rep. 72) in order to 7

CONSENSUAL USER IN THE VICARIOUS LIABILITY OF THE VEHICLE OWNER by NIAL OSBOROUGH, LL.M. Lecturer in Law, University College, Dublin

A vehicle owner may be made liable for injuries caused through the negligent use of the vehicle by someone other than himself. This doctrine of vicarious liability, introduced by statute in 1933, is now to be found in Section 118 of the Road Traffic Act, 1961; it comple- ments existing rules on vicarious liability at common law. Two conditions have to be satisfied before the statutory doctrine operates. It must be shown, first, that user of the vehicle was consented to by the owner and, secondly, that user at the relevant time was in accord- ance with the terms of such consent. Among the prob- lems raised by the satisfaction of these requirements are certain ones of proof. Proof of user with consent If the owner admits that the driver had his consent, either express or implied, there is no special difficulty. Should such an admission not be forthcoming, what becomes crucial is the proper inference to be drawn from whatever evidence is adduced. A denial of consent is founded on evidence of varying adequacy, and this necessarily affects the outcome. An owner argues from a position of strength when he is able to set up, either by himself or through others (the driver even: Gibson v Keeney [1928] N.I. 66), the existence of a categorical refusal of consent. Such a position, however, is not unassailable. It was early recognised in an ordinary master and servant case that there might occur exceptional circumstances in which such a refusal could be treated as waived : Coogan v Dublin Motor Co. (1915) 49 I.L.T.R. 24. And recog- nition of such a possibility, however slender on the evidence, has led a majority of the Supreme Court, in the leading statutory doctrine decision, to rule that the interpretation of an owner's refusal is an issue properly to be left to the jury : Maker v Great Northern Railway Co. and Warren [19421 I.R. 206. The owner's position is at the outset much weaker, if the only supporting evidence is his own. If, for instance, a member of a family claims he has had his father's consent, the father, as owner, will be hard pressed to maintain the reverse, especially where other evidence shows that the member had driven the vehicle on pre- vious occasions. The family member's own evidence may not be untouched by the desire to avoid a criminal prosecution but, if the additional evidence is present, the owner can scarcely expect the Court to make a direction in his favour: cf. Beechinor v O'Connor [1939] Ir. Jur. Rep. 5. What is here, fundamentally, a problem of conflicting evidence is not confined to the area of statutory vicarious liability; it emerges, too, where an employer maintains that an employee has not had permission to, say, drive his delivery van but other witnesses testify to the opposite: Duffy v Orr (1911) 75 I.L.T.R. 130. The problem, put another way, is one as to whether consent can be implied. Again there is a close analogy with a problem much agitated in the cases on common law vicarious liability, the scope of authority and the scope of employment. These cases raise issues essential to an appreciation of the statutory doctrine's limitations and are of particular relevance in the absence of any substantial judicial consideration of such matters in statutory doctrine litigation, Maker's