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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
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
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