9 / 196
throw the onus of proof on the owner but this approach
was not followed by O'Byrne J. in
Hassett v Skehan and
Redmond
[1939] Ir. Jur. Rep. 86, when giving a direc-
tion in favour of the owner and refusing to acknowledge
the existence of the presumption. The patent discre-
pancy in these cases was explained at the time ("The
Road Traffic Act, 1933" (1941)
Irish Jurist
19) on the
basis that the plaintiff could not avail of the presump-
tion where incapable of indicating the relationship of
the owner and driver and, in addition, of adducing
any evidence sufficient to establish agency (as in
Hassett's
case). This view as to the circumstances in
which the presumption comes into play should be con-
trasted with that recently expressed by Lord Donovan
in the Judicial Committee of the Privy Council in
Rambarran v Gurucharran
[1970] 1 All E.R. 749, at
p. 751 : "Where no more is known of the facts . . . than
that at the time of an accident the car was owned but
not driven by A it can be said that A's ownership
affords
some
evidence that it was being driven by his
servant or agent. But when the facts bearing on the
question of service or agency are known, or sufficiently
known, then clearly the problem must be decided on
the totality of the evidence."
Proof of user in accordance with the terms of the
consent
Terms are express or implied and cover a variety of
matters.
An owner may expressly insist that the driver drive
only when accompanied by the owner (
Kiernan v
Ingram)
or someone else. Where the driver is engaged
in driving the owner it does not. of course, require a
statutory doctrine based on consensual user for the
attribution of vicarious liability. No special evidence
problem arises.
Terms may relate to the purpose for which the vehicle
is to be used.
An employee of a garage is given permission to drive
the owner's car to the garage for repairs but the owner
cannot be held responsible when the employee, at the
behest of the garage proprietor, uses the owner's car to
drive some customer home :
Mulligan v Daly
(1939) 73
I.L.T.R. 34. Approval of user for such a purpose is, on
any common sense view, unlikely to have been forth-
coming and a lawyer so arguing must face, in addition
to the problem of proof, the limits of a judge's or jury's
credulity.
The owner may state that the vehicle is not to be
used to give lifts to passengers. In the absence of un-
equivocal supporting evidence the prudent course of
action for the trial judge to follow is, presumably, to
leave the matter to the jury. The equivalent dilemma is
present in ordinary master and servant cases and, in
recent litigation, such a course of action has been recom-
mended, the recommendation being accompanied by
suggestions as to what matters the jury should advert
t o:
Kearney v Clare Lime Co.
[19661 I.R. 338. In
another case the decision (of Haugh J.) on the facts
appears to have been undulv restrictive:
Doyle v
Fleming's Coal Mines Ltd.
(1953) 87 I.L.T.R. 198.
A driver may have general authoritv to drive but not
at certain times or for a purpose of his own. Where
informal understandings are seen to govern the relation-
ship of the owner and the driver the evidential burden
facing the plaintiff is particularly onerous. No cases
arising under the statutory doctrine are reported but
there is some authority from master and servant law.
The cases in this area illustrate the further point that
the issue of the terms of an authority or a permission is
not always distinguishable from the issue of their exis-
8
tence; the same would apply under the statutory doc-
trine to the terms of a consent and its actual existence.
In
Boyle v J. B. Ferguson Ltd.
[1911] 2 I.R. 489, a car
salesman was driving two girls in a car belonging to the
firm; on such occasions, the salesman maintained,
business could be attracted to his firm. The court
refused to disturb a jury verdict in favour of the
plaintiff.
Kiely v McCrea and Sons Ltd.
[1940] Ir. Jur.
Rep. 1, provides a contrast. A commercial traveller was
required to "use his best endeavours to effect the sale of
the goods of the company" but the car placed at his
disposal was not to be used for private purposes. An
accident occurred when the traveller was using the car
to drive employees of firms with which he did business
from a G.A.A. function. The traveller contended that
his presence at the function was calculated to promote
the sales of his company's goods. The High Court
(Hanna, O'Byrne J.J.) upset a Circuit Court finding
that use of the car for the purpose in question was
impliedly authorised.
Where it is established that there has been consent to
general user but the owner insists that the consent was
subject to restrictions a serious evidential problem faces
the plaintiff It would seem reasonable in such circum-
stances to operate a presumption in favour of the plain-
tiff, thus imposing on the owner the burden of showing
the limited character of the consent. In English master
and servant law an employer conceding authority to
his employee for certain purposes has had raised against
him a presumption that at all relevant times the latter
was acting within the scope of his employment:
Laycock
v Grayson
(1939) 55 T.L.R. 698. This approach was
eschewed by Palles C. B. in the earlier Irish case of
Dowling v Robinson
in which the judge maintained
that something more was first necessary. It is suggested
that a presumption equivalent to that operated under
English master and servant law should, when the occa-
sion arises, be recognised for purposes of statutory
doctrine litigation.
An owner, finally, may stipulate that the vehicle is
not to be loaned by the driver to anyone else. Such a
stipulation, for purposes of the statutory doctrine, falls
to be treated as a refusal of consent to such other party,
even though it is at the same time a condition attached
to the consent given to the first driver :
Maker v Great
Northern Railway Co. and Warren. Maker's
case shows
that an ingenious lawyer may succeed with the argument
that a prohibition on lending to a third person is not as
final as it sounds. Proof of circumstances suggestive of
an implied waiver of the prohibition then becomes
central.
Variation in the terms of a consent must be shown to
have been properly communicated to the driver before
the owner can seek to take advantage from it. There is
no statutory doctrine case but
O'Connell v Minister for
Finance
i
and Mullan
[1945] Ir. Jur. Rep. 18, is auth-
ority enough. The plaintiff was injured due to the
negligence of the driver of a state car driven under a
permit allowing it to be used for Local Defence Forces
purposes. On the occasion in question the driver was
returning to their homes artistes who had appeared at
an entertainment designed to raise funds for the L.D.F.
A circular had previously been distributed forbidding
cars to be used for the purpose of carrying passengers
to and from such entertainments but it was uncertain as
to whether its contents had been brought to the atten-
tion of the driver responsible for the particular accident.
Judge Sheehy held that the circular did not entail that
transport was not to be provided for artistes appearing
at a benefit entertainment but, even if it did, that the
permit was absolute in the authoritv it conferred and
had not been effectively countermanded.