299 / 324
two counsel would be allowed on taxation, except
in very special circumstances. Therefore the master
must have gone against principle in this case, there
being no special circumstances.
It was perfectly
true and he (his Lordship) hoped it might continue,
that in general it was proper that two counsel should
be in Court. But to say that, because leading counsel
was disallowed in any case, therefore the master
must have erred in principle was a very different
matter.
Finally, Mr. Thompson had
referred
to
the
master's reference to there being no question of
principle involved. That as a general principle was
wrong, although it might well be that, in relation
to the facts of this particular case, there was no
principle involved. The master's reference to it
being a matter entirely for his discretion was perhaps
not very happily worded. It was a matter for his
discretion, but not entirely
for his discretion,
because if he erred in principle his discretion could
be set aside. He (his Lordship) could not see in
this case that the master had erred in principle and
accordingly he agreed with the Judge that whatever
one might have decided oneself, hearing the case
de riovo,
this Court could not interfere and the appeal
would be dismissed accordingly.
Lord Justice Sellers delivered
a
concurring
judgment.
(Gorfin
v.
Odhams Press Ltd.)—[1958] I All
E.R. 578.
In an action ofsub-rogation, the plaintiff's insurers are
entitled to recover in damages from
the defendant
the amount for which they had been liable to pay in
respect of the injuries which the defendant caused to
his father in a motor accident.
While backing his lorry in the yard of a slaughter
house to which he had been sent to collect waste,
the defendant, a
lorry-driver employed by
the
plaintiffs, negligently ran into and injured his father,
who was also employed by the plaintiffs on the same
work. The father obtained judgment for damages
for negligence against the plaintiffs. The plaintiffs'
insurers, acting in the plaintiff's name by virtue of
a term (condition 2) in the contract of insurance but
without consulting the plaintiffs, brought an action
claiming damages for negligence or breach of con
tract against the defendant, the writ being issued
a week before judgment was obtained by the father
against the plaintiffs. A preliminary objection that the
writ was premature having been taken by the de
fendant, a second action was allowed to be brought
and consolidated with the first action.
Held by the Court of Appeal (Birkett and Romer,
L.JJ.) (Denning, L.J., dissenting) that the plaintiffs
were entitled
to
recover in damages from the
defendant the amount for which they had been made
liable to his father because—
(i) The defendant was in breach of an implied
term in his contract of service with the plaintiffs
that he would drive with reasonable care and
skill and the damages were not too remote.
(ii) Although the plaintiffs and the defendant
were joint tortfeasors as against the defendant's
father, the plaintiffs' claims were not defeated
by the principle of the common law that there
was no contribution between joint tortfeasors,
since the plaintiffs gave neither authority nor
assent to the defendant's negligence and did not
share in its commission; moreover, since the
negligence was the defendant's own negligence,
there was no ground for the Court to grant
(in the second action) the defendant immunity
from liability to contribution under the Law
Reform (Married
'Women and Tortfeasors)
Act, 1935.
(iii) Although in so far as the first action was
based on a claim for contribution under the
Act of 193 5 it was premature, yet the first action
was not premature in so far as it was founded
on breach of contract, since the cause of action
arose on the commission of the breach of
contract and the fact that the writ was issued
by the insurers before the liability of the plaintiffs
to the defendant's father was established did not
defeat the action as the insurers were entitled
to issue the writ by virtue of condition 2 of the
contract of insurance independently of the
doctrine of sub-rogation.
(iv) Section 3 5 (i) of the Road Traffic Act,
1930, did not prevent the plaintiffs from main
taining
their claims against
the defendant
because, on the footing that the yard in which
the accident happened was not a road to which
the public had access within s. 121 of that Act,
the accident did not arise out of the use of the
lorry on a road within s. 35 (i).
(v) There was no such implied term in the
contract of service with the defendant as would
place on the plaintiffs the duty of insuring the
defendant against liability for injury such as
had occurred to his father in this case ;
nor
was any term to be implied in that contract that
that defendant should not be sued by
the
plaintiffs for damage arisingfrom his negligence
if they were insured in respect of such damage,
for a servant was as much liable to his master
for negligence as was anyone else.
The appeals from the decision of Ormerod, J.
were dismissed.