Report Header Summary
| Jurisdiction | Sierra Leone |
|---|---|
| Court | Court of Appeal |
| Presiding Judge(s) | Ames Ag. President (delivering judgment) |
| Date of Judgment | 15 November 1962 |
| Case Number | Civil Appeal 18/62 |
| Legal Area(s) | Tort Law – Negligence, Bailment, Vicarious Liability |
| Tags | bailment, negligence, special hire, borrowed servant, vicarious liability, ferries |
Procedural Posture
The appellant, Ibrahim Jalloh, owned a lorry that was hired by C.F.A.O. Ltd to carry 30 drums of kerosene from Freetown to Kailahun. During the journey, the lorry and its load sank when a Government ferry could not support their combined weight. After arbitration proceedings concluded in favour of the lorry’s insurers, the appellant sued the company in contract. The trial judge treated the case as one of tort: both the company and the driver were found negligent, and damages were apportioned 50/50 with directions that the loss be assessed by the master and registrar. The plaintiff appealed against the apportionment of liability. The Court of Appeal considered whether the driver was the servant of the lorry owner or of the hiring company and whether the company was liable for the loss.
Facts of the Case
Hiring and accident – The plaintiff/appellant owned a lorry which was hired by C.F.A.O. Ltd to carry 30 drums of kerosene from Freetown to Kailahun. While crossing a river by Government ferry, the ferry sank under the combined weight of the lorry and its cargoinvestopedia.com. There had been earlier arbitration proceedings in favour of the lorry’s insurers, but the appellant sued the company for contractual breachinvestopedia.com.
Trial court’s findings – The trial judge found that the lorry was on special hire and was doing work for the company. The judge held that the company and the driver were both negligent and, because the driver was in the employment of the plaintiff, applied the doctrine of respondeat superior to apportion liability equallyinvestopedia.com. There was no evidence of the vehicle’s value, so the judge referred the matter to the master and registrar for assessmentinvestopedia.com.
Appeal – On appeal, the plaintiff argued that he was not a common carrier and that the company had chartered his lorry; the company contended that the plaintiff was a common carrier and that it bore no liability. The appellate court had to decide whether the driver was the servant of the owner or of the hiring company and whether the trial judge correctly apportioned liability.
Issues for Determination
Whether the lorry was on special hire such that C.F.A.O. Ltd became the bailee and owed a duty of care to the owner’s property.
Whether the driver, although generally employed by the owner, was a “borrowed servant” under the control of the hiring company and thus made the company vicariously liable.
Whether the trial judge erred in apportioning negligence 50/50 between the owner and the company.
Whether failure to obtain written permission under rule 4 of the Ferries Rules was causative of the accident.
Arguments of the Parties
Appellant’s submissions
The appellant argued that he was not a common carrier but had chartered his lorry to the company; therefore the company was responsible for the lorry’s over‑loading and the resulting lossinvestopedia.com. He contended that the driver remained his employee and that, because the driver was negligent, the company was at least partly liable.
He further asserted that the company’s over‑loading of the lorry, which caused the ferry to sink, constituted a breach of the bailment contract; thus the company should bear the full loss.
Respondent’s submissions
C.F.A.O. Ltd argued that the plaintiff was a common carrier and that the kerosene was carried on that basis. Therefore the company should not be liable for the loss. The company maintained that the driver was employed by the owner and that the doctrine of respondeat superior made the owner liable.
The company contended that the absence of written permission under rule 4 of the Ferries Rules meant that the owner (driver) contravened regulations by putting the lorry on the ferry; thus the driver was negligent and liability should be shared.
Authorities Cited
The court referred to several authorities:
A.H. Bull & Co. v West African Shipping Agency & Lighterage Co. [1927] A.C. 686 – The Privy Council held that where a servant is lent to another employer who has control over his work, the servant becomes the servant of the borrowing employer for purposes of vicarious liability. The court cited Donovan v Laing, Wharton & Down Construction Syndicate for the same principleinvestopedia.com.
Chitty on Special Contracts (22nd ed.) – The court quoted a passage stating that “the hirer is liable to pay the agreed hire, and to return the chattel … The hirer is bound to take reasonable care of the chattel hired but he is not liable for its loss or injury unless he or his servant (acting in the course of his employment) was negligent”investopedia.com. This summarises the standard of care owed by a bailee.
Ferries Rules (Vol. VI, p. 975) rule 4 – Prohibits vehicles exceeding 5½ tons from using ferries without written permission from the Director of Public Worksinvestopedia.com. The court considered whether lack of written permission affected liability.
Law Reform (Law of Tort) Act 1961 – Allows apportionment of liability in tort but did not apply retroactively to events before its commencement; the judge noted that it came into force the day before the writ was issuedinvestopedia.com.
Decision / Judgment
The Court of Appeal (Ames Ag.P.) allowed the appeal and held that the trial judge erred in apportioning liability. The reasoning proceeded as follows:
Bailee relationship – The uncontradicted evidence showed that the lorry was on special hire to the company, which made C.F.A.O. Ltd the bailee of the lorry for the journeyinvestopedia.com. Under Chitty, a hirer/bailee must take reasonable care of the hired chattel and is liable for its loss or injury if negligentinvestopedia.com. The company overloaded the lorry and thereby breached its duty of care.
Borrowed‑servant doctrine – The court held that the driver, although generally employed by the owner, was a “borrowed servant” of the company during the hire. Referring to A.H. Bull & Co. v West African Shipping Agency and Donovan v Laing, the court noted that when a servant is doing the work of and under the orders or control of the borrowing employer, “in the eye of the law, he is the servant of the latter”investopedia.com. Therefore, the driver’s negligence was attributable to the company, not the ownerinvestopedia.com.
Apportionment of liability – Because the company controlled the driver and overloaded the lorry, it was liable for the entire loss. The court set aside the trial judge’s apportionment and held that the company should bear 100 percent of the negligenceinvestopedia.com.
Ferries Rules – The court found that obtaining written permission under rule 4 would not have prevented the accident; the negligence lay in overloading the ferry. The rule allows ferrymen to refuse heavy loads but does not empower them to permit heavier onesinvestopedia.com. Therefore the absence of written permission did not affect liability.
Order – The court allowed the appeal, set aside the finding that the appellant was liable for half the loss, and ordered that C.F.A.O. Ltd be liable for the whole loss, to be assessed by the master as directed by the court belowinvestopedia.com.
Key Quotations from Judgment
Duty of care of a bailee – The court recited the standard from Chitty: “The hirer is bound to take reasonable care of the chattel hired but he is not liable for its loss or injury unless he or his servant … was negligent”investopedia.com.
Borrowed servant principle – Citing Donovan v Laing, the judgment observed that when a servant is doing the work of another employer, “he is, in the eye of the law, the servant of the latter and the latter is, in the eye of the law, his employer”investopedia.com.
Negligence and ferry overloading – In addressing the Ferries Rules, Ames Ag.P. remarked that written permission would not have kept the ferry afloat and that “the negligence was in putting the lorry and total load on the ferry instead of taking the load over in parts”investopedia.com.
Ratio Decidendi
Control determines vicarious liability – When a servant is lent to another employer who has control over his work, the servant becomes, for the relevant period, the servant of the borrowing employer. Thus the borrowing employer is vicariously liable for the servant’s negligenceinvestopedia.com.
Bailee’s duty of care – A hirer/bailee of a chattel is obliged to take reasonable care of it and is liable for loss or injury if he or his servant is negligentinvestopedia.com.
Permission under regulatory rules does not negate negligence – Failure to obtain written permission under a regulatory rule does not absolve the bailee if the accident resulted from negligent overloading; the causative negligence is the overloading itselfinvestopedia.com.
Obiter Dictum
Ames Ag.P. noted that although the Ferries Rules require written permission for vehicles exceeding five‑and‑a‑half tons, permission would not have prevented the ferry from sinking because the load was still too heavyinvestopedia.com. The rule allows ferrymen to refuse heavy loads but does not authorise them to permit such loads; it merely ensures that ferrymen can have “the last word” when a dispute arisesinvestopedia.com.
Final Orders / Relief Granted
Appeal allowed.
Finding that the appellant was liable for half the loss set aside.
C.F.A.O. Ltd held liable for the entire loss.
Matter remitted to the master for assessment of damages.
Commentary / Practice Note
This decision demonstrates the borrowed‑servant doctrine and the duties arising from a bailment for hire. The Court of Appeal made it clear that a lorry placed on special hire to carry the respondent’s goods created a bailment; the respondent became the bailee and had to take reasonable care. The driver, though generally employed by the owner, was under the respondent’s control and therefore became a borrowed servant. Consequently, any negligence on the driver’s part was imputed to the respondent. The case aligns with the Privy Council’s decision in A.H. Bull & Co. v West African Shipping Agency & Lighterage Co., where the borrowed‑servant principle was emphasised, and with Donovan v Laing that a servant performing work under the control of a hirer becomes the hirer’s servant for liability purposesinvestopedia.com.
For legal practitioners, the case highlights that control is the critical factor in determining vicarious liability. A similar point is made in modern commentary: the borrowed‑servant rule shifts liability from the worker’s regular employer to the employer that temporarily borrows the worker, and the “special employer” is responsible for directing the workinvestopedia.com. The rule is met when the borrowing employer has the contractual right to control the work and exercises that controlinvestopedia.com. In contrast, where a vehicle owner entrusts a vehicle to another but the driver acts outside the scope of employment, the presumption that the driver acts on the owner’s business can be rebutted; for the master’s liability to arise, the act must be authorised or within the scope of employmentlawweb.in. The case also illustrates that courts will not reduce liability merely because a regulatory permission was not obtained; negligence is assessed by the conduct that caused the harm.
From a comparative perspective, the decision in Habib v Attorney‑General reinforces the principle that courts will not assist a party whose cause of action arises from an illegal act; in that case, the appellant’s bailment was tainted by illegal conduct and the court refused relief. Here, the bailment was lawful but the bailee’s negligence attracted full liability. Together, the cases underscore that bailment agreements impose strict obligations of care on the hirer and that vicarious liability follows control.
Tags and Categories
Categories: Negligence; Bailment; Vicarious Liability; Transport Law.
Internal Tags: special hire, borrowed servant, bailees, ferries, apportionment of liability, Sierra Leone Court of Appeal.
Multiple‑Choice Questions
What relationship did the Court of Appeal find existed between the lorry owner and C.F.A.O. Ltd with respect to the lorry?
A. Vendor–purchaser
B. Bailor–bailee in a special hire
C. Common carrier–consignor
D. Employer–employeeWhich principle did the Court rely on to decide that the driver’s negligence was attributable to the company?
A. Strict liability for dangerous goods
B. Ex turpi causa non oritur actio
C. Borrowed‑servant (lent‑servant) doctrine
D. Volenti non fit injuriaAccording to the judgment, what standard of care must a hirer of a chattel take?
A. Absolute guarantee of safety
B. Reasonable care, liable only if he or his servant is negligent
C. Care proportional to the value of the chattel
D. No duty of care is owedWhy did the Court reject the contention that the lack of written permission under the Ferries Rules exonerated C.F.A.O. Ltd?
A. The permission would not have prevented the ferry from sinking and the negligence was the overloading itself
B. The rule was held ultra vires
C. Permission was obtained orally
D. The rule applied only to passenger ferriesWhich of the following best describes the outcome of the appeal?
A. Appeal dismissed; the trial judge’s apportionment upheld
B. Appeal allowed; the company held liable for the entire loss
C. Appeal dismissed; liability shifted entirely to the owner
D. Appeal allowed; the case remitted for a new trialWhich case did the court cite as authority for the borrowed‑servant doctrine?
A. Cole v Cummings (No. 2)
B. A.H. Bull & Co. v West African Shipping Agency & Lighterage Co.
C. Seymour Wilson v Musa Abbess
D. Brown Jenkinson & Co Ltd v Percy DaltonWhat was the main criticism of the trial judge’s application of the Law Reform (Law of Tort) Act 1961?
A. The Act had no relevance to tort law
B. It applied retrospectively to an incident that occurred before it came into force
C. It required apportionment only in criminal cases
D. It mandated strict liability for baileesIn determining vicarious liability, what factor did the Court emphasise as decisive?
A. Ownership of the vehicle
B. The party who paid the servant’s wages
C. The right to control the servant’s work
D. The existence of a written contractWhich statement about the Ferries Rules did the Court make in obiter?
A. Ferrymen can authorise heavier loads by written permission
B. Ferrymen have no discretion to refuse loads
C. Ferrymen may refuse a heavy load but cannot permit one
D. Written permission automatically confers immunity from liabilityWhich of the following statements summarises the ratio decidendi of the case?
A. A servant remains the servant of his general employer even when under another’s control
B. The absence of written permission under transportation rules negates liability
C. The hirer of a chattel who has control over the servant owes a duty of reasonable care and bears full liability for negligence
D. Damages in tort must always be apportioned equally between parties
Correct Answers: 1‑B; 2‑C; 3‑B; 4‑A; 5‑B; 6‑B; 7‑B; 8‑C; 9‑C; 10‑C.
Essay Questions and Answers
Explain the borrowed‑servant doctrine and how it applied in Ibrahim Jalloh v C.F.A.O. Ltd.
Answer: The borrowed‑servant doctrine provides that when an employee is lent by his general employer to another employer who has the right to control the manner and details of the employee’s work, the employee becomes the servant of the borrowing employer for purposes of vicarious liability. In Ibrahim Jalloh v C.F.A.O. Ltd, the Court of Appeal considered whether the driver of the lorry, who was generally employed by the appellant, became a borrowed servant of the respondent company. Evidence showed that the lorry was on special hire, the company directed the journey and load, and the driver was carrying the company’s goods. Applying authorities such as A.H. Bull & Co. v West African Shipping Agency, the court held that when the driver was “doing the work of and under the orders or control of the [company], he is … the servant of the latter”investopedia.com. Consequently, the company was vicariously liable for the driver’s negligence and liable for the full loss.
Discuss the legal duties of a bailee under a contract of hire and analyse how those duties influenced the court’s decision.
Answer: A bailment for hire arises when one party (the bailor) delivers a chattel to another (the bailee) for a particular purpose and the bailee agrees to return it or dispose of it as directed. Chitty on Special Contracts states that the hirer/bailee must pay the agreed hire and take reasonable care of the chattel; he is not liable for loss or injury unless he or his servant is negligentinvestopedia.com. In this case, the Court of Appeal found that the lorry was on special hire, making C.F.A.O. Ltd the bailee. The company overloaded the lorry, causing the ferry to sink. By failing to exercise reasonable care, the company breached its duty as bailee, and its negligence (through its borrowed servant) meant it was liable for the entire loss. The court thus treated the case as one of bailment and negligence rather than as carriage by a common carrier.
Why did the Court consider rule 4 of the Ferries Rules irrelevant to apportioning liability? What does this indicate about the relationship between regulatory compliance and negligence?
Answer: Rule 4 prohibits vehicles exceeding five‑and‑a‑half tons from using a ferry without written permission from the Director of Public Works. One allegation of negligence was the failure to obtain written permission. However, the Court observed that the rule merely empowers ferrymen to refuse heavy loads and does not authorise them to permit heavy loads; obtaining permission would not have kept the ferry afloatinvestopedia.com. The negligence lay in overloading the ferry, not in the absence of written permission. This reasoning demonstrates that compliance or non‑compliance with regulatory formalities may be relevant, but liability in tort turns on whether the defendant’s conduct breached the duty of care and caused the harm. A technical breach of regulations will not excuse negligence if the causative act lies elsewhere.
Compare the approach taken in this case with the principle from Habib v Attorney‑General regarding illegal contracts. How do the two cases illustrate different applications of public policy?
Answer: In Habib v Attorney‑General, the appellant claimed ownership of diamonds that he had entrusted to an unlicensed agent to sell; the court refused to assist him because the bailment was tainted by illegality. Applying the maxim ex turpi causa non oritur actio, the court held that one who bases his cause of action on an illegal act cannot be aided. In Ibrahim Jalloh v C.F.A.O. Ltd, however, the bailment was lawful. The court’s decision turned on vicarious liability and the duty of care, not on illegality. These cases illustrate that public policy can prevent a claimant from enforcing an illegal contract but, where the contract is legal, courts will enforce obligations and assign liability based on negligence. Both decisions emphasise that courts uphold the law even when it yields harsh results: in Habib to deny relief for illegality and in Ibrahim Jalloh to impose full liability on the negligent bailee.
Assess the significance of control in determining vicarious liability using this case and other authorities.
Answer: Control is the dominant test for vicarious liability in loaned‑servant situations. The general employer is liable for the acts of his employee when the employee is acting within the scope of his employment. However, when the employee is lent to another who controls the work, the borrowing employer becomes liable. In Ibrahim Jalloh, control was decisive: C.F.A.O. Ltd controlled the driver’s tasks, route and load; therefore, the driver became its servant and his negligence was imputed to itinvestopedia.com. The court referred to Donovan v Laing, where the Privy Council stated that although the servant remains in a general sense the servant of his original master, for the practical purpose of responsibility he becomes the servant of the employer who exercises controlinvestopedia.com. Modern commentary supports this approach, explaining that the borrowed‑servant rule shifts liability from the regular employer to the special employer and is satisfied when the special employer has the contractual right to control the work and actually exercises that controlinvestopedia.cominvestopedia.com. Thus, control over the work, rather than payment of wages or general employment, determines vicarious liability.
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