The Gazette 1955-58

were entitled 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. to

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