The Gazette 1971

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.