ASHITEY AND ANOTHER v. DODOO

JUDGMENT OF AZU CRABBE J.A.

This is an appeal against the judgment of Archer J., 12 November 1964, unreported; digested in (1965) C.C. 6, whereby £G3,100 damages together with 200 guineas costs, were awarded against the first and second defendants (appellants) jointly and severally, in favour of the plaintiff (respondent).

The action was brought by the plaintiff, a female infant, aged nine years, by her mother as next friend, claiming damages from the two defendants jointly and severally for personal injuries sustained by her through the negligence of the second defendant (a driver), who as agent or servant or both of the first defendant (lorry-owner), drove a Morris vehicle one and a half ton weight, registration No. AE 7814 on 3 November 1962, without due care and negligently knocked down the plaintiff. The issues which were formulated for trial were: (1) whether or not the second defendant was negligent; (2) whether or not the defendants were liable; and (3) whether or not the plaintiff was entitled to the reliefs sought. The first issue was a question of fact for the learned trial judge, who, after hearing the evidence, had no difficulty in finding that the second defendant was negligent. In my view the learned judge's conclusion was clearly right, for there was ample evidence to support it.

The learned trial judge then posed the question: "Who is liable?" In trying to find an answer to this question he embarked upon a careful and thorough examination of the evidence led on behalf of [p.128] the defence, and the end-result was he found that the first defendant was the owner of vehicle No. AE 7814 which was being driven by the second defendant at the time of the accident. This finding he expressed in the following passage of his judgment:

"I therefore find that at the time of the accident the property in the vehicle AE 7814 was vested in the first defendant as owner and that the second defendant drove the vehicle with the knowledge and consent of the first defendant. It is not necessary for me to find whether the second defendant was agent or servant of the first defendant. I therefore hold the first and second defendants jointly and severally liable for negligently causing the injuries to the plaintiff."

Before arriving at this conclusion, however, the learned trial judge had to consider who the owner of vehicle No. AE 7814 was in terms of the Road Traffic Ordinance, 1952 (No. 55 of 1952), and the owner in whose name an insurance policy certific