Macauley v African and Eastern Trade Corporation Limited (4 of 1931) [1931] SLSC 2 (16 February 1931)

,. MACAULEY v. AFRICAN & EASTERN TRADE CORP. LTD., 192Q-36 ALR S.L. 199 s.c. principal debtor's appeal was dismissed, and the plaintiffs were thereupon at liberty to claim from either or both the sureties the amount which they had bound themselves to pay. There must be judgment for £450 against both defendants jointly and severally with costs. Judgment for the plaintiffs. MACAULEY v. AFRICAN AND EASTERN TRADE CORPORATION LIMITED Supreme Court (Tew, C.J.): February 16th, 1931

[1] Agency- gratuitous agent- duty of care- gratuitous agent undertaking work without requisite skill only liable for failure to exercise reasonable care of ordinarily prudent man: Where a person, not professing to be skilled in the particular matter, undertakes to do an act for another, without reward, he is only bound to exercise that care which he, as an ordinarily prudent man, would exercise if acting for himself; so that where a person who is not specifically trained for the job attempts, without reward, to float a submerged motor launch and tow her to safety and fails to exercise reasonable care in so doing, he is guilty of negligence only in so far as he has not exercised the degree of care which would have been exercised by an ordinarily prudent man (page 203, line 37- page 204, line 10).

[2] Shipping- collisions- damages- measure of damages for loss of launch used in trade - cost of replacement plus loss of anticipated profits during period reasonably required for acquisition of new launch: The primary measure of damages in tort is the amount of the party's loss which is one of actual outlay and anticipated profits; so that where a motor launch engaged in carrying goods for reward is sunk through the negligence of the guilty party, damages will amount to the replacement value of the launch plus the value of profits lost during the time it takes to acquire a new launch (page 209, lines 21-38; page 210, line 27-page 211, line 3; page 211, lines 27-31). [ 3] Shipping - salvage - duty of care - gratuitous agent undertaking salvage operation without requisite skill only liable for failure to exercise reasonable care of ordinarily prudent man: See [1] above. [ 4] Tort - damages - measure of damages - loss of chattel used in trade - cost of replacement plus loss of anticipated profits during period reasonably required for acquisition of new chattel: See [2] above. [ 5] Tort - negligence - damages - measure of damages for loss of launch used in trade - cost of replacement plus loss of anticipated profits during period reasonably required for acquisition of new launch: See [2] above. [ 6] Tort - negligence - duty of care - gratuitous agent - gratuitous agent undertaking salvage operation without requisite skill only liable for 199 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS failure to exercise reasonable care of ordinarily prudent man: See [ 1] above. The plaintiff brought an action against the defendants to recover damages for negligence. 5 The plaintiff was the owner of a motor launch used for carrying cargo which was sunk as the result of a river collision with the launch owned by the defendants. The defendants undertook to attempt to salvage the plaintiff's launch without reward. At the second attempt they managed to raise it sufficiently to tow it a 10 short distance, but after two tow-ropes had given way the launch had sunk much lower in the water and no progress could be made against the current. It was decided to abandon the attempt; the remaining tow-rope was cut and the launch was allowed to sink. The plaintiff instituted the present proceedings to recover 15 damages for the loss of the launch and the use of it, alleging negligence on the part of the defendants in (a) allowing their launch to collide with his through excessive speed and faulty navigation, and in (b) allowing his launch to founder while being towed by not using the necessary skill or proper implements for 20 floating and towing it. He contended that the mere fact that his launch sank during the salvage operations raised a presumption of negligence on the part of the defendants and put upon them the the onus of disproving it; and that in any case the work of salving and towing a vessel was a work of skill and should not have been 25 undertaken by anyone other than an expert, so that the failure of the operation was evidence of negligence for which the defendants were liable. The Supreme Court considered (a) what degree of lack of care was required to establish negligence, in the case of a person 30 unskilled in a particular matter who undertook to carry out a gratuitous service and in the case of one who was skilled and was paid for his work; and (b) whether the loss of anticipated profits in these circumstances was too remote so as to disentitle the plaintiff from recovering damages. 35 The court gave judgment for the plaintiff. 40 Cases referred to:

(1) The Anselma de Larrinaga (1913), 29 T.L.R. 587, considered.

(2) The Argentina (1888), 13 P.D. 191; 59 L.T. 914; on appeal, (1889), 14 App. Cas. 519; 61 L.T. 706, dicta of Bowen and Lindley, L. JJ. applied. 200 F MACAULEY v. AFRICAN & EASTERN TRADE CORP. LTD., 192Q-36 ALR S.L. 199 s.c.

(3) Beal v. South Devon Ry. (1864), 3 H. & C. 337; 159 E.R. 560, dicta of Crompton, J. considered.

(4) The Clarence (1850), 3 Wm. Rob. 283; 166 E.R. 968.

(5) Duncan v. Blundell (1820), 3 Stark. 6; 171 E.R. 749.

(6) Grill v. General Iron Screw Collier Co. (1866), L.R. 1 C.P. 600; 14 L.T. 711.

(7) H.M.S. Inflexible (1857), Sw. 200; 166 E.R. 1094.

(8) Jenkins v. Betham (1855), 15 C.B. 168; 139 E.R. 384.

(9) Jones v. Fay (1865), 4 F. & F. 525; 176 E.R. 675.

(10) Lord v. Midland Ry. Co. (1867), L.R. 2 C.P. 339; 15 L.T. 576.

(11) The Mare,chal Suchet, [1911] P.l; (1910), 103 L.T. 848, distinguished.

(12) Moffatt v. Bateman (1869), L.R. 3 P.C. 115; 16 E.R. 765.

(13) The Notting Hill (1884), 9 P.D. 105; 51 L.T. 66.

(14) Pappa v. Rose (1872), L.R. 7 C.P. 525; 27 L.T. 348.

(15) Preston Corp. v. Biornstad, [1898] A.C. 513. 5 10 15

(16) The Robert Dixon (1879), 5 P.D. 54; 42 L.T. 344, distinguished. 20

(17) Ruddock v. Lowe (1865), 4 F. & F. 519; 176 E.R. 672.

(18) Shiells v. Blackburne (1789), 1 H. Bl. 159; 126 E.R. 94.

(19) Vaughan v. Taff Vale Ry. Co. (1860), 5 H. & N. 679; 157 E.R. 1351.

(20) The West Cock, [1911] P. 208; (1911), 104 L.T. 736, distinguished. 25

(21) Wilson v. Brett (1843), 11 M. & W. 113; 152 E.R.

737. Beoku-Betts for the plaintiff. TEW, C.J.: The plaintiff is the owner of the motor launch "Wilmac" which was sunk in the Sherbro River on October 30th, 1928 as the result of a collision with the motor vessel "Kite" owned by the de fendants. Two days later the defendants' agent, Minall, made an attempt to salve the ':Wilmac" and tow her to Bonthe; but the attempt failed and the "Wilmac" sank in deep water and was lost. The plaintiff claims the sum of £500: £350 for the value of the "Wilmac" and £150 in respect of the loss of the use of the launch. The plaintiff has delivered particulars of the alleged negligence of the defendants in (a) allowing the "Kite" to collide with the "Wilmac"; and (b) in allowing the "Wilmac" to founder while being towed. The particulars under these two heads are as follows: 201 30 35 40 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS (a)

1. The defendants were driving the said motor launch at an excessive speed.

2. The defendants drove their motor launch out of the usual channel in the river on to the motor launch of the plaintiff.

3. The defendants did not sound any horn or give any warning of the approach of their launch.

4. The motor launch of the defendants did not carry suf ficient light. (b)

1. The defendants did not use the necessary skill in floating or towing the boat of the plaintiff.

2. The defendants did not use proper implements for floating or towing the boat of the plaintiff.

3. The defendants did not use sufficiently strong rope for towing the boat of the plaintiff. At the trial the plaintiff's counsel did not rely upon particulars 3 and 4 under (a). The collision between the two vessels occurred about 7 p.m. on October 30th, 1928, between York Island and Bonthe, when the "Wilmac" was proceeding towards Bonthe and the "Kite" in the opposite direction. As might be expected after the lapse of more than two years, the evidence as to the collision is very conflicting and frequently obscure. The difficulty of arriving at a decision is enhanced by the fact that the court had not the advantage of a chart on a large scale, or of any expert evidence as to the width of the channel, or the customary method of navigation in the Sherbro River, or indeed on most of the material points. Again, there were in 1928 no local rules providing either for the course to be taken by vessels meeting at night, or for the lights to be exhibited by a vessel at night. It was not until last year, when the Ports and Inland Waters Ordinance, 1930 was enacted, that any ordinance existed under which such rules could be made. [The learned Chief Justice then reviewed the conflicting evidence as to the causes of the collision and found that there had been no negligence on the part of the "Kite," since it was the "Wilmac," apparently carrying no lights, who had left her course on her side of the river and had crossed the bows of the "Kite," and that the "Kite," carrying plenty of lights, had not been negligent in pro ceeding at full speed at that particular place of the river. The learned Chief Justice continued:] The question whether the defendants were negligent in their attempt to salve the "Wilmac" is even more difficult to determine 202 p MACAULEY u. AFRICAN & EASTERN TRADE CORP. LTD., 1920-36 ALR S.L. 199 s.c. and partly for the same reasons. There is an entire lack of really expert evidence, and it is probable that counsel, the court and the witnesses were all almost equally unfamiliar with the technical details of a salvage operation. It was argued for the plaintiff that the mere fact that the "Wilmac" sank during the course of the operations raised a presumption of negligence on the part of the defendants and put upon them the onus of disproving the negligence. Whether such an inference arises in any particular case must be decided on the facts of that case: see Broom's Legal Maxims, 8th ed., at 224 (1911); and in this case I do not think that the mere fact that the "Wilmac" sank while being towed by the defendants gives rise to that inference. The plaintiff's counsel referred to several cases of towage to which the maxim res ipsa loquitur had been held to apply: for example, The Marechal Suchet (11) ([1911] P. at 12; 103 L.T. at 851), The West Cock (20) ([1911] P. at 224; 104 L.T. at 743), and The Robert Dixon (16) (5 P.D. at 57; 42 L.T. at 344). In all these cases there was a contract of towage by a tug presumably efficient and well equipped and capable of performing the contract without danger to the tow; and therefore, if the tow was damaged, it was reasonable to presume negligence on the part of the tug and it was for the owners of the tug to rebut that presumption. Here the facts were very different. The "Wilmac" had been sunk in a collision the responsibility for which had not then been deter mined, and the fact that she sank again while being towed might be due just as well to her own defects as to the fault of the defendants. This point, however, in this particular case is not one of any practical importance, as the evidence is all that of the defendants' witnesses, and this court has to decide on that evidence, as tested by cross-examination, whether the defendants were negligent or not. It will be convenient here to refer to the defendants' pleading that they lent their vessels, men and implements to the plaintiff at his request to enable him to salve his launch. The evidence does not support this pleading in any particular; all the work was done by the defendants themselves, and the plaintiff had no hand in it at all. The defendants, through their agent, undertook to attempt to salve the "Wilmac" without reward. The question for deter mination therefore is twofold: First, what degree of care were the defendants bound to exercise? Secondly, did they exercise the 203 5 10 15 20 25 30 35 40 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS requisite degree of care? The principle governing the matter is laid down in 21 Halsbury 's Laws of England, 1st ed., at 37 4, para. 641 in the following terms: "Where a person, not professing to be skilled in the particular matter, undertakes to do an act for another, without reward, he is only bound to exercise honestly that care which he, as an ordinarily prudent man, would exercise if acting for him self. He is not to be held liable for a mistake, or for an error of judgment, which a reasonably prudent man might commit, or for mere non-success." It has sometimes been said that a person performing a gratuitous service is responsible only for "gross negligence." This term was described by Rolfe, B. in Wilson v. Brett (21) as the same thing as negligence "with the addition of a vituperative epithet," but was employed by Lord Chelmsford in Moffatt v. Bateman (12) (L.R. 3 P.C. at 122; 16 E.R. at 768) as "a term which is sufficiently descriptive of the degree of negligence which renders a person performing a gratuitous service for another, responsible." I may also refer here to the dictum of Willes, J. in Lord v. Midland Ry. Co. (10) (L.R. 2 C.P. at 344): "The term 'gross negligence' is applied to the case of a gratuitous bailee who is not liable unless he fails to exercise the degree of skill which he possesses." [These words do not appear in the report of the case at 15 L.T. 576.] In Shiells v. Blackburne (18) the defendant, having undertaken voluntarily to enter a parcel of goods for export together with a parcel of his own, had made a mistake which resulted in both parcels being seized by the customs authorities. It was held that, as the defendant had received no reward and was not of a profession which implied the possession of skill in the particular service, he was not liable. It would have been otherwise if the defendant had, for example, been a clerk in the customs house, because his position would have implied "a competent degree of knowledge" in the making of such entries. In Beat v. South Devon Ry.

(3) Crompton, J. said: ". . . [ F] or all practical purposes the rule may be stated to be, that the failure to exercise reasonable care, skill and diligence is gross negligence. What is reasonable varies in the case of a gratuitous bailee and that of a bailee for hire. From the former is reasonably expected such care and diligence as persons ordinarily use in their own affairs, and such skill as 204 MACAULEYv. AFRICAN & EASTERN TRADE CORP. LTD., 1920-36 ALR S.L. 199 s.c. he has. From the latter is reasonably expected care and dili gence, such as are exercised in the ordinary and proper course of similar business, and such skill as he ought to have, namely the skill usual and requisite in the business for which he receives payment." 5 In Grill v. General Iron Screw Collier Co. (6) (L.R. 1 C.P. at 612; 14 L.T. at 715) Willes, J. said: "Confusion has arisen from regard- ing negligence as a positive instead of a negative word. It is really the absence of such care as it was the duty of the defendant to use." Similarly in Vaughan v. Taff Vale Ry. Co. (19) the same 10 learned judge defined negligence as "the absence of care, according to the circumstances." These are some of the leading authorities on the subject of the degree of care required from a person who undertakes a gratuitous service, and the facts of this case must be reviewed in the light of 15 those authorities. But before proceeding to an examination of the facts, I have to consider an argument addressed to me by the plaintiff's counsel which is based on a dictum in 21 Halsbury 's Laws of England, 1st ed., at 369, para. 634 that- "a man should not ... undertake to do a work of skill unless he is fitted for it, 20 and it is his duty to know whether he is so fitted or not." Mr. Betts argued that the work of salving and towing a vessel is a work of skill, and that Mr. Minall, not being an expert in such matters, should not have undertaken this work, and that his failure to perform it successfully is evidence of negligence for which the 25 defendants are liable. This question is discussed in Beven on Negligence, 4th ed., at 1321-1325 (1928) and the authorities referred to there are much the same as those cited in support of the dictum quoted above from Halsbury. Beven expresses the proposition thus: "A person 3 0 holding himself out to do certain work, impliedly warrants his possession of skill reasonably competent for its performance. If he have not that skill he is liable as for negligence." An examination of the authorities shows that in all the cases, not only was the work done for reward, but also the person 35 adjudged negligent had held himself out as possessing skill in the particular work. In Duncan v. Blundell ( 5) the plaintiff had erected a stove which had failed in its object and sued his employer for work and labour done. In nonsuiting the plaintiff Bayley, J. said (3 Stark. at 7; 171 E.R. at 749): "Where a person is 40 employed in a work of skill ... he ought not to undertake the 205 THE AFRICAN LAW REPORTS work if it cannot succeed, and he should know whether it will or not." Ruddock v. Lowe (17) was a case of a person not qualified as a doctor undertaking for reward to treat a patient for disease, and Jones v. Fay (9) was a similar case of a chemist who under- 5 took what was really a doctor's work. In Jenkins v. Betham (8) some country surveyors had undertaken work in connection with ecclesiastical dilapidations which required some knowledge of the branch of the law affecting such matters, and the court held that they might properly be expected to be familiar with the broad 10 principles of the law. But in Pappa v. Rose (14) it was held, distinguishing Jenkins v. Betham, that where a broker had been employed as a sort of arbitrator to decide on the quality of some goods, there was no obligation to him to exercise any degree of skill, provided that he acted to the best of his judgment. Lastly, 15 there is the case, cited by the plaintiff's counsel, of Preston Corp. v. Biornstad (15) where the appellants, who had undertaken a contract of towage under statutory authority, were held liable for damage caused to a vessel under tow by lack of reasonable care and skill on their part. 20 In none of these cases does the principle laid down seem to me to apply to the facts of this case. Here the service attempted was purely voluntary, whatever may have been the motives which prompted the offer. Mr. Minall never held himself out as possessing special skill in salving or towing vessels. The plaintiff knew exactly 25 what was Mr. Minall's ordinary occupation, and was content to allow him to make the attempt. Can he now turn round and say "You ought never to have made the attempt, because you did not possess the requisite knowledge of a highly technical operation, and you must therefore compensate me because your attempt was 30 unsuccessful?" Such an argument in my opinion has nothing either in law or in common sense to commend it. The evidence as to the conduct of the salvage and towing operations is that of Minall, of Mosquito and Caulker, captain and engineer of the "Kite" respectively, and of Jones, the Super Cargo 35 of the "Kite." It appears that on the day after the collision Minall sent a lighter and the launch "Swift" to try to float the "Wilmac." He says that Stott, his European assistant, who is not now in Sierra Leone, was in charge of the operations, and that he himself does not know what was done that day, except that the attempt 40 was unsuccessful. Stott, he says, had no training in such matters, but had once assisted him to raise a launch that had been sunk near the wharf at York Island. Jones says t