The Rule in Barnard v. Sully in the Commonwealth
![handle is hein.journals/incolq26 and id is 511 raw text is: THE RULE IN BARNARD v. SULLY
IN THE COMMONWEALTH
By
GILBERT KODILINYE *
THE somewhat obscure decision of a Divisional Court of the King's
Bench Division in Barnard v. Sully 1 was ignored by the editors of
the Incorporated Council's reports and reported only in the Times
Law Reports. It appears to have been considered in only three sub-
sequent English cases (one of these a Privy Council appeal),' but it
has been widely discussed and applied in the courts of numerous other
Commonwealth countries, such as Australia,' New Zealand,4 Malaya,5
Ghana,6 Sierra Leone,7 Nigeria,8 Kenya,9 Jamaica 10 and Guyana.1
The facts of the case are simple. B. sued S. in the county court for
damage done to his van through the negligent driving of S.'s motorcar.
It seems to have been accepted that S. was not himself driving, and he
denied that the driver was his servant or agent. The county court
judge withdrew the case from the jury on the ground that there was
no evidence that the car was being driven by the defendant's servant
or agent. On appeal, the Divisional Court held that the trial judge
was wrong to withdraw the case from the jury. Scrutton L.J., with
whom Greer and Slessor L.JJ. concurred, said 11:
No doubt, sometimes motorcars were being driven by persons who were
not the owners, nor the servants or agents of the owners.... But, apart
from authority, the more usual fact was that a motorcar was driven by
Barrister at Law; Senior Lecturer in Law, Ahmadu Belo University, Zaria,
Nigeria.
1 (1931) 47 T.L.R. 557, D.C.
2 Hewitt v. Bonvin [1940] 1 K.B. 188 at p. 194, per Du Parcq, L.J.; Rambarran
v. Gurrucharran [1970] 1 W.L.R. 556 (P.C.) at p. 559, per Lord Donovan;
Launchbury v. Morgans [1971] 2 W.L.R. 602 at pp. 606, 607, per Lord Denning,
M.R., and on appeal [1973] A.C. 127 at p. 139, per Viscount Dilhorne.
3 e.g. Christmas v. Nicol Bros. Pry Ltd. (1941) 41 S.R.(N.S.W.) 317; Wiseman
v. Harse (1948) 65 W.N.(N.S.W.) 159; Parry v. Flesser [1953] Q.W.N. 13; Jennings
v. Hannan (1969) 71 S.R.(N.S.W.) 226.
4 Manawatu County v. Rowe [1956] N.Z.L.R. 78.
Kayat v. Lim Yew Seng [1972] 1 M.L.J. 26.
6 Aboaku v. Tetteh [1962] 2 G.L.R. 165; Badu v. Kobina 1969 (1) A.L.R. Comm.
334; Fynhout Production Ltd. v. Kwayie [1971] 1 G.L.R. 475.
7 Ngombui v. Hall (1963) 3 S.L.L.R. 61.
8 Ogunmuyiwa v. Solanke (1956) 1 F.S.C. 53; Compagnie Franvaise de l'Afrique
Occidentale v. Ikpeazu, 1966 (1) A.L.R. Comm. 119; Daramola v. Motor Vehicle
Collection Co. (Nigeria) Ltd., 1966 (2) A.L.R. Comm. 64; Pedrocchi & Co. v. British
Insulated Callender's Cables Ltd., 1968 (1) A.L.R. Comm. 223; Akintunde v. Rufal,
CCHOJ/11/73, p. 121. See also Onochuku v. Williams (1935) 12 N.L.R. 19.
9 Karisa v. Solanki [1969] E.A. 318.
10 Brown v. Stamp (1968) 13 W.I.R. 146.
11 Hopkinson v. Lall (1959) 1 W.I.R. 382; Rambarran v. Gurrucharran [1970]
1 W.L.R. 556 (P.C.).
12 (1931) 47 T.L.R. 557 at p. 558.
487
26 I.C.L.Q.-](ViewImageLocal?handle=hein.journals/incolq26&div=31&collection=&method=preview&ext=.png&size=3)
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The Rule in Barnard v. Sully in the Commonwealth
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