Auto Holdings Ltd v Silk & Boyd Ltd [1981] CKHC 2; 038.1981 (14 December 1981)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)
Plaint No. 38/81

BETWEEN

AUTO HOLDINGS LIMITED
a duly incorporated company having its registered office
at Rarotonga and carrying on business as traders and retailers
PLAINTIFF

AND

SILK & BOYD LIMITED
a duly incorporated company having its registered office
at Rarotonga and carrying on business as ship operators
DEFENDANT

Counsel: Miss Pupke for Plaintiff
Mr McFadzien for Defendant

Submissions received: 25.7.81; 15.9.81; 6.11.81

Date of Hearing: 21 July 1981
Date of Judgment: 14 December 1981

JUDGMENT OF SIR GAVEN DONNE CJ

That plaintiff claims $7,749.00 from the defendant being in respect of the loss allegedly suffered by it as a result of a motor vehicle belonging to it together with an electric generator plunging into the sea at Avatiu Harbour, Rarotonga. The basis of the claim contained in the allegations is that an employee of the defendant negligently drove the said vehicle in to the sea while acting in the course of his employment with the defendant.

The evidence establishes that with the knowledge and consent of a Mr Upoko, the foreman-in-charge of operation of a ship belonging to the defendant, Mr Preston the Managing Director of the plaintiff parked early in the morning on the 31^st October 1980 the vehicle in question in the area of the loading operations with the intention that it be included in the ship’s cargo for shipping next day. Mr Preston had no Bill of Lading and went away to prepare the same for presentation to the foreman later in the day. While the vehicle was so parked Mr. Henry Okirua an employee of the defendant in the mid afternoon entered the vehicle for the purpose of enjoying a respite from his loading duties. While in the vehicle it plunged into the sea taking with it the idle Mr Okirua and an electric generator which was loaded on the back of it. No one saw Mr Okirua enter the vehicle, nor saw it move and precipitate over the side of the wharf. Mr. Okirua said he had not started the engine of the vehicle by switching on the ignition nor did he after entering it interfere with it in anyway other than putting his left foot on the clutch and placing his hands on the steering wheel.

Now Mr Okirua for some time past while employed by the plaintiff has shown an unfortunate propensity to interfere without the owner’s consent with motor bikes and other vehicles including the plaintiff’s forklift by sitting on or in them and playing with various parts of their equipment. The foremen Mr Opoko had on several occasions reprimanded his meddlesome employee for such practices and had expressly prohibited him to touch or drive any motor vehicle. Despite such reprimands, Mr Okirua continued to disobey his foreman's prohibition and his entry into the plaintiff's vehicle was in blatant disregard of it.

The plaintiff’s claim rests on two allegations firstly that the vehicle was negligently driven by Mr Okirua and secondly that he was negligently performing in the course of his employment with the plaintiff.

Dealing with first allegation there is, I consider, substance in the submission of counsel for the plaintiff on page 2 of her written submission that "driving requires something more than depressing the clutch in a stationery vehicle with the engine not running. Driving requires the operation of more than one mechanism of a vehicle in such a way that one has control of the vehicle". The evidence goes no further than establishing that Mr Okirua entered the vehicle put his left foot on the clutch and his hands on the steering vehicle. "Drive" in its ordinary and natural meaning when used in relation to a motor vehicle means "to urge onward and direct the course of" the vehicle – 1 Shorter Oxford Dictionary (3^rd Edn.) p. 608. In Wallace v Major (1946) 2 All E.R. 87 Lord Goddard C.J. at p. 88 said:

"No doubt he is controlling it (the vehicle) to some extent, no doubt he is doing many things which a driver would have to do; but before he can be convicted of being a person driving...........it must, it seems to me, be shown he is at least driving it, that is to say, making the vehicle go."

Now here there is no evidence to allow an inference to be drawn that Mr Okirua "urged on" the vehicle or made it go. Consequently I am unable to hold that he drove the vehicle as alleged.

It is true that although the exact circumstances may not be known the accident by its nature may be more consistent with its being caused by negligence for which Mr Okirua is responsible than by other causes and thus the mere fact of the accident is "prima facie" evidence of such negligence. But this is not the allegation of the plaintiff and it cannot here be considered.

Furthermore the evidence establishes the propensity of Mr Okirua to interfere with vehicles has been known to his employer the defendant for some considerable period of time and has been the subject of many reprimands by the foreman.

It could be argued as to whether the act of the employer in allowing this menace to continue in employment on the wharf where vehicles are parked is or is not culpable. Again, too, no allegation to support a claim of negligence on that score is before the Court.

It is also open to argument as to whether that act of the plaintiff’s Managing Director in leaving the vehicle unlocked with the ignition keys therein is also culpable. But this is not the subject of any pleading before me.

In the result, I propose to enter a nonsuit in respect of the plaintiff’s claim. I shall hear counsel on the question of cost if necessary.

SIR GAVEN DONNE K.B.E.
CHIEF JUSTICE

Solicitors for Plaintiff - Clarke Ingram & Co., Rarotonga.
Solicitors for Defendant - Short and Taylor, Rarotonga.