Fiji Authors and Composers Society Ltd v New India Assurance Company [1996] FJHC 63; Hba0006j.96s (25 October 1996)

Fiji Islands - Fiji Authors and Composers Society Ltd v New India Assurance Company - Pacific Law Materials

IN THE COURT OF FIJI

(AT SUVA)

APPELLATE JURISDICTION

CIVIL APPEAL NO. HBA0006 OF 1996

BETWEEN:

FIJI AUTHORS & COMPOSERS SY LIMITED
Appellant

AND:

NEW INDIA ASSURANCE COMPANY LIMITEan>
First Respondent

AND:

RAMAN LAL & SONS
Second Respondent

F. Keil for the Appellant
Suraharaj for the Respondents

Date of Hearing: 14th October 1996
Date of Judgment: 25th October 1996

This appeal from the Magistrate's Court at Suva raises a short point of law on vicarious liability and of practice on pleadings.

The facts are short and not in dispute. The First Respondent was the insurer at the relevant time of motor vehicle registration No. CG316 owned by the Second Respondent.

The Appellant was at all relevant times the owner of a motor vehicle registered No. CC9span>

One Filimone Verebalavu who was the Second Defendant in the Court below was at all relevant times the driver of motor vehicle registered No. CC996 and according to the Respondent was driving the motor vehicle as employee, servant or agent of the Appellant.

In the ed defence delivered to an Amended Statement of Claim in which the allegation of employee, yee, servant or agent was first raised by the Respondent the Appellant pleaded in paragraph 2 of its defence as follows:

"The First Defendamits paragraphs 3 and 4 of the Plaintiffs' claim. The Fihe First Defendant further states that the Second Defendant was in the general employment of the First Defendant but at the time of the occurrence of the accident he was not driving for or on behalf of the First Defendant or with the authority of the First Defendant nor within the scope of his employment by them but was using the vehicle for his own purpose and in an unauthorised manner."

The Respondents alleged in the Court below that on29th of May 1993 at about 3.55 p.m. the Second Respondent'sent's driver one Bharat Kumar was driving motor vehicle registered No. CG316 along Queens Road Highway going towards Sigatoka from the direction of Nadi while Filimone Verebalavu was reversing his vehicle No. CC996 along the same road while trying to move towards the right-hand side of the road. As a result the Second Respondent's vehicle collided with vehicle No. CG316 and caused damage amounting to $5,230.18 being the cost of repairs paid by the First Respondent as insurer of the Second Respondent's vehicle to the repairer.

Various particulars of negligence were pleaded by the Rdents including "reversing his vehicle at a bend withowithout regard to other vehicles on the road and in particular CG316".

The Appellant denied these allegations and alleged contributory negligence on part of Bharat Kumar including:

Failing to notice the First Defendant's vehicle on a highway when the same should have been clearly visible on an unobstructed stretch of highway".

The hearing took place in the Magistrate's Court e 29th of September 1995 and judgment was given on the 19th 19th of October 1995.

On behalf of the First Respondent Bharat Kumar gave nce to the effect that as he was driving along Queens Road Road from Nadi he negotiated a bend and saw a car in front of him travelling in the same direction as he and that car suddenly stopped without giving any stop signal and began to reverse. Bharat Kumar moved his car to the right side of the road with a view to overtaking the reversing vehicle which instead came towards him, too late to avoid collision.

He identified Filimone Verebalavu who was in the Court as the driver of the reversing vehicle and said that when he got out of the vehicle he said the accident was his fault and he was willing to pay for the damage. He then wrote out an apparent admission of liability which reads as follows:

p class=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> "I FILIMONE VEREBALAVU hereby agreed on 29 1993, that the road accideccident on the highway between Nadi and Sigatoka of vehicles reg. No. CC996 and CG316 was my fault.

Therefore, I have agreed as evidence by this letter to pay the damage to vehicle CG316.

Signed: .............. Signed: ..........> F. VEREBALAVU nbsp; BHARMAR V/No.CC99.CC996

Telephone: 30W/H
308694 A/H

Address: Home - 36 Yarawa Road
Suva&

I interpolate here that I am satisfied that the notation at the bottom of this signed statement by Mr. Verebalavu is a photocopy of his business card which for some reason was included on the photocopy of his admission of liability. In my view nothing turns on this business card in the resolution of this appeal.

The learned Magistrate's note of this document reads as follows:

"Subject to proof I allowed the document to go in."

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The witness then continued:

In cross-examination by the Appellant represented in the Court below as in this CourMr. F. Keil, Bharat Kumar mmar merely stated that the insurance company had the vehicle repaired.

Filimone Verebalavu who was represeny counsel did not cross-examine Bharat Kumar either.span>

The next witness was the Claims Officer for New India Assurance Company Limiho stated that the vehicle icle had been repaired and that New India Assurance Company Limited had paid for the repairs. There was some brief cross-examination on behalf of Filimone Verebalavu and equally brief re-examination whereupon the case for the Plaintiff (First Respondent) closed.

Thereupon both the Appellant and Filimone Verebalavu announced that they were not calling any evidence. The record then contains a statement by Mr. Keil which is meaningless as it stands but which I am satisfied, having heard his arguments on the appeal, was to the effect that there was no evidence that the vehicle involved in the accident placed any liability on the Appellant.

Filimone Verebalavu made no submission.

In his judgment the learned Magistrate first remarked on Filimone Verebalaving an admission of liabiliability which he said was not objected to by the Defendants. I find this strange because, as I understand the law in Fiji, before any employee's admission becomes admissible in cases in which it is sought to make his employer vicariously liable in tort, the making of the admission must be within the scope of the agent's authority if it is to be received against the principal.

I am surprised that counsel for the Appellant did not put the Plaintiff to proof of this because as I understand the law so far as the course of employment is concerned, authority to do acts is far wider than authority to speak about them.

Neverts as I have stated earlier the Appellant had another string to its bow: At the relevant timt time Filimone Verebalavu was not driving within the scope of his employment or with the authority of the Appellant at the time of the accident.

In his judgment the learngistrate had no difficulty in finding Filimone Verebalabu liable to pay damages. He based tsed this on Mr. Verebalavu's action immediately before the accident and then on his agreement to pay for the damages. He then said:

"There no evidence to rebut or contradict the evidence of the 2nde 2nd Plaintiff, I hold the 2nd Defendant liable to pay for the damages he caused to the 2nd Plaintiff's car........ The 1st Defendant is the owner of the car and there is no evidence whatsoever to show that the 2nd Defendant drove this car without authority or permission of the 1st Defendant. In this case the Defendant chose not to call any evidence to rebut the evidence of the Plaintiff."

He then held that on the uncontradicted evidence the Plaintiff (First Respondent) was entitled to judgment.

Before meKeil submitted that the onus was on the Plaintiff to show that Filimone Verebalavu was driv driving on the Appellant's business. He said that the Appellant maintained that Mr. Verebalavu was on a frolic of his own but that it was not for the Appellant to prove this - the onus was on the Plaintiff to prove that he was not.

He then referred to the Fiji Court of Appeal decision in Civil Appo. 47 of 1978 Ganesh & Another v. Ali & Others in which the Court cited with approval the House of Lords decision of Morgans v. Launchbury [1972] UKHL 5; (1972) 2 ALL E.R. 606 which is now regarded as the locus classicus for the law of vicarious liability.

The Court then quoted Lord Salmon on page 620 in Morgans v. Launchbury who said:

"As I utand the authorities the law at present makes the owner or r or bailee of a car vicariously responsible for the negligence of the person driving it, if, but only if, that person is (a) his servant and driving the car in the course of his employment or (b) his authorised agent driving the car for and on his behalf................Thus, mere permission to drive is not enough to create vicarious responsibility for negligence..........So far as I know, until the present case, du Parcq LJ's statement of the law in Hewitt v. Bonvin [1940] 1 KB at 194, has never been questioned:

'The driver car may not be the owner's servant, and the owner will be n be nevertheless liable for his negligent driving if it be proved that at the material time he had authority, express or implied, to drive on the owner's behalf. Such liability depends not on ownership, but on the delegation of a task or duty.'"

At page 5 of their judgment the Court of Appeal also cited with approvalher House of Lords decisionision Rambarran v. Gurrucharran [1970] 1 ALL E.R. 749 at 751 which referred to the New Zealand case of Manawatu County v. Rowe [1956] NZLR 78 where the New Zealand Court of Appeal stated the principles it deduced from the English cases of Barnard v. Sully [1931] 47 TLR 557 and Hewitt v. Bonvin [1940] 1 K.B. 188 and certain New Zealand and Australian cases as follows:

"1. The onus of proof of agency rests on the party who allege 2. An inference can be drae drawn from the ownership that the driver was the servant or agent of the owner, or in other words, that this fact is some evidence fit to go to a jury. This inference may be drawn in the absence of all other evidence bearing on the issue, or if such other evidence as there is fails to counterbalance it. 3. It must be established by the plaintiff, if he is to make the owner liable, that the driver was driving the car as the servant or agent of the owner and not merely for the driver's own benefit and on his own concerns."

In Hewitt v. Bonvin the House of Lords approved the following statement by MacKinnon L.J. at the beginning of his judgment at p.191:

"If A suffers damage by the wrongful act of B, and seeks to say that C is liable for that damage he must establish that in doing the act B acted as the agent or servant of C. If he says that he was C's agent he must further show that C authorized the act. If he can establish that B was the servant of C the question of authority need not arise. A master is jointly and severally liable with his servant for any tort committed by the servant in the course of his employment. If in this case the plaintiff is to make Bonvin the father liable for the damages he claims he must establish that the son was driving the car as the servant of his father, and in the course of his employment."

He then approved the definition of a se in Salmond on Torts:

"A servant may be defined as any person employed by another to do work for him on the terms that he, the servant, is to be subject to the control and directions of his employer in respect of the manner in which his work is to be done."

Much was made before me by Mr. Maharaj counsel for the Respondents of the apparent admisin paragraph 2 in the amendamended defence which I have already quoted.

At first I was attracted by this submission which Mr. Maharaj bound the Appellant. He said that if the Appellant wished thed to deny that Filimone Verebalavu was acting in the course of his employment at the time, this could have been simply stated but it was not.

Counsel for the Appellant admitted that paragraph 2 could heen drawn better but said that it was clear from his judgmeudgment that the learned Magistrate was under no misunderstanding as to the meaning of paragraph 2 because he said at page 29 of the record:

"In the answer he had said tha 2nd Defendant was not to have driven the car and thereforeefore he was not liable to pay for the damages."

This satisfiethat neither the Respondent nor the learned Magistrate was in any doubt as to the meaning oing of paragraph 2 of the defence. In my judgment this appeal must succeed on the ground that the onus was on the Plaintiffs in the Court below to prove that Filimone Verebalavu was acting in the course of the employment and with the authority of the Appellant at the time of the accident. Contrary to what the learned Magistrate said that the Defendant chose not to call any evidence to rebut the evidence of the Plaintiffs, as a matter of law I hold that there was no such onus on the First Defendant (Appellant) and indeed no evidence was led by the Respondents on this question.

It is clear from the cases I have mentioned that the onus of proof for the purpose of vicarious liability rests on the party claiming that the driver of a vehicle was acting in the course of his employment or as the clear agent of the owner of the vehicle. There is no such evidence in this case.

The Order of the Court is therefore that the appeal is upheld andjudgment of the Magistrate's Court Suva of 19th October 199r 1995 is set aside. In lieu thereof there will be an Order that there be judgment for the Appellant against the Respondents and that costs be taxed if not agreed.

JOHBYRNE
JUDGE

Hba0006j.96s

Cases referred to in judgment:

Ganesh &her v. Ali & Others [1"> [1978] 24 FLR 147.

Morgans v. Launchbury [1972] UKHL 5; (1972) 2 ALL E.R. 606.

Hewitt v. Bonvin (1940) 1 K.B. 188.

No other cases were cited in argument.