Lautoka General Transport Co Ltd v Kaikaba [2005] FJHC 546; HBA0006.2005 (30 September 2005)

IN THE HIGH COURT FO FIJI
AT LAUTOKA
APPELLATE JURISDICTION

ACTION NO. HBA0006 OF 2005

BETWEEN:

LAUTOKA GENERAL TRANSPORT CO. LTD.
APPELLANT

AND:

LARIO KAIKABA
RESPONDENT

Counsel for the Appellant: Mishra Prakash & Associates
Counsel for the Respondent: Messrs Young & Associates

Date of Hearing: 22 July 2005
Date for Submissions: 12 August, 2 September, 9 September 2005
Date of Judgment: 30 September 2005

JUDGMENT OF FINNIGAN J

This is an appeal by one of two defendants in a Magistrates Court Action for damages for personal injury. The Respondent as Plaintiff had sued the driver of a bus ( Isimeli Ranatora) as 1^st Defendant and the company that owned the bus (Lautoka General Transport Co. Ltd) as 2^nd Defendant. In the Magistrates Court the 1^st Defendant took no steps, never appeared in court and at the hearing was neither present nor represented. It was the 2^nd Defendant that filed a statement of defence to the claim. It was the 2^nd Defendant that contested the claim at the hearing by both calling evidence and making submissions. The essence of its defence as both pleaded and argued and as stated in evidence was that although it owned the bus it was not connected in any way with the action of the 1^st defendant Isimeli who caused an accident while driving without its authority and for his own purposes not those of the 2^nd defendant.

In a fully reasoned judgment that goes to 8 pages the Magistrate gave full consideration to the several arguments raised at the hearing on behalf the 2^nd defendant. Without difficulty and on the basis of the evidence she found that the accident occurred as a result of (1) the negligence of the 1^st defendant who was driver at the time of the accident and (2) the negligence of the agent of the 2^nd defendant namely the authorized driver who had allowed the 1^st defendant to drive the bus when the 1^st defendant was not licensed for that purpose.

It is against the 2^nd of those findings that the 2^nd defendant appeals.

The Facts

In the Magistrate’s Court the Plaintiff who was injured in the accident sued the 1^st Defendant as driver and 2^nd Defendant as owner of the bus.

From the evidence it is clear that the 1^st defendant was at the time a mechanic employed by the 2^nd defendant. His daughter had died and he was on leave. He had asked the 2^nd defendant for the use of a bus to take his relatives to his daughter’s funeral. The 2^nd defendant agreed and provided a driver, Tevita Buto. The evidence was that the route taken was not a normal route for the 2^nd defendant’s buses, that the 1^st defendant was not charged for use of the bus and that the passengers did not pay.

As the Magistrate said in her judgment (at page 4) it was not contested that the 1^st defendant was in control of the bus at the time of the accident. It was admitted that the bus was owned by the 2^nd defendant. The Plaintiff had said (at p18 of the record) he had boarded the bus as a passenger and the driver was Isimeli Ranatora the 1^st Defendant. He said that the driver could not start the engine, it started but did not start. The bus rolled down into a ditch and crashed in the ditch. In cross-examination he repeated that Isimeli had tried to start the bus, it would not start and rolled from where it had parked on a slope. His witness Salanieta Qori had stated that she knew Isimeli, that she was on the bus as a passenger and that Isimeli was driving the bus. She said (at p20) “we took off and the driver couldn’t control the bus, so it went inside the ditch”.

A witness for the 2^nd defendant Pyara Singh said that Isimeli was not authorized to drive the bus and that the basis on which he had it was that Tevita Buto would drive it. Another witness Shaheem Shadad Naheen who was the 2^nd defendant’s transport Manager gave evidence that the bus was used for a day trip by Buto the driver before the funeral of the daughter one of the mechanics. There is no evidence from any witness anywhere in the record of this hearing about how, when, where or why Isimeli took over the driving from Tevita Buto. Tevita Buto was killed in the accident.

Liability

The Magistrate had no difficulty finding the 1^st Defendant liable.

As the Magistrate said (at p6 of the judgment) to include the 2^nd defendant in his claim the Plaintiff must establish that the 1^st defendant had been driving the vehicle as the servant or agent of the 2^nd defendant. As the Magistrate then pointed out the authorized driver had been Tevita Buto the employee of the 2^nd defendant. The 1^st defendant was a mechanic who was known to the 2^nd defendant to have no license to drive a bus. The 1^st defendant had no authority to drive the bus and Tevita Buto had no authority to allow him to do so. After careful consideration of legal authorities the Magistrate found vacarious liability established.

The foundation for this conclusion was a finding (at p5 of the judgment) as follows:

“for reasons which were not apparent from the evidence, the driver had permitted the 1^st defendant to assume control of the bus immediately prior to the accident. I find at all times the 2^nd defendant intended the bus to be under the control of the driver, Tevita Buto for the purpose of taking mourners to the funeral.”

Decision

It was the unauthorized decision of Tevita Buto which formed the foundation of the Magistrates conclusion that the 2^nd defendant was liable. There are some good authorities for this which the Magistrate considered.

I have searched the record for evidence that the driver had permitted the 1^st defendant to assume control of the bus immediately prior to the accident. I am unable to find any evidence of that. In the record, there is a finding by another Magistrate in the trial of Isimeli for dangerous driving causing death, that Buto the driver had asked Isimeli to drive, but it would be unsafe to adopt that as evidence in this case. No witness said anything about it. Without that evidence the otherwise impeccable reasoning of the Magistrate cannot proceed. In my view the case for liability against the 2^nd defendant is not made out.

I uphold the 8^th of the 8 grounds of appeal. It is unnecessary to consider the other grounds. I uphold the appeal and reverse the Magistrate’s finding of liability and the award of damages and costs as made against the 2^nd defendant.

Only the respondent filed a submission. In the circumstances I make no order for costs.

D.D. Finnigan
JUDGE

At Lautoka
30 September 2005