Krishan v M.W. Fong [1960] FJLawRp 5; [1960-1961] 7 FLR 32 (23 March 1960)

[1960-61] 7 FLR 32

IN THE SUPREME COURT OF FIJI

Appellate Jurisdiction

Civil Appeal No. 1 of 1960

Between:

HARI KRISHAN
Appellant

v

M. W. FONG & ANOR
Respondents

Vicarious liability of owner/vendors for negligence of driver/purchaser under motorcar sale agreement — admissibility of sale agreement.

The respondents were the owners of a motor car. They entered into a written agreement with one Romulo Waqa, whereby the latter contracted to purchase the motor car from them and to pay an agreed purchase price by instalments. It was also provided that these part payments were to become forfeited upon failure to pay any current instalment on time. Under the agreement Romulo Waqa took possession of the motor car immediately, but legal ownership remained in the respondents and was to be transferred to Romulo Waqa when all the instalments had been paid in satisfaction of the whole of the purchase price. Romulo Waqa took possession of the motor car, and, some seven weeks later, whilst driving it, he negligently collided with and damaged the appellant's motor vehicle. The appellant's action for damages against the respondents was dismissed in the lower court on the ground that the respondents were not vicariously liable for the negligence of Romulo Waqa, the driver of the motor car. Upon appeal, it was argued firstly that the written agreement entered into between the respondents and Romulo Waqa had been wrongly admitted in evidence by the lower court. Secondly it was contended that this agreement if admissible had wrongly been held to be a Hire Purchase Agreement. It was further maintained that the finding by the lower court, that the respondents were not vicariously liable, was unreasonable and insupportable having regard to the weight of evidence.

Held.—(1) Since the relationship between the respondents and Romulo Waqa, depended, in part at least, upon the proper construction of the written agreement between them, that document formed part of the res gestae and was therefore properly admitted in evidence.

(2) The effect of the written agreement was the same as if it had been a Hire Purchase Agreement in the usual form, and the hirer under a Hire Purchase Agreement is not the owner's agent so as to render the owner vicariously liable for the negligence of the hirer.

(3) Upon the question of fact as to whether the respondents exercised such control over Romulo Waqa as to render them vicariously liable for his negligence, the finding of the lower court was upheld.

Appeal dismissed.

Cases cited: Barnard v Sully 47 TLR, 557; Gillie v Posho Ltd. (1939) 2 AER, 196; Smith v Bailey [1891] UKLawRpKQB 126; (1891) 2 QB, 403 CA.

F.M.K. Sherani for the appellant.

H.A.L. Marquardt-Grey for the respondents.

HAMMETT, J. [March 23, 1960] –

This is an appeal from the decision of the Magistrate's Court of the First Class sitting in Suva presided over by the Senior Magistrate dated 12th November, 1959, whereby the plaintiff/appellant's claim for £247 damages for negligence was dismissed with costs.

It was not disputed, in the Court below that on 25^th December, 1958, a motor vehicle Number A714 owned by the defendant/respondents whilst it was being driven by one Romulo Waqa, collided with the appellant's motor vehicle Number 9920 and thereby damaged it. At the outset, learned Counsel for the respondents informed the Court below that the only issue was whether the owners were vicariously liable for the negligence of the driver of their vehicle and intimidated that the respondents did not dispute that the driver was negligent at the material time.

The learned trial Senior Magistrate held that on 4th November, 1958, i.e. some 7 weeks before the accident, the respondents had entered into an agreement with Romulo Waqa, the driver, for the sale of the car to him. By this agreement (Exhibit 1) Romulo Waqa took possession of the car and was to operate it as a taxi and to pay the agreed purchase price by a number of installments. It was held that this was a Hire Purchase Agreement and that since the hirer under such a contract is not the owner's agent or servant so as to render the owner vicariously liable for the negligence of the hirer the respondents were not liable to the appellant.

The appellant has appealed on two grounds:

• (1) (i) The learned trial magistrate erred in law in holding as admissible in evidence the agreement entered into between the defendants and Romulo Waqa (Exhibit 1);

(ii) Alternatively, if the agreement (Exhibit 1) between the defendants and Romulo Waqa was admissible in evidence it was not a Hire Purchase Agreement and the learned trial magistrate erred in holding to the contrary.

(2) The verdict is unreasonable and cannot be supported having regard to the weight of the evidence adduced.

Where a plaintiff in an action for negligence proves that damage has been caused by the defendant's motor car, as was not disputed in this case, the fact of ownership of the motor car is prima facie evidence that the motor car at the material time was being driven by the servant of agent of the owner. (Barnard v Sully 47 TLR 557). The onus of proof therefore shifted to the respondents to show that at the material time the car was not being driven by their servant or agent.

What was directly involved in the determination of this issue was what the relationship was between the respondents and Romulo Waqa at the material time as a question of fact. This was the issue that had to be determined before it could be decided whether or not the respondents were to be held vicariously liable to the appellant.

The facts directly involved in the determination of an issue are sometimes called the res gestae. Since the relationship between the respondents and Romulo Waqa depended, in part at least, upon the proper construction of the written agreement between them, that document formed part of the res gestae.

In the case of Guile v Posho Ltd. (1939) 2 AER 196, which was relied upon by the appellant in support of the first part of the first ground of appeal, it was held that a document written by one of the parties to that action and sent to a third party, was inadmissible because it did not form part of the res gestae. Further, in that case, the document was a letter containing a statement of fact made by one of the parties to the action to a third party—it was not, as it was in this case, a document creating and setting out the relationship between one of the parties to the action and the third party. On those grounds therefore the document held to be inadmissible in Gillie v Posho and the reasons for that decision are clearly distinguishable from the Agreement between the appellants and Romulo Waqa and the reason for it being admitted in evidence. It was, in my view, properly admitted in evidence in this case as being a part of the res gestae. The first part of the first ground of appeal therefore fails.

The second part of the first ground of appeal complains of the part of the judgment of the court below which reads:

"On the 4th November, 1958, that is, some 7 weeks before the accident, the defendants had entered into an agreement with Romulo Waqa (Exhibit 1). The court has studied this agreement with care. It is clearly a hire purchase contract. A contract of hire purchase is one of the variations of the contract of bailment."
I must confess I find it difficult to agree with the finding "It is clearly a hire purchase contract."

This Agreement is headed—

"Memorandum of Agreement for Sale and Purchase"

It seems to me that the Agreement is a Contract for Sale providing for the purchaser to take possession of the vehicle to be sold immediately and to pay for it by instalments, with interest, and for the legal ownership of it to be transferred to him upon completion of the payment. There does not appear to be any question of the instalments being treated as hire rent, although, like in a Hire Purchase Agreement, part payments were to become forfeited upon failure to pay the current payments on time.

What does appear to me to be clear is that in the final result the effect of the Agreement is the same as if it had been a Hire Purchase Agreement in the usual form, and the hirer under a Hire Purchase Agreement is not the owner's agent so as to render the owner vicariously liable for the negligence of the hirer, Smith v Bailey [1891] UKLawRpKQB 126; (1891) 2 QB 403 CA.

Romulo Waqa was not the employee of the owners of the vehicle. He was an independent person who had contracted to purchase the vehicle from them. He was in direct control of the car under an Agreement, the effect of which, was virtually the same as would have been the case had this been a Hire Purchase Agreement in the usual form. It was a question of fact whether the owners exercised such control over Romulo Waqa as to render them vicariously liable for his negligence.

The respondents denied they exercised any control over him and asserted that he was neither their employee nor agent but was an independent person who had contracted to buy their vehicle from them.

All the evidence for the appellant on this issue appeared to be concerned with the occasions when one of the defendant's was seen to come to the taxi stand at Suva Market, from where Romulo Waqa operated the car as a taxi, and to converse with him. There was no evidence that in fact Romulo Waqa was controlled at all in the use of the vehicle. The learned trial Senior Magistrate considered the evidence and this aspect of the case and I am quite unable to say he was wrong in holding as fact that the respondents did not exercise such control over the owner of this vehicle as to make him their agent and to render them vicariously liable for his negligence.

This appeal is dismissed.