Chandra v Narain [1999] FJSC 2; CBV0001.1998S (5 March 1999)

Fiji Islands - Chandra v Narain - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

AT SUVA

ON APPEAL FROM THE COURT OF APPEAL, FIJI

CIVIL APPEAL NO. CBV0001 OF 1998S
(Court of Appeal, Fiji, Civil Appeal No. ABU0051U/96S)

:

SUNIL CHANDRA
Appellant

AND:

RAM NARAIN
VIMLESH KUMAR
Respondents

Coram: Th Hon. CookeCooke of Thorndoorndon
The Hon. Sir Anthony Mason
The Hon. Sir Gerard Brennan

Hearing: Tuesday, 2 March 1999Date of Judgment: Friday, 5 March 1999

Counsel: Mr. R. Prakash for the Appellant

Mr. C.B. Young for the Respondents

JUDGMENT OF THE COURT

Jinendra Kumar Narain ("the deceased" died on 13 October 1987, when aged 18, as a result of an accident in which the motor vehicle (a van) in which he was a passenger went out of control and crashed on a gravel road. The vehicle was driven by the second respondent Vimlesh Kumar ("Vimlesh") and owned by the appellant. The accident was caused by Vimlesh’s negligent driving.

In proceedings for compensation under the Compensation to Relatives Act (Cap. 29), the first respondent, the deceased’s father, obtained judgment in the sum of $39,900 plus costs against Vimlesh and the appellant. Sadal J. held that, in driving the van, Vimlesh was the servant and agent of the appellant who was, accordingly, liable vicariously for the compensation awarded.

On appeal, the appellant contended that there was no basis for the drawing of an inference that Vimlesh was the appellant’s servant or agent and that the compensation awarded was excessive. The Court of Appeal dismissed the appeal, holding that, although Vimlesh was not the appellant’s servant, he was the appellant’s agent and that there was no error in the trial judge’s assessment of compensation.

In the appeal to this Court, the appellant challenges the decision of the Court of Appeal on those two points.

The issue of agency

The question whether the Court of Appeal was right in drawing the inference of agency turns on the findings which have been made in the courts below and, to some extent, on the evidence. The appellant was a market gardener who sold at the Ba market and traded principally in bananas. On the day of the accident, the appellant’s brother-in-law Rohit drove the appellant’s Daihatsu van on an expedition to collect mangoes for the appellant. Rohit resided in the appellant’s home. The passengers on the vehicle, as it left the appellant’s house, were Yad Ram Sharma, Ajesh Kumar, Vimlesh, the deceased and the appellant’s wife. She was dropped at the Ba market. The van then proceeded to Bula Bula where the party picked mangoes and loaded them into crates. It was then that Rohit handed the keys of the van to Vimlesh who proceeded to drive the van. The evidence does not disclose the reason why Rohit asked Vimlesh to take over as the driver. The accident occurred on the journey back when Vimlesh drove too fast downhill on a gravel road.

The Court of Appeal inferred, correctly in our view, that the appellant had arranged a party of men to pick, collect and transport mangoes for him on the day in question. There was evidence from Yad Ram and Ajesh that they were employed by the appellant to pick mangoes at $6 per day. Ajesh gave evidence that he and Vimlesh had been asked by the appellant to get mangoes, Vimlesh being present when the appellant told them to pick mangoes. According to Ajesh, the appellant asked him to sit the van just before it departed. The trial judge found that the appellant was aware of the identity of those travelling in the van.

The appellant denied that he had authorised Rohit to pick mangoes for him. The trial judge rejected this denial and the rejection is to be read as a finding that there was such an authorisation. Rohit invited Vimlesh, who was his friend, to join the group picking mangoes. There was no arrangement that Rohit or Vimlesh was to be paid. Vimlesh said that "mangoes were for Rohit". That statement may have meant that Rohit was to take some mangoes. Whatever it meant, the Court of Appeal was amply justified in concluding that the appellant arranged the expedition and that it was undertaken for his purposes. As the Court of Appeal pointed out, Vimlesh may not have known that the activity in which he was helping Rohit was undertaken for the appellant’s purposes.

The appellant admitted that Rohit had general authority to drive the van which, when not in use, was kept at the appellant’s home. There was, however, no direct evidence of authority from the appellant to Vimlesh to drive the van. Likewise, there was no evidence that the appellant gave an instruction that no-one other than Rohit was to drive the van.

The question is whether Vimlesh had implied authority to drive. Material to an answer to this question is the fact that the appellant made the van available for an expedition which he organised for his purposes and for his benefit. Once it is accepted that authority to drive was not explicitly confined by the appellant to Rohit personally, there is no reason why the appellant should not be regarded as having authorised any member of the group, who was licensed to drive, to drive the van in the event that Rohit, for whatever reason, was unable or was unwilling to do so. In order to enable the undertaking, namely the collection and transport of the mangoes, to be carried to completion, it was necessary that the van be driven to Bula Bula and back to the appellant’s home by Rohit and, if he was unable or willing to do so at any stage of the journey, by another licensed driver in the group. Vimlesh was a licensed driver.

The decision of the House of Lords in Morgans v. Launchbury [1972] UKHL 5; [1973] A.C. 127, on which the appellant relied, is not in point. There the plaintiff failed to establish agency because the driver was not using the car at the owner’s request, express or implied; nor was the driver using the car in the performance of a task delegated to him. Here, for the reasons already explained, it is otherwise.

Accordingly, in our view, the Court of Appeal was correct in drawing the inference that Vimlesh drove the vehicle as the appellant’s agent.

Compensation

The appellant submits that the amount awarded was excessive because the extent of the parental dependency on the deceased ($50) per week was too high and was not supported by the evidence.

There was evidence from the deceased’s father, the first respondent, that the deceased was paid $70 per week as a cane cutter from which he gave $50 per week to his mother. His mother estimated the deceased’s wages as $70-$80 per week. The parents’ evidence as to the wages payable to deceased as a cane cutter should be understood as an amount paid for three weeks’ work. On the other hand, there was evidence that the wages payable to a cutter could amount to $91 or $92 per week and one witness stated that the deceased was a "champion cane cutter."

The father also said that the deceased worked on the family farm without remuneration. There was other evidence that the deceased undertook casual work when he was not cane cutting. Included in that casual work was picking mangoes for the appellant for which he was paid $6 per day. The deceased’s father also gave evidence that, since the death of the deceased, he employed a worker on the farm at the rate of $40 per week (full time) and $6 per day for less than a full-time week.

The significance of all this evidence as to earnings and dependency was not explored in cross-examination. We do not know what was the period in a year in which the deceased was employed as a cane cutter, for what periods he secured casual employment or the hours he worked on the family farm. Nor do we know the extent of the father’s employment of outside labour to replace the contribution made by the deceased.

In those circumstances it was for the trial judge, who is an experienced judge having knowledge of conditions in Fiji, to make what he could of the general and imprecise evidence of which we have given a summary. The Court of Appeal, having considered the matter, saw no reason to differ from the trial judge’s assessment. The fact that both the trial judge and the intermediate court of appeal have been satisfied with the assessment is a telling consideration. To that consideration we should add the comment that it has not been shown that there was any error of principle on the part of the trial judge or that his assessment was vitiated by any misapprehension of fact. Nor does it appear that in any other respect the assessment lies outside the limits of a sound discretionary judgment.

Orders:

In the result we make the following orders:

Appeal dismissed.

Appellant to pay the respondents’ costs.

The Rt. Hon. Lord Cooke of Thorndon
The Hon. Sir Anthony Mason
The Hon. Sir Gerard Brennan

CBV0001U.98S