Maeda v Attorney-General [1996] SBHC 23; HC-CC 087 of 1995 (3 May 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 87 of 1995

align="center">ter">JAMES MAEDA

-v-

ATTORNEY GENERAL & MAELANGA

Before: Muria, ria, CJ

Hearing: 1 April 1996 - Judgment: 3 May 1996

Counsel: A. Radclyffe for the Plaintiff; P. defeat for First Defendant; P. Tegavota for Second Defendant

MURIA CJ:

The plaintiff instituted these proceedings against the first and second defendants claiming the sum of $15,250.00 with interest and costs for loss and damage suffered in respect of his taxi vehicle Reg. No. 9037 which was involved in an accident on 4 February 1995 resulting in it being damaged and written off. The particulars of damage are:

Pre-accident value of 903 - $5,500.00

Net Loss of Income - $125.00

per day for 3 months (6 days a week) - $9,750.00
from 6 February 1995

$15,250.00

There has been no serious challenge to the amount claimed by the plaintiff nor has liability been denied. So the real question is who should pay? However before I venture into that issue let me set out briefly the facts surrounding the incident.

Facts not in dispute.

In the pleadings and in this Court, it has not been disputed that the plaintiff was the owner of the taxi car reg. No. 9037 which was badly damaged and was a write-off as a result of the collision between itself and the hilux reg. No. X331 driven by the second defendant. As a result of the accident, the second defendant was prosecuted and convicted of careless driving before the Magistrate's Court.

The second defendant is a police constable employed (and still is) by the Solomon Islands Government in the Royal Solomon Islands Police Force who is represented in this case by the Attorney General's Office. There is also no dispute that second defendant immediately after the accident notified his superior, the Director of Police Field Force of the accident and subsequently produced a report of the accident as required of him to the Director. There has never been any disciplinary action against the second defendant since the accident.

As to the amount claimed, that has also not been disputed although questions were put by Counsel for the first and second defendants to the plaintiff in respect of his daily takings. Those questions were asked of the plaintiff for the purpose of clarification rather than a challenge to the amount claimed.

Those in the main are the undisputed facts in this case. I shall now turn to consider the issues raised in the light of the evidence presented to the court by the parties.

The issues raised.

The question of liability as well as that of quantum are not in controversy here as I have already mentioned. Rather the question is whether it is the government represented by the first defendant should pay for the loss and damage suffered by the plaintiff or should the second defendant meet that liability. As far as the plaintiff is concerned it matters not to him who should pay although by joining the first defendant as a party, he hopes to secure payment from Government should the Court find that it is vicariously liable to make good the loss and damage he suffered as a result of the action of its employee.

In the course of argument a number of issues, apart from the main issue of who should bear the burden of the second defendant's action, had been raised by counsel for the first defendant. These include the question as to whether the second defendant was "in the course of his duties" at the time of the accident; whether authority or permission to use the vehicle (x331) had been properly given to the second defendant; and whether proper procedure was followed before the second defendant was allowed to use the vehicle at the material time. To these issues I shall now turn.

Whether the second defendant was "in the course of this duties" when he collided with the plaintiffs taxi car.

The argument advanced by the learned Solicitor General on behalf of the first defendant is that the second defendant in this case was not in the course of his duties at the time of the accident. The reason being, it was argued, that there was no training by the members of the Police Field Force on Friday, 3rd February 1995 and so there was no reason for the second defendant to transport one Brian Waga's (a member of the Police Field Force) training gears to his (Brian Waga's) home the next day. In addition counsel also argued that the second defendant was not permitted to use the vehicle at the time. As such he could not be driving the vehicle Reg. No. X331 in the course of this duties when the accident occurred. Thirdly, Counsel argued, that the second defendant obtained the use of the vehicle contrary to proper procedure and as such the use of the vehicle was unauthorised. Thus the accident counsel argued, resulted out of the unauthorised use of the vehicle and the first defendant could not be said to be liable to pay the loss and damage suffered by the plaintiff.

The issue I shall deal with first, in the order raised by Mr. Afeau for the first defendant, is that which concerns the transportation of Brian Waga's training gears to his home. I think the question whether there was military training by the members of the Police Field Force on Friday 3rd February 1995 does not, in my view, bear any significance to the issue whether the second defendant was in the course of his duties when he met the accident on 4th February. I say this because even if there was no training on Friday 3rd February, the fact of the matter is that, on the 4th February, the second defendant used the vehicle after obtaining permission and the key from the armoury duty-officer to transport military training gears belonging to one of the officers of Police Field Force to his house, an activity for which the vehicle (X331) was permitted to be used. This is confirmed by the evidence of the then Director of the Police Field Force (and now Director of CID) when he said:

"It is possible for an officer to use the vehicle to transport his training gears to his house."

Simply by viewing it in that perspective, an officer who had been in the training exercise a day earlier or even the week previously and who had not yet transported his training gears home (perhaps because the vehicle was not available then) would still be allowed the use of the vehicle anytime after the exercise to transport his training gears to his house. That is a permitted use of the vehicle.

The question, however, of whether there was training on 3rd February 1995 has been raised by the first defendant in support of his argument and so I shall consider it. The evidence on this is very scanty and come mainly from the second defendant who said that on Friday 3rd of February 1995 he and other members of the Police Field Force had had training behind Tenaru. He also stated that the next day, Saturday 4th, he was the only driver available in the barrack when one of the Police Field Force Officers (Brian Waga) asked him to drop his (Waga's) training gears at his house. Being the only driver available, he went to the armoury where he sought permission to take the vehicle out in order to drop off Brian Waga's training gears. He was allowed to do so, obtained the key and took the vehicle out. The record confirmed that as stated in Mr. Parafea's evidence.

On the other hand, Mr. Parafea's evidence is that he did not remember if there was any training at Tenaru on 3rd February nor could he recall if there was any training that week. It is rather unfortunate that the evidence in this aspect is, as I have said, scanty. The Court would have expected from a superior officer in-charge in a discipline force to be specific in his answers to questions put to him regarding matters of operation and administration of such a force. The answers in evidence such as, "I did not remember " or "I cannot recall" if there was training on 3rd February or not are simply not good enough , particularly when it comes to weighing such answers against the evidence of the officer (second defendant) who said that there was training on 3rd February and that he did in fact joined that raining. There was no evidence to say that there was in fact no training on 3 February. The evidence from Mr. Parafea is that he could not remember or that he simply could not recall if their was training on that date. On balance, I find myself swayed in favour of the evidence of the second defendant.

Whether permission to use vehicle given to the second defendant.

I now pass on to consider the submission by counsel for the first defendant that the second defendant was not authorised to drive the vehicle reg. No. X331 at the time of the accident. The evidence presented on this issue comes from the second defendant and the then Director of Police Field Force.

The evidence of Mr. Parafea on this is that, in a nut-shell, the second defendant was and still is an authorised driver for vehicle Reg. No. X331 but that the authorisation was for the period between 8.00 am to 4.30 p.m. each day from Monday to Friday except on occasions when picking up Police Field Force officers returning from the border; that on weekends the vehicle was to be used only with permission from the Director or Deputy Director and that on the day in question he did not grant permission to the second defendant to drive the vehicle Reg. No. X331.

In cross-examination Mr. Parafea, however, stated that:

"In urgent or genuine cases, the driver must ensure that the use of the vehicle must be for genuine reason and recorded and given to the armoury duty officers"

So it is also possible for authorised drivers to use the vehicle for urgent or genuine reasons without having to obtain permission directly from the Director or Deputy Director. What appears needs to be done in such a situation is that as long as it is an urgent or genuine case, the driver can obtain the key from the armoury duty officer, have the fact that he is taking the vehicle out recorded with the armoury duty officer in a record kept for that purpose and take the vehicle out to be used.

I think it must be common sense that there would be occasions when there were urgent or genuine need to use the vehicle but neither the Director nor the Deputy Director would be available to directly give permission to use the vehicle. Surely in such situations some method of obtaining official permission readily must be available.

In the present case the method by which the Police Field Force vehicle Reg. No. X331 was allowed to be used was by permission from the Director or Deputy Director and in the absence of that the vehicle was duly given at the armoury office by the duty officer who gave the key and recorded that the vehicle was to be used by the second defendant. Having done that, the duty-officer permitted the vehicle to be taken out of the police garage to be used. That was permission given by an authority responsible.

As a driver, the second defendant was not rostered because they could be called on at anytime to carry out their duty of driving. This is clearly confirmed by Mr. Parafea when cross-examined by Counsel for the second defendant. The second defendant was the authorised driver available at the time and when he was called upon to carry out his duty of driving, he obeyed. He sought permission from and was granted by the duty-officer in the armoury.

The second defendant stated in evidence and I accept it, that if an officer asked to use the vehicle for leisure, the armoury duty-officers would not allow the vehicle to be driven out from the police garage. The armoury duty-officers must record vehicles going in and out and who the drivers were. In this case I am satisfied on balance that the second defendant obtained proper permission to drive the vehicle in order to transport one of the officer's training gear to his home.

Was the second defendant driving in the course of his duty at the time of the accident?

The evidence before the Court shows that the second defendant after permission was given, used the vehicle to transport one of the Police Field Force officer's training gear. Was that an exercise by the second defendant to discharge his duty? It will be on the second defendant to show on the facts that he apparently discharged his duty. Once that is done, the first defendant bears the onus of showing hat the apparent discharge of duty by the second defendant was not in law a proper discharge of the duty. The first defendant would have to show that by evidence.

What do we have in this case? Here the evidence establishes that the second defendant was and still is an authorised driver to drive vehicle Reg. No. X331. His duty was and still is to drive which he would be called upon to do at any time. He was the only authorised driver available at the time in the police barracks. He was asked by Office Brian Waga to transport his training gears home after training the previous day. He obtained permission to take the vehicle out from the closest authority, the armoury duty-officer. Transportation of training gear is a permitted use of the vehicle. It was when he was transporting that other officer's training gear that he had the accident.

On those evidence the second defendant has, in my judgement, clearly proved that he was discharging his duty at the time when he met the accident. There is absolutely no evidence offered by the first defendant to suggest the contrary. There is no evidence to suggest that the second defendant was on a folly of his own when the accident occurred. In this case there can be only one conclusion, and that is, the second defendant was driving the vehicle Reg. No. X331 in the course of his duty at the time of the accident.

The Solicitor General agrees that as a matter of law the first defendant would be vicariously liable if the court finds that authority was given to the second defendant to drive the vehicle at the time. On the conclusion that I have reached, the first defendant must be held to be vicariously liable for the second defendant's tortious action which occurred in the course of his duty and I so hold.

On the question of damages, the first and second defendant offered no challenge to the quantum of loss suffered by the plaintiff. It is also to be noted that the plaintiff had mitigated his loss by selling his damaged vehicle at reduced price of $5,500.00 so that the total loss claimed is $15,250.00 plus interest and costs.

In the circumstances, there will be judgement for the plaintiff in the sum of $15,250.00 with interest and costs to be paid by the first defendant.

GJB Muria
CHIEF JUSTICE