(LUNGOLE-AWICH
J): The Facts.
The case of the plaintiff, Mr. George Hill, as stated in his writ of summons
dated 22.10.1996, filed on 23.10.1996,
was a straight forward one. Mr. Hill
averred that: He was the owner of vehicle No. 9243 which he operated as a
taxi in
Honiara to earn income. On the afternoon of Sunday 26.2.1995, Mr.
Francis Ramo, acting negligently, bumped into Mr. Hill’s
vehicle thereby
causing extensive damage. Mr. Hill has been unable, because of the high
costs, to repair the vehicle.
On those averments, Mr. Hill has claimed
damages being $4,038 for “damage to the vehicle” and $150 per day for 3
months,
being lost income from the taxi business. He sued Mr. John Fera, the
defendant, not Mr. Francis Ramo because, he said, Mr.
Fera was the employer
of Mr.Ramo, who at the time was driving Mr. Fera’s mini bus No. A0172 in the
course of passenger
service business of Mr. Fera. Mr. Fera’s reply was a
short and clear one; he has never employed a Mr. Francis Ramo and did
not
know Francis Ramo.
The Case and the Law
The case is a straight forward case of negligence of an employee, for which
an employer is said to be vicariously liable.
The law of Solomon Islands on
the subject is of course the Common Law of England as deemed appropriate in
the circumstances
of Solomon Islands. The law about the liability of an
employer for the wrong of his employee is that for an employer to be
vicariously liable, it must be established that:
1. The employee was liable (in this case in negligence) and
class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
2. The employee was a in the course of his emploemployment - see the cases
of: Staveley Iron and Chemical Co. Ltd. v Jones [1956] AC 627 or
[1956] 1 All ER 403 and ICI Ltd v Shatwell [1964] UKHL 2; [1965] AC 656, and compare
the judgments in Rose v Plenty [1975] EWCA Civ 5; [1976] 1 WLR 141 and General
Engineering Services v Kingston and Sait Andrew Corp [1983] 3 All ER
867. Further, in direct contrast to Rose v Plenty is the case of
Conway v George Wimpey & Co. Ltd. No.2 [1951] 2 KB 266 in which an
injured passenger, given lift in a truck, contrary to the express
instruction of the employer, failed in
a suit against the employer.
Tis much divergence of opinions about when to draw the line line at which
liability “in the course of employment” stops.
The guiding test to determine
that an act was in the course of employment is to determine whether, 1. the
act was a wrongful
act authorised by the employer, or, 2. a wrongful and
unauthorised way of doing authorised act. The test is not without
difficulties; there are many situations that do not fit in the test. I am
fortunate today that in this case I do not have
to determine whether the
accident occurred in the course of employment, although it appears the
question would have not
been a difficult one on the facts of the case.
Proof
In court the case turned out to be a difficul, the difficulty was
simply in which evidence to believe. The evidence
adduced for both the
plaintiff and the defendant comprised only the testimonies of witnesses;
there were no items of
“real evidence” against which to check the
testimonies of witnesses. The plaintiff’s witnesses, Mr. Ramo the driver and
the plaintiff himself testified in straight forward and credible manners.
Ramo, the driver, admitted negligence for which
he said he had admitted a
traffic offence charge and had been convicted in the magistrates’ court on a
plea of guilty.
The defendant did not try to contest the negligence of Mr.
Ramo, nor that Mr. Ramo drove the mini bus in the course of employment.
I
think it would have been very difficult to do so when Mr. Ramo himself
admitted negligence, and said that he was driving
the minibus in passenger
service business of the defendant. The defendant fought the case, simply on
the ground that
a Mr. Ramo was never a driver of the defendant at all, let
alone on 26.2.1995, he was not known by the defendant’s employees
who
included the one who carried out interviews of employees, Johnson Sekulu,
witness for defence No.2, and the one who
was a driver at the time, Bentley
Donga, witness for defence No.3. The defendant said that his conductor at
the time
was a Mr. Donga and not one named by Ramo as John. He called his
driver, Bentley Donga, who testified that he was the driver
during the
period including 26.2.1995 and that he never knew Ramo, let alone knowing
him to have been a driver of vehicle
No. A01 72 on 26.2.1995.
The demeanour of all the witnesses on bides were perfect, they ally all
sounded believable. They did not contradict themselves
or one another. So
the case was even. I then had to ask myself a few questions, answers to
which I hoped would establish
or destroy credibility. The defendant called
his supervising employee, and a driver to testify to support his own
testimony
that Mr. Ramo was never at any time an employee of the defendant,
why did he not call the conductor named as Donga, not John
as the plaintiff
claimed? The question was of course not raised during the trial. The answer
could be that the conductor
would have supported the plaintiff's case much
to the embarrassment of the defendant or, may be the conductor was
unavailable
or the defendant thought that the two employees called gave
sufficient evidence in his defence. On the part of the plaintiff,
why did he
not subpoena the conductor that Ramo named as John, and the police officer
on duty at the police station where
both the plaintiff and Ramo were said to
have gone to report the accident immediately, or the officer who conducted
inspection
of the vehicles and possibly of the scene, and if inspection was
not done, to testify so? A great deal of details about the
identities of the
vehicles and their drivers would have been made available to court. The
“report” tendered and rejected
as exhibit was in fact a photocopy letter
addressed, “TO WHOM IT MAY CONCERN”, it was not an official record of
reports
made to police, the contents would not be probative of any facts.
The accident occurred in 1995, and the plaintiff’s vehicle
was damaged
badly, did he go to the defendant soon after, to ask for compensation? There
was no evidence about that,
and it remains a point to consider.
Whatever good answers may be able to the questions I havI have raised on
both sides, my view is that the omissions that
occurred in proving the
plaintiff’s case left his case a little weaker than the case of the
defendant. The balance of
probability is not in favour of the plaintiff. The
burden to tilt the case in the plaintiff’s favour was on him. As the balance
of proven facts remained tilted slightly in favour of the defendant, or even
if it were evenly balanced, the plaintiff’s
case must fail. I dismiss his
case with costs.
In jurisprudence there is a thing as absolution from the instance,
which simplsimply means that a case is evenly balanced
and judgment cannot be
given to the plaintiff nor can the case be dismissed, but an order of
“absolved from the instance”
is made. That I think could give court the
choice to decline awarding costs. I do not think it is part of our law, so
costs in this case must be granted to the defendant.
Dated this 18th
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