Orie v Preau et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Mendonca, J. |
| Judgment Date | 11 December 2003 |
| Neutral Citation | TT 2003 HC 138 |
| Docket Number | H.C.A. No. 2223A of 1997 |
| Court | High Court (Trinidad and Tobago) |
| Date | 11 December 2003 |
High Court
Mendonca, J.
H.C.A. No. 2223A of 1997
Tort - Vicarious liability — Plaintiff struck by vehicle — Severe personal injuries suffered — Action for damages against defendants — Whether the driver at the material time was the agent of the first defendant — Judgment for plaintiff.
On the morning of March 10th 1997 the plaintiff was standing in a car park on Independence Square in Port of Spain when he was struck by a vehicle. According to the plaintiff's son who witnessed the accident the vehicle reversed onto the Plaintiff pinning him against the perimeter fence of the car park. Moments later with the vehicle still in reverse it broke down the fence and it went on to the pavement. The plaintiff ended up underneath the vehicle on the pavement. As a consequence the plaintiff suffered severe personal injuries.
It is not in dispute that at the material time the car park was operated by the second defendant and that the vehicle which struck the plaintiff was owned by hire first defendant. According to the first defendant she had left the vehicle at the car park earlier that morning. She returned about half an hour to three quarters of an hour later and saw her vehicle in a “reverser position from the car park” on the pavement. By that time it seems that the plaintiff had been removed. The first defendant noticed there was damage to her vehicle the rear windshield was damaged.
The plaintiff brings this action for damages against the defendants. The plaintiff claims that the time of the accident the vehicle was being driven by the defendant's servant or agent.
It is not disputed on the evidence that the accident occurred by reason solely of the negligence of the driver of the first defendant's vehicle at the material time. Indeed neither the plaintiff nor his son who both gave evidence of the circumstances in which the vehicle came to collide with the plaintiff was crossed examined by any of the defendants. While the negligence of the driver is common ground among the parties what the defendants however contend is that at the material time the vehicle was not driven by someone who was their servant and/or agent.
There is a third party claim by the first defendant against the second defendant. It was after the commencement of the third party proceedings that the second defendant was joined as a defendant in the action. In the third party proceedings the first defendant Claims against the second defendant, in the event that she is held liable to the plaintiff, an indemnity and judgment for any amount that may be found due from the first defendant to the plaintiff. The first defendant also claims damages for damage done to her vehicle and costs.
The first defendant's claim in the third party proceedings against the second defendant rests on bailment. It is not disputed that the first defendant paid to park her vehicle in the car park and when she left her vehicle there she left the key for it with the cashier at the car park so that her vehicle may be moved if for the purposes of the car park it was required to be removed. In these circumstances the first defendant alleges that the second defendant was a bailee for reward of the vehicle. The first defendant further alleges that it was an implied term of the bailment that the second defendant would provide only persons of competence and skill to move her vehicle and that in effecting such movement the designated servant or agent would do so with due care and due regard for the safety of the vehicle and persons and other property in the vicinity thereof.
The second defendant admits, in the third party proceedings, that he was a bailee for reward and also admits the implied term. The second defendant however contends that the person driving the first defendant's vehicle at the material time was neither his servant nor agent. This person it is alleged was at the car park without the second defendant's knowledge, consent or permission either express or implied. This allegation is relevant to both the claim of the plaintiff against the defendants and the claim of the first defendant against the second defendant in the third party proceedings. I think it is appropriate at this stage that I consider the evidence as it impacts on this.
The car park was, as l mentioned, operated by the second defendant. According to his evidence he had only two employees, namely Cecil Ferdinand and Karen Lovelace. Cecil Ferdinand gave evidence. He stated that he was employed to move the cars in the car park. On the day in question he was at the car park. He heard a loud noise and looked to see a vehicle reversing with a man, who would have been the plaintiff, under the vehicle. He then saw an old man wearing a cap in the vehicle. He was the one driving the vehicle. The old man then came out of the vehicle and proceeded along Independence Square.
This evidence is to be contrasted with that of the plaintiff's son. He was driving his father's car that morning and had driven his father to the car park where he parked the car. When he entered the car park to park the car the same person whom he later saw driving the vehicle that struck his father told him that if he wanted to park his vehicle in the car park he would have to leave the key for it. The plaintiff's son in those circumstances referred to this person as a car park attendant. As I said the plaintiff s son was not cross-examined. I accept his evidence. It seems to me that the only reasonable conclusion to be drawn from his evidence is that the person who drove tit vehicle was a car park attendant working at the car park. As the second defendant admitted in cross-examination anyone who gave a direction to a customer to leave the keys to ‘Is vehicle would be someone authorised to do so. I therefore do not accept the evidence of Cecil Ferdinand and the second defendant that the only two persons working at the car park that day at the time of the accident were Karen Lovelace and Cecil Ferdinand.
I think this is reinforced by other evidence. According to Mr. Ferdinand after the vehicle stuck the plaintiff he observed the driver get out of the vehicle and proceed along Independence Square. He gave no evidence that he did anything. I think it is improbable that had he witnessed a complete stranger driving one of the vehicles at the car park without any authorisation strike the plaintiff he would have done nothing and simply watched him proceed along Independence Square.
It is undisputed that the first defendant left the keys for the vehicle with the cashier, Karen Lovelace. There is no evidence that the person who drove the vehicle stole the keys from Ms. Lovelace or otherwise obtained unlawful possession of the keys. The keys must therefore have been given to him and the only purpose for so doing would be for him to drive or move the vehicle for the purposes of the car park. I therefore cannot accept the evidence to the contrary that the driver was not authorised to drive the vehicle.
There is no dispute on the evidence that in the absence of the second defendant from the car park that Ms. Lovelace was the person in charge. On the day in question the second defendant was away. He had left that morning before the accident occurred. This would have left Ms. Lovelace in charge. There is no evidence that while being in charge she did not have authority to ask anyone to assist in the car park including to move vehicles. Both Mr. Ferdinand and the second defendant gave evidence to the effect that the driver did not have authority to move this vehicle: I have already rejected this evidence for the reasons given. But I think that given the position of Ms. Lovelace, and that she could have authorised the person to dive the vehicle she should have been called to give evidence that she did not authorise the person to drive the vehicle. However she was not called to give evidence. Her failure to give evidence is another factor I may take into account in rejecting the evidence of and on behalf of the second defendant and drawing the inference from the evidence that the driver was authorised to drive the vehicle (see O'Donnell v. Reichard (1375) JR 916, 926).
The evidence...
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