Bushell v Chefette Restaurants Ltd et Al
| Jurisdiction | Barbados |
| Judge | Douglas, C.J. |
| Judgment Date | 19 June 1978 |
| Neutral Citation | BB 1978 HC 37 |
| Docket Number | No. 515 of 1977 |
| Court | High Court (Barbados) |
| Date | 19 June 1978 |
High Court
Douglas, C.J.
No. 515 of 1977
Mr. D.A.C. Simmons and Smith and Smith for the plaintiff.
Mr. J.S.B. Dear, Q.C. and Dr. T. Carmichael for the first defendant and the first third party.
Mr. John Connell for second defendant.
Mr. H.S.L. Moseley for the second third party.
Tort - Negligence — Fatal accident — Action by administrator of estate of deceased under Fatal Accidents Act, Cap. 200 and Law Reform (Misc. Provisions) Act, Cap. 205 — Whether first defendant vicariously liable
This is an action by the Administrator of the Estate of Corene Yvette Butcher, deceased, who died as a result of a motor vehicle accident on the 13th of September, 1976, brought under the provisions of the Fatal Accidents Act, Chapter 200 of the Laws of Barbados and the Law Reform (Miscellaneous Provisions) Act, Chapter 205. The deceased was a passenger in a van owned by the first defendant (hereinafter referred to as “the company”) and driven by the second defendant, and it is alleged that the accident was caused by the second defendant's negligence.
By its amended defence, the company admits that the deceased was a passenger in the van on the 13th of September, 1976 but denies that the second defendant was acting in the course of his employment or was its agent when he was driving the van. There is a denial of negligence on behalf of both the company and the second defendant.
The third parties were joined by consent of all the parties. The first third party, Barbados Fire and General Insurance Co. (hereinafter referred to as “Barbados Fire”) are insurers of certain liabilities of the company under an Employers Liability Policy. The second third party, General Accident Fire and Life Insurance Corporation Limited (hereinafter referred to as “General Accident”) are insurers of certain liabilities of the company under a Comprehensive Commercial Vehicle Policy. In the event that the plaintiff succeeds on the issue of negligence and agency, the court is asked to determine the obligations, if any, of the third parties under the provisions of the policies mentioned above.
The deceased was employed as a cashier by the company which owns a restaurant at Rockley, Christ Church, and other restaurants in the city and at Fontabelle. At 1:50 a.m. on the morning of the 13th of September, 1976 she boarded her employer's van at Rockley, along with other members of the staff. The second defendant who at the relevant date was an Assistant Manager at the Chefette Restaurant at Rockley, drove the van. Mr. Philip Hinds, one of five employees in the van describes what happened in these terms –
“…van drove off towards Bridgetown. Bend near Accra Beach Hotel. Rain was falling. We were coming down. We got in the corner, I felt the van move like a homemade scooter hitting a rock and skidding across the road. I heard a crash. I heard voices. Next thing I remember I was in the Queen Elizabeth Hospital.”
Constable Miller's evidence is that when he went to the scene on the morning of the 13th of September he saw Corene Bushell lying on the floor of the van, appearing to be trapped. She was taken to hospital and it was seen that she was bleeding from her head. It is pleaded and not denied that she died the same day from her injuries.
In giving evidence on his own behalf, the second defendant describes the accident thus –
“As I approached the bend in the road by Ascanio's Restaurant, road was wet. It was raining. I was travelling at 20 M.P.H. when the rear of the van started to skid to its left and struck the left side curb. As a result of the collision with the curb, I completely lost control of the steering. Van travelled across the road to the right. It happened suddenly and collided with a guard-wall. Of course I tried to get it under control but it was so sudden. I heard a loud crash.
Next time I remember I was in the Queen Elizabeth Hospital.
The second defendant ascribed the skid to the condition of the road, but apart from its being wet, there is no evidence about the road surface to support the second defendant's explanation.
The foregoing is the evidence led on the issue of negligence. Mr. Simmons submits that on this evidence the plaintiff has proved negligence. He cites Richley v. Faull [1965] 3 All E.R. 109 in support. In that case, the defendant's car suddenly went into a violent skid and came into collision with another vehicle on its proper side of the road. After referring to the case of Laurie v. Raglan Building Co. Ltd. [1941] 3 All E.R. 332, Mackenne J. observed –
“I, of course, agree that where the respondents' lorry strikes the plaintiff on the pavement or, as in the present case, moves on to the wrong side of the road into the plaintiff's path, there is a prima facie case of negligence, and that this case is not displaced merely by proof that the defendant's car skidded. It must be proved that the skid happened without the defendant's default. But I respectfully disagree with the statement that the skid by itself is neutral. I think that the unexplained and violent skid is in itself evidence of negligence.”
In the instant case it is clear that the accident was caused by the van suddenly skidding, striking the left curb and then going out of control across the carriageway. The second defendant's explanation, apart from his saying that the road was wet, is no explanation at all. The result is that here all the evidence points to the accident being caused by a sudden, violent and unexplained skid, which is, without more, evidence of negligence. On the issue of negligence the plaintiff must, therefore, succeed as against the second defendant.
I turn now to the question of whether the company is vicariously liable for the second defendant's negligence. In order to resolve that issue, inquiry must be made whether in driving the van, the second defendant was acting as the servant or agent of the company.
Mr. Haloute, the company's Managing Director, gives evidence of the second defendant's duties. He says that after the restaurant at Rockley closes at night, either the Manager or Assistant Manager is required to carry the day's taking to a bank in Bridgetown. He could do so either in his own car or by using the company's van. If he used the van he had to return it to Rockley. The vehicle was not available to him to get to and from work – that is, it was not open to him to take the van home. This is supported by the second defendant's own evidence that his duties included transporting the day's takings to the bank. It is common ground that on the night of the accident the second defendant was driving the van for the purpose of depositing the day's takings in a bank in Bridgetown and that the accident occurred on that journey.
In dealing with the vicarious liability of owners of motor vehicles, Denning L.J. (as he then was) said in Omrod v. Crossville Motor Vehicles [1953] 2 All E.R. 753 at page 755 –
“The law puts an especial responsibility on the owner of a vehicle who allows it to go on the road in charge of someone else, no matter whether it is his servant, his friend, or anyone else. If it is used wholly or partly on the owner's business or for the owner's purposes, the owner is liable for any negligence on the part of the driver. The owner only escapes liability when he lends it or hires it to a third person to be used for purposes in which the owner has no interest or concern …”
In the instant case there is no question but that the van was being used on the company's business, and I hold that in driving it the second defendant was acting as the company's agent.
I turn now to the consideration of the question whether in offering lifts to the company's employees the second defendant was acting in the course of his employment. In his evidence, Mr. Haloute states that his staff are members of a union and that their terms and conditions of employment are regulated by agreement between his company and the union. Under that agreement there is no obligation on the company to transport employees to or from their places of work. On the other hand he knows that lifts were given to employees in the company's van, and the giving of lifts was discussed at a meeting of managers of the company, and, according to the second defendant, approved. Mr. Haloute says–
“The only reason I extended the facility was because of the union issue. They were pressing for the company to supply transport after hours. I can't tell you how often it was done. It was being done. That was known to management.”
And the...
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