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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV 2017-01813

BETWEEN

SHARMILA KOONJOO

Claimant

AND

RICKY KOONJOO

First Defendant

GOSINE ENTERPRISE LIMITED

Second Defendant

GUARDIAN GENERAL INSURANCE LIMITED

Third Defendant

Appearances:

Mr. Dale Scobie for the Claimant

No appearance for the 1st Defendant

Ms. Ashley Roopchansingh holding for Mr. Roger Kawalsingh for the 2nd and 3rd Defendants

JUDGMENT

INTRODUCTION

1. On the 21st May, 2014 at or about 10:30 pm the Claimant observed the First Defendant in the

driver’s seat of 10 wheel truck with vehicle registration number TCD 1054, parked in the vicinity

of Shivan Drive, Sangre Chiquito. The Claimant approached the said vehicle in which the First

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Defendant remained seated in the driver’s seat, came up to the front of the said vehicle and began

shouting and arguing with the First Defendant asking him to come out of the vehicle. The First

Defendant remained seated in the vehicle along with a female occupant, not being an employee

of the 2nd Defendant. The vehicle was stationary and the engine was running.

2. In apparent response to the claimant’s remonstrations, the 1st Defendant drove off with the said

vehicle and in doing so, collided with the Claimant. This caused the Claimant to fall and the right

rear tire of the said vehicle - driven by the First Defendant, owned by the 2nd Defendant and

insured by the 3rd Defendant - rolled over the Claimant.

3. The 1st Defendant had a duty of care to the Claimant in the manner in which he so drove,

controlled and maneuvered the vehicle – a 10 wheel truck. The 1st Defendant breached that duty

of care and by that breach caused injury and damage to the Claimant. The accident and injuries

sustained by the Claimant were caused by the negligence of the First Defendant as the driver of

the vehicle. The Claimant contends that the 1st Defendant was also driving as the servant and/or

agent of or with the express or implied permission of the Second Defendant and/or Third

Defendant.

4. The 1st Defendant has not entered an appearance or defence to the claim. A request for default

judgment over the counter was made in relation to him. To date that request has not been dealt

with. Instead, the trial proceeded against all the Defendants and judgment rendered against the

1st Defendant. The 1st Defendant did not appear at trial. The 2nd and 3rd Defendants appeared at

trial to defend against the claim. The 1st Defendant at the time of the trial, was still an employee

of the 2nd Defendant.

5. The claim against the 2nd Defendant who is also the 1st Defendant’s employer and owner of the

vehicle, is for vicarious liability of the 2nd Defendant for the resultant damages caused by the 1st

Defendant on the basis of they having given the 1st Defendant permission, express or implied, to

use the vehicle – a 10 wheel truck - after working hours would necessarily anticipate private

activities including carrying a passenger or engaging in a private and leisure activity for purposes

other than in the pursuance of the trade or business of the employer/2nd Defendant. This is the

Claimant’s allegation notwithstanding that the 3rd Defendant/insurer, maintains that the

insurance coverage on the 2nd Defendant’s vehicle excludes liability of the insurer/3rd Defendant

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to indemnify claims arising out of the use of the 2nd Defendant’s/insured vehicle, for purposes

other than in connection with the 2nd Defendants/insured’s business or trade. The second

Defendant is a general contractor that specializes in heavy equipment rental and the supply and

delivery of aggregate.

6. There is no dispute that the 1st Defendant was an authorized driver or that the activity the 1st

Defendant was engaged in at the time of the accident and as a consequence the use to which the

vehicle was put, was not in connection with the 2nd Defendant/insured, business or trade.

7. The 3rd Defendant and insurer of the 2nd Defendant’s vehicle driven by the 1st Defendant, is joined

as a party by operation of law – the Motor Vehicles Insurance (Third-Party Risks) Act Chap.

48:51(the “Act”) – as liable to indemnify the 2nd Defendants vicarious/agency liability in relation

to a successful claim for damages by the Claimant against the driver of the insured vehicle i.e. the

1st Defendant.

8. The 3rd Defendant says that the ‘Commercial Motor vehicle policy’ documents (including the

‘proposal/declaration of the 2nd Defendant’), and Certificate of Insurance do not provide coverage

for the use of the vehicle for purposes other than in connection with the 2nd Defendants trade or

business. The Claimant contends that notwithstanding the provisions of the policy, the said Act

(Chap. 48:51) does not permit the 3rd defendant to avoid liability to indemnify the 2nd defendant

against the 1st defendant’s liability for the damages incurred when driving the vehicle insured for

the 2nd Defendant by the said 3rd Defendant, for purposes other than the trade or business of the

2nd Defendant. Counsel for the claimant cites section 4(7) of the Act and the Privy Council Appeal

No 0062 of 2011 The Presidential Insurance Company Limited (Appellants) v Resha St. Hill

(Respondent) as a ‘useful discussion of the broader limits of Section 4(7) of the Motor Vehicles

Insurance (Third-Party Risks) Act’. Added to this section the court adds the consideration of

section 12A of the said Act.

9. Evidence was taken from the Claimant, a representative of the 2nd Defendant and two witnesses

for the 3rd Defendant. Brief written submissions have been taken from the parties in relation to

the law on the ‘agency’ between the 1st and 2nd Defendants; and the application of the law on the

insurance coverage(re: indemnification) between the 3rd and 2nd Defendant. The written

submissions of the claimant appear to vary somewhat from the pleaded case and evidential thrust

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of the claimant that the 1st defendant was the servant and/or agent of the 2nd defendant at the

material time. The court has regard to the Claimant/Sharmila Koonjoo’s pleadings and the

evidence above all else, and including the submissions.

10. ISSUES

(i) Whether the Contract of insurance limits (at all) the use of the insured vehicle to being in

connection with the 2nd Defendant’s trade or business;

(ii) Whether at the time of the accident the 1st Defendant was engaged in private activities

other than the business of the 2nd Defendant;

(iii) Whether at the time of the accident the 1st Defendant was acting as the agent of the 2nd

Defendant;

(iv) Whether the Insurance Act dictates that the circumstance of this case be deemed covered

by a contract of insurance and;

(v) Whether the Act supersedes the ‘Limitation As To Use’ provisions (or any other for that

matter) of the Insurance Policy.

THE EVIDENCE

11. The evidence in relation to how and where the accident took place is not refutable really. The 1st

Defendant did not defend the claim against him, neither did he give evidence as a witness for any

of the other parties. The only admissible evidence of the accident and what led up to it, is that

given by the sole eye witness in the trial as it were, the Claimant, Sharmila Koonjoo1. There is

nothing internally inconsistent or implausible about her account of the events. Given the standard

of proof required of the Claimant, I accept her evidence of the accident as more probable than

not. The evidence suggests that the 1st Defendant drove, controlled and maneuvered his vehicle

in such a manner so as to have culpably collided with and run over the Claimant thereby causing

1 The adjuster/’expert’ Otis Aguilera’s report reference and incorporation of the hand written accident statements

of the 1st Defendant carries no weight for the purpose of establishing the truth of what it says.

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the injury, loss and Damage she testified to2. Although there is a specter of contributory

negligence, the evidence simply does not go sufficiently far to elevate this specter to that of proof

of contributory negligence.

12. The evidence in relation to the 1st Defendant’s permitted use and actual use of the vehicle – a 10

wheel truck - is disputed by the 2nd and 3rd Defendant. What is the evidence? Sharmila Koonjoo

testified that she was the resident wife of the 1st Defendant. She testified that for years living in

the same house as man and wife, after work and with the permission and knowledge of the 2nd

Defendant, the 1st Defendant kept the 2nd Defendant’s vehicle at their home and on the road in

front of the home. He would leave for work the following day, each day, around 5 a.m., in the said

vehicle. She said that he came home around 9 pm every day. She could not say if he came home

straight from work or went anywhere before coming home. However, she said he did go to lime

with friends in the vehicle, that as a family, the 1st Defendant, the Claimant and their four children

would go out to visit friends and family in the vehicle, they often went to the grocery in the vehicle

and on the night of the accident, the 1st Defendant first took the Claimant to dinner at ‘Chinese

Garden’ in the said vehicle.

13. She testified that as far as she was aware, the 2nd Defendant permitted this and were aware of

the 1st Defendant keeping the vehicle after work and using it for his personal affairs. She said that

she came to this conclusion because he always had always kept the vehicle; the 1st Defendant

had told her so and she testified further in response to cross examination, that one Mr. Rennie

Bachan the supervisor from the 2nd Defendant company would visit them from time to time and

on occasions even on a Saturday. She said that when he did visit the home, the truck would be

parked up there. Further, she said in cross examination that the said Mr. Bachan, even on occasion

assisted the 1st Defendant on carrying out small repairs on the vehicle at the home of the 1st

Defendant. The court is of the view that on the evidence, the 1st Defendant’s taking home of the

vehicle was continuous over the period and apparent to the employer.

14. Mr. Bachan, the ‘supervisor’ referred to by the Claimant, gave evidence for the 2nd Defendant. He

testified that he was the Transport Manager of the 2nd Defendant and was responsible for and still

is, managing the execution, direction and coordination of all transport matters within the

2 See the more detailed account of what transpired in the written submissions of the Defendants.

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company. He said that the only other person more senior to him in the 2nd Defendant Company is

the owner. He said that his own duties include organizing schedules and routes, ensuring that

vehicles are safe and meet legal requirements and making sure that drivers are aware of their

legal duties3. So there is no doubt that he is in a position to know about the use and location of

his vehicles.

15. He went on further to say that consistent with the 3rd Defendant’s policy of insurance, the

permission given to employees such as the 1st Defendant to drive the vehicle was limited to driving

it in connection with the 2nd Defendant’s business and that all employees were aware of this

limited permission.4

16. He went on to testify in-chief, that upon hiring the 1st Defendant he had taken pains to inform the

1st Defendant that his permission to drive was limited to the companies work and once he was

completed his work for the day he was required to park the vehicle at the compound of National

Quarries in Sande Grande. He said that he warned him of having anybody in the vehicle other

than the 2nd Defendant’s employees. The quarry itself was in Sande Grande and this was the main,

although not the only work site. He said that the 1st Defendant was not permitted to use and/or

keep the 2nd Defendant’s vehicle overnight or to transport any person in 2nd Defendant’s vehicle

other than the 2nd Defendant’s employees.

17. Mr. Bachan said that every morning all the truck drivers including the 1st Defendant would

assemble at the quarry at about 5 am where he would proceed to assign them their job for the

day. They would finish their jobs at approximately 3 p.m. No one, he said, is assigned duties after

six p.m. On the day of the accident, from his recall, he said that the 1st Defendant assembled at

the quarry for 5 a.m. however, when the 1st Defendant completed his job he did not return the

vehicle to the quarry. He next saw the vehicle the next morning parked up at the Sande Grande

police station. On the evidence the court notes that this would have been the morning after the

accident for which this action was commenced.

3 See para 2 of the witness statement.

4 See para 4 of the witness statement. His cross examination response was wholly consistent with his witness

statement on this point.

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18. Mr. Bachan denied outright in cross examination, the Claimant’s evidence that he, Mr. Bachan,

used to visit the 1st Defendant’s home from time to time and on occasion assist the 1st Defendant

in maintenance of the vehicle. He said he was familiar with the area of the 1st Defendant’s home,

but had passed though that area about 5-6 times in all. He testified that the 1st Defendant is still

employed by the 2nd Defendant to date.

19. Needless to say, Mr. Bachan’s evidence is in direct conflict with that of the Claimant on the issue

of the 1st Defendant’s habitual keeping of the vehicle overnight and the private use to which he

put it during that ‘overnight’ period. They both can’t be right. Mr. Bachan’s evidence was two-

fold. He testified as what the company policy was in relation to the use of the company vehicles.

He was clear on this. He said he from the beginning of an employee’s tenure, explained this to

them and repeated from time to time thereafter. Then he testified to the actual use of the vehicle

by the 1st Defendant and said that the 1st Defendant’s use was consistent with the policy save for

the night of the incident. The 2nd Defendant would have been in possession of information to

counter the evidence of the Claimant if it existed. The company daily records of the vehicles

whereabouts could have been presented for instance. Evidence from other drivers or employees

as to the fact of the specific vehicle being parked up on the compound every day are two further

examples of this.

20. The evidence of the representative of the 3rd Defendant/Insurance company, Ariane Davis, was

to the effect that upon consideration of the policy of insurance, and all the information she

received concerning the matter, including the report from the adjuster, Otis Aguilera, she was of

the view that the 1st Defendant used the insured vehicle for a purpose other than in connection

with the trade or business of the 2nd Defendant and as a consequence of that, the policy did not

cover the subject incident and claim thereto.

21. There is no dispute over the identity and authenticity of the relevant insurance policy documents

under consideration in this matter. They are exhibited by Ariane Davis and admitted into evidence

without objection.

22. Otis Aguilera testified. His witness statement and attachments were the subject of this court’s

pre-trial rulings on evidential objections/hearsay Notice, which pared down his evidential

contribution significantly. Most of his surviving evidence in chief concerned issues touching and

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concerning the allegation of the 1st Defendant’s negligence. The 1st Defendant has not contested

the allegation of negligence on his part and there is no other evidence sufficient to negate the

evidence of the Claimant on the matters in support of the allegation of Negligence.

FINDINGS

23. On the evidence, the conduct of the 1st Defendant was negligent and he caused the collision and

injury to the Claimant. Further to this, he did not mount a defence. Even though the requirements

for the grant of a default judgment exist, the trial having commenced and concluded and the

evidence now having been taken and considered by the court in favour of the Claimant in relation

to the question of liability on the claim of negligence, there is hereby; judgment against the 1st

Defendant, on the merits.

24. The first issue hereafter, concerns the 2nd and 3rd Defendants and is: whether the policy of

insurance covers the incident at all. The 2nd and 3rd Defendant are represented by the same lawyer

and joint defence and contend that the policy of insurance does not cover the incident and claim

arising therefrom. Aviane Davis has exhibited the subject policy documents. There is a document

captioned; (i) “Commercial Motor Vehicle Policy”5; another captioned; (ii) “Declaration Form

for…”6 and yet another, the (iii) “Certificate of Insurance”7.

Insurance policy/contract considerations

25. In the certificate of insurance at para 6 – “Limitation as to use” it is clearly set out there for

instance, as the first item: “Use in connection with the Policyholder’s Business”. The evidence of

the 3rd Defendant’s witness, Ariane Davis, is pellucid; that in her view the use of the vehicle is in

connection with the policyholder/2nd Defendants business. It is this position that supports the 3rd

Defendant’s defence in this matter.

5 At pp 179 of the Trial Bundle

6 At pp 195 of the Trial Bundle.

7 At pp 197 of the trial bundle

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26. So, where in the second item in the said para 6 of the certificate of insurance it likewise states:

“Use for social, domestic and pleasure purposes” it stands to reason that this too is a permitted

use of the vehicle. Indeed what para 6 suggests is that the activities listed in the said section are

those to which the use of the vehicle are limited to. The upshot of this interpretation is that the

personal use for private purposes by the 1st Defendant does not void the policy under the terms

set out in the certificate of insurance.

27. Then there is the insurance Declaration form. At clause 9 thereof the question is posed: “Will your

motor vehicle be used (a) for any purpose in connection with a business or trade?” The form

provides two boxes for responses; ‘yes’ or ‘no’. Both boxes appear to be ticked, with the ‘no’-box

tick appearing to be somewhat scratched out and the ‘yes’-box tick appearing to provide the

definitive answer8. Indeed, the ‘yes’ answer is consistent with the evidence from all the parties.

That the vehicle’s primary use was in connection with the 2nd Defendant’s trade or business is

not in dispute. Then further down in the said clause 9 it provides another question: ‘Will your

motor vehicle be used’: … (b) only for social domestic and pleasure purposes and for travelling to

and from your place of business? ’ The ‘no’-box is ticked. What does this mean? In my view It

means – Yes, I do use it for social domestic…etc., but, no, I will not be using the vehicle only for

social and…etc. (emphasis added). The clause goes on to direct that if the answer to “b” is no,

then state what other purpose the vehicle would be put to. The handwritten response endorsed

in the space provided is: “business use”. The upshot of the two entries suggests the contemplated

use of the vehicle for both social/domestic/pleasure purposes and in connection with the trade

or business of the 2nd Defendant. This is consistent with the clause 6 of the certificate of insurance

referred to above. Further, the policy of insurance, the primary contractual document, under the

definition section of “Limitation as to use” provides for the definition by referring the reader to;

“The Limitation as to Use specified in the Certificate of Insurance”. As I noted earlier the certificate

of insurance limits the use to include use for social, domestic and pleasure purposes and

presumably the carrying out of such activities may be done by an authorized driver. The said

policy specifically incorporates the said certificate as part of the policy of insurance. It does not

stop here; at Section 7 of the policy captioned “GENERAL EXCLUSIONS” the policy states that “we

8 See the application of the contra preferentum rule as between the 2nd and 3rd Defendants.

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will not indemnify you for “…any accident loss… “…(b) ..[if] the insured vehicle is… (i) being used

otherwise than in accordance with the Limitations as to use; or…”

28. Again, the exclusion is applicable to uses other than what is provided as a limitation as to use. The

limited permission includes; (i) the policy holders business and, (ii) the use for social pleasure etc.

It is the uses outside of this that are excluded – e.g. racing etc. Just to be clear on this; the only

uses that have been raised in this case are those in relation to the 2nd defendant’s trade or

business and the 1st Defendants personal domestic uses. For the reasons provided in this

judgment, I accept the evidence of the Claimant that the 1st Defendant routinely and for years

kept the work vehicle at his home after work and used it: (a) to get from work and to work

(wheresoever he may be assigned), (b) for his and his family’s domestic purposes. Indeed this is

also consistent with the interpretation of the insurance policy documents in relation to the

permitted use of the vehicle.

Permitted use as between the 1st and 2nd Defendant

29. The second issue raised, is whether the 1st Defendant not only kept the vehicle overnight, but

used the vehicle for his personal use. The short answer to that is yes. I accept that he did so. The

Claimant testified to this in some fine detail suggestive of a real live experience. I note here that

merely keeping the vehicle overnight, if permitted for the purpose of facilitating the 1st Defendant

access to work is not necessarily inconsistent with its use “in connection with the insured’s trade

of business”. Further in coming to a conclusion on whether the 2nd Defendant permitted the 1st

Defendant’s domestic use of the vehicle – a large commercial vehicle – the court has considered

the cultural context if you will, that commercial vehicles no matter what their size, function, or

permitted use or range of uses under their specific statutory licence, are routinely used for the

dual purpose of business and pleasure in Trinidad and Tobago. The permitted use under the

Licencing Act of this specific vehicle was not canvassed before this court. However it is a notorious

fact that the commencement of the registration number with the letter “T” in Trinidad and

Tobago is a licence that at the very least includes a commercial use.

30. I accept Mr. Bachan’s evidence of the company’s policy with respect to the use of company

vehicles. I accept that this policy would from time to time be conveyed to drivers. I do not accept

that this policy was enforced with respect to the 1st defendant however. Mr. Bachan admits that

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the 1st Defendant took the vehicle on the night in question. There is no evidence that the act of

physically taking a vehicle involves anything other than simply driving it away, whether once or

every day for years on end – as did the 1st Defendant. The defence faced with the allegations of

the Claimant with respect to the use of the vehicle, did not bring the 1st Defendant himself to

testify to this, nor have they indicated whether they tried to do so. Neither have the defence

sought to bring any other driver to testify to the policy actually being put into effect. There is no

evidence, pictorial or other, showing the compound with vehicles parked up as per the policy.

Faced with the potentially significant import of the Claimant’s allegation one would have expected

a more convincing push-back from the defence on this point. I might add, that no convincing

evidence has been led from either the 2nd or 3rd Defendants as to why the 1st Defendant was not

brought to testify. He is still an employee of the 2nd Defendant.

31. The unrefuted evidence is that the 1st defendant lived at Barrackpore. The distance between

Barrackpore and Sande Grande is considerable. The prospect of the 1st Defendant obtaining public

transport from Barrackpore to an off-the-beaten path quarry, at the wee hours of the morning, is

not good. The cost of such a journey to the driver also, would be significant. The myriad other

considerations for such a trip in Trinidad and Tobago are daunting although admittedly not

impossible. That there would have been a desire to have his own transport to and from work is

not disputable. That this would have enhanced his work product is also probably true. I note all

this to say; that this would not be an unreasonable or in any event an unanticipated request to an

employer, particularly one that viewed the employee with such confidence and perhaps even

affinity. The 1st Defendant was a valued employee. Mr. Bachan of the 2nd Defendant Company

testified to that. In fact he said that he and the owner both held that view so much so that not

only did they retain the services of the 1st Defendant after the accident, but that he still is an

employee of the 2nd Defendant. Indeed, this opportunity afforded the 1st Defendant to continue

his employment is suggestive of a greater affinity between the 1st Defendant and his employers

than Mr. Bachan lets on. Not to take anything away from the skill set of a truck driver, but it was

not suggested by Mr. Bachan that this skill set is a scarce resource in Trinidad and Tobago hence

the necessity to retain the services of a grossly errant employee who has by his breach of policy

exposed the company to potentially significant financial liability. So all of this, is but one of the

factors that lead the court to accept the evidence of the Claimant that Mr. Bachan, of the 2nd

Defendant company did from time to time visit the 1st Defendant at his matrimonial home before

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the incident and on those visits would have observed the vehicle being parked in continuous and

full view or in front of the 1st Defendants house. In fact the evidence went even further, that Mr.

Bachan would from time to time at the 1st Defendant’s home, assist the 1st Defendant with small

repairs on the vehicle. I saw and heard both witnesses and was satisfied of the veracity of the

evidence of the Claimant on this point. Another reason for the court accepting the evidence of

the claimant over that of the 2nd defendant is that the court accepts the evidence of the claimant

that the 1st defendant always kept the vehicle overnight. The 2nd defendant denies that. This in

my view diminishes the credibility of some of the other evidence from the 2nd defendant

significantly. In relation to that ‘other’ evidence It is downhill from here, so to speak. But all is not

lost.

Vicarious liability and agency

32. The issues (iii) – (iv) can conveniently be dealt with together. These turn on the application of the

law on agency and vicarious liability of an employer/vehicle owner for his employee/vehicle

driver.

33. What then is the law on this form of liability? The classic exposition for our circumstances here is

that an Employer will not be vicariously liable for his employee’s tort unless the Claimant shows

that the employee committed the Tort during the course of his employment.

34. A convenient starting point is the exposition which can be traced from the first edition of

Salmond, Law of Torts in 1907, p 83 to the 21st edition of Salmond & Heuston on the Law of

Torts, p 443. It has remained as a classic statement of the concept: “A master is not responsible

for a wrongful act done by his servant unless it is done in the course of his employment. It is

deemed to be so done if it is either (1) a wrongful act authorized by the master, or (2) a wrongful

and unauthorized mode of doing some act authorized by the master."

35. As regards the second of these two cases it is provided further: "But a master, as opposed to the

employer of an independent contractor, is liable even for acts which he has not authorized,

provided they are so connected with acts which he has authorized that they may rightly be

regarded as modest -although improper modes - of doing them."

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36. In what in essence is the seminal case of Lister and others v Hesley Hall Ltd [2002] 1 AC 215; [2001] UKHL 22. Lord Clyde noted:

“An act of deliberate wrongdoing may not sit easily as a wrongful mode of doing

an authorized act. But recognition should be given to the critical element in the

observation, namely the necessary connection between the act and the

employment. The point is made by Salmond even in the first edition, at p 84, where

he states: "On the other hand, if the unauthorized and wrongful act of the servant

is not so connected with the authorized act as to be a mode of doing it, but is an

independent act, the master is not responsible." What has essentially to be

considered is the connection, if any, between the act in question and the

employment. If there is a connection, then the closeness of that connection has to

be considered. The sufficiency of the connection may be gauged by asking whether

the wrongful actings can be seen as ways of carrying out the work which the

employer had authorized”.

37. Lord Styn and Lord Clyde in the said Lister case both alluded to the expansion of the Heuston and

Salmon test by reference to the Canadian Supreme Court case of Bazley v Curr 174 DLR (4th) 45

where that court considered and expanded the parameters of the culpable acts; “in the course of

his employment”, to that of acts with a “close connection” with his employment. Either test, in

the factual circumstances of our case, brings about the same result however. The negligent act in

our case was not an authorized act nor was it a wrongful and unauthorized mode of doing an

authorized act.

38. Then there is the allied concept of Agency; whether the 1st Defendant was acting in the capacity

as agent for the 2nd Defendant at the time of the commission of the tort9. This concept of agency

as an extension if you will, of vicariously liability as between employer/employee, is best

explained by Denning L.J. in Young v Box and C. Ltd [1975] 1 TLR 789:

9 See paras 2, 14 of the statement of case.

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“It has often been supposed that the owner of a vehicle is only liable for damages

for the negligence of the driver if that driver is his servant acting in the course of his

employment. That is not correct. The owner is also liable if the driver is his agent,

that is to say, if the driver is, with the owner’s consent, driving the car on the owner’s

business or for the owner’s purpose’s.

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 being used wholly or partly on the owners business or for

the owner’s purposes, the owner is liable for any negligence on the part of the

driver.” (Emphasis mine)

39. Mendonca J.A. in Civil Appeal No. 169 of 2008; The Great Northern Insurance Company Limited,

Ramnarine Singh v Johnson Ansola and Civil Appeal No. 121 of 2008 The Great Northern

Insurance Company Limited v Johnson Ansola (Johnson Ansola), stated that10:

“in that case (Morgans (supra) it was held to establish the existence of an agency

relationship it was necessary to show that the driver was using the car at the

owner’s request, express or implied, or on his instructions, and was doing so in the

performance of a task or duty delegated to him by the owner.”

40. The 1st Defendant has made no appearance in this matter whatsoever. The court’s enquiry and

conclusions as to the nature and extent of the arrangement between the 1st defendant and the

employer cannot be frustrated by his absence. The court makes critical determinations as best it

can based on the facts before it. I have done so. It is clear that the act of entertaining a 3rd

party/passenger in the vehicle and the social activity the 1st Defendant was engaged in at the time

of the incident is not at all directly either (i) closely connected to the employment with the 2nd

Defendant (or the employer/2nd Defendant’s business or trade) or (ii) a wrongful act authorized

by the master, or a wrongful and unauthorized mode of doing some act authorized by the master.".

10 See written submissions of the Defence.

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41. If the employer did authorize the 1st Defendant to keep the vehicle overnight – which I do so find

– for any amount of reasons including for the purposes of presenting himself to work the following

day in a timely manner for instance, then this act of the 1st Defendant on either the orthodox

definition of vicarious liability or the more expansive Canadian definition, amounts to a frolic of

his own that would not by itself found vicarious liability in the 2nd Defendant/employer.

42. The parameters of Agency however are broader. The Claimant has testified that for years the 1st

Defendant kept the vehicle overnight and used it for their domestic purposes and indeed did so

earlier on the very night that the accident happened. The application of Agency does not require

circumstances where the employer/employee relationship between the owner of the vehicle and

the driver exist. The law on agency appears to require the driving was wholly or partly on the

owners business. What does this mean if the 1st Defendant had the vehicle overnight and was

allowed to use it for his domestic purposes? It would have had a dual purpose. In the act of driving

from the workplace one day and returning the next day, he used it for the employers business or

trade by driving to and from work. Then, if he used it for domestic purposes during the intervening

time on his way to or from his work place i.e. used it for shopping, pleasure driving and so on, so

its ‘permitted’ overnight use included that scenario, then it was partly on the 1sr defendants and

partly on the owners business as required by the law on Agency. This it appears, applies even if

the domestic use was not authorized but was carried out by the driver as part only, of the

otherwise authorized broader purpose of driving the vehicle from work every afternoon and

returning with the vehicle the next day for the benefit of the owner’s trade or business. So if the

permission granted (express or implied) to the 1st defendant, was the larger more general

enterprise if you will, depicted above and not the narrower permission limited only to getting to

and from work by driving home and then the next day driving back to work, the results of the

application of the law in this other scenario will differ.

43. Counsel for the defendant has referred this court to several helpful authorities. Upon careful

consideration, none of them alter the law on vicarious liability or agency from that which I have

set out above. Further, counsel has pointed out that the claimant in her evidence testified that

she understood the 1st defendant had use of the vehicle for purposes of the employer’s trade or

business. Further still, counsel submitted that even if the 1st defendant had the authority to use

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the vehicle for his personal use, it would not have covered the activities that the 1st defendant

was engaged in on the night in question and before.

44. Taking counsel’s last point first; the employee’s permission to use vehicle for personal uses is not

divisible. If the driver is permitted to use for his personal use, then unless the contrary is shown,

then he can use it for any such purpose of his choosing, barring only, unlawful acts or any other

act that commonsense would suggest would not have been permitted. To notice the elephant-in

the-room, so to speak, even an extramarital association would not necessarily run afoul of the

permitted private uses.

45. What is the evidence that the 1st Defendant was permitted the use of the vehicle for his personal

use? I am satisfied that the 1st Defendant did have the permission to keep the vehicle overnight,

every night. I conclude that Mr. Bachan was not forthright with the court on this point and in all

the circumstances on several other matters upon which he testified. He denied that the 1st

defendant had the permission to use the vehicle overnight and/or for his personal use. The weight

of his evidence on the user of the vehicle is diminished. What then is the evidence before the

court? The claimant’s understanding of the 1st Defendant’s permission – see her evidence - does

not support the contention that the 1st Defendant had the permission to use it for personal

domestic purposes. The evidence before the court is that he indisputably used it for his personal

uses as evidenced by the testimony of the claimant herself. The evidence of the claimant that Mr.

Bachan visited the home of 1st Defendant and would have seen the vehicle there does not assist

on the distinct issue, as to the permission for which the 1st Defendant had in relation to the use

of the vehicle. That evidence establishes only, that the vehicle was kept by the 1st Defendant

overnight and this fact was known to and approved by the 2nd Defendant. If the evidence was for

instance that Mr. Bachan had met with them on one of the private sojourns – at a restaurant or

the beach for instance - then perhaps an inference could have been drawn of the employer’s

knowledge to which the vehicle was being put to overnight and the implied

acceptance/permission of it. But this is not the evidence in this case. The onus is on the claimant

to prove the case. It is her evidence in large part that contradicts this assertion (borne out of the

requirements of the law) that the 1st Defendant’s permission did include the private use of the

vehicle. Why is this case not caught by the law as stated in Boxhill above, that even if the private

use is not permitted, the employer would still be caught if the sojourn was partly for the

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employers benefit? The distinction is that the ‘frolic’ was not a deviation whilst on the owners

business as set out in the first scenario at para 42 above. So, the 1st Defendant on his way home

from work, did not pick up the female passenger and/or then proceed to park up on the street

that he did, before going home. No; the authorized trip from the job to home was complete prior

to his frolic. Likewise the evidence does not prove that the accident took place on a frolic during

the authorized trip the next morning from home back to work. This nocturnal activity was an

entirely separate and independent act of the 1st Defendant, that on the evidence was wholly

contrary to company policy, without permission and one that is not sufficiently connected to the

limited permission he had for the use of the vehicle. Put another way, albeit slightly narrower in

scope, the evidence does not show that at the material time he was performing a task or duty

delegated to him by the 2nd Defendant/employer.

46. For these reasons the Claimant has failed to establish that the 1st Defendant had the requisite

permission to use the vehicle for his private domestic purposes or that this private purpose was

sufficiently connected to or even anticipated by the permission for which he had in relation to the

use of the vehicle.

The insurance Act- Limitations as to use

47. The issue identified as para “10 (v)” is the final point. It was raised ever so briefly and superficially

by the counsel for the Claimant at the close of the case for the defence11. The court allowed time

for the parties to submit written submissions on the issue on or before the 14th December 2018.

The counsel for the 2nd and 3rd Defendants have done so. The Claimant filed his submissions late.

The court now disposes of the point as it understands it. Simply stated, the claimant contends

that by virtue of the Act, the 3rd defendant/insurer is precluded from limiting the coverage for

company vehicles driven by their employees.

48. If indeed this is the contention of the Claimant, then, this is simply not so. I have perused the

section 4 of the Act and more particularly 4(7) and 4(8) along with the amended section 12A. I

have perused the Great Northern case and the Resha St. Hill case and this court is unable to find

support for the Claimant’s contention that a policy is required to cover the circumstances of this

11 See also para 7 of the statement of case.

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case even if it excludes/limits the circumstances depicted in this case. However, reliance on the

statement of the law in Great Northern is otherwise apposite, but this court’s finding of fact on

the implied permission/knowledge of the employer of the 1st Defendant’s private use of the

vehicle is based on different material particulars of evidence to that of Great Northern.

DISPOSAL

49. In the circumstances (i) the employer/2nd Defendant is not (a) Vicariously liable for the negligent

acts of the 1st Defendant; (b) liable in agency, for the negligent acts of the 1st Defendant and (ii)

the insurance policy, although in the court’s view covers the private domestic escapades of a

driver in the insured’s vehicle, is not in this case liable to indemnify the 2nd Defendant for the

damages of the Claimant because the policy of insurance does not provide for an indemnity where

the insured is not found liable. There is no privity between the Claimant and 3rd Defendant. A joint

defence was filed in this matter presumably to protect a common interest. Costs in this matter

for the 2nd and 3rd Defendant are joint. The costs are not in relation to 2nd and 3rd Defendants

separately, but the two are to be treated as one.

50. For the reasons provided above, IT IS HERE BY ORDERED:

i. Judgment for the Claimant against the 1st Defendant only, for Damages, Prescribed Costs

and Statutory Interest;

ii. Judgment for the 2nd and 3rd Defendants against the Claimant with Costs;

iii. The Damages and Costs against the 1st Defendant to be assessed before a Master in

Chambers on a date to be fixed;

iv. Costs in both instances above are to be calculated on the Prescribed Cost Scale or as

otherwise agreed between the parties.

DAVID C HARRIS

HIGH COURT JUDGE

JANUARY 22, 2019

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