Bonnie Zepherin Plaintiff/Appellant v 1. The Gros Islet Village Council 2. Aurelien Augustin Defendants/Respondents [ECSC]
| Jurisdiction | St Lucia |
| Judge | DAVIS, C.J.,CHIEF JUSTICE |
| Judgment Date | 20 November 1978 |
| Judgment citation (vLex) | [1978] ECSC J1120-1 |
| Docket Number | CIVIL APPEAL NO. 1 of 1978 |
| Date | 20 November 1978 |
| Court | Court of Appeal (Saint Lucia) |
IN THE COURT OF APPEAL
The Hon. Sir Maurice Davis, Q.C.—Chief Justice
The Honourable Mr. Justice Peterkin
The Honourable Mr. Justice N. A. Burridge (Ag.)
CIVIL APPEAL NO. 1 of 1978
K. Monplaisir for Appellant
P. Husbands for First Respondent
P. Bledman for Second Respondent
This is an appeal against the judgment of Renwick J in which he ordered that judgment be entered for the plaintiff against the second named defendant in the sum of $25,669.00 damages with costs to be taxed, and dismissed the claim against the first named defendant on the ground that they were not vicariously liable for the acts of the second named defendant.
The complaint of the plaintiff is set out in her grounds of appeal which are as follows:—
(1) The learned trial judge erred in law by holding that the first respondent was not liable for the act of the second respondent which caused loss and injury to the appellant. He so erred for the following reasons:
The appellant seeks the following relief:—
(a) An order that the judgment in favour of the First Respondent he reversed with costs.
At the hearing of the appeal Counsel for the appellant abandoned ground three.
By her Statement of Claim the plaintiff alleged negligence against the second defendant in relation to the manner of his driving the vehicle and gave particulars of such negligence. She also alleged that the first defendant was vicariously liable for the negligent driving of the second defendant. The second defendant denied the allegations of negligence and counterclaimed against the plaintiff on the ground that she was wholly to blame for the accident and the first defendant denied liability on the ground that at the material time the second defendant was not acting as their servant or agent.
The facts are briefly as follows: The plaintiff is a married woman and carries on business in Castries. The first defendants are the owners of root or lorry lo. 6658 and the second defendant is employed by them as the driver of the said motor lorry. The lorry was insured, as a goods vehicle. His duties included the conveying of corpses for burial. On the 12th day of February, 1976 the second defendant was instructed by his employers to carry a corpse from the house of mourning at Monchy to Gros Islet for burial.
The driver had been expressly forbidden from carrying passengers in the tray of the truck. On 12th February, 1976, contrary to these instructions he took not only the corpse but also sixteen to twenty mourners in the tray of the truck and instead of parking the lorry outside the house of the clerk of the first named defendant at Gros Islet as he was bidden to do at the end of each day he left Gros Islet with the mourners in the tray of the lorry to return to Monchy, and on his way the lorry collided with the plaintiff who was riding a horse on the highway keeping well to the left side of the road. She was thrown to the ground and suffered serious personal injuries and the horse—a thoroughbred—was killed. She was hospitalised and could not walk for two months and was unable to return to her business until sometime in June.
She gave evidence of her medical expenses and the amount paid for extra domestic help and the employment of a chauffeur. She also gave evidence of orders which she could not supply because of her injuries and gave a figure of $1,800.
The second named defendant admitted in cross-examination that he was forbidden to carry passengers on the truck. He also said, "I do not consider it a proper vehicle to carry people. It is dangerous". He also admitted that it was a rule for him to park the truck at Mr. Pamphile's house and to leave the key there and that the truck always stay at Gros Islet.
Counsel for the plaintiff /appellant submitted that at the time of the accident the second defendant was acting in the course of his employment and referred the Court to the evidence of Augustine where he said, "The assistant clerk told me that they come to him about the corpse at Monchy, go and collect the dead and the people and take them down to Gros Islet". And again he said, "No one ever told me that I was not to take mourners to and from the funeral."
He further submitted that the second defendant in taking the mourners from Gros Islet back to Monchy should not be regarded as going on a frolic of his own but was acting in the interest of his employers. He cited the case of Rose vs. Plenty and another, 1976 (1) AER at page 97 and Kay vs. ITW Ltd. 1967 (3) AER, page 22; while counsel for the first defendant contended that at the time of the incident the driver of the lorry was not acting in the course of his employment. He had been instructed to convey the corpse from Monchy to the burial ground at Gros Islet and had the accident occurred on that journey, the first defendant would have been liable even though the driver was disobeying the orders of his employer by taking passengers along in the tray of the lorry. When he decided to take the mourners back to Monchy, however, he was then on a frolic of his own and his employers were not liable for what happened during that journey. He also reminded the Court of the evidence of Charles Louison who said in cross-examination, "The mourners would come down to the village on board another truck."
In support of his argument, counsel, cited the following cases:
Baker vs. Snell , 1908–1910 AER. (Rep.) 398Twine vs. Bean's Express Ltd., 1946 (1) AER, 202Hilton vs. Thomas Burton (Rhodes) Ltd. and Another, (1) WLR, 707.
In the case of Young vs. Edward Box and Co. Ltd., 1951 (1) TLR 789 at 793, Lord Denning had this to say: "In every case where it is sought to...
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