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Usamoli v Nalpini [2003] VUSC 41; Civil Case 025 of 2001 (25 July 2003)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

CIVIL CASE NO. 25 OF 2001

BETWEEN:

TOM JACK USAMOLI
Plaintiff

AND:

HENDRY NALPINI
First Defendant

AND:

PUBLIC SERVICE COMMISSION
Second Defendant

Coram: Chief Justice Vincent Lunabek

Counsels: Willie Daniel for the Plaintiff
Kiel Loughman for the first Defendant
George Nakou for the second Defendant

JUDGMENT

INTRODUCTION

This is an action brought by the Plaintiff claiming for various head of damages as set out in the statement of claim dated 19 March 2001.

The defendants say that there is a contributory negligence on the part of the driver of the plaintiff’s truck leading up to the accident that occurred on the 14 December 1998.

The purpose of these proceedings is to hear evidence about the issue of negligence and/or contributory negligence.

The issue of quantum shall depend on the findings of the Court on the question of liability.

BRIEF BACKGROUND OF THE CASE

The Plaintiff, Tom Jack Usamoli, is the owner of the Mitsubishi truck registration no. T505. The truck was driven by Tom Jack. The truck was doing taxi services on the Island of Tanna.

On the early hours of 14 December 1998, the driver was transporting Obed Tom’s family to Igudtingting village. The driver was driving past the Isangel Station, making his way through the Agriculture Station, running up the hill. Mr. Tom Jack said because of the hill, he shifted the gear to No. 2. He was driving slowly.

The driver was approaching a corner, when he saw the Lenakel Hospital truck, it was running at a high speed, and was running the opposite direction towards them. The first defendant being the employee of the Lenakel Hospital drove the truck. The first defendant was in a state of shock when he realized he was going to hit the plaintiff’s truck. He applied his brakes, but could not stop. This is because he was travelling at a very high speed. He skidded and hit the plaintiff’s truck. The driver of the Plaintiffs truck did attempt to avoid the accident to which he sided the truck into the bush, it was too late, the accident occurred.

Immediately, after the first defendant hit the plaintiff’s truck, the first defendant reversed out of the scene of the accident and stopped a few meters away. He opened the driver’s exit door and admitted to the plaintiff’s driver that it was his fault. He said the following words, Mi rong ia, mi spoilem trak blong yu from hemi new mo you stap pem loan. Mbae mi go lukim police. The first defendant then went to call the Police. The plaintiff’s driver remained on the truck. He was very sad.

The Plaintiff’s driver said he never contributed to the accident. He said it was the first defendant who drove carelessly and hit the plaintiff’s truck.

EVIDENCE

I have read and consider in detail both affidavits of the plaintiff and the defendant in relation to the accident of 14 December 1998. I have had the opportunity in reading the defence and the plaintiff’s evidence with regards to the issue of contributory negligence.

The plaintiff’s driver said he was driving up the hill. He was driving slowly in that he shifted the gear to No. 2 as was alleged in his evidence. He said the early morning dew made the road quite wet. He said he was approaching the corner when he saw the Lenakel Hospital truck. The defendant’s truck was running at a very high speed. The truck was coming the opposite direction. The plaintiff’s driver tried to avoid the accident to which he sided the truck into the bush. Because the first defendant was travelling at a very high speed, he was shocked of the plaintiff’s truck, he applied his brakes, but could not stop. He skidded and hit the plaintiff’s truck. The plaintiff’s truck was damaged. The first defendant admitted voluntarily and immediately after the accident that it was his fault.

The defence said the plaintiff’s driver contributed to the accident because he was driving at a very high speed that he failed to take proper precaution when driving. Because the plaintiff’s driver was travelling at a very high speed, he caused an accident. He said the road was slippery on that date in question in that he tried to applied the brakes but could not stop on time due to the slippery condition of the road.

FACTS FOUND BY THE COURT

This case involves an emergency situation. A person was pronounced dead by a medical officer in the hospital. The first defendant was instructed by a superior officer to pick up the relatives of the dead person from the White Sands Area. It was early in the morning. The first defendant was obliged to fulfil the requested instruction. It is part of his duties as a driver of the Hospital at Lenakel, Tanna.

The plaintiff’s truck was driving on the opposite direction. The plaintiff’s driver was transporting Obed Tom’s family to Igudtingting village. There was no emergency on their path. According to the plaintiff’s evidence, they were driving slowly towards the said village. The plaintiff’s driver drove the truck up the hill. He said he shifted the gear to Number 2. It is normal for vehicles to run slowly up the hill unless engaged in emergency situations. The road was a bit wet. He was driving slowly.

He saw the Lenakel hospital truck at the curve or a corner. He said it was running at a very high speed. That would be normal in an emergency situation. He said he sided the plaintiff’s truck into the bush to avoid collision. It was too late. It happened in a moment. The first defendant said he applied his breaks and then skidded because of the slippery condition of the road. The first defendant applied the brakes because he was shocked that he was taking the right of way of the other side. On the facts as assessed, the evidence of the plaintiff is preferred to that of the defence. The defence evidence that the plaintiff’s driver also run too fast is rejected. There was no contributory negligence on the part of the plaintiff’s driver leading up to the accident.

It was the first defendant who admitted to the plaintiff’s driver that it was his fault. It can be said that the first defendant admitted to the plaintiff’s driver that it was him (first defendant) who caused the accident.

THE LAW AND ITS APPLICATION

1. Contributory Negligence

At common law anyone who was partly responsible for harm done to him or her could not recover in tort. It was therefore a complete defence if the defendant proved that the plaintiff had been guilty of contributory negligence. In the present case, there is no contributory negligence on the part of the plaintiff’s driver.

2. Vicarious Liability

In Bartonshell Coal Co v. McGuire (1885) 3 Macq 300 at 306 which is considered and applied, if a servant commits a tort in the course of his employment, then the employer is liable regardless of whether he himself has committed a tort, ‘every act which is done by a servant in the course of his duty is regarded as done by his master’s orders, and consequently is the same as if it were the master’s own act... The employer is to bear a financial responsibility for those torts committed by his servants in the course of his enterprise.

The first defendant is the employee of the second defendant. He was employed with the second defendant since 1990. He was employed as a foreman and a mechanic in the Lenakel hospital and also as a driver for the Lenakel Hospital. His duty of course is doing the maintenance and repairing of engines and machines for the second defendant.

On the date in question, the first defendant was instructed by the superior officer to pick up relatives of a dead person from the White Sands area. In the course of his duty, the first defendant acted immediately to the request. On the first defendant’s way to pick up the relatives, the accident took place.

As found by the Court, the plaintiff did not contribute to the accident. The negligent driving of the first defendant caused the accident.

He was running at a high speed that he failed to take proper precaution. The result was that he caused damage to the plaintiff’s truck. It must be re-emphasized that the accident occurred during the course of employment of the first defendant.

The expression ‘in the course of’ -employment, was considered in St. Helen’s Colliery v. Hewitson. Lord Atkinson said at p76:

“...the words ‘in the course of his employment’ means while the workman is doing what he is employed to do, i.e. Discharging the duties to his employer imposed upon him by his contract of service. The word ‘employment’ in this connection must cover and include the things necessary and incident to employment.”

The explanation has been approved repeatedly. It was approved by Lord Atkin, in Blee v. L.N.E.R [1939] AC 126 at 131, who also quoted Lord Dunedin’s words in Davidson v. M’ Robb [1918] AC 304:

“In my view ‘in the course of employment’ is a different thing from ‘during employment’. It connotes to my mind the idea that the workman or servant is doing something which is part of the service to his employer or master. No doubt it need not be actual work, but it must, I think, be work or the natural incidents connected with the class or work.”

It is no doubt that the first defendant caused an accident during the course of his employment. A patient was lying dead in the hospital. The superior officer instructed the first defendant to pick her relatives. He acted on the advice of the superior. He went to pick her relatives. It is on his way that he caused the accident.

The question of time attracts further explanation. The first defendant left the hospital at around 5:00am in the morning. Was this time outside the usual time of work? The answer is in the negative. In the case of emergency, the employees usually carry out their duties in the normal and professional manner according to the emergency need of that particular hour.

The first and second defendants are jointly and severally liable for the actions incurred by the second defendant.

The hearing for the quantum of damages is adjourned to 6 August 2003 at 1:30 p.m. for Conference.

DATED AT PORT VILA this 25th day of July 2003

BY THE COURT

VINCENT LUNABEK
CHIEF JUSTICE