IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 0556 OF 1997

BETWEEN:

SHIU PRASAD
1st Plaintiff

MANJULESH DEVI
2nd Plaintiff

AND:

JOSEFA MATAU
1st Defendant

ATTORNEY GENERAL OF FIJI
2nd Defendant

Counsel: Mr V. Maharaj for 1st & 2nd Plaintiffs
Mr M.B. Patel for 1st Defendant
Mr D. Singh for 2nd Defendant

Hearing: 18th August 1999
Decision: 6th September 1999

JUDGMENT

On 18th December 1997, the Plaintiffs filed a writ of summons against the 1st and 2nd Defendants claiming damages arising out of a motor accident in Bau Road, Nausori involving a Government vehicle driven by the 1st Defendant.

The 1st Plaintiff claimed as executor of the estate of her mother Dharam Raji, who died as a result of the accident. The 2nd Plaintiff claimed as the wife and executrix of the estate of Shiu Ram who was injured in the accident, and as next friend of Dravinaj Priyaj Narayan, her son who also sustained injuries in the accident.

Both Defendants filed their Defences. However, on the 18th of August 1999 the date of trial, counsel for the Plaintiffs Mr V. Maharaj, counsel for the 1st Defendant Mr M.B. Patel, and counsel for the 2nd Defendant Mr D. Singh, advised the court that whilst there was no dispute as the negligence of the 1st Defendant, and as to the quantum of damages if judgment was to be for the Plaintiffs, there was dispute as to whether the 2nd Defendant was vicariously liable for the negligence of the 1st Defendant. The hearing therefore proceeded on one issue alone, and that was as to the question of the vicarious liability of the 2nd Defendant.

The Plaintiffs called no witnesses, but tendered the court record of the Nausori Magistrates Court of the trial and conviction of the 1st Defendant of careless driving, and of driving whilst there was present in his breath alcohol in excess of the prescribed limit.

The 1st Defendant gave evidence. He said that on 17th December 1994, he was Divisional Planning Officer (Central Division). His official working hours were 8.00am to 4.30pm but he was frequently expected to work after hours. He said he was authorised to drive Government vehicle registration number GL244 and garaged the car at home. He drove the car himself and he tendered a memorandum (Exhibit 2) written to him by the Permanent Secretary for National Planning giving him authority to drive a Government vehicle. That memorandum reads:

•	Approval is granted authorising you to drive our Ministry's Government vehicle in accordance with your Driving Licence issued by the Department of Road Transport.

•	Please ensure that all vehicles are treated as your private vehicle and that it is maintained at the highest level as possible.

•	Also ensure to familiarise yourself with the regulations of driving Government vehicles.

The 1st Defendant said in evidence that he usually held the keys for the vehicle. He said that on 17th December 1994, which was a Saturday, he attended the office Christmas party and consumed a mixture of yaqona and rum punch.

Whilst at the party the 1st Defendant decided to visit the site of two development projects that he was responsible for, to investigate why there was delay in the projects. He said the accident occurred on the way to the site of the projects.

Under cross-examination by Mr D. Singh for the 2nd Defendant, he conceded that it was wrong to drive Government vehicles under the influence of liquor, and denied that he had been given instructions, not to drive a Government vehicle on the day in question. He said that he had been investigated and interdicted as a result of the accident, and that he had told his superiors in the course of investigations, that he had driven the car to visit the project site. He agreed that his superior, the Commissioner Central Mr Poasa Ravea had not given him permission to drive the car at the time in question.

In response to questions asked by the court, the 1st Defendant said that the projects he was involved in were at Cautata District School (the construction of teachers quarters) and at Namuka Village (the construction of water pipes). He said the delay in the projects was caused by the Public Works Department and on the night in question, he left the party at about 7.00pm or 8.00pm to investigate the delay.

The 2nd Defendant called two witnesses, Mr Karan Chandra who had carried out the internal investigation into the accident and Mr Poasa Ravea the then Commissioner Central.

Mr Karan Chandra gave evidence that he had interviewed the 1st Defendant and that the 1st Defendant had told the investigation committee that on the 17th of December 1994, there was a function at the office, that he had driven the vehicle after the function and that he had done so without authority.

Mr Poasa Ravea gave evidence that the 1st Defendant had been the Divisional Planning Officer when he himself was the Commissioner Central. He said that he had announced at a meeting of all the District Officers and Rokos at 10.00am on 17th December 1994, that because of the function at the office no person other than the Government drivers, was to drive the Government vehicles. He said he had not approved the 1st Defendant's trip in the vehicle on that day.

Under cross-examination by Mr Maharaj, Mr Ravea agreed that when he gave evidence for the prosecution in the Magistrates Court, he had told the court (at page 16 of Exhibit 1) that the 1st Defendant was authorised to drive the vehicle during official hours and after hours. He agreed that he had told the Magistrates Court that 'the vehicle is at his disposal'.

In re-examination however, Mr Ravea said that the 1st Defendant had general authority to drive the vehicle but that this was subject to specific instructions not to drive at particular times. He said that when the 1st Defendant left the party at about 7.00pm on 17th December, he was not given authority to drive the vehicle.

The Defendants called no further witnesses, and the court heard final addresses on 19th August 1999.

Mr Maharaj submitted that there was no dispute that the 1st Defendant was a Government employee at the time of the accident, and that he had been driving a Government vehicle. He submitted that the 2nd Defendant was liable even if the 1st Defendant was in breach of internal regulations, or instructions. He referred to Section 3(1) of the Crown Proceedings Act and said that Government was liable for acts committed by its servants and agents.

He further submitted that provided the 1st Defendant was involved in an authorised activity, the way in which he conducted himself in furtherance of such activity could not absolve the state from vicarious liability.

Mr M.B. Patel for the 1st Defendant endorsed the submissions of Mr Maharaj and said that the evidence showed that the 1st Defendant was engaged in official duties when he drove the car. He submitted that the 1st Defendant conceded that he had been drunk and negligent, but that the 2nd Defendant was vicariously liable for such negligence in the course of his duties.

Mr Singh for the 2nd Defendant argued that the State was not liable because the 1st Defendant had driven whilst prohibited by Mr Ravea, and because he was engaged in a 'frolic of his own'. He submitted that the effect of the 1st Defendants drunkenness, his disobedience of the Public Service Commission General Orders, and of the Transport Rules and Instructions issued by the Ministry of Finance, and finally his disregard of his superior officer's instructions not to drive, absolved the State of vicarious liability for the negligent acts of its servant.

Counsels's submissions were clear and helpful, and the court was greatly assisted by them.

Having heard the evidence of all the witnesses, I am satisfied that the 1st Defendant on the 17th of December 1994 was involved in the fatal accident on Bau Road when he was on his way to visit project sites which were his official responsibility. I am satisfied that whilst he had general authority to drive the vehicle GL244, he did not have authority to drive the vehicle at 7.00pm on the 17th of December, because he had been prohibited by his superior Mr Poasa Ravea from driving Government vehicles on the day of the Christmas function.

I accept the evidence of Mr Ravea that the 1st Defendant had been present at the meeting when the prohibition had been announced. I also accept the evidence of Mr Karam Chandra that the 1st Defendant had admitted to the investigation committee, that he had driven without authority.

The question for the court to consider for the purpose of this hearing, is whether the State is nevertheless liable for the 1st Defendant's negligence. The burden is on the Plaintiffs to prove on a balance of probabilities, that the 2nd Defendant is vicarious liable for the negligence of the 1st Defendant.

There is no doubt, and there is no dispute, that the State is liable for the torts of its servants and agents, in the same way as other employers. Nor is it in dispute that the 1st Defendant was at the relevant time, an employee of the State. Nor is it in dispute that the 1st Defendant's official responsibilities included the projects he was visiting on the night in question and that he was expected to work after official hours.

The law on the vicarious liability of employers is well traversed in the Court of Appeal decision of Colonial. In particular the following passage of Diplock J in Hilton -v- Thomas Burton Ltd. (1961) 1 ALL ER 74, 76 was approved:-

"I think that the true test can best been expressed in these words: Was the 2nd Defendant doing something that he was employed to do? If so, however improper the manner in which he was doing it, whether negligent as in Century Insurance Company Limited -v- Northern Ireland Road Transport Board (1942) AC 509 or even fraudulent as in Lloyd -v- Grace Smith & Co. (1942) AC 591 or contrary to express orders, as in Canadian Pacific Railway Company -v- Lockhart (1942) 2 ALL ER 464, the master is liable. If, however, the servant is not doing what he is employed to do the master does not become liable merely because that act of the servant is done at the master's knowledge acquiescence or permission. To say, as it is sometimes said, that vicarious liability attaches to the master whether the act is an act, or falls within a class of act, which the servant is authorised to, may be misleading."

The Privy Council decision in Canadian Pacific Railway -v-Lockhart (1942) AC 591, is comparable to the present case. In that case, the servant of a company had been prohibited by written notices addressed to all employees, from using private vehicles for company business, unless adequately covered by insurance. The servant used his uninsured vehicle on a journey for the purpose of his work, and negligently injured the Plaintiff. It was held by the Privy Council (on appeal from the Supreme Court of Canada), that the means of transport was incidental to the work he was employed to do, and that the prohibition merely limited the manner in which he was to execute the work. The company was held liable.

The Privy Council said (per Lord Thankerton), at page 599:-

"But a master . . . . . is liable even for acts which he has not authorised, provided they are so connected with acts he has authorized that they may rightly be regarded as modes - although improper modes - of doing them. In other words, a master is responsible not merely for what he authorises his servant to do, but also for the way in which he does it . . . . 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: for in such a case the servant is not acting in the course of his employment, but has gone outside of it. The well-known dictum of Lord Dunedin in Plumb -v- Cobden Flour Mills Co.Ltd. (1914) AC 62, 67 that there are prohibitions which limit the sphere of employment, and prohibitions which only deal with conduct within the sphere of employment" may be referred to."

The High Court of Australia has taken a similar view to the effect of a prohibited act, on vicarious liability. In Bugge -v- Brown (1919) 26 CLR 110, in summarising the relevant principles, Isaacs 

J held inter alia that

"(1)	The responsibility of a master for the wrongful act of his servant does not depend merely on the question of authority, express or implied. He may be liable. Though the act be beyond any authority actually given by him . . . .

(4)	The master's responsibility may exist, notwithstanding he proves he has actually forbidden the act . . . .

(5)	The master's responsibility may even exist where the law itself forbids the act as criminal . . . "

Finally in London County Council v. Cattermoles (Garages) Ltd (1953) 2 ALL ER 582, the defendants were held liable for the negligence of their servant whilst driving, although the servant, a garage hand had no driving licence and had been expressly prohibited from driving.

On the facts before me therefore, the question is whether the Plaintiff has proved that the 1st Defendant was acting in the course of his employment when he drove GL244 on 17th December 1994 in a negligent way thus causing death and personal injury to Dharamraji, Shiu Ram and Dravinay Narayan.

I am satisfied on the evidence, that the 1st Defendant was acting within the scope of his employment when he set out to visit project sites between 7.00pm and 8.00pm on 17th December 1994. I am also satisfied that whilst his superior had forbidden him to drive that night, and whilst he was clearly under the influence of liquor at the relevant time it was his mode of conducting his work that was prohibited and not the work itself. It was conceded by State Counsel that the projects were authorised work, and that the 1st Defendant was expected to work after official hours.

In the circumstances I hold the 2nd Defendant liable vicariously for the negligence of the 1st Defendant.

The 1st Defendant's negligence is not disputed.

For these reasons I find for the Plaintiff. Quantum of damages has been agreed to by all counsel in the sum of $48,733.00.

The 1st and 2nd Defendants are to pay the Plaintiffs' costs to be taxed if not agreed.

[Nazhat Shameem] Ms
JUDGE

At Suva
25th August 1999