[1990] SILR 207

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 43 of 1990

HARVEST PACIFIC LIMITED

v

THE ATTORNEY GENERAL
(Representing Ministry of Works and Public Utilities)
and ELAINE EDDIE

High Court of Solomon Islands
Ward CJ
Civil Case No. 43 of 1990

Hearing: 2 and 9 October 1990
Judgment: 2 November 1990

Motor vehicle accident - negligent driving - defective vehicle - contributory negligence - whether employer vicariously liable when vehicle given to employee for personal use outside working hours.

Facts:

The Plaintiffs vehicle was being driven up the hill from the main road to Panatina Ridge by Samson Wang behind a vehicle driven by the Second Defendant and owned by the First Defendant. About halfway up the hill the Second Defendant stalled and then failed to execute a hill start and rolled back into the front of the Plaintiff s vehicle. The Second Defendant was using the vehicle to pick up her mother from the hospital with the permission of the First Defendant. The Second Defendant denied negligent driving and claimed contributory negligence in the driving of the Plaintiff. The Second Defendant was convicted of careless driving in respect of the collision.

Held:

1. The Second Defendant was negligent in not braking to avoid the vehicle running back and colliding with the vehicle of the Plaintiff.

2. There was no contributory negligence by the Plaintiff as:

(a) a driver following a vehicle up a hill was entitled to assume that the other driver was competent;

(b) a gap of two metres was an adequate distance for a driver to leave between the vehicle he was following and his own vehicle; and

(c) once the driver of the following car was stationary he had no obligation to take any further action.

3. The proof that the Second Defendant was an employee of the First Defendant establishes prima facie a relationship that could give rise to vicarious liability. The burden to show that the First Defendant was not liable was on the First Defendant and that burden had been discharged by evidence that the Second Defendant’s supervisor who gave permission for the Second Defendant to use the vehicle had also told her that she would be responsible for any damage caused. In general terms the authorities are clear that the employer is not liable in these circumstances. It was not proved that the accident occurred during working hours.

Cases referred to:

None

Legislation referred to:

None

J. Corrin for the Plaintiff
P. Afeau for the First Defendant
J. Remobatu for the Second Defendant

WARD CJ: This is a claim for damages resulting from a collision between the Plaintiff’s vehicle and one owned by the First Defendant and driven by the Second Defendant.

The parties have agreed the facts as follows:

On or about 1st day of December 1989 at about 12.15 p.m. the Plaintiff’s vehicle, Reg. No. A0064 (Nissan Sunny Sedan) was being driven up the hill from the main road to Panatina Ridge by Samson Wang.

About halfway up the hill Samson Wang came into collision with vehicle reg. no. G1757 which was proceeding initially in the same direction in front of the Plaintiff’s vehicle but then commenced to travel backwards down the hill.

G1757 was owned by SIG and driven by Elaine Eddie at that time. She was employed by SIG (Ministry of Works and Public Utilities) at all material times.

The Second Defendant failed to negotiate the hill. The Second Defendant failed to apply the brakes on G1757 so as to avoid the collision or at all. The Second Defendant failed to steer or control G1757 so as to avoid the said collision or at all.

Elaine Eddie’s immediate supervisor gave her permission to use the vehicle for the purpose of picking her mother from hospital. Elaine Eddie had a permit to drive Government vehicles.

Elaine Eddie was convicted of careless driving in respect of the abovementioned accident by Central Magistrate’ Court on 6th December 1989. The Plaintiff passed her driving test on 27th December 1989.

The Second Defendant denies negligent driving and claims contributory negligence in the driving of the Plaintiff and the First Defendant denies that the Second Defendant was its agent or acting in the course of her employment.

The only matter tried so far has been the question of negligence of the Second Defendant and the liability of the First Defendant.

The first of those is easily resolved.

The Second Defendant gave evidence that she was driving the vehicle up Panatina road. As she ascended the hill, the engine died and she stopped. She saw the Plaintiff stop his vehicle about two metres behind her. She then attempted a hill start in first gear and changed to second. At that moment the vehicle ran back and collided with the front of the Plaintiff’s vehicle. She had no time to put her foot on the brake before the impact occurred. That is clearly negligent driving. It was suggested that the Plaintiff contributed to the accident by stopping too close and failing to back away.

That cannot be correct. A driver following a vehicle up a hill is entitled to assume the other driver is competent. Once the front vehicle stopped, he stopped also. A gap of two metres is an adequate distance. The position in which he stopped was dictated by the Plaintiff’s actions and once he was stationary he had no obligation to take any further action.

I am satisfied the accident was entirely caused by the negligent driving of the Second Defendant and there was no contributory negligence by the Plaintiff.

Passing to the question of the liability of the First Defendant, it is clear on the evidence, which I do not repeat here, that the Second Defendant was given permission to use the vehicle by her supervisor. I am also satisfied it has been proved that she was a government employee and prima facie that establishes a relationship that could give rise to liability on the part of the First Defendant. The burden is thus on the First Defendant to show they were not liable.

Evidence was called, which I accept, that the Second Defendant's supervisor gave her permission to use the vehicle for her personal purposes and she had been told that, if there was any damage, she had to pay.

In general terms the authorities are clear and the First Defendant is not liable in such a case but the Plaintiff points out that, whilst the request was to use the vehicle during the lunch hour, she actually drove it before the lunch hour had started and the accident occurred whilst she was still in her working hours.

I cannot accept that is proved on the evidence. The driver of the Plaintiff’s vehicle put the time of the accident after twelve and, whilst the Second Defendant said she took the vehicle before 12.00, she could not give a time for the accident.

On all the evidence and considering the authorities cited, I am satisfied on a balance of probabilities that the First Defendant has proved it was not liable for the damage to the Plaintiff’s vehicle.

Judgment to the Plaintiff against the Second Defendant. The claim against the First Defendant is dismissed with costs to be paid by Plaintiff.

Adjourned to 16.11.90 for damages to be assessed if not agreed.