| Fiji Islands - Fiji Electricity Authority v National MBF Finance (Fiji) Ltd - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
CIVIL ACTION NO. 0045 OF 1998
:
FIJI ELECTRICITY AUTHORITY
Plaintiff
AND:
1. NATIONAL MBF FINANCE (FIJI) LIMITED
2. AKUILA KOLIDAMU
KE VARANI
Defendantndants
Mr. R.P. Singh fe Plhe Plaintiff
Mr. U. Ratuvili for the 1st Defendant
JUDGMENT
There are two parts to the 1st defendant company's interlocutory application. The first, it the plaintiff's action 'should be dismissed for want of prosecution as the plaintiff has failed to proceed with this action when the pleadings were deemed
to be closed' and the second, is that the plaintiff's Statement of Claim should be 'struck out on the ground that it discloses no reasonable cause of action'.
The brief chronology of relevant events and pleadings may be set out as follows:
(1) On 8.7.94 the 1st defendant company became the registered owner of Vehicle No: CT 156;
(2) On 19.7.94 the third defendant entered into a Hire Purchase Agreement with the 1st defendant company in respect of vehicle No: CT 156;
(3) On 22.10.96 the plaintiff's vehicle No: CX 373 was involved in an accident with vehicle No: C.T.156 at Tuatua, Labasa whilst it was being driven by the 2nd defendant;
(4) On 3.7.98 the plaintiff issued a Writ against the 1st defendant company (as registered 'owner') and the 2nd named defendant (as actual 'driver') claiming damages for the loss caused to its Vehicle No: CX 373;
(5) On 23.7.98 the Writ was served on the 2nd defendant;
(6) On 27.8.98 the 1st defendant company acknowledged service of the Writ;
(7) On 17.9.98 the 1st defendant company filed a Statement of Defence which was served on the plaintiff counsel's Labasa city agents on 18.9.98;
(8) On 2.10.98 default judgment was entered against the 2nd defendant for damages to be assessed;
(9) On 19.2.99 the plaintiff filed an ex parte summons seeking leave to amend its Writ so as to join the 3rd named defendant (as 'hirer') of Vehicle No: CT 156 at the relevant time;
(10) On 24.2.99 Scott J. granted the plaintiff's application in (9) above;
(11) On 10.3.99 plaintiff filed an amended Writ and Statement of Claim against the 3rd defendant;
(12) On 14.5.99 the amended Writ was served on the 3rd defendant;
(13) On 1.6.99 the 1st defendant company filed the present application with affidavit in support;
(14) On 3.6.99 the present application was served on the plaintiff's solicitor;
(15) On 17.6.99 default judgment was entered against the 3rd defendant for damages to be assessed.
It is clear from the above chronology that pleadings closed on or about the 31.9.98 [See: Order 18 r.19(1)(b) of the High Court Rules] in the absence of a reply to defence. It is also clear that in respect of the plaintiff's claim against the 1st defendant company
no step has been taken by the plaintiff to advance or prosecute the claim since 31.9.98 until the date of the present application i.e. a period of approximately eight (8) months.
With that brief background I turn to consider the first of the applications which on the face of the 1st defendant company's Summons is purportedly brought under Or. 34 r.2 of the High Court Rules. I say 'purportedly' because Order 34 r.2 as its heading indicates, deals with the holding of a pre-trial conference prior to an action being set down for trial and as plaintiff's
counsel correctly points out the present action is far from ready for trial in the absence of a Summons for Directions.
Having said that however I am content to deal with this application as being one brought under Or. 25 r.1(4) of the High Court Rules, and under the inherent jurisdiction of the court which is clearly referred to in defence counsel's written submissions.
The principles to be applied in an application to dismiss for want of prosecution are concisely set out in the followed passage in
the speech of Lord Diplock in Birkett v. James (1978) A.C. 297, when his lordship said at p.318:
'The power (to strike out for want of prosecution) should be exercised only where the court is satisfied either (1) that the default has been intentional or contumelious e.g. disobedience
to a peremptory order of the court or conduct amounting to an abuse of process of the court; or.(2)(a) that there has been inordinate
and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that
it is not possible to have a fair trial of the issue in the action or is such as is likely to cause or to have caused serious prejudice
to the defendants ...'
(approved and adopted by the Supreme Court of Fiji in Merit Timber Products Limited v. N.L.T.B. Civil Appeal No. 8 of 1994).
The questions which the court must consider in the context of this case are: 'Has there been inordinate and inexcusable delay on the
plaintiff's part since the issuance of the Writ? and does the delay give rise to a substantial risk that a fair trial can no longer be had or has it seriously prejudiced the defendant?'
In answer to both questions defence counsel writes:
'Inordinate in relation to these peculiar set of facts refers to the fact that the accident occurred in 1996, the action commenced
in 1998 and it has dragged on to 1999.
It is very likely that witnesses who were contemporaneous observers would not easily recall the events on the particular day of the
accident and documents relating to it may be misplaced or lost, some witnesses may have moved away from Labasa and would be difficult
to locate. Thus it could be very hard for the court to do justice between the two parties.
Inexcusable refers to the fact that the Plaintiff has offered no explanation whatsoever in relation to their delay in presenting (sic) this matter.'
Plaintiff's counsel in opposing this part of the application referred to the fact of the amended Writ [See: (8) to (12) above], to which the 1st defendant company has not as yet pleaded and the entry of default judgments against the 2nd and 3rd named defendants as being clear steps taken by the plaintiff in prosecuting
its action albeit against the 2nd and 3rd named defendants only, and which steps were only finally concluded on 17th June 1999 which is a fortnight after the present application was served.
Having carefully considered the defendant's affidavit evidence, the relevant chronology of events, and counsels submissions, I am
satisfied that there has not been 'inordinate and inexcusable delay' on the part of the plaintiff. If however I am wrong in my assessment of the delay then I would merely add that there is not the slightest
doubt in my mind that such delay as there has been, can in no way prejudice the 1st defendant company which is merely the 'financier/owner' in the Hire Purchase Agreement and as such its rights, duties and obligations vis-à-vis the hirer, are entirely a matter of written contract for the Court's interpretation unaffected by failing memories.
What's more the fact of the accident involving the hired vehicle No: CT 156 and, more so the person(s) whose negligent driving caused it and who are therefore primarily liable to make good any damage or losses
arising therefrom are the subject matter of default judgments entered in October 1998 and June 1999 which have not been challenged or enforced.
The first part of the 1st defendant company's application namely, to dismiss for want of prosecution is accordingly dismissed.
Turning then to the second more substantive application to dismiss the plaintiff's claim as disclosing no reasonable cause of action,
I begin with the amended Statement of Claim which in its relevant paragraphs reads:
'2. THAT at all material times the 2nd Defendant was the and/or a permitted and/or authorised driver of Motor Vehicle Registration Number
CT 156 registered in the name of the 1st Defendant as owner with Department of Road Transport and the 3rd Defendant was the hirer
of the said Motor Vehicle under Hire Purchase Agreement Number MBF/HP/LS/0061/19 dated the 19th day of July, 1994.
3. ALTERNATIVELY that at all material times the 2nd Defendant was the servant and/or permitted driver and agent of the 1st and the 3rd Defendant and/or
drove the said Motor Vehicle Registration Number CT 156 as a servant and/or agent of the 1st and the 3rd Defendant.
and
7. THAT as a result of the 2nd Defendants negligence and vicariously liability of the 1st and 3rd Defendants the said motor vehicle registration
number CX 373 was substantially and/or severely damaged and was not capable of being economically repaired and/or beyond economical
repair and was sold and/or realised for a reduced price of $2,800.00 (TWO THOUSAND AND EIGHT HUNDRED DOLLARS).'
It is plain from the above paragraphs that the 1st defendant company is sued as the registered 'owner' of the motor vehicle No: CT 156 which was involved in the accident and, as such, it is claimed the 1st defendant company is vicariously liable for the negligence
of the driver of the vehicle who is alleged to be 'the servant and/or permitted driver and agent of the 1st ... defendant'.
In support of the claim against the 1st defendant company, counsel for the plaintiff submitted that the 1st defendant company is 'implicated ... indirectly' insofar as it is the registered owner of the vehicle and nothing else. As for the Hire Purchase Agreement counsel says it 'is a private agreement between the 1st and 3rd defendants' (whatever that may mean).
What's more counsel submits that the plaintiff had no notice of the Hire Purchase Agreement or its contents but, in any event, '... the Hire Purchase Agreement gives authority to the hirer to drive and use the vehicle (and) there is no restriction in the agreement to any further hireage or use of the vehicle by (a third party)'. No authority was provided despite the Court's request, for this rather far-reaching proposition nor did counsel attempt any examination
of the terms and conditions of the Hire Purchase Agreement.
A cursory examination of the Hire Purchase Agreement reveals however, a number of clauses which are likely to be relevant to the plaintiff's claim including: Clauses 5(6) & 5(11) which jointly prohibit any parting by the hirer with possession of the hired vehicle; Clause 14 which clearly identifies the hirer as 'a mere bailee (of the motor vehicle)' albeit one with an option to purchase; Clause 15(4) which provides inter alia that 'the owners (the 1st defendant company) shall not be liable to indemnify the hirer in respect of any claim made against the hirer by a third party for any loss, injury or
damage'; and finally Clause 15(6) which prohibits the hirer from assigning 'any of his rights or interests under this Agreement without any prior written consent of the owners'.
Notwithstanding the above Clauses, the common law principle by virtue of which the owner of a vehicle may be held vicariously liable for the negligent driving of the
vehicle by another is the principle: 'qui facit per aluim facit per se', namely, if the vehicle is being driven by a servant of the owner in the course of the employment or by an agent of the owner in
the course of the agency, the owner, is responsible for negligence in the driving, but, in the absence of any evidence (or pleaded
facts) raising either a 'master/servant relationship' or an 'agency', no liability whatsoever can attach to the owner of the vehicle.
Viscount Dilhorne in the leading case of Launchbury and Others v. Morgan and Others (1972) 1 Lloyds Rep. 483 where liability was sought to be imposed on the owner of the car on the basis that she had authorised its driving by the deceased
third party rejected any liability on the wife's part saying at p.488:
'It is not, and in my opinion has never been, the law of this country that the owner of a chattel is responsible in law for damage
done by the negligence of a person to whom he has lent it or whom he has permitted to use it.'
In similar vein in Hewitt v. Bonvin (1940) 1 K.B. 188 in rejecting the claim against the owner of the vehicle who had lent it to his son for the latter's private purpose, McKnon L.J. said at p.191:
'If 'A' suffers damage by the wrongful act of 'B', and seeks to say that 'C' is liable for that damage he must establish that in doing
the act 'B' acted as the agent or servant of 'C'. If he says that he was 'C's' agent he must further show that 'C' authorised the
act. If he can establish that 'B' was the servant of 'C' the question of authority need not arise. A master is jointly and severally
liable with his servant for any tort committed by the servant in the course of his employment.'
and later at p.192 his lordship said:
'But before any question as to the right of control and direction over the tortfeasor arises at all, it must be established that in
doing the act complained of he was employed by the third party to do the work for him. This cannot be established by mere proof that the tortfeasor is using a chattel, or driving a vehicle, which is the property of a
third party, though that may, in the absence of any further explanation, be some evidence of the proposition.'
(my underlining)
The final reference that I would refer to is a short passage in Charlesworth on Negligence (6th edn.) at para. 110 which reads:
'If the owner of a motor-vehicle lends his car to a friend to be used for the friends purposes, or allows his son, or his servant
to use his car for their own purposes, he does not make them his servants or agents so as to be liable for their negligence. This
is because the bailor of a chattel is not liable for negligence of the bailee in his use of the chattel.'
(my underlining)
In the present case under consideration not only are the relationships between the three defendants proscribed and circumscribed by
the terms of the Hire Purchase Agreement between the 1st defendant company and the 3rd defendant hirer, but there is not a shred of evidence (other than a bald assertion
in the Statement of Claim) that the 2nd defendant driver was either the 'servant and/or agent' of the 1st defendant company or had been clearly authorised to drive the vehicle on the particular journey when the accident occurred.
Indeed the plaintiff company in this case seeks to extend liability not just to the 3rd defendant as the hirer or bailee of the vehicle
and his presumed agent, the driver, but also to the 1st defendant company as the original bailor and owner of the vehicle, not on
the basis of any relationship existing between the bailor and the negligent driver (which in fact is non-existent) but on the sole
basis that the vehicle is for the time being, registered in the owner's name.
It is true that in the case of Barnard v. Scully (1931) 47 T.L.R. 557 it was said that 'the fact of ownership of the motor vehicle is prima facie evidence that the motor vehicle, at the material time, was being driven
by the owner, or by his servant or agent', but even there, Scrutton L.J. accepted at p.588 that: '... it was evidence which was liable to be rebutted by proof of the actual facts.'
Furthermore in Hewitt v. Bonvin (op.cit.) du Parcq L.J. said at p.194:
'It is plain that the appellant's ownership of the car cannot of itself impose any liability upon him. It has long been settled law
that where the owner of a carriage or other chattel confides it to another person who is not his servant or agent, he is not responsible
merely by reason of his ownership for any damage which it may do in that other's hands.'
If I may say so those words are exactly applicable to the plaintiff's claim against the 1st defendant company in this case and I therefore
hold that there is in law no reasonably arguable cause of action raised against the 1st defendant company based solely up on its
registered ownership of the vehicle No: CT 156.
This second part of the 1st defendant company's application is accordingly upheld and the plaintiff's amended Statement of Claim in so far as it refers to the 1st defendant company must be and hereby struck out with costs which are summarily fixed at $400.00.
D.V. Fatiaki
JUDGE
At Labasa,
23rd August, 1999.
Hbc0045j.98b
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