Hopkinson v Lall
| Jurisdiction | Caribbean States |
| Judge | Archer, C.J.,Wylie, J.A.,Lewis, J.A. |
| Judgment Date | 20 July 1959 |
| Court | Federal Supreme Court (West Indies) |
| Docket Number | Civil Appeal No. 2 of 1959 |
| Date | 20 July 1959 |
Federal Supreme Court
Archer, C.J. (Ag.); Wylie, J.A.; Lewis, J.A.
Civil Appeal No. 2 of 1959
Mr. L.F.S. Burnham instructed by Mr. Carlos Gomes for the plaintiff.
Mr. H.A. Fraser instructed by Mr. H.B. Fraser for the defendant.
Practice and procedure - Appeal against judgment — Trial judge found that a motor vehicle collision was caused by the negligent driving of a person to whom the respondent loaned his car — Whether at the time of the collision the third party was driving the car either wholly or partly for purposes which the respondent had interest — The third party was on the respondent's business — Respondent vicariously liable — Appeal dismissed
The appellant was injured on the night of the 14th September, 1956, when a motor-car in which he was a passenger and which was being driven on Regent Street, Lacytown, Georgetown, by Maurice Rodrigues, a friend of his, collided with a concrete post in the centre of a traffic island at the corner of Wellington and Regent Streets. He vas unsuccessful in an action for damages for negligence which he brought against the respondent, the owner of the motor-car, and in which he alleged that Rodrigues was, at the time of the accident, the respondent's agent, and he has now appealed to this court.
The respondent, as he had done on several previous occasions, lent his motor-car on the 14th September, 1956, to Rodrigues who came into Georgetown from the country for a visit. Rodrigues and the appellant went for a drive up the East Coast Road and then returned to Georgetown where they had dinner at the Cactus Club, Tower Hotel, Main Street. They remained at the Cactus Club for about an hour and left about 9.30 p.m. They proceeded south along Main Street, south along High Street, and east along Regent Street, and it was while they were driving along Regent Street that the accident took place.
The trial judge found that the collision was caused by negligent driving of Rodrigues. The appellant was unable to say what was the cause of the collision but the respondent called no evidence and I think that the judge was justified in finding that the doctrine of res ipsa loquitur applied to the circumstances of the case.
The real question for determination is whether or not Rodrigues was the respondent's agent at the time of the collision. There was evidence that he had often driven the respondent's motor-car and carried the appellant as a passenger in it and the respondent knew that he had and had never expressed disapproval. There was also an admission by the respondent that he had expected Rodrigues to come back to Queen's College for him. The judge excluded evidence of an admission that he was on his way to Queen's College which Rodrigues is alleged to have made to the appellant immediately before the accident.
The trial judge took the view that there was no evidence to show that at the time of the collision the car was being driven for any purpose other than Rodrigues'. He was further of the opinion that even if there had been admissible evidence that at the time of the collision the car was on its way back to Queen's College, no reasonable inference could be drawn therefrom that the car was being driven for any purpose of the defendant. He said:
“In such circumstances the purpose for which the car was being driven on the road would be the return of to the defendant after its use by Rodrigues for Rodrigues' own purpose (see Hillman v. Walls (1938) 5 L.J.C.C.R. 167, referred to in Motor Claims Cases by Bingham). Up to the time of his return to the defendant at Queen's College the car would have been in use for no purpose of the defendant. The defendant had lent the car to Rodrigues to be used for purposes in which the defendant had no interest or concern in applying the test laid down by Denning, L.J. in Ormond's case, the defendant is not liable for the injuries occasioned by Rodrigues' negligent driving”.
Counsel for the appellant submitted that the respondent's two conversations with the appellant in the course of which he said “that Rodrigues never turned up for him at Queen's College as he told him to do”, and “that he had no objection to Rodrigues taking anyone at all in the car so long as he returned the car in good condition and came back for him at Queen's College”, amounted to the admission of Rodrigues' agency; that, apart from that consideration, there was a presumption that the car was being driven by the respondent's agent when it set out from Queen's College as there was no evidence as to the purpose for which Rodrigues took the car initially from Queen's College and it was for the respondent to rebut that presumption which he failed to do, that Rodrigues continued to be the respondent's agent though he was for a part of the night of his own business or pleasure, and that his conversation with the appellant immediately before the accident was admissible in evidence on the ground that it was an admission with regard to his agency which was equivalent to an admission by the respondent himself.
Counsel for the respondent submitted than any presumption of agency was rebutted by the evidence of the appellant himself; that the element which would have made the respondent liable was his part or share in the use of the...
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