Metropolitan Parks and Markets Ltd et Al v Swaby (Percival)
| Jurisdiction | Jamaica |
| Judge | SINCLAIR-HAYNES, J. (Ag.) |
| Judgment Date | 05 March 2004 |
| Judgment citation (vLex) | [2004] 3 JJC 0502 |
| Court | Supreme Court (Jamaica) |
| Docket Number | SUIT NO. C.L. S.123 of 2000 |
| Date | 05 March 2004 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
DAMAGES - Motor vehicle accident - Intoxication - Falling from flat bed truck - Loss of both legs - Loss of amenities - Handicap on the labour market - Loss of future earnings - Special damages
The facts of this case are pathetic. What began as a jollification ended quite lugubriously with Mr. Swaby losing both his legs. Percival Swaby, Clifton Campbell o/c Lenky, Carl Waison and Michael Simpson were crewmembers of an MPM truck. The truck was a flat bed, on which MPM collected derelict cars, metal and houses. Michael Thompson was the authorized driver for the day, the others were sidemen.
Percival Swaby's task was to operate the chain of the crane which was attached to the truck. He fastened the derelict objects to the chain. He was very adept at his task. Indeed he had been employed in that capacity for five years.
Carl Waison operated the crane. The usual driver was Michael Thompson. He was their supervisor on the job. However, on that fateful day Mr. Hardware, the overall supervisor, authorized Enoch Laing to drive. Work ended for the men when they were either returned to the garage or were left near their homes by the driver. Whilst on the road they were sometimes met by supervisors and "strikers" who would direct them to the objects to be removed. Whilst being conveyed on the truck, the crewmembers were not provided with seating or standing area. The men devised their own arrangements.
The driver and the supervisor or striker drove in the cab of the vehicle. The cab could comfortably seat two (2) persons. In the absence of a supervisor or striker Carl Waison rode in the cab with the driver.
Mr. Swaby's usually seat was the gas tank. There was nothing to hold onto, so he used the soles of his feet to brace against the wall of the cab.
This was to the right of the truck. Another member sat on a broken plastic chair, which was tied down on a flat surface. This was to the left of the truck. If there was a supervisor in the cab or a striker one crew member stood on the platform and held onto the groove of the water, trough; Mr. Swaby disliked standing on the platform because it rocked uncomfortably. There were no rails to prevent the men from falling off.
After leaving the garage that morning the men went down town where they had their breakfast. Upon leaving down town, Mr. Laing instructed Carl Waison to drive while he, Laing, sat in the passenger's seat. Carl Waison drove the entire day.
Sometime in the afternoon the crew stopped at a bar on Water Street where they imbibed alcoholic beverages. Mr. Laing absented himself for about half hour. At the bar, the men were joined by two ladies, the sister and girlfriend of Carl Waison and two small children. Percival Swaby had three drinks of Campari and white rum.
Apparently he became enamored with the sister of Carl Waison. Upon leaving the bar Mr. Laing permitted Carl Waison to convey the two ladies and two children in the cab of the vehicle. He took up position standing on the platform ofthe truck. Sometime after he alighted the truck.
As they proceeded along Spanish Town Road, Mr. Swaby fell off the truck and the wheels of the truck ran over his legs. Unfortunately both legs were amputated above his knees. He was fifty-two years old at the time.
Mr. Swaby has now sued MPM, Enoch Laing and Carl Waison for negligence. His claim is that Carl Waison negligently drove/operated or controlled the said truck owned by MPM and assigned to Enoch Laing in such a manner that it collided with him causing him personal injury, loss and damage.
The defendants denied this claim and alleged that it was the plaintiff's carelessness and intoxication, which caused or contributed to the accident.
The first issue: whether at the time of the accident the vehicle was being used for MPM's business or whether the men were on a frolic of their own
Mr. Garth McBean submitted that the men were on a frolic of their own. They had gone to the bar where they imbibed alcoholic beverages; they picked up women and children and they intended to take them home. In so doing they had altogether departed from their scope of employment.
Mr. Manley Nicholson, however, submitted that MPM was precluded from relying on the fact that the men went to a bar and consumed alcohol because such behaviour was condoned by the supervisor
Were the men at the time of the accident discharging their duties to MPM or had they altogether strayed from the scope of their employment?
Where an employer's vehicle is entrusted to the employee to be driven by the employee, the employer is liable to the employee is negligent while using the vehicle either wholly or partly on the employer's business or in the employer's interest. However, the employer is not liable if the employee is negligent while using it for any other purpose even though the employee has the employer's permission to use it for those purposes. See Charlesworth and Perry on Negligence 8 th Edition
In Crook v Derbyshire Stone Ltd. (1956) 1 WLR 432 it was held that the employer was not liable when a collision occurred between the employee and a motor cyclist caused by his negligence. The lorry driver had stopped at a way side cafe and crossed one section of a dual carriage way on foot in order to get refreshment which was an act done while he was employed and with his employer's permission.
This decision refutes Mr. Nicholas' submissions that MPM condoned the drinking of the men on the job. However, in Harvey v RG Odell Ltd. & Anor. (1958) 2 QB 79 a motor vehicle was used to. collect tools for the job. On the return trip the employee stopped for a meal. It was held that even if the meal was the main purpose of the trip the employee would have been acting in the course of his employment as stopping for a meal was incidental to his employment.
The instant case is distinguishable. Having a meal must be incidental to ones work. The test is whether Mr. Swaby was at that time doing what he was employed to do or whether what he did was incidental to his employment. In determining whether or not he was so acting, the particular facts of the case must be considered. To go to a bar to drink liquor and carouse with women certainly cannot in any way be regarded as incidental to ones job.
I find that when the crew stopped at the bar, they were not acting within the scope of their employment. Rather they were on their own frolic.
An employee who goes off on a journey of his own as to be outside the course of his employment may return to the course of his employment when he is finished his own journey and may resume the journey of his employer's purpose. See Creer V Brightside Foundry Engineering Company (1942) 35 BWCC 9.
The question therefore is whether the men returned to the course of their employment upon leaving the bar and boarding the truck. The evidence is that Mr. Waison intended to take Mr. Swaby home before he took his passengers who were in the cab to Portmore.
I find that at least while they were on Spanish Town Road they had resumed the journey of MPM's purpose. The fact that he was also doing his own business on the journey by conveying the women and children, perhaps in breach ofthe MPM's rules, does not per se place him outside the scope of his employment. See Patten V Rea (1857)2CB(n.s.)606. He might have been performing his duty in an unauthorized and unlawful manner, but the truck was being driven primarily for the purposes of MPM's business, i.e. to take the men to their destination and to return the truck to MPM.
Willmer LJ in Ilkiw v Samuels (1963) 2 ALL ER 879 at pg 885 expressed the following view:
"... the mere fact that the act complained of was done in disobedience of expressed instructions is of no necessary materiality in deciding whether or not the act was within the course ofthe employment."
The evidence was that the driver was the supervisor. The usual driver was not Mr. Laing. However, Mr. Laing was properly authorized by Mr. Hardware to act for Mr. Thompson. In his capacity as driver/supervisor he permitted Mr. Waison to convey the women. In any event there is no evidence that what he was doing was against the wishes or instructions of the MPM.
Even if Mr. Waison was in fact going to take his passengers to Portmore before leaving Mr. Swaby near his home, that fact would not necessarily prevent the use from being for MPM's purposes.
The fact that the employee deviates from the employer's orders will not necessarily prevent the use from being for the employer's purposes. It is a question of degree.
In Joel v Morrison (1838) 6 Car Pso 1, Parke B. said:
"If the Servants, being on their master's business, took a detour to call upon a friend, the master would be responsible ... the master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master's implied commands, when doing his master's business, he could make his master liable but if he was going on a frolic of his own without being at all on his master's business the master will not be liable."
A deviating driver is only outside the scope of his employment when he departs altogether from his employer's business. If an employee deviates by taking a longer journey the point where his employment ceases so as to divest the employer of all liability is a question of degree as to how far the deviation could be considered a separate journey. See Storey v Ashton (1869) LR 4QB 476.
In any event, the evidence is that Mr. Waison intended to take Mr. Swaby to...
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