National Transport Co-operative Society and Another v Transport Authority

• Jurisdiction: Jamaica
• Judge: PANTON, P.: , HARRIS, J.A. , G. SMITH, J.A. (Ag.)
• Judgment Date: 19 December 2008
• Neutral Citation: JM 2008 CA 110
• Judgment citation (vLex): [2008] 12 JJC 1909
• Court: Court of Appeal (Jamaica)
• Date: 19 December 2008

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE PANTON, P THE HON. MRS. JUSTICE HARRIS, J.A THE HON. MISS JUSTICE G. SMITH, J.A. (Ag.)

BETWEEN

THE NATIONAL TRANSPORT CO-OPERATIVE SOCIETY

1 ^ST APPELLANT

AND

EVERTON M ^c GLASHAN

2 ^ND APPELLANT

AND

THE TRANSPORT AUTHORITY

RESPONDENT

Miss Audré Reynolds, instructed by Patrick Bailey & Co. for the Appellants

Mr. Garth McBean, instructed by Garth McBean & Co. for the Respondent

TORT - Motor vehicle accident - Agency principles - Whether vicarious liability

PANTON, P.:

1 Having read in draft the judgment of Harris, J.A. I agree with her reasoning and conclusions. There is nothing further I wish to add.

HARRIS, J.A.

1 In this appeal, the 1 ^st and 2 ^nd appellants challenge a judgment of Pusey, J. in which he ordered that the 2 ^nd appellant was not the agent of the respondent, and the latter was not vicariously liable for an accident caused by the 2 ^nd appellant.

2 The 1 ^st appellant is a co-operative society registered under the Cooperative Societies Act and was an operator of a motor bus owned by the respondent, a corporation registered under the Transport Authority Act. On September 23, 1993 the 1 ^st appellant and the respondent entered into an agreement whereby the respondent would lease to the 1 ^st appellant a motor bus for a period of 6 years with an option for the 1 ^st appellant to purchase the said motor bus on the expiration of the period of the lease.

3 The preamble to the lease agreement reads:

"Whereas the Authority is desirous of operating a project for a school bus system in order to ease the difficulties experience (sic) by students in obtaining transportation to and from school;

And Whereas the Operator has represented himself as being able to provide such a service."

4 So far as is relevant for the purpose of the determination of the appeal, the agreement provides as follows:

• "3 Insurance

• 3.1 In the first year of this Agreement the Authority shall be solely responsible for obtaining and maintaining comprehensive insurance coverage of the Unit and for all subsequent years the Operator shall repay to the Authority the cost of the said insurance in twelve (12) monthly instalments the first of which becomes due and payable one (1) month after the commencement of the second year.

• 3.2 The operator shall pay to the Authority an amount equal to fifteen percentage (15%) of the chargable premium to cover the insurable excess for minor accidents and damages.

• 3.3 The operator shall ensure that at all times the subsequent to the (sic) allowance set out in para 3.4 below, the abovementioned percentage of the insurable premium is maintained at its maximum level.

• 3.4 The initial insurable excess may be paid in six monthly instalments.

...

5. Maintenance

• 5.1. The Authority shall be responsible for the establishment of guidelines for the maintenance and repair of the Unit.

  Notwithstanding the above, the Operator shall during the Unit's period of warranty maintain the Unit in accordance with the manufacturer's instructions.

• 5.2. In ensuring that the said guidelines and instructions are observed the Authority or its designated representative shall be entitled to make periodic inspections of the Unit at a time and place convenient to both parties.

6. Schedule of Operation

• 6.1 The Authority with the Operator shall have the responsibility of establishing a Schedule of routes and times in respect of the operation of the service.

• 6.2 The schedule shall be deemed to include trips and other special journeys made by students which may fall outside the routes and times referred to in subclause 6.1. above.

• 6.3 The Operator shall purchase the tickets to be issued to the students, from the authority.

7. Independent operations

• 7.1 The operator shall be entitled to the said Unit for other purposes other than the transportation of students. Provided that such operations are conducted outside the hours of services specified in clause 6.1 and shall be on routes approved by the Transport Authority and shall in no way prejudice his obligation to provide transportation for students in the hours specified.

• 7.2. The operator shall be solely responsible for the cost of licences and other fees connected with the operations of the Unit.

• 7.3. The Operator shall submit to the Authority a monthly report outlining the number of passengers transported, revenue received, expenses incurred, major repairs effected to the Unit, accidents, if any and the general condition of the Unit.

...

10. Liability

• 10.1 It is expressly understood that the Operator is not an Agent of the Authority.

  The Operator shall be answerable to and responsible for all passengers travelling on the unit."

5 On 13 ^th April, 1995, the 2 ^nd appellant, a driver employed by the 1 ^st appellant, while operating the leased bus, injured one Evadne White who on the 14 ^th February, 1996 commenced an action in negligence against the respondent. On the 11 ^th October, 2004 the appellants filed an amended defence disclaiming liability. On the same date they also filed an ancillary claim claiming an indemnification by the respondent or alternatively, contribution.

6 On January 18, 2005 the respondent filed a defence to the ancillary claim disputing the appellants' claim on the following grounds:

• "1. The Ancillary Claim of the Second and Third Defendants for indemnity and contribution is barred by the Statute of Limitation in that more than six years has elapsed since this cause of action accrued.

• 2. As regards paragraph 2(a) of the Ancillary Claim the First Defendant admits that the agreement governing the operation of motor bus registration no. PP998H dated 23 ^rd September 1993 provides at paragraph 3.1...