Rupert Henry v Bargain Rent-A-Car

• Jurisdiction: Jamaica
• Judge: Wint-Blair, J
• Judgment Date: 12 January 2017
• Neutral Citation: [2017] JMSC Civ 1
• Docket Number: CLAIM NO. 2012 HCV 02560
• Court: Supreme Court (Jamaica)
• Date: 12 January 2017

[2017] JMSC Civ 1

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Coram:

Wint-Blair, J (Ag)

CLAIM NO. 2012 HCV 02560

Between

Rupert Henry

Claimant

and

Bargain Rent-A-Car

1st Defendant

and

Andrea Allison

2nd Defendant

Mr. Lemar Neale for the Claimant

Ms. Nicosie Dummett for the 1 ^st Defendant

Negligence — Vicarious Liability — Agency — Motor vehicle Collision — Summary Judgment —

IN CHAMBERS

1 This matter concerns an application for summary judgment. The court was asked to make the following orders:

1

“Summary judgment against the claimant. 2. Costs to the ancillary defendant to be agreed or taxed. 3. Such further and/or other relief as this Honourable Court deems just grant [sic].”

2 There were a number of issues raised for determination on the substantive matter. Both sides made submissions on the issues for determination on this application. These can be, distilled into two central issues which are:

• i. Whether or not the 2 ^nd Defendant was the servant and or agent of the 1 ^st Defendant at the material time.

• ii. Whether or not an authorized driver who is not the servant and or agent of an owner can cause the owner to become liable for his acts or omissions?

The claimant's counsel also argued that a decision on the legal issue will entitle the claimant to summary judgment.

The Civil Procedure Rules (“CPR”) provides in Part 15.2:

“ 15.2 The court may give summary judgment on the claim or on a particular issue if it considers that —

(a) the claimant has no real prospect of succeeding on the claim or the issue; or

(b) the defendant has no real prospect of successfully defending the claim or the issue.”

3 Ms. Dummett argued that there is a difference between a policy of insurance which covers a vehicle and a policy of insurance which subjects the first defendant to liability. She argued that if the court found that there was an agency relationship between the first and second defendants then the first defendant would be liable in negligence. If not, then the first defendant would not be liable for the acts or omissions of the second defendant. The claimant is not precluded from bringing a suit against the second defendant directly. If the claimant wishes to invoke insurance coverage then he has to show a nexus between both defendants in terms of liability. The claimant is entitled to summary judgment on these issues at bar. She relies on the affidavit of Danya Dacres, Fleet Manger of the first defendant company which states at paragraph 9 that the second defendant was not an employee of the first defendant nor was she using the vehicle for any purposes connected with the business of the first defendant as their servant and/or agent. Mr Neale submitted that whilst the applicant sought summary judgment on these issues there remain other triable issues joined between the parties. The evidence is to be found in the affidavit of Danya Dacres to which is exhibited a document purporting to be a rental agreement which contained several obliterations. These obliterations have not been identified in the affidavit and thus the court will not know what information lay beneath its murky depths. The document is therefore inadmissible.

4 Whether the second defendant was an authorized driver under the policy of insurance of the first defendant to drive the vehicle, is not known as the relevant insurance policy was not produced to the court. He relied on the cases of ED&F Man Liquid Products [2003] EWCA Civ. 472, Swain v HillmanandOcean Chimo Ltd. v Royal Bank Jamaica Ltd. et al [2014] JMCC Comm. 7. The court was to look at the evidence before it and ought not to conduct a mini-trial.

5 Both sides agree that the motor vehicle belonging to the first defendant was being driven at the material time by the hirer. The purpose for hiring the vehicle is not in evidence. Mr. Neale submitted that, the agreement exhibited shows that there is no evidence of exclusive use by the hirer for his purposes. He argued that Liability flows to the first defendant by virtue of the policy of insurance.

The following orders were made when the matter came on for hearing before me on November 25, 2016:

1

The first applicant's counsel is to file and serve the original rental agreement no later than 7 days from the date of the order. 2. Bundles of authorities from the respondent are to be filed and served no later than November 28, 2016. 3. The applicant's counsel is permitted to respond in writing to the respondent's authorities filed. 4. Judgment on the application for summary judgment reserved. 5. Costs to be costs in the claim. 6. Applicant's counsel to prepare, file and serve the orders made herein.

6 Counsel for the applicant filed a large bundle of authorities on November 30, 2016 in response to the case of Ocean Chimo Ltd. cited by the respondent's counsel. Absent from that bundle was a response to that authority. Ms. Dummett also failed to comply with orders one and six above.

The Law

7 The definition of contract of insurance is found in Prudential Insurance Company v Inland Revenue Commissioners [1904] 2 KB 658 in which Channell, J states:

“a contract of insurance is one whereby one party (the insurer) promises in return for a money consideration (the premium) to pay to the other party (the assured) a sum of money or provide him with some corresponding benefit, upon the occurrence of one or more specified events.”

8 , defines owner to mean “in relation to a motor vehicle which is the subject of a hiring agreement or hire purchase agreement, the person in possession of the vehicle under that agreement.”

9 The question therefore is not whether insurance follows the car or the driver, but whether or not other drivers will be covered by the insured's policy of motor vehicle insurance. Unfortunately, there is no direct answer to this question, as it depends largely on the language of the policies involved, as well as the specific facts and issues which arise in each case. Permissive use is generally covered under the liability terms of a motor vehicle insurance policy. As always, however, there are exceptions.

10 In Avis Rent-a-Car v Maitland (1980) 32 WLR 294, the appellant was a rental car company which hired a motorcar to the second defendant for weekly payments. The car was being driven by the second defendant, in the course of his business as a private investigator when he crashed killing his passenger. The executrix of the deceased sued the appellant and second defendant. Judgment in default of defence was entered against the second defendant. At trial the appellant was found jointly liable with the second defendant in damages for the death of the deceased as the driving had been to the benefit of the appellant.

11 The issue raised on appeal was whether the driver of the car was the agent of the appellant at the time of the collision. Zacca, P(Ag) (as he then was) held citing Morgans v Launchbury that:

“When a company or an individual in the course of its business hires a motor vehicle to a person on terms that during the period of hire the vehicle should be driven by the servant or agent of the owner, responsibility for the negligent driving of that motor vehicle will in ordinary circumstances devolve upon the owner: Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1 . An entirely different situation arises in law when such a company or individual hires the motor vehicle on condition that the motor vehicle can be driven by the hirer for purposes exclusively determined by the hirer, in which the benefits of the venture accrue wholly to the hirer. In this second case there is no joint interest between owner and hirer in the outcome of the venture and the hire is not dependent upon or affected by the profitability or otherwise of the venture. Such is the position in the instant case where the owner retained an interest in its motor vehicle charging a fee for wear and tear and stipulating for adequate maintenance but was otherwise entirely disinterested in the purposes for which the motor vehicle was used. We accept the view on the law of vicarious responsibility expressed in Morgans' case as the correct principles to be followed.”

12 Morgans v Launchbury [1973] A.C. 127 is the leading case on this question. Lord Wilberforce stated at page 135:

“For I regard it as clear that in order to fix vicarious liability upon the owner of a car in such a case as the present it must be shown that the driver was using it for the owner's purposes, under delegation of a task or duty. The substitution for this clear conception of a vague test based on “interest” or “concern” has nothing in reason or authority to commend it. Every man who gives permission for the use of his chattel may be said to have an interest or concern in its being carefully used, and, in most cases if it is a car, to have an interest or concern in the safety of the driver, but it has never been held that mere permission is enough to establish vicarious liability. And the appearance of the words in certain judgments ( Ormrod v. Crosville Motor Services Ltd. [1953] 1 W.L.R. 409, per Devlin J.; [1953] 1 W.L.R. 1120, per Denning L.J.) in a negative context (no interest or concern, therefore no agency) is no warrant whatever for transferring them into a positive test. I accept entirely that “agency” in contexts such as these is merely a concept, the meaning and purpose of which is to say “is vicariously liable,” and that either expression reflects a judgment of value — respondent superior is the law saying that the owner ought to pay. It is this imperative which the common law has endeavoured to work out through the cases. The owner ought to pay, it says, because he has authorised the act, or requested it, or because the actor is carrying out a task or duty delegated, or because he is in control of the actor's conduct. He ought not to pay (on...