Anthony v Spencer et Al

• Jurisdiction: Antigua and Barbuda
• Court: Court of Appeal (Antigua and Barbuda)
• Judge: Lewis, C.J.
• Judgment Date: 26 February 1969
• Neutral Citation: AG 1969 CA 3
• Docket Number: Civil Appeal No.1 of 1968
• Date: 26 February 1969

Court of Appeal

Lewis, C.J., Gordon and Lewis, JJ.

Civil Appeal No.1 of 1968

Anthony

and

Spencer et al

Tort - Damages — Quantum — Whether damages awarded were excessive.

Vicarious liability - Agent — Servant — Delegation of Duty — Authorised Act done in an unauthorized manner

Agency - Servant or Agent

Facts: Evidence revealed that the judge awarded special damages for loss of earning resulting from the 60 days it was estimated, it would take for the respondent's car to be repaired

Facts: The issue was whether the appellant was vicariously liable for the negligent acts of J, the driver of his vehicle. Ownership of a vehicle is prima facie evidence that the vehicle is being driven on the owner's behalf unless there is evidence to the contrary. Evidence revealed that the vehicle owned by the appellant was managed on his behalf by his son E. E requested “J” the defendant/respondent to drive the vehicle to do the appellant's business

Facts: Appellant employed his son to drive his bus. The son instructed a third part (defendant)/respondent) to drive the bus in course of employment and there was collision. The issues was whether the appellant as owner of the bus was vicariously liable for negligence of third party (defendant/respondent) and whether the third party (defendant/respondent) drove the bus as agent of the appellant or as servant of the appellant.

Held: The trial judge was in the best position to access what was a “reasonable” time to repair the car. Unless there was evidence to challenge his finding of fact, the appeal must fail. Appeal dismissed. The 60 loss of earning allowed the plaintiff was not excessive.

Held: The appellant paid E and could terminate his services, hence, E was the appellants servant. Furthermore, E had delegated his duty to driving to J to do the appellant's business, and therefore the appellant was liable for J's negligent driving. Appeal dismissed.

Held: The defendant/respondent was the agent of the appellant for whom the appellant was liable. Appeal dismissed with costs.

1 The action arose out of a collision which took place on the 12 t-h of December, 1965, on the road to Bolans, between the plaintiff's motor car and a truck or bus belonging to the defendant-appellant, William Anthony, driven by one Fitzroy Joseph. The case was begun against William Anthony originally and, by an order dated the 16th November, 1966, Fitzroy Joseph was added as a second defendant. The learned trial judge found both defendants liable, William Anthony being vicariously liable for the act of Fitzroy Joseph.

2 Lewis, C.J. This is an appeal from a judgment of Mr. Justice Louisy in which he awarded damages totalling $1272.00 to the plaintiff-respondent, David Spencer.

3 In the Statement of Claim it was alleged that the collision was due to the negligent driving of the defendant or his servant, Fitzroy Joseph. Anthony put in his defence in April 1966. He denied that the bus was being driven by any agent or servant of his, and that Fitzroy Joseph was his agent or servant. He alleged that Fitzroy Joseph had driven it without his knowledge or consent.

4 Fitzroy Joseph filed his defence in January 1967. he admitted that he was the servant of William Anthony, and alleged that the collision was due not to any negligence on his part, but, that if there had been any negligence, it was a third party who was driving an oncoming pick-up on the Bolans road who had been negligent, and he, in trying to avoid this third party, in a dilemma ran into the plaintiff's car.

5 The learned trial judge found that Fitzroy had been negligent and there has been no cross appeal against this finding.

6 The appellant Anthony has appealed against the learned judge's finding as to his liability and also against the quantum of damages awarded. He maintains that the finding that Fitzroy Joseph was his servant is unreasonable, and that even if this is not so, the bus was not being used in the course of his business, nor did he have any interest in the, journey. He further alleges that his son, Eric Anthony, who was tyre regular driver of the bus, was not in any way negligent.

7 The evidence about Fitzroy Joseph being a servant was that on the day in question, the 12 ^th December, Eric sent to call Joseph, and lead told him that the bus had job to go and pick up some passengers at the airport who were coming in from St, Croix that he was tired and wanted him to do this job for him without pay, as a favour, end that before going to the airport he must go to Urlings and there pick up a girl — it is not quite clear whether this girl was also expecting a passenger or whether she was merely related to a passenger in respect of whom the job was being done. However, he was to go to Urlings and pick up this girl to take her to the airport to meet a passenger who was related to her and who was coming in from St. Croix. This was the evidence of Fitzroy Joseph. It was while he was on this journey that the collision occurred. He also said that he had previously driven the bus for Eric as a paid employee.

8 There was also the evidence of the plaintiff that he had previously seen Joseph driving the bus while Eric was on it.

9 William Anthony gave evidence as to the relationship between himself and his son, Eric Anthony. He said that Eric was the driver of the bus, and was paid for driving it, and he had to account to him daily. He also said in cross examination that Eric does all business in connection with the bus, but does not employ a conductor, and that nobody other than Eric drives the bus. Eric comes to him when he wants money, and he doesn't know Fitzroy Joseph.

10 Eric's evidence didn't quite tally with this. He said that he drives the bus for his father, and has to account to his father. He accounts to him weekly. It will be noted that the father had said he accounted daily. He also said that nobody else drive the bus for him, but he has employed the Conroy as a conductor on occasions; that he, Eric, has control of the running of the bus. He keeps the key. He keeps the bus at his premises. He said that there were two keys to the bus, one was kept in his house, and the other was kept in the bus. And he did no t give Fitzroy the key. He did not employ Fitzroy. He did not ask him to drive the bus for him on the Sunday in question. He was not expecting any passenger on a plane.

11 Well, the judge did not believe Eric on the question whether he requested this man Joseph to drive the bus that Sunday or not. He found as a fact that Eric was in control of the bus, that he had full control of the affairs of the bus, that he did in fact have a job to meet passengers who were coming in on the plane, and that he had. requested Fitzroy Joseph to do this work for him.

12 If an accident occurs through the negligence of a person who is driving a vehicle and who is not the owner, and there is no other evidence as to the relationship between the driver and the owner of the vehicle, then the fact of ownership is prima facie evidence that the...