Grace Jenner-Wright v T. Yassin & Others (CC 416 of 1960) [1963] SLSC 13 (16 September 1963)

Freetown Sept. 16, 1963 S. C. W. Betts Ag.J. {SUPREME COURT) GRACE JENNER-WRIGHT v. T. Y ASSIN AND N. JABER . AND ROYAL EXCHANGE ASSURANCE CORP. [C.C. 416/60] PlaintitJ Defendams Third Party Contract-lnsurance-Mator vehicle accident-Whether use of vehicle on occasio of accident was covered by policy-Meaning of "driver'' in policy-Use fo~ "social, domestic and pleasure purposes." While driving Yassin's van, Jaber ran into plaintiff's car while the latter was stationary. Plaintiff sued Yassin and Jaber for damages for negligence. Yassin obtained an order joining the Royal Exchange Assurance Corp. as third party defendants, because he claimed to be entitled to indemnity from them under his insurance policy. At the triai, it appeared that Yassin had authorised Jaber to use the van. In a statement, Yassin said that he had done so because Jaber "wished to purchase the van and was trying it out in order to decide whether or not he would buy it." In an affidavit, Yassin said that, on the day before the accident. he had left the van with a mechanic (Bamin) for some repairs to be done, and: not being able to collect it himself, had " requested [Jaber] to collect the said vehicle from the said . . . Bamin and try same for me to see that it was in working order." In a statement to the insurance company, Jaber said; " ... My reason for driving [the van] was with a view to buying it for M. Jaber & Sons. I came from Murray Town towards Freetown and as a favour carried on the back of the van 10 cases empty Coca Cola which I was taking to my shop and these were to be coliected by Freetown Cold Storage .... " The van was covered by the insurance policy only when in use for " soda!, domestic and pleasure purposes " and only when being driven by the insured or " any other person who is driving on the insured's order or with hi5 permission." Held, for the plaintiff against Yassin and the insurance company, the insurance company was bound to indemnify Y assin, because, at the time of the accident, Jaber was driving the van with Yassin's permission and the van was being driven for a domestic purpose. Note: This judgment was affirmed by the Court of Appeal on March 20, 1964 (Ames P. dissenting) (Civil App. 21/63). Cases referred to : Wood v. Generai Accident, Fire and Life Assurance Corporation Ltd. (1948) 65 T.L.R. 53 ; Passmore v. Vulcan Boiler & General Co. (1936) 54 Ll.L.R. 92. Cyrus Rogers-Wright and Solomon A. J. Pratt for the plaintiff. Ursula D. Khan and Zinenool L. Khan for the defendants. Arthur E. Dobbs, Alfred H. C. Barlatt and S. Beccles Davies for the third party. S. C. W. BETIS Ao.J. The plaintiff's evidence as to the cause of the accident involving car C.350 and van C.92 at the highway along Brookfields 72 Congo Town, on June 30, 1960, was not disputed either by the defendants g,oa?• third party. The plaintiff said her vehicle was stationary when C.92, or, tne from west to east, in the opposite direction to that along which she dn~en vening, jumped its place in the queue and raced on to overtake two wa:;_ ~ra ahead of it. It succeeded in overtaking one but in the attempt to -ehJc,es • d h . . 'd h v ' n' e another the van swerve rat er VICiously to the other s1 e of t e o:rve~t"~d crashed into C.350, stationary at that side. This resulted in severe roaa a A to c 350 and shock and pain to the plaintiff who has brought this daroag" · action. . . I the amended statement of cla1m delivered and filed on July 6, 1961, . ~ t~ 1 cost of repairs was set down at £259 3s. Od., whilst the pre-accident <i-n~ ~o "' ' • was -f485. It would seem to me, if my mathematics are correct, that the van.1e -~' ; tiff ought to claim £225 17s. Od. instead of £235 to cover the cost of the ~,a.n There has also been no contention that the plaintiff in fact suffered pain ~a~ shock. The real point at issue in this case is whether the Royal Exchange ~:surance, with whom both the plaintiff and first defendant are insured, should indemnify the first defendant. Mr. Hunt gave evidence for the third party disclaiming liabiiity for the assurance company on the grounds that Yassin, first defendant, had committed two breaches in the provisions of the policy (Exh. "C "). According to Hunt these breaches are: (a) that the vehicle was ~ot insured against the risk of another person driving it ; (b) that the vehicle was not insured against any risk when the vehicle is involved in any accident outside domestic and pleasure purposes. In answer to these Yassin claims indemnity. From the evidence of Pierindo Bamin it appears that Jaber, the second defendant, had the permission of the first defendant to drive the van. The evidence he gave was that he was instructed by Yassin to hand the van over to Jaber for testing as Jaber wanted to buy the van. He, in fact, handed the van over on June 30. The schedule to the policy (Exh. "C ") defines who a driver is for the purposes of the policy. It says under (B) "Driver," "Any other person who is driving on the insured's or with his permission." It would seem also from Bamin's evidence the van was still on test. It was argued for the third party that this ~~"""''"<> over is equivalent to a bailment and that the policy does not cover use to which the van was put when it is the subject of a contract of bail­ I agree in principle that a bailor of a chattel is not liable for the c~'"l>"'5"'"'" of a bailee in his use of the chattel. What has to be determined in is whether the circumstances described can be said to amount to a I believe that these circumstances describe a bailment, as the van was into the possession of the second defendant to be used for a particular after which it should be returned in specie. From the definition of a given in the policy it stands out clearly that the parting with possession in circumstances under which the van was given was not inconsistent with relevant provision of the policy. It is suggested by the third party that the vehicle was being used by the defendant, not the insured, on his own business because at the time accident he had 10 empty Coco-cola crates in the van. In the case of v. General Accident, Fire and Life Assurance Corporation Ltd. (1948) . T.L.R. 53 it is shown that whether a vehicle was on a particular occasion o:~g used for private or business purposes is usually a pure question of fact. Wnh regard to these crates, Bamin's evidence was that second defendant said " he was carrying them as a favour for his friend." Bamin was called by the 73 s. c 1963 JENJ-.'ER­ WRIGHT V. YASSIN A.l..;D JABER. S. C W. Betts Ag.J. Road, Congo Town, on June 30, 1960, was not disputed either by the defendants or the third party. The plaintiff said her vehicle was stationary when C.92, driven from west to east, in the opposite direction to that along which she was travelling, jumped its place in the queue and raced on to overtake two vehicles ahead of it. It succeeded in overtaking one but in the attempt to overtake another the van swerved rather viciously to the other side of the road and crashed into C.350, stationary at that side. This resulted in severe damage to C.350 and shock and pain to the plaintiff who has brought this action. In the amended statement of claim delivered and filed on July 6, 1961, the total cost of repairs was set down at £259 3s. Od., whilst the pre-accident value was £485. It would seem to me, if my mathematics are correct, that the plaintiff ought to claim £225 17s. Od. instead of £235 to cover the cost of the car. There has also been no contention that the plaintiff in fact suffered pain and shock. The real point at issue in this case is whether the Royal Exchange Assurance, with whom both the plaintiff and first defendant are insured, should indemnify the first defendant. Mr. Hunt gave evidence for the third party disclaiming liability for the assurance company on the grounds that Yassin, first defendant, had committed two breaches in the provisions of the policy (Exh. "C "). According to Hunt these breaches are: (a) that the vehicle was not insured against the risk of another person driving it ; (b) that the vehicle was not insured against any risk when the vehicle is involved in any accident outside domestic and pleasure purposes. In answer to these Yassin claims indemnity. From the evidence of Pierindo Bamin it appears that Jaber, the second defendant, had the permission of the first defendant to drive the van. The evidence he gave was that he was instructed by Yassin to hand the van over to Jaber for testing as Jaber wanted to buy the van. He, in fact, handed the van over on June 30. The schedule to the policy (Exh. "C ") defines who a driver is for the purposes of the policy. It says under (B) "Driver," "Any other person who is driving on the insured's order or with his permission." It would seem also from Bamin's evidence that the van was still on test. It was argued for the third party that this handing over is equivalent to a bailment and that the policy does not cover the use to which the van was put when it is the subject of a contract of bail­ ment. I agree in principie that a bailor of a chattel is not liable for the negligence of a bailee in his use of the chatteL What has to be determined in this case is whether the circumstances described can be said to amount to a bailment. I believe that these circumstances describe a bailment, as the van was given into the possession of the second defendant to be used for a particular reason, after which it should be returned in specie. From the definition of a driver given in the policy it stands out clearly that the parting with possession in the circumstances under which the van was given was not inconsistent with the relevant provision of the policy. It is suggested by the third party that the vehicle was being used by the second defendant, not the insured, on his own business because at the time of the accident he had 10 empty Coco-cola crates in the van. In the case of Wood v. General Accident, Fire and Life Assurance Corporation Ltd. (1948) 65 T.L.R. 53 it is shown that whether a vehicle was on a particular occasion being used for private or business purposes is usually a pure question of fact. With regard to these crates, Bamirr's evidence was that second defendant said " he was carrying them as a favour for his friend." Bamin was called by the 73 s. c. 1963 JENNER­ WRIGHT V. YASSIN &"'D JABER. S. C. W. Betts Ag.J. s. c. 1963 JENNER· WRIGHT V. YASSIN AND JABER. S. C. W. Betts Ag.J, F reetov;m Sept. 16, 1963 S. C. W. Betts J. third party and his evidence was not challenged; further, there is no other evidence from which I could conclude differently. In Passmore v. Vulcan Boiler & General Co. (1936) 54 LLL.R. 92, du Parcq, then J., said that if the insured, as a matter of kindness, courtesy or charity, gave a lift to someone who happened to be on business of his own, he would think that the proper v1ew was that the vehicle was then being used for a social purpose-in this case domestic purpose. I am not satisfied that, as a fact, the second defendant was not using the van for a domestic purpose and I also feel that the principle enunciated by du Parcq J. could be extended to a person who is using the vehicle within the competency of the policy-that is, with the permission of the insured. I have already dealt with the amount which ought to have been claimed for the car. There is stiil outstanding the question of alternative transportation. In her evidence the plaintiff said that she secured a car from the day after the accident which she kept till August 4, 1960, at £3 10s. Od. a day. This was not disputed. From July 1 to August 4 inclusive are 35 days; at £3 10s. Od. a day this amounts to £122 10s. Od. I grant this amount was.spent to provide alternative transportation ; for pain and shock I allow £20. I am satisfied that the second defendant was negligent and that the accident was a result of his negligence. I find for the plaintiff and I allow £225 17s. Od. for the value of the car; £122 10s. Od. for provision of alternative transportation; £20 for pain and shock. As it is the insured's car that occasioned the damage to plaintiff's car and the pain and shock to plaintiff I order that the assurance company are liable to indemnify the insured without prejudice to their right to any claim they could bring against the second . defendant. Costs for the plaintiff. [SUPREME COURT] HANNAH E. GRA1\i'T, ADMINISTRATRIX OF THE ESTATE OF WILLIAM M. GRANT, DECEASED . v. KARIM LAWRENCE . [C.C. 34/62] Plaintiff Defrm:dant Tort-Negligence-Pedestrian struck by automobile-Speed of automobile­ Damages. Fatal Accidents Act, 1846 (9 & 10 Vict. c. 93)-Fatal Accidents Act, 1864 (27 & 28 Vict. c. 95)-Law Reform (Miscellaneous Provisions) Act (Cap. 19, Laws of Sierra Leone, 1960)-Fatal Accidents (Damages) Aet, 1961 (No. 58 of 1961). On May 21, 1961, William M. Grant (the deceased) was struck on West­ moreland Street, Freetown, by an automobile driven by the defendant. The deceased died on May 27, and the administratrix of his estate brought suit against the defendant under the Fatal Accidents Acts, 1846 to 1961, and the Law Reform (Miscellaneous Provisions) Act on 'behalf of herself and deceased's other dependants. At the trial, there was some conflict in the testimony, particularly regarding the speed of defendant's car. 74