IN THE HIGH COURT OF JUSTICE AND AVON SURAJ BEFORE THE HONOURABLE MADAM JUSTICE JUDITH JONES

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV BETWEEN FURNESS RENTALS LIMITED Claimant AND AVON SURAJ ESSENTIA LIMITED Defendants BEFORE THE HONOURABLE MADAM JUSTICE JUDITH JONES Appearances: Mr. S. Young instructed by Mr. K. McQuilkin for Claimant Mr. S. Sharma instructed by Mr. A. Le Blanc for Second Defendant JUDGMENT 1. The facts are not in dispute. The Claimant is a car rental company and the owner of motor vehicle registration number PCB 3883 ( the motor vehicle ). At the material time the motor vehicle was assigned by the Claimant to Ray Brillinger ( Brillinger ), an occupant of a gated community known as Cascade River Gardens ( River Gardens ). The Second Defendant is a security firm and under contract to River Gardens to provide security services for the premises in accordance with a written contract.

2 2. On the 1 st August 2007, pursuant to an arrangement made between the Claimant and Brillinger, the keys for the Motor vehicle were left with a security guard employed by the Second Defendant at the guard booth situated at the entrance to River Gardens. The keys had been placed in a sealed envelope marked with the Claimant s name and handed to the guard on duty for collection by someone on behalf of the Second Defendant. 3. It is not in dispute that sometime between the 2 nd and 3 rd of August 2007 the First Defendant, a security guard employed by the Second Defendant, without the permission of either the Claimant or Brillinger, removed the motor vehicle from the compound and while driving it was involved in an accident. The evidence is that the First Defendant took the vehicle for the purpose of visiting his girlfriend who had just given birth. The motor vehicle was subsequently recovered but was assessed as uneconomical to repair and written off. There is no evidence identifying the First Defendant as the guard who received the keys. 4. This action proceeded against the Second Defendant as owner of the car. The case as pleaded is that the First Defendant caused the motor vehicle to be involved in an accident by reason of his negligence in the driving and controlling and managing of the said motor vehicle. The particulars of negligence pleaded relate to the First Defendant s negligence in the driving of the vehicle. The liability of the Second Defendant is by paragraph 9 of the Statement of Case described as follows: Page 2 of 11

3 As a result of the negligence of the First Named Defendant both of his doing and as the servant and/or agent of the Second Named Defendant, the Claimant has suffered loss and damage. 5. Both sides agree that the case falls squarely within the realm of vicarious liability. The question to be answered being whether the action of the First Defendant which resulted in the damage to the vehicle was so closely connected to the acts that he was authorised to do by the Second Defendant that for the purpose of liability of the Second Defendant his wrongful act may fairly and properly be regarded as made by him while acting in the ordinary course of his employment: Lister v Hesley Hall Ltd. [2002] 1 AC This rule has been restated by the Judicial Committee of the Privy Council in Brown v Robinson and another (2004) 65 WIR 258 to be whether the acts were so closely connected with the employment that it would be just and reasonable to hold the employer liable. At the end of the day this is an issue of fact for my determination. 7. Despite being summoned to Court as a witness for the Claimant the First Defendant did not appear. As would be expected the evidence with respect to the scope of the employment of the First Defendant comes from the Second Defendant. The effect of the evidence of the Managing Director of the Second Defendant was that the scope of employment of security guards employed by it Page 3 of 11

4 and stationed at River Gardens did not include keeping items for collection at the security booth. According to him the guards were stationed on the premises merely to direct and regulate traffic in and out of the compound. In particular he denies that the guards were stationed there for the purpose of protecting the property of the residents from intruders. According to him in the event of an intruder the guards are instructed to call Securicor, another security firm, who would then respond accordingly. 8. The effect of his evidence therefore is that the guards were not employed to protect the property of the residents of River Gardens. In this regard, save that the guards were also required to close the pool washrooms at night, distribute mail, assist with the parking of vehicles and be responsible for the condition of their guard booth the rules, the written instructions provided to the guards and tendered into evidence by the Second Defendant accord with this position. 9. Of note is the fact that the instructions to the guards provide that (a) the officer at the main guard booth not leave that location and contact the officer at the rear guard booth via radio if assistance is required (b) in the event that a driver does not identify as a resident and is uncooperative, if the guard is of the opinion that the driver is a non-resident and may have criminal intentions, the guard is to refuse entry, call for backup from the rear guard booth and contact the property manager and (c) record the arrival and departure time of the mobile patrol when they conduct their visits. Further it is clear that, save as to the requirement that all Page 4 of 11

5 persons leaving the compound are to be logged out and their duties with respect to the opening and closing of the gate, the rules give no responsibility to the guards with respect to persons leaving the compound, as for example, searching the vehicle or person so exiting. 10. Brillinger no longer resides in the jurisdiction. His evidence by way of a written statement given to Insurance Investigators is that he placed the keys for the car in an envelope addressed it to the Claimant with his name and apartment number on it. The envelope was stapled about five times. He gave the envelope to the guard on duty at the Security Gate House at that time. This, according to him, was to facilitate the Claimant picking up the vehicle. This he says he was accustomed doing whenever he left the country. 11. The evidence of Roger Khan, the Operations Manager of the Claimant, is that the Claimant had a number of vehicles assigned to persons living at River Gardens. To facilitate the procedure of taking the cars to have them cleaned, serviced and returned to the compound. The resident would place the keys in a sealed envelope addressed to the Claimant and leave it at the security booth with the security officer. When they were finished with the car they would use the same procedure to return the car to the resident. 12. This he says was done with respect to the motor vehicle on at least 3 to 4 occasions. The 1 st August 2006 was a public holiday and as a result he made Page 5 of 11

6 arrangements to have the car collected on the next working day. On the 3 rd August, presumably the next working day, he was told something about the motor vehicle and thereafter discovered that the motor vehicle was in the possession of the First Defendant. Under cross-examination he admits that the arrangement with respect to the keys was a private arrangement made between Brillinger and himself. 13. On the evidence therefore it seems to me that the primary duty of the guards were to secure the perimeter of the compound; monitor the traffic, both vehicular and pedestrian, and ensure that no entry was given to any unauthorised person. The fact that they were also required to note the arrival and departure time of the Mobile Patrol suggests to me that the security arrangements at River Gardens included additional security services not provided by these guards. In this regard therefore I accept the evidence of the Managing Director of the Second Defendant as to the scope of employment of the guards. 14. The Claimant suggests that it must be that the Second Defendant was also responsible for the protection of the property of residents on the premises. It seems to me that given the evidence in this regard I cannot come to that conclusion. It seems to me that the absence of any authority to prevent persons leaving the compound or to search persons or vehicles leaving coupled with the fact that there were clearly other security services provided to the compound militates against arriving at this conclusion. Page 6 of 11

7 15. The matter however does not end here. Under consideration here are two acts, the first is the act of accepting the keys for the car in order to pass those keys onto the Claimant s representative and the second the acts directly causing the accident. Presumably by accepting the keys the guard guaranteed (i) their safekeeping, (ii) that they would be passed on to the right person, and (iii) that the guard would allow the representative of the Claimant company entry onto the premises for the purpose of collecting the motor vehicle. I accept the evidence led on behalf of the Claimant that this was an arrangement entered into by the resident and the guard. I also accept the evidence of the Claimant s operations manager that it was an arrangement adopted on a relatively regular basis with respect to other motor cars owned by them and assigned to other residents on the compound and that in particular it had been used on several occasions prior to August 2007 with respect to the motor vehicle. 16. These facts lead me to the inescapable conclusion that the arrangement for the collection of the car by the Claimant s employees was not merely personal to the resident and the particular guard on duty on the particular day in question. As well it is clear that the accommodation described was on the basis that the car would be collected within a reasonable time of the keys being left with the guard. From that it is reasonable to assume that since each guard worked a 12 hour shift the guard with whom the keys were left would be the same guard who would hand Page 7 of 11

8 over the keys to the Claimant s representative and allow entry onto the premises for the purpose of removing the vehicle. 17. Against that background the question to be answered is: the connection if any between the act in question and the employment. And if there is a connection then the closeness of that connection is to be considered. According to Lord Clyne in Lister v Hesley Hall Limited [2002] 1 A.C. 215 at page 232 paragraph 37 G The sufficiency of the connection may be gauged by asking whether the wrongful acts can be seen as ways of carrying out the work which the employer had authorised. 18. In this regard he suggests three matters which may be relevant in a given situation. The first is that in considering the scope of the employment a broad approach should be adopted. If there is a prohibition is it one that limits the sphere of the employment or does it merely deal with the conduct within the sphere? The second is that while consideration of the time and place at which the act occurred will always be relevant they may not be conclusive. And thirdly while the employment enables the employee to be present at a particular time at a particular place, the opportunity of being present at a particular premise whereby the employee has been able to perform the act in question does not mean that the act is necessarily within the scope of the employment. (Lister pages paragraph 42 E 45 G) Page 8 of 11

9 19. According to Lord Diplock in Ilkiw v Samuels [1963] 1 WLR 991 at 1004 the question to be asked is What is the job on which he was engaged for his employer? The answer, in my opinion, is securing the perimeter of the premises and ensuring that unauthorised persons did not enter the compound. In this regard therefore unlike the facts in Central Motors (Glasgow) Ltd. v Cessnock Garage and Motor Co SC 796 where the employer was held to be vicariously liable for the action of its night watchman, the car had not been entrusted to the guard for its safekeeping. 20. In my view the keys were entrusted to the guard for the purpose of allowing entry of the Claimant s representative and authorising the removal of the motor vehicle from the premises. In this regard therefore giving a broad approach to the scope of the employment of the guard the receipt of the keys could be considered to be within the scope of his employment in that it provided the authority to allow access to and egress from the compound of the Claimant s representative for the purpose of collecting the motor vehicle. 21. The guard was however not employed to protect and secure the safe keeping of the motor vehicle. There could have been no complaint for example, at least from this source, had the guard given the keys to someone masquerading as the representative of the Claimant and thereby allowed that person entry onto to the premises and to exit with the motor vehicle. In that instance the fault would lie Page 9 of 11

10 with the persons who made the arrangement, that is, the resident and the Claimant. 22. In the instant case of course the matter is complicated by the fact that it was an employee of the Second Defendant, facilitated by the arrangement made with respect to the keys, who took the car. Due consideration must be given to the fact that the car was not collected on that day. In addition have no evidence as to whether the keys were actually entrusted to the First Defendant or when the motor vehicle was removed from the compound. Evidence that the keys were actually entrusted to the First Defendant or that it was removed during that 12 hour shift may have made a difference. 23. It must be noted however that this is not a case where there is a claim of negligence against the Second Defendant directly. The Claimant has not alleged that the Second Defendant was itself negligent in, for example, its choice of security guard or in breach of some duty of care owed to a resident or River Gardens. The plea is solely that the employee was negligent in the driving of the motor vehicle and that the Second Defendant, as employer, must therefore be liable for his actions. 24. In my opinion therefore the answer to the question what was the job on which he was engaged for his employer does not assist the Claimant. The First Defendant was employed by the Second Defendant to secure the premises and to monitor Page 10 of 11

11 and control the entry and exit of vehicles and pedestrians. The acts complained of, that is, his negligence in the managing and control of the vehicle, occurred while the First Defendant was on the classic frolic of his own for which the Second Defendant cannot be held liable. 25. In the circumstances the Claim is dismissed. The Claimant is to pay the Second Defendant s costs to be assessed on a prescribed costs basis. Dated this 5th day of February 2010 Judith A. D. Jones Judge Page 11 of 11