Attorney General v Sibajene (Appeal 103 of 1999) [2000] ZMSC 148 (22 August 2000)

IN THE SUPREME COUR FOR ZAMBIA Appeal No. 103/99 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: ATTORNEY GENERAL Appellant AND SHADDY K. SIBAJENE Respondent Coram: Ngulube CJ. Sakala and Chirwa Jjs. On 27th June and 22nd August 2000 For the Appellant: Joseph Jalasi, State Advocate For the Respondent: C. M. Sampa of C. M. Sampa and Company JUDGMENT Ngulube CJ. delivered the judgment of the court. For convenience, we will refer to the respondent as the Plaintiff and the appellant as the defendant, which were their designations below. In the early hours of 23rd May 1999 between 0230 and 0400 hours there was a road traffic accident involving a government Toyota vehicle driven by a government driver (who was DW3 in the case) and the plaintiff’s datsun car driven by his agent. The plaintiffs car was damaged beyond economic repair. It was not in dispute that the accident was caused wholly by the negligence of DW3. The defence put up was that DW3 was at the time neither on duty nor on any authorized trip, in other words, that he was on a frolic of his own. There was evidence that DW3 was allowed to keep the government vehicle and to park it overnight at Chawama Police Station. He was to drive his superior’s spouse to and from the hospital at visiting times and to take food to the superior who was hospitalized. DW3 said that his transport officer had also generally allowed him to use the vehicle in the case of his own family emergencies to take the members of his own family for medical treatment. He said he had that night taken his child to a herbalist in Linda Compound where the child was detained and had later again gone to check on the child. He was returning from there, intending to go on the early morning hospital run for his superior when the accident occurred. There was evidence from a senior workmate (who was DW2) that sometime after 0200 hours that night, she had gone to drink at a place in the Makeni area known as “Barbeque”. She said that later on, DW3 arrived with some friends and joined in the drinking. Later, they all decided to go home in the vehicle driven by DW3 when they met with the accident. The learned trial Judge considered the evidence and accepted the evidence of the government driver, DW3, that he was authorized by the transport officer to use the vehicle when a member of his family was ill. That being the case, he was on a permitted trip and was on duty. The Judge considered that it was then for the defendant to rebut this and as this was not done, the court would follow the decision to this effect in GIOGIO FRASCHINI AND MOTOR PARTS (COPPERBELT) -v- THE ATTORNEY-GENERAL (1984) ZR 29 and find for the plaintiff. The learned trial Judge held that not only was the use of the vehicle in emergencies permitted and within the scope of DW3’s employment, but also that the route he used was within the area where he usually operated for going to his working place. The defendant has appealed against the attaching of vicarious liability. The three grounds of appeal advanced all attacked specific findings of fact made upon which the court was satisfied that vicarious liability should attach. Thus the first ground alleged error in the finding that the driver was on duty and on an authorized journey. It was argued that the court ought to have disbelieved the driver’s story so that he was not authorized to take his sick child for treatment in that vehicle. He should have been found to have gone on a drinking spree, as suggested by DW2. The second ground of appeal alleged a misdirection on the part of the court when it accepted the driver’s evidence and expected the defendant to rebut it. It was submitted that the evidence of DWs 1 and 2 who denied authorizing private use and suggested there was a drinking spree, respectively, should have been held sufficient to rebut the driver’s account. It should be noted, for the record that the evidence being criticized and sought to be discredited was proffered by the defendants themselves and there was nothing said at the time to suggest to the learned trial Judge that it was being offered other than as worthy of credit. We find these submissions and the calling of conflicting evidence to be something of a curious contradiction. The third ground of appeal alleged a misdirection in the finding that the road where the accident occurred was within the area where DW3 usually operated for going to his working place when the accident occurred at Monty’s which is on the way to Kafue after the Chawama turn off. The evidence accepted by the learned trial Judge was that DW3 was coming from Linda township where he had left his sick child with a herbalist and if the court is to engage in taking judicial notice of the well-known location of various places and roads in and around Lusaka, it would not be surprising that a person coming from Linda going towards the city or towards Chawama even would be on the route taken by DW3 which was all on the main Lusaka-Kafue road. We were invited to distinguish this from the FRASCHINI case, among other reasons, because the place of accident in the present case was beyond Chawama so that he was not on a route within the authorized operating area. We have already pointed out that DW3 was coming from the herbalist in that direction. It was also said that the time of accident here was an awkward one while the time was not known in the FRASCHINI case. This distinction was in fact false and indistinguishable. Even in FRASCHINI the time of accident was given as 2350 hours, a time the driver was already expected to have parked the vehicle. There too, the driver had gone on a drinking binge and was convicted of drunken driving. However, he was found to have been headed in the right direction for a person that had decided to resume the course of employment since the route led to one of the authorized parking places. FRASCHINI established or affirmed that if a worker is an employee of a particular class and the act complained of was one which would in the ordinary course be within the scope of the employment of employees of that class, that was sufficient to establish a prima facie case that the act complained of was committed by the worker in the course of his employment. The onus of proof then shifts to the employer to show that the employee was acting outside that scope. It was said that if the worker was doing something which he was employed or authorized to do, then however improper the manner in which he was doing it, whether negligent or fraudulent or contrary to express orders, the employer is liable. Such generous construction of the scope and course of employment would also appear to find support - in principle - from the analogous position of the liability of the owner of a chattel (such as a car) who lends it to another when it causes injury to the plaintiff if the owner has retained the right to control the use of it and at the same time if the owner has an interest in the purpose for which it is being used: see generally, paragraphs 3 - 49 and 3-50 of Clerk and Lindsell on Torts, 16th edition. In the case at hand, DW3 had the vehicle for the general purpose of facilitating family visits to the hospital where his superior was detained and he had resumed the course of employment, as the Judge found, even if he had made a stop to drink at the “Barbeque”. The learned trial Judge made findings of fact after seeing and hearing the witnesses at first hand. He believed the driver and on his story the principle in the FRASCHINI case applies and that case was not in fact distinguishable. We have reached this conclusion not without some regret since the line between the worker indulging in a frolic and his deciding to resume the course of employment was rather blurred. However, the conclusion is warranted on this matter’s own facts as found by the learned trial Judge. It follows that we have no good excuse to reverse the findings of fact or even to depart from the principle which this court affirmed in the FRASCHINI case. The appeal fails and costs follow the events. M. M. S. W. Ngulube CHIEF JUSTICE E. L. Sakala SUPREME COURT JUDGE D. K. Chirwa SUPREME COURT JUDGE