GUYANA High Court Judge, Akbar Khan in 1970 found Guyana Mine Workers’ Union President, Winston Verbeke vicariously liable for damages relative to an action where a 66-year-old fruit vendor was killed in a motor accident involving his vehicle. The accident involved motorcar HM 112, owned by Winston Verbeke, which, in 1967, was driven by a man named Eleazer, who was engaged as a chauffeur by Verbeke’s agent, James Johnson.

After Verbeke admitted that Johnson was his agent, the Court found the trade unionist vicariously liable for damages to be paid to the estate of the fruit vendor.

The facts of the case disclosed that the deceased, Bridgerajie, mother of the plaintiff, Mini Persaud, was sitting on a pavement when the vehicle, which was being operated as a hire car, ran off the road and struck her down, pinning her under it.

   As a result of the injuries she received, Bridgerajie died within an hour.  At the time of the accident, one Eleazer was driving the vehicle with the permission of the defendant’s agent, who had engaged the man’s services in order to assist him in extricating the rear bumper of the car, which was hooked on to a refuse box, and the rear wheel, which was fastened in the mud.

The defendant (Verbeke) admitted that Johnson was employed by him as his agent to drive the car, and that he (the defendant) did not authorise Eleazer to drive the vehicle. He said that Johnson was the only person authorised to do so, and as such, his permitting Eleazer to drive was outside the scope of his authority or employment.

 The evidence also disclosed that the plaintiff (Mini Persaud) had worked jointly with the deceased as a fruit and provision vendor, and it was submitted that the plaintiff was not a dependant.   

The Court, in awarding damages to the plaintiff, held that:

(i)    The agent, Johnson, acted within the scope of his authority in obtaining the assistance of Eleazer to drive the car.  It was a joint operation which was negligently performed by Eleazer;
(ii)    the defendant  was vicariously liable for Johnson’s negligence in not ascertaining whether Eleazer was a competent  driver.  Johnson’s  act was an improper mode of performing his duties;
(iii)    the plaintiff  was not a dependant, and was entitled to an award of damages in the sum of $1,800 for loss of expectation of life under the Law Reform (Miscellaneous Provisions) Ordinance.

Senior Counsel, AS Manrj, represented the plaintiff, while Mr. BE Commissiong appeared for the defendant.     

In his judgment, Justice Khan noted that the plaintiff was the administratrix of the estate of the deceased, Bridgerajie, who had died on October 17, 1967 from injuries arising out of a motor car accident while she was sitting on the pavement at the corner of James and Callender Streets, Albouystown, Georgetown, and that she was also the woman’s only child.

Noting that the deceased was a 66, and a fruit and provision vendor, Justice Khan said she resided at 22 Callender Street, Albouystown, and as was noted earlier, carried on business on the pavement at the corner of James and Callender Streets, Albouystown, under the shed of a shop.

He said that on October 17, 1967 at about 9:30am,  the deceased was sitting on the pavement and tending her business, when motor car HM 112, owned by the defendant Winston Verbeke and operarted by his agent, mounted the said pavement and collided  and pinned  her under it, causing her to sustain excessive injuries, resulting in her death within an hour of the accident.

He said the evidence given by Mohamed Haniff, the lone eyewitness, was undisputed, in that he not only put the motorcar HM 112  on the southern parapet in James Street near to Callender Street at the time of the accident, but he also testified that the defendant’s rear wheel was stuck in the mud and that the rear bumper was hooked on to the Mayor & Town Council  refuse box, which was about  8 feet by 8 feet  by 12 inches high on the eastern parapet of Callender Street  and James Street.

Based on the eyewitness’ testimony, the judge said, Herby Eleazer was sitting behind the vehicle’s steering wheel with the engine beating heavily, while James Johnson, the admitted agent of the defendant, was outside and behind the car, lifting the bumper in an effort to extricate it from the refuse box while the driver was accelerating forward.  

Justice Khan said that it was in the course of this joint exercise that the car moved forward and backward again and again before it finally bounced forward and mounted the pavement where the deceased was, striking, and pinning her under it.   He said it was at this point that the eyewitness, Haniff, who was looking on at the operation, drew closer and saw Eleazer leaning against the steering wheel as if he was hurt.

He said it took Haniff, James Johnson and one Leacock to lift the car so as to extricate the deceased from under it. Bleeding and unconscious, the judge said, the police ambulance whisked her away shortly thereafter to the Georgetown Hospital, where she succumbed before 11:00am.

Said the judge: “The account given by Haniff is uncontradicted.  He impressed me as a credible witness, and I believe and accept his evidence in its entirety.”

Noting that Counsel for the plaintiff had further submitted that Johnson had the authority to get someone to assist in extricating the car while it was hooked and stuck, Justice Khan said: “This was a minor operation and was within the scope of Johnson’s authority, but he might have done it badly in employing Eleazer, who did it negligently.”

Contending that it was apparent to the Court that the situation could have been more involved, had the defendant not admitted that Johnson was his agent, Justice Khan said in closing:

“Having admitted that Johnson was his agent, the question to be resolved is whether Johnson in engaging Eleazer to assist him  in the operation of unhooking the car  in all the circumstances was within the scope of Johnson’s authority.”

Judgment was granted in favour of the plaintiff, who was awarded damages for compensation  against the defendant, Winston Verbeke.