Kirnon v Allen

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Georges, J.
• Judgment Date: 27 July 1992
• Neutral Citation: MS 1992 HC 9
• Docket Number: 1 of 1991
• Date: 27 July 1992

High Court

Georges, J.

1 of 1991

Kirnon

and

Allen

Appearances:

Esco Henry for Plaintiff.

Kharl Markham for Defendant.

Damages — Liability — Subrogation — Indemnity — Defendant orally agreed to service the defendant's six month old car which he did and was paid for — Fault found and defendant returned the car next day — Insurers indemnified the plaintiff for damages done to car as a result of accident — Defendant had car in his possession at time of accident — Claim that defendant exceeded the scope of his authority and was therefore personally liable — Defendant not agent of plaintiff — Cannot recover because of contract of indemnity with insurers — Plaintiff cannot maintain action but insurance company could under the equitable third party right.

Georges, J.

1 (IN COURT)

2 By a specially indorsed Writ dated 2nd January, 1991 the plaintiff herein claims from the defendant the sum of $19, 500.00 the particulars of which are stated in the statement of claim to comprise:-

• 1. Loss suffered (by the Plaintiff) as a result of having to claim on his insurance — 15% of $48,000.00 EC$ 7,200

• 2. Loss of use from 3rd April, 1990 — 3rd August, 1990 at $100 per day EC$12,300

3 TOTAL — EC$19,500

4 There is also a claim for general. damages and costs.

5 The plaintiff's statement of claim alleges that:

• 1. At all material times the Defendant was and is a motor mechanic.

• 2. On or about the 2nd day of April, 1990 the Plaintiff and the Defendant entered into a contract whereby the Defendant agreed to repair the Plaintiff's motor car in return for which the Plaintiff agreed to pay for the cost of repairs.

• 3. The Plaintiff delivered the said car to the Defendant on or about: the 2nd day of April, 1990 and on or about the 3rd day of April, 1990 the Defendant without the consent of the Plaintiff drove the Plaintiff's car all over the island and got into an accident with the Plaintiff's car M1271 and damaged the said car beyond repairs.

• 4. The Plaintiff made a claim against the Defendant for EC$48,000.00 the value of the said car at the time of the accident and the Defendant agreed to pay the Plaintiff but failed or refused to do so.

• 5. As a result of the failure of the Defendant to pay the said sum the Plaintiff was forced to claim on his Insurance which deducted 15% of the value of the Plaintiff's car.

6 At the commencement of the hearing, Counsel for the plaintiff (on inquiry by the Court) found herself at pains to explain what the cause of action was in the statement of claim as pleaded. Order 18, rule 7(1) of the Rules of the Supreme Court, 1970 provides that like every pleading, the statement of claim must state in summary form the material facts on which the plaintiff relies for his claim. The material facts relied on must however disclose a reasonable cause of action against: the defendant, otherwise the statement of claim is liable to be struck out precisely on the ground that it does not disclose a reasonable cause of action. The statement of claim must in other words show, on the basis of the material facts alleged, a viable legal and enforceable claim against the defendant. Significantly, negligence has not been pleaded.

7 At the trial, no evidence was led in support of paragraph 4 of the plaintiff's statement of claim which was denied and the claim for loss of use in the amount of $12,300 which was also denied was not pursued. Learned Counsel proceeded on the basis that the defendant mechanic as agent of the plaintiff had acted outside the scope of his authority when he drove and damaged the plaintiff's car on 3rd April, 1990.

8 In short, the evidence revealed and it was largely undisputed and the Court therefore finds as a fact that on the 2nd April, 1990 the defendant orally agreed to service the plaintiff's six month old Honda Civic motor car registration number M1271 which he did and was paid $60.00. The defendant duly returned the plaintiff's vehicle to him but on moving off, the plaintiff told the Court there was “a hesitation” which he reported to the defendant and he therefore returned the vehicle to the defendant the following day (April 3rd) to have the fault rectified.

9 According to the plaintiff, the defendant in actual fact picked up the plaintiff's car from his place of work at about 8.30 am. About 3.00pm the said day, the plaintiff learned that his car was a write-off and that it had been involved in an accident on the St. John's Main Road approximately 9–10 miles from the defendant's...