Cedric Stephens | The law of agency exists between drivers and owners

Question: You wrote a few times about the new Road Traffic law which is before the Senate and is intended to replace the 80-year-old legislation that is still in force. What are your views on the section of the new legislation that proposes to hold owners of motor vehicles responsible for the payment of traffic fines when drivers fail to do so?

- M.B., Kingston 8.

Answer: Many thanks for asking me to share my opinions on this issue. I have been following the passage of the legislation through parliament for over two years.

More recently, the proposed law has been the subject of a week-long protest action by taxi drivers. I am not surprised by the noise, misinformation and, to quote a certain US president, the fake news that is out there. Even this newspaper's opinion editor decided to enter the debate last Thursday. His piece, falsely headlined, 'Can't ketch Quaco? Really?' displayed ignorance and/or failure to conduct a minimum of research before expressing his opinion. Reasonable discussions must begin with an understanding of the objects and reasons for the bill; the reading of the 166-page document; and c) an awareness of the bloodbath that is occurring on our roads every day.

The bill says it is "in keeping with the international best practices for road safety (which was) "adapted for local conditions."

Road safety will remain forever in the minds of the parents and five-year-old sister of eight-year-old Tiara and 10-year-old Tia, who lost their lives in a motor vehicle accident along the Rose Hall Highway last Tuesday.

The accident appears to have been avoidable. Speeding with five children. The parents of eight-year-old Latisha Williams - the best friend of the Thompson sisters who also died - and those of two other children who were passengers will suffer emotional and other scars for the rest of their lives. Debates about the new law or protest actions that ignore these facts should not be taken seriously.

When a motor vehicle owner gives permission to another person to drive his/her vehicle, our legal system assumes, even in the absence of a written document, the existence of agency, a legal term. An agency relationship presupposes that one person, the agent (in this case the driver), acts on behalf of and with the authority of the other person, the principal (in this case, the owner). Most non-lawyer motorists, including taxi-drivers, and the opinion editor, appear to be unfamiliar with the concept, even though there are many instances of it all around. For example I give an overseas visitor who is staying at my house permission to drive my car. The go-ahead is given by word of mouth. It is provided on the understanding that if he/she gets involved in a collision, for which he/she is at fault, my insurer will pay the third party's claim. The insurer does not question my authority to grant permission. I am the owner/policyholder. If the matter ended up before a judge, the suit would be in my name and that of the visitor. This is an example of the law of agency in action.

If the vehicle is owned by a company and driven by an employee, the same general principle would apply under the doctrine respondeat superior. This Latin phrase means: 'let the superior reply'. This principle is invoked when there is a master-servant relationship between two persons. The doctrine is founded "on the proposition that when an employer (master) is acting through the facility of an employee or agent (servant) and liability is incurred during the course of the agency, due to the fault of the agent, then the employer or master must accept the responsibility," according to the third edition of the Law Dictionary.

The law of agency is one of the pillars on which our system of laws is built. It applies to all areas of law and is not unique to the proposed Road Traffic Act. Clause 69 recognises the existence of an agency relationship between a motor vehicle owner and the person he/she authorises to drive the vehicle. It reads:

"The owner of a motor vehicle shall :

Keep a record of every person who the owner authorises to drive the motor vehicle; and

"Satisfy himself that the person authorized to drive the motor vehicle -

"Is licensed to drive the motor vehicle of the category in which the motor vehicle is registered; and

"Resides at the address specified in the licences or, if the person no longer resides at that address, his current address.

"Where the driver or operator of the vehicle is alleged to have committed an offence under the Act .

"the owner or operator of the vehicle shall give such information as to the identity of the driver or operator - as is requested by any member of the Constabulary Force ..."

These provisions are not onerous. Mom-and-pop businesses or companies that employ thousands of persons comply with them as a matter of routine.

I am not an attorney, and therefore my interpretation should be considered that of a layman. That said, the Government's action in seeking to collect fines for road traffic offences that are committed by the drivers of motor vehicles and remain unpaid from the vehicle owners is simply applying the law of agency. In other words, it is placing an obligation on vehicle owners to ensure that persons who operate their vehicles comply with the Road Traffic Act or face monetary penalties. Put more simply: road safety is everybody's business. This is not crap as Andre Wright coarsely says.

It is smart, given the pain and suffering and the economic costs road accidents impose on society. The Government of Jamaica correctly applied the words of the local saying in this instance: "If yuh cyaah ketch Quaco, yuh ketch him shut!" using the law of agency.

- Cedric E. Stephens provides independent information and advice about the management of risks and insurance. If you need free information or counsel, email aegis@flowja.com.