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Dayal v Reddy [2006] FJCA 17; ABU0067.2004S (24 March 2006)

IN THE COURT OF APPEAL FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CIVIL APPEAL NO. ABU0067 of 2004S
(High Court Civil Action HBC0039 of 2004S)

BETWEEN:

ATISHWAR DAYAL
Appellant

AND:

JALENDRA REDDY
(by his father and next friend KRISHNA REDDY)
Respondent

Coram: Scott, JA
Stein, JA
Ford, JA

Hearing: Monday, 20 March 2006, Suva

Counsel: Mr A.K. Singh for the Appellant
Mr R.P. Chaudhary for the Respondents

Date of Judgment: Friday, 24 March 2006, Suva

JUDGMENT OF THE COURT

Introduction

[1] The appellant was the defendant in a personal injury action brought against him by the respondent. The writ was issued on 9 February 2000. It alleged that on 8 September 1992 the appellant drove his motor vehicle in such a negligent manner that it 'bumped and/or crashed into a timber gate as a result of which the plaintiff was pinned between the house and gate' thereby suffering injury to his left groin and hip.

[2] The action was tried before Justice Singh in the High Court at Lautoka on 11 August 2004. The judge upheld the respondent's claim and in a judgment dated 18 August 2004 he made an award of damages in his favour totalling $12,712.00 together with costs. The appellant now appeals against that decision.

Background

[3] At the time of the accident the respondent was only seven years of age. The appellant, who had been a police officer for 22 years, was acting sergeant at the Prosecution Office at Ba. Both families were neighbours at Naidrodro, Ba.

[4] On the day in question, the respondent had gone to the appellant's house around 4 p.m. to attend a birthday celebration for the appellant's niece. He had been a frequent visitor to the appellant's house. There was a gate outside the appellant's house which, as the judge noted, figured prominently in the proceedings. It was a wooden gate with wire mesh and was 3 feet high and 5 to 6 feet in width. The respondent told the court that the gate had no hinges but it was tied with a rope to a cement post and it dragged on the ground.

[5] The judge found that the respondent was holding the gate at the time; that he saw the appellant's vehicle arriving and as it entered the compound he thought that it would go to the garage but it came at speed and crushed his left leg with the gate.

[6] The appellant's evidence was that he intended to stop in front of the gate. The judge said:

'As he was going towards the gate he saw Jalen Reddy (the respondent) standing on the footpath about 8 feet from the gate. All of a sudden he saw him about four or 5 feet from the gate. He opened the gate towards the van. He was in process of stopping the van. The gate hit the van, bounced back and he saw Jalen trapped between the gate and the wall of the house. The van did not hit the gate; the gate hit the van.'

[7] Earlier, the court noted that the appellant claimed that the gate was not affixed by hinges in the strict sense but by half inch iron rods put into concrete. The appellant told the court that it had a spring fixed so that it bounced back. In cross-examination the appellant denied that it had been tied with a rope and was resting on the ground.

[8] The judge commented that the big issue was whether the gate was hinged or tied by rope at one end. After observing that there was a lot at stake for both parties, the judge went on to review the evidence and deal with the important issue of credibility. In relation to the appellant's description of the events, the judge concluded:

'Obviously the defendant appreciated the significance of having a bouncing gate because, if believed, it would exonerate him as it would put some distance between the car and the boy. The bouncing gate explanation is difficult to believe.'

[9] Turning then to consider the respondent's version of events, the judge said:

'I believe that the plaintiff despite his age gave the true version of events. I believe there was an error of judgment on the part of the defendant and he did not stop the vehicle in time so he hit the gate and the plaintiff which resulted in the injuries to the plaintiff . . . On balance of probability I find that the accident was due to the failure of the defendant to exercise the standard of care which a prudent driver would have done.'

Grounds of Appeal

[10] The appellant's written grounds of appeal are decidedly brief. They read:

'1. That the decision of learned trial judge is wrong because there is no specific (sic) of negligence.

2. That the learned trial Judge in dealing with evidence of Surend Kumar failed to direct himself that credibility was divisible.

3. That the decision of the learned trial judge is wrong in view of clear and cogent evidence adduced on behalf of the appellant that the injury the respondent (sic) was caused by a wooden [timber gate] which he opened the gate bounce back and hit (sic) which caused injury. The learned judge was wrong in holding that the gate alone would not have caused the injury.'

[11] In his written submissions, counsel for the appellant raised two other issues:

First: 'The evidence of the child of tender age given on oath but not corroborated in so far as the crucial issue of causation is concerned. The judge did not conduct any inquiry whether the child was of sufficient, intelligent (sic) or any warning by the judge to himself regarding lack of corroboration [section 10 of the Juveniles Act, Cap.56].'

Secondly: 'The trial judge was wrong in rejecting the evidence of Ronal Ravin Dayal because he was not cross-examined during the trial.'

[12] We can deal shortly with both these additional grounds. In relation to the first ground, the judge did, in fact, satisfy himself at the commencement of the evidence that the infant plaintiff, who was 12 at the date of the trial, did understand the nature of the oath in terms of section 10 of the Juveniles Act. After asking several questions directed at this issue, the judge commented, 'he appears reasonably mature.' Section 10 of the Juveniles Act does not require corroboration of an infant's evidence.

[13] In relation to Ronal Dayal's evidence, the court had been told that he was the appellant's nephew and he lived in Vancouver, Canada. The appellant sought leave to produce evidence Ronal Dayal had given in the Magistrates' Court when the appellant was prosecuted in relation to the incident and acquitted. His application was opposed by the respondent but the judge allowed the evidence to be admitted. The judge did not reject the evidence outright. What he said was:

'I have read the record of testimony of Ronal Ravin Dayal. It is remarkably brief. It does not touch on how the gate was affixed, the distances or damage to the gate or how far the gate was opened. It(s) significance is that he says the boy opened the gate suddenly. He is a relative of the defendant and is (sic) not cross-examined. Not much weight can be attributed to it.'

[14] All those observations were open to the judge on the evidence. We see no substance in this ground of appeal.

[15] Returning to the appellant's three original grounds of appeal, the difficulty he faces is that they are all inextricably based on issues of credibility. In Hewitt Anor v Habib Bank Ltd [2004] FJCA 33, this court said:

'The initial difficulty in the first ground of appeal is that the burden of showing that the trial judge was wrong in his findings on the facts lies on the appellant. Unless an appeal court is satisfied that the judge was wrong in his assessment of the facts, the appeal will be dismissed. (Colonial Securities Co v Massy) [1895] UKLawRpKQB 192; [1896] 1 QB 38, 39. Where a primary judge's estimation of the credibility of a witness forms a substantial part of the reasons for the judgment, the conclusions of fact will almost invariably be left alone (Powell v Streatham Manor Nursing Home) [1935] AC 243.'

[16] In the present case credibility was a crucial element. In the end the judge, who saw and heard all the witnesses, accepted the plaintiff's version of events and concluded that he had established his claim. That conclusion was clearly open to him on the evidence and no grounds have been established to warrant our interference with his findings.
Order

[17] The appeal is dismissed. The respondent is awarded costs in the sum of $500.

Scott, JA
Stein, JA
Ford, JA

Solicitors:

Messrs. G.P. Shankar and Company, Ba for the Appellant
Messrs. Chaudhary and Associates, Lautoka for the Respondents