Court of Appeal of Fiji

[08] Third party;averred,rred, among other things, that in the event of finding them liable by the Court, tre entitled to be indemnifimnified by the Third Party against the claim of the plaintiff for damages and all costs incurred by them in defending the action, as they claimed to have had a valid insurance policy for the car DT357 during the time material to the accident. Accordingly, the Defendants prayed for indemnity by the Third party, damages and costs.

[09] The Third Party, in its Statement of Defence, took up the position that the Defendants are not entitled for any indemnity or insurance cover in relation to these proceedings and challenged the validity of the insurance cover relied upon by the Defendants, on various grounds. It was specifically stated that the Defendants did not have a valid Compulsory 3rd Party Policy (CTP) to cover the injuries or the death occurred to a 3^rd partcordingly the Third Pard Party prayed for various reliefs, including a declaration that the Third Party is not liable to indemnify the Defendants, damages and cost on solicitor/client indemnitis”.

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[3] With this background, parties went to trial, and at the end of which the Learned High Court Judge held with the defendants. The plaintiff’s action was struck out and no liability was found in respect of the Defendants. Being aggrieved by the above findings of the Learned High Court Judge, the Appellant has filed this appeal on the following grounds of appeal:

GROUNDS OF APPEAL

Ground 1

The Learned Judge erred in law and in fact in putting heavy reliance on the sketch plan of the accident which plan of the accident which plan had not even been tendered by any party and remained untested.

Ground 2

The Learned Judge erred in law and in fact in not giving proper weight to, and in failing to properly analyze and misconstruing the evidence of the Appellant’s witnesses on the issue of liability.

Ground 3

The Learned Judge erred in law and in fact in his reliance on the Judgment of the Magistrates Court case number 3030 of 2007 and on what the witness stated therein.

Ground 4

The Learned Judge’s findings on liability cannot stand in view of the fatality of the evidence given in Court on Oath on the issue of liability.

Ground 5

The Learned Judge erred in law and in fact in not properly evaluating and assessing the evidence of the First Respondent and giving one paragraph and two sentences to the First Respondent’s evidence only and in fact stating his evidence “cannot be accepted” but going no further.

Ground 6

In any event, the Learned Judge failed to apportion blame to the two drivers (Emosi Nawaikula Lutu and Timoci Kaisuva) to decide whether or not the First Respondent fell under the principle propounded by the Fiji Court of Appeal in the case of Tevita Senico v Ambika Prasad (Civil Appeal Number 25 of 1996).

[4] In addition to the above grounds, the Third Party Defendants/3^rd Respondent also filed the following grounds of contention:

Grounds of Contention

1. The Learned Trial Judge erred in law and/or in fact when he described and/or ruled that since no liability is found, the counter claim by the Original Third Party against the Original Second Defendant is dismissed.
   
2. The Learned Trial Judge erred in law and/or in fact when he failed and/or omitted and/or neglected to decide the counterclaim(s) as between the Original Defendants and the Original Third Party.
   
3. The Learned Trial Judge erred in law and/or in fact when he dismissed the Original Third Party’s counterclaim(s) without properly adjudicating the same.
   
4. The Learned Trial Judge erred in law and/or in fact when he decided and/or ruled that considering the circumstances, no costs are ordered and parties shall bear their own costs.
   
5. The Learned Trial Judge erred in law and/or in fact when he ignored procedural law that governs conducting legal proceedings;
   
6. The Learned Trial Judge failed to interpret the law and/or interpret the law correctly.
   

[5] Accordingly, the Third Respondent submits that the Court of Appeal should make

the following ORDERS:

1. That the Learned Trial Judge’s ruling and/or judgment that since no liability is found, the counter claim by the Original Third Party against the Original Defendants is dismissed and considering the circumstances, no costs ordered and parties shall bear their own costs be reversed and/or set aside and/or quashed;
   
2. That the original Third Party’s Counterclaim be reinstated and/or adjudicated upon and be allowed with costs and the following specific and/or precise declarations and/or precise declarations and/or orders be made;
   
   1. A declaration that the Original Defendants were operating vehicle registration number DT357 unlawfully and/or illegally as at the date of the said accident by not having in place a valid Compulsory Third Party Policy issued pursuant to the Motor Vehicle (Third Party Insurance) Act of Fiji;
      
   2. A declaration that motor vehicle comprehensive policy issued on 4^th July 2007 is null and void for vehicle registration number DT357 as the Original Defendants were operating the said vehicle without a valid Compulsory Third Party Policy;
      
   100. Alternatively, a declaration that Tower Insurance Fiji Limited was at the date of the said accident the Compulsory Third Party Insurer for the said vehicle;
        
   4. A declaration that the Motor Vehicle Comprehensive Policy issued on 4^th July 2007 as it relates to vehicle registration number DT357 provides no cover or indemnify for third party death or bodily injury or legal liability for the said accident;
      
   5. A declaration that the Original Third Party is not liable to indemnify the Defendants against the whole of the Plaintiff’s claim(s) in relation to the alleged accident;
      
   6. A declaration that the Original Defendants are jointly and/or severally liable to the Plaintiff should the Plaintiff succeed in her claim(s);
      
   7. That the Original Defendant pay to the Original Third Party costs on an indemnity basis.
      

100. Such further or other orders and/or relief and/or declaration that the Court may deem fit and/or expedient and/or necessary in the circumstances.
     

[6] In view of the above grounds of appeal and grounds of contention it is incumbent upon this Court to determine if the judgment of the Learned High Court Judge could stand.

[7] As per paragraph 17 of his judgment, the Learned High Court Judge has largely relied on the oral evidence of witnesses PW-4, PW-5, and DW-1 together with documentary evidence including in particular, the judgment of the Magistrate’s Court marked DE-4, in approaching the question of liability. In a subsequent paragraph of his judgment, the learned High Court Judge also refers to the statements of the eye witnesses made to the Police after the accident, and the rough sketch of the scene of the accident drawn by the Police Officers as sources of evidence for the adjudication of the matter.

[8] The reliance of the Learned Judge on DE-4 in arriving at a decision warrants comment. The learned High Court Judge should not have relied on the Magistrate’s Court judgment, as the matter at hand is a separate and independent civil action based on damages. Section 09 of the Evidence Act permits the admission as evidence “the fact that a person has been convicted of an offence by or before any court in Fiji...for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence whether he was so convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil proceedings”. In including this provision in legislation, the legislature has correctly taken cognizance of the higher burden of proof required for a criminal conviction, the fact of which merits admission in a civil action. However, the fact of an acquittal is not accorded similar status as the burden of proof of a civil action is not on par with that of a criminal prosecution. Therefore, a criminal action which resulted in an acquittal need not necessarily preclude a finding of negligence in a civil action, which requires a lesser burden of proof.

[9] The Learned High Court Judge had arrived at the conclusion that the accident did not occur due to the negligence of the first defendant or due to any other reason on the part of the first defendant. Evidence reveals that the minibus in which the deceased had been travelling had projected over a distance of 42 meters throwing out the deceased from the van. The deceased, who was a young boy with aspirations to be a pilot, had died and with it all his future aspirations.

[10] This accident had occurred when the minibus driven by PW-4 had overtaken the truck driven by PW-5 just before the bend and had reached a straight stretch of road from where any oncoming vehicle was visible within a distance of a few hundred meters. A careful consideration of the evidence of PW-4 and PW-5 and the sketch (which forms part of the Magistrate’s Court case record which in turn is a marked document before the High Court), leaves no doubt that the accident had not taken place at the bend but after PW-4 passed the bend and reached the straight stretch of road.

[11] Despite this, the Learned High Court Judge had come to the conclusion that the overtaking had taken place exactly on the bend based on the admission of Timoci Kaisuva, (paragraph 30 of the judgment), his attention mainly been drawn by the sketch produced before the Magistrate’s Court, which was not a document produced before the High Court nor was it tested under cross-examination as suggested by the Plaintiffs in the High Court. If the Learned Judge had carefully scrutinized the sketch he would have come to a different conclusion and the sketch would have painted not merely a thousand words as alluded by the Learned Judge, but many more.

[12] The finding of the learned High Court Judge is at variance with his observation in the latter part of paragraph 42 of the judgment, where he states “that the collision has taken place at a point slightly towards the left from the middle line of the road...” which makes it clear that the First Respondent’s vehicle had come onto the lane of PW-4 and not vice versa. Although the national speed limit for a passenger van is 60 kmph, the speed of the minibus becomes irrelevant in light of the place of impact, which clearly was in the designated lane of PW-4.

[13] The speed of the minibus would only have been relevant if it had collided with another vehicle running on the same lane and in the same direction, which was not the case in the present scenario. The speed of the minibus is a matter for the authorities to take notice of but as far as the issues before us are concerned, speed plays no important part. The minibus driven by PW-4 was on the correct side of the road, whereas it is the car driven by the First Respondent, Lutu traveling on the wrong side of the road, which had collided with the minibus. Hence, with that factual reality, I cannot fathom the basis on which the Learned High Court Judge saw fit to take up the positions he had taken to exonerate the Respondent/Defendant/Accused. In view of the above reasoning, I do not consider the speed of the minibus a pertinent matter which requires me to lend my judicial mind.

[14] It is important at this juncture to advert to the position taken by the first defendant/respondent, in that he could not remember any details of the accident. Accordingly, he could only remember driving over a pothole but nothing about the fatal accident which occurred. Immediately after the collision, the first defendant had driven away from the scene of the accident, and had crashed in to a culvert about a kilometer away. His stance is that he crashed into the culvert when he was driving behind a container truck and had diverted towards the culvert to avoid ending up under the container truck. This sequence of events is an indirect admission that he had been driving at a considerable speed, fast enough to not be able to prevent his vehicle from driving under the container truck or crashing into the culvert to avoid the former fate.

[15] PW-5 corroborates part of these events, when he had found the first defendant after crashing into the culvert. PW-5 had followed the first defendant after the collision with the minibus as the first defendant had not stopped at the scene. While circumstantial, the speed at which the first defendant had been driving is corroborated by the fact that the minibus, a vehicle much larger in size to the respondent’s car, had projected over a distance of 42 meters and tumbled three times before coming to a stop.

[16] The first defendant’s amnesiac state vis-à-vis the accident is not corroborated by independent evidence, medical or otherwise. It is an affront to the intellect for this court to accept his uncorroborated version of events and their impact on his mental status. Therefore, I find the position of the first defendant to be untenable and as a result I fail to agree with the findings of the Learned High Court Judge.

[17] Further, I cannot but observe many contradictions evident in the judgment of the Learned High Court Judge which I will not venture into as the dispute at hand is resolved by a careful consideration of the place of impact among other evidence.

[18] Based on the foregoing reasoning, I am satisfied that there was no evidence of negligence on the part of PW-4 who drove the minibus exists and as such do not make a finding of negligence on his part. Therefore, there is no question of apportioning blame to the two drivers as the blame rests squarely on the First Respondent/Defendant, i.e. Emosi Nawaikalou Lutu. In view of the above finding, I hold the First Respondent (the driver of the vehicle) and the Second Respondent (the owner of the vehicle) both jointly and severally liable to pay damages to the Appellant.

[19] Having found that the First and Second Defendants are jointly and severally liable, now it is incumbent on this court to assess the amount payable as damages to the Appellant. The Appellant, in his Notice of Appeal under (d), had moved this Court to remit the case back to the High Court at Lautoka for assessment of damages. Irrespective of such application, it is the duty of this Court to remit the case back to the relevant High Court to assess the damages payable by the first and second defendants to the Appellant.

[20] Further, the third respondent/third party has disputed its liability to make any payment on behalf of the first and second Respondents/Defendants on the basis that the MCP (Motor Comprehensive Policy) excluded legal liability by way of clauses captioned “Third Party Personal Injury/Death” and “Legal Liability for Any one Accident” under “Legal Liability”. These clauses on page 2 of the MCP have been manually deleted by striking them off with an ink pen. In the absence of pertinent evidence to make a finding in this regard, it is necessary to remit the case back to the High Court to inquire into the liability of the third respondent/ third party and make a finding. In light of this situation together with the application of the Appellants, it is nothing but correct to remit it back to the High Court for the assessment of damages and to determine the liability of the third party.

[21] In conclusion, I set aside the judgment of the Learned High Court Judge dated 28^th September 2018 and hold that the first respondent had acted negligently in driving on the wrong side of the road and at an excessive speed thereby failing to avoid the fatal accident.

[22] In light of the above findings and reasoning, I answer the grounds of appeal in the following manner:

Ground 1

The Learned Judge erred in law and in fact in putting heavy reliance on the sketch plan of the accident which plan had not even been tendered by any party and remained untested.

A: The case record of the Magistrate Court is marked DE4 and the sketch forms part of it. However for the reasons stated above, the sketch is considered in favour of the Appellant.

Ground 2

The Learned Trial Judge erred in law and/or in fact when he failed and/or omitted and/or neglected to decide the counterclaim(s) as between the Original Defendants and the Original Third Party.

A: This cannot be a ground of appeal for the Appellant since he is not affected by the outcome of the counterclaim.

Ground 3

The Learned Trial Judge erred in law and/or in fact when he dismissed the Original Third Party’s counterclaim(s) without properly adjudicating the same.

A: The Appellant is not affected by the outcome of the counterclaim and hence this is not a contention relevant to the appeal at hand.

Ground 4

The Learned Trial Judge erred in law and/or in fact when he decided and/or ruled that considering the circumstances, no costs are ordered and parties shall bear their own costs.

A: Judicial discretion is permitted when ordering costs taking into consideration the merits of an individual case. Therefore, the learned High Court Judge has not erred in ordering parties to bear their own costs, which he may have done in light of the fact that the Plaintiff’s action was struck out and an additional burden on the Plaintiff was deemed unnecessary.

Ground 5

The Learned Trial Judge erred in law and/or in fact when he ignored procedural law that governs conducting legal proceedings;

A: No evidence was available before this Court in proof of this contention.

Ground 6

In any event, the Learned Judge failed to apportion blame to the two drivers (Emosi Nawaikula Lutu and Timoci Kaisuva) to decide whether or not the First Respondent fell under the principle propounded by the Fiji Court of Appeal in the case of Tevita Senico v Ambika Prasad (Civil Appeal Number ABU 25 of 1996S).

A: No liability in respect of minibus driver PW-4 was found. Hence, the issue of apportioning blame does not arise and the principle propounded in Tevita Senico v Ambika Prasad (Civil Appeal Number ABU 25 of 1996S) becomes irrelevant.

[23] I answer the grounds of appeal raised by the Appellant cumulatively in his/her favour. However, I refrain from answering the grounds of contention raised by the 3^rd party respondent as this Court has not made a finding with regards to its liability.

Jameel JA

[24] I agree with the reasons, conclusions and proposed orders of Lecamwasam, JA.

The Orders of the Court:

1. Appeal Allowed.

2. High Court Judgment dated 28^th September 2018 is set aside.

3. This case is remitted back to the High Court to assess damages payable to the Appellant after inquiring into the liability of the Third Party Respondent.

4. First and Second Respondents/Defendants to make a payment of F$5,000.00 as costs in favour of the Appellant.

5. No order of costs against the Third Party Respondent is made, since his liability is not yet determined.

Hon. Justice E. Basnayake

Justice of Appeal

Hon. Justice S. Lecamwasam

Justice of Appeal

Hon. Justice F. Jameel

Justice of Appeal