| Fiji Islands - Shah v Prasad - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
Civil Jurisdiction
CIVIL ACTION NO. 433 OF 1985
BETWEEN:
SAIYAD HUZOOR SHAH
s/o Nishad Hussein Shah
Plaintiff
AND:
RAMESH PRASAD
s/o Hari Prasad
Defendant
ass=MsoBodyTextyText>Mr. H.M. Patel for the Plaintiff
Mr. P. Knight for the Defendant
JUDGMENT
This is a claim for general and special damages for injuries sustained by the plaintiff in a motor vehicle accident.
At the time of the accident on the evening of the 28th of December 1984 the plaintiff was the front seat passenger in a vehicle driven by the defendant. Earlier that evening he had attended a wedding in
Tamavua and was returning home along Princes Road when he accepted an offer of a lift to town in the defendant's car - a small Suzuki 800 cc car bearing registration number BH 621.
It is common ground that on the way, at the junction of Khalsa Road and Princes Road, the defendant's vehicle was involved in a collision with a white utility van registration number AV 857 driven by a Chinese man.
It is also common ground that the plaintiff as a direct result of that collision sustained injuries to his body but more especially
to his right leg which has had to be shortened. His permanent disability has been set at 20% with an unfavourable prognosis.
But proof of injury is not enough to entitle a party injured in an accident to obtain damages in a negligence suit.
This proposition is conveniently summarised in Vol. 34 of Halsbury's Laws of England (4th edition) at para. 54 in the following terms:
"The burden of proof in an action for damages for negligence rests primarily on the plaintiff, who, to maintain the action, must
show that he was injured by a negligent act or omission for which the defendant is in law responsible. This involves the proof of
some duty owed by the defendant to the plaintiff, some breach of that duty, and an injury to the plaintiff between which and the
breach of duty a causal connection must be established. Therefore it is insufficient for the plaintiff ... to prove injury without proving a breach of duty or injury which may or may not
be caused by a breach of duty." (My underlining)
The plaintiff's case against the defendant as contained in his pleadings alleges the following 'particulars of negligence' in the defendants driving of his motor vehicle:
"(a) Driving at a speed which was too fast in the circumstances;
(b) Failing to keep any or any proper look-out or to have any sufficient regard for other traffic particularly on-coming traffic on
the said road;
(c) Failing to give any or any adequate warning of his approach;
(d) Failing to blow the horn; and
(e) Failing to stop, to show down to swerve or in any other way to avoid colliding with the said motor vehicle No: AV 857 driven by
Lee Koi Ping thus sustaining severe injuries to the plaintiff."
In addition para 13 of the Statement of Claim states:
"13. The Plaintiff will further rely on the doctrine of "res ipsa loquitur" in that the said vehicle which was under the control
and management of the defendant hit the front of the plaintiff's person."
To prove these allegations the plaintiff himself gave evidence of how the accident occurred, he said:
"Whilst we were coming near Khalsa Road we were travelling at 70 kmph. It was raining and a van approached. We came close to
the van and there was an accident. We could not slow our vehicle and there was an accident. Our car was travelling partly on its
incorrect side of the road. I lost consciousness in the accident. Before accident defendant didn't sound horn or apply the brakes."
In cross-examination the plaintiff accepted that immediately prior to the scene of the accident the road is straight for about 1/2
a mile but more particularly in answer to defence counsel, he said:
"Prior to the accident when we were 2 chains away we were travelling at a high speed the defendant couldn't brake and there was
an accident. We didn't know the other vehicle would turn in front of us. The approaching vehicle came and turned in front of us."
and later:
"Our vehicle hit the side of the other vehicle. I don't know if vehicle was turning. The accident occurred in front of Khalsa
Road. I didn't notice the other vehicle indicating a turn. I did not notice if the collision occurred on the defendant's side of
the road."
He was adamant that the defendant's speed at the time of the accident was 70 kmph (not a range as might be expected of an estimated speed). According to him both driver's were at fault. He had issued a Writ against the Chinese man who was driving the van and that action
was settled for $25,000.
The defendant for his part described how the accident occurred. He said in his evidence:
"I was travelling from Tacirua towards Suva. After leaving the gravel section and going through Tacirua Village and approaching
the Khalsa Road junction I saw a white vehicle approaching. There was no indication given that it was turning so I continued and
all of a sudden the vehicle turned in front of me in front of the junction ... I was about 40 feet away when the other vehicle turned
in front of my vehicle. I had no time to stop. At the time I was travelling I reckon at about 35-40 kmph."
and later:
"The collision occurred on my side of the imaginary white line. My vehicle was pushed on the far left of the road. Our vehicles were
stuck together."
He denied that he was driving on his incorrect side of the road.
In cross-examination he accepted that there were potholes on the road but he was dodging them whilst remaining on his side of the
road. He didn't see his speedo but because of the population in the area and the road surface he was 'not driving fast'. He called the police to the scene.
The police officer who attended the accident described what he saw on arrival at the scene of the accident at the junction of Princes and Khalsa Road. He took various measurements at the scene and drew a sketch plan. More particularly he testified:
"After investigations I determined that the point of impact was on Princes Road just before Khalsa Road. I could see paint scrapings
on the road which to my view established the 'point of impact'. Facing towards Suva on Princes Road I say the 'point of impact' would
be on the left hand side of the road (i.e. the defendant's correct side)."
On his superior's instructions he charged the Chinese man with Careless Driving but does not know what became of the case.
In cross-examination he said it was normal procedure to serve a Notice of Intended Prosecution (NIP) on drivers involved in an accident within 14 days of the accident regardless of whether the particular driver was at fault or not.
He produced no sketch plan of the scene or police traffic docket nor were his diary notes made at the time, available. He agreed that he was relying on his memory of events that occurred over 7 years
ago.
The evidence of the police officer was frankly and fairly given and does not appear to me to be so far inconsistent with any other
credible evidence in the case as to justify me in rejecting it, and I accept it.
On the other hand having carefully considered the evidence set out above and mindful of his demeanour I formed the distinct view that
the plaintiff's evidence was selective and purposely tailored to bolster his claim.
I found his estimate of the defendant's speed immediately prior to the accident unreliable and exaggerated, as was his belated claim
(no where disclosed in the pleadings) that the defendant's car was travelling partly on its incorrect side of the road dodging potholes at the time of the accident.
I could not fail to note also that, the plaintiff began his evidence by accepting that the on-coming vehicle had turned without any
warning in the path of the defendant's vehicle but later denied any knowledge of it or seeing it occur. On this issue I completely
disbelieve the plaintiff and find as a fact that the on-coming vehicle driven by Lee Koi Ping did suddenly turn in the path of the defendant's vehicle without any indication or warning.
Needless to say even if I accepted that the defendant was driving at 70 kmph at the time of the accident, in the absence of any evidence of the speed limit on that particular stretch of road or of any evidence to suggest that the on-coming vehicle had indicated an intention to turn across the path of the defendant's vehicle,
or that the defendant had failed to properly control his vehicle, I cannot accept that the mere failure to sound a warning device and/or driving at a high speed per se is evidence of negligence.
I accept that a prudent and competent driver should drive at a speed that would enable him to safely control his vehicle but that
is a totally different proposition from requiring a driver, travelling on his correct side along a straight stretch of road with
unimpeded visibility, to anticipate and deal with the wholly unpredictable manoeuvre of a seemingly suicidal driver. The latter is
not the law.
As much as there is a conflict between the plaintiff and defendant's evidence I prefer the defendant who gave his evidence firmly
and frankly.
I also find that the defendant's evidence is more consistent with the site and extent of the damage sustained by the vehicles which
the police officer described as follows:
"... the car facing towards Suva (i.e. the defendant's) had damage on the front part of the vehicle. The vehicle parked on Khalsa Road (i.e. the Chinese man's) had damage on the front left hand side."
Needless to say the police after investigating the accident independently formed the view that the accident occurred on the defendant's
side of the road and in circumstances that the Chinese man alone should be charged with the criminal offence of Careless Driving.
In this case it is not denied and I accept unhesitatingly that the defendant owed a duty to exercise due care and proper control of
his car so as to ensure the safety of the plaintiff. Equally it is not denied and again I accept that the plaintiff sustained injuries
whilst travelling as a front seat passenger in the defendant's car.
But as was said by Willes J. in Lovegrove v. The London Brighton Railway Co. (1864) 139 RR 657 at p.688:
"It is not enough for the plaintiff to show that he has sustained an injury under circumstances which may lead to a suspicion,
or even a fair inference, that there may have been negligence on the part of the defendant; but he must go on and give evidence of
some specific act of negligence on the part of the person against whom he seeks compensation."
In the light of my findings in this case based on my assessment of the witnesses and their evidence I hold that the plaintiff who
bears the burden of proving his claim has failed on a balance of probabilities to prove any act of negligence on the part of the
defendant.
The action is accordingly dismissed with costs to the defendant to be taxed if not agreed.
D.V. Fatiaki
JUDGE
At Suva,
10th April, 1992.
Hbc0433j.85s
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