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Sloan v Attorney-General of Fiji [1995] FJHC 53; Hbc0007j.94s (27 March 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 007 OF 1994S

Between:

PAUL BRENDON SLOAN
Plaintiff

- and -

1. THE ATTORNEY GENERAL OF FIJI
2. PUBLIC WORKS DEPARTMENT
Defendants

Mr. Q.B. Bale for the Plaintiff
Mr. M. Ahmadu for the State

JUDGMENT

In this action the Plaintiff is claiming damages against the defendants arising out of injuries suffered by him in a motor vehicle accident on 24 April 1991 which happened between Naboutini Village and the turn-off to Man Friday Resort on the Queen's Road.

Evidence on behalf of the Plaintiff was given by DR. FRANK PISUONERI (PWI), PECELI TUISAWAU (PW2), JOHN SMITH (PW3), ROBERT PHILLIPS (PW4), EPELI TONIASAU (PW5), and CONSTABLE LUKE QEREWAQA (PW7). The Plaintiff PAUL BRENDON SLOAN (PW6) also gave evidence.

For the defendants evidence was given by ARCHAYA (DWI) a road supervisor, ETUATE BARI (DW2) a road supervisor and PAULA BALELEI LEVUKA (DW3) engineer.

In this case it has been agreed that I decide on the issue of liability first and depending on the decision in this regard the next exercise will be the assessment of damages at a later date. In the Minutes of the Pre-Trial Conference counsel state that the "main issue to be determined by the Court is whether or not there were warning signs to show approaching vehicles of the road works being carried out by the Second Defendant".

To give a picture of the circumstance in which the accident happened, in so far as it is material to the issue before me, I will now look briefly at the evidence that has been adduced in this case.

The Plaintiff (PW6) who is about 64 years of age testified that on 24 April 1991 he was travelling in the Mayoral Car Regd. No. CE532 from Lautoka to Suva after performing his mayoral duties at Nadi and Lautoka. At that time he was Lord Mayor of Suva. He was being driven by his official driver EPELI TONIASAU (PW5). The Plaintiff was accompanied by ROBERT PHILLIPS (PW4) on the journey to and fro the West. Mr. Phillips and the Plaintiff were in the rear seat.

On their return journey along the Queen's Road the same day at about 5.00 p.m. there was an accident at a place between Naboutini Village and the turn-off to Man Friday Resort where a portion of the Queen's Road was under repair. The driver (PW5) encountered three large heaps of gravel directly ahead in the path he was travelling. The Plaintiff said that he himself had been driving for 40 years. He said that his driver was an extremely safe driver and he had no occasion to caution him to drive slowly right up to the time of the accident. The Plaintiff said that he did not see any road sign "before the immediate scene of accident". Although he was not looking for one he said that "had there been one I would have seen".

The Plaintiff further said that "a moving lorry created cloud of dust it impeded vision of our car driver confronted with gravel". The gravel was in the middle of left carriageway - in the path going towards Suva. The height of gravel would be 4 feet high. The car swerved to the right and it "turned over at least once". The Plaintiff felt severe pain when the car came to rest. He was lifted out and taken in a passing vehicle for medical examination. He said that before the accident he was a very fit person and was well known as an avid walker in the City of Suva; but today he is "sitting virtually crippled". This is the result of the accident.

In cross-examination he said that there were "some large signs - some road works in progress" some kilometres before.

The PWI testified as an orthopaedic surgeon. He saw the Plaintiff for the first time on 4 August 1994 after he was referred to him by doctors at the CWM Hospital. After studying the hospital file on him he concluded that the Plaintiff's present condition is due to the accident referred to hereabove and as a result complications followed. The PW1's evidence will be highly relevant in the assessment of damages exercise. Hence I do not propose to say anything further on his evidence at this stage.

The PW2, a villager who lives opposite the Man Friday entrance road testified that at about 4 to 4.30 p.m. while he was walking along the Queen's Road about 6 to 7 chains towards Nadi side the mayoral car went past them. Next thing he knew was that there was an accident about a chain from his driveway about 2 to 3 chains from the corner towards Nadi.

It was a "blind right corner". He said that there were no workers there at the time. Upgrading of road was going on and for about a chain the "whole width of the road was stripped" and they had "put gravel on top". It was a fine day. He said that there were three heaps of gravel about 2 to 3 yards apart two of the heaps were about 4 feet high with the first heap opposite his driveway and these must have been dumped between 2-4 p.m.

This witness said that the gravel was "towards Suva on the left hand side of the road - from the centre lane on the left lane itself. A vehicle will have to move to right to go ahead".

As far as the 'signs' are concerned he said that there were "completely no signs" anywhere near these heaps of gravel. He said that there was a big sign a kilometre away from the gravel towards Suva warning motorists from Suva.

The witness said that after the accident the same day gravel was "taken away" by spreading them out; the next day he was there and he said "funny signs placed on both side of gravel both Suva and Nadi side - notifying motorists loose gravel".

The PW3 took the Plaintiff to Korovisilou Health Centre for medical attention. He was returning from Nadi where he had been two days before. Although he was a passenger he also saw three heaps of gravel on the left hand side of the road coming from Nadi and this "obstructed vehicle going towards Suva". He said that he did not see any sign going to Nadi and on his return.

The PW4 testified along the same lines as the other witnesses as far as the heaps of gravel on the road is concerned. He said that when he saw the gravel it "was no more than 100 metres. Then we came upon it". He did not see any notice before the gravel.

The PW5 (the driver of the Mayoral Car) said that the accident took place between Matanipusi Hill and Naboutini Village and the turn off to Man Friday is close to Matanipusi Hill. He said he took evasive action when he saw the heap of gravel, applied his brake but "ended up on side of road and we tumbled over". He said that he did not see any "sign" but he saw a "Diversion" sign about 5 kilometres before the gravel. Before the gravel there was a bend.

The PW7 a police officer who took part in the investigation attended to the accident and found 3 heaps of gravel on the left hand lane coming from Nadi. As indicated in the diagram (exhibit P2). These heaps were not on the grassy edge and that it is not true that they were taken away from the road. He did not see any road sign nor did he see any sign towards Nadi past the heaps of gravel 20 to 30 metres away.

I shall now outline briefly what each of the three witnesses for the defendants said in relation to the "signs" for that is the sole issue before me to determine.

In his evidence in chief the DW1, a road supervisor of 26 years' standing outlined to Court the type and size of signs that are placed on the road when road works are in progress. This witness did not even know that there was an accident in the area in question until he was given summons to give evidence in this case. He cannot recollect this particular job. Then in cross-examination he said he had placed appropriate signs. He said that the three heaps of gravel were on the grass verge and not in the "carriage way"; when asked by Court he said that "we cleared the whole carriageway before we knocked off". On further cross-examination about the heaps of gravel he said that "I can't remember other heaps there or not". When asked further "Could have been there but can't remember" he replied "cannot say - can't remember".

The DW2 who was also a road supervisor remembered road works being carried out on this stretch of the road. He said "there were signs". He said that he only came to know of the accident through the newspapers on 26 April that is, two days after the accident. Then he went to the scene and saw the signs were placed near the work site. He like DWI said that no one told him about the accident.

The DW3, an engineer attached to the Public Works Department outlined to Court the steps that one normally takes by erecting signs to ensure the safety of road users. He said that they impose on the supervisors to check on these in the mornings and afternoons and this is "part of the standard procedure".

Now, dealing with the issue before me, these proceedings arise out of the road accident in the circumstances set out in the plaintiff's and his witnesses' evidence hereabove.

I find as fact on a balance of probability that three heaps of gravel were on the carriageway in the left lane coming from Nadi side between Naboutini Village and the turn off to Man Friday in the direction of Matanipusi Hill on the Queen's Road; the PW5 while driving the Mayoral car came close to these heaps of gravel and just then a truck went past him from the opposite direction throwing a lot of dust and this obscured his vision slightly; he swerved to avoid the heap of gravel at a time when he was very close to it, but his car zig zagged and went off the road.

The Plaintiff alleges negligence on the part of the second defendant in not placing appropriate signs on the road to warn motorists of dangers ahead. On the evidence before me I find as fact that appropriate signs were not there in close proximity to where the road works was going on. I accept the testimony of the Plaintiff and his witnesses in this regard. I reject the evidence of defendants' witnesses in regard to the placing of signs in the vicinity of the area in question where the accident happened. As the learned counsel for the plaintiff addressing the Court said, the DWI and DW2 merely talked about what the standard practice is regarding installation and placing of signs wherever works are in progress. It is a matter of comment that DW1 and DW2 did not even know that there was an accident until sometime afterwards.

The issues that are raised in this case are whether the defendants owed a duty of care to the Plaintiff and/or his driver, whether the defendants failed to discharge that duty of care, whether the suggested breach of duty caused the accident resulting in injuries to the Plaintiff. I shall now refer to these aspects of the matter.

In this case I find the facts established to create liability in the defendants for creating the peril to free passage of the highway and therefore they are liable for breach of duty and negligence of the second defendant's employees.

The second defendants I find owed a duty of care to protect road users by proper warning or signs from hazards on the highway which it created and for which it is responsible.

In this case they owed a duty of care to the motorist (PW5) and his passengers. The defendants had the care, control and management of the road. The failure on their part was not to erect warning signs to the effect that there was present an obstruction or the like.

The question whether the second defendant's activities created a potential hazard owes a duty of care for the safety of road-users may depend upon the extent of the danger created and the likelihood of injury.

The second defendants were in breach of their duty of care. On the evidence I find that the second defendant did not take proper steps to warn traffic of the presence of the three heaps of gravel right in the path of the left carriageway coming to Suva from the direction of Nadi.

In this accident the Plaintiff received serious injuries. On the evidence before me I accept his allegation that proper road signs were not placed at the approach to the heaps of gravel in the carriageway. The defendants were under a duty to do so for they themselves have indicated in their evidence that that is the standard practice. In HILL v CHIEF CONSTABLE OF WEST YORKSHIRE (1989) 1 AC 53 at p.60A LORD KEITH said:

"It has been said almost too frequently to require repeating in that foreseability of likely harm is not in itself a sufficient test of liability in negligence. Some further ingredient is invariably needed to establish the requisite proximity of relationship between plaintiff and defendant, and all the circumstances of the case must be carefully considered and analysed in order to ascertain whether such an ingredient is present. The nature of ingredient will be found to vary in a number of different categories of decided cases. ..." (underlining mine for emphasis.)

Having found that there was no warning to motorists by the placing of road signs in close proximity to the heaps of gravel the defendants have failed in their duty of care which they owed to motorists and in this case to the Plaintiff's driver and his passengers. On this point, although not on all fours with this case, it was held by Court of Appeal in a recent case STOVIN v WISE (NORFOLK COUNTY COUNCIL); THIRD PARTY (The Times March 8, 1994) that:

"Although the duty imposed on a highway authority by section 41(1) of the Highways Act 1980 to maintain the highway did not require it to carry out work on land not forming part of the highway, there was a common law duty of care owed to all road users by a highway authority to act to alleviate a known danger caused by persisting impaired visibility from an obstruction on land adjoining the highway.

.... that the council was in breach of its common law duty and 30 per cent to blame for serious injuries sustained by the plaintiff, Mr. Thomas Stovin, as a result of a collision with a car driven by the defendant, Mrs Rita Wise."

In this case:

"The plaintiff's claim for damages against the defendant was settled but the defendant had joined the council, the highway authority, as a third party alleging it was negligent and in breach of statutory duty in failing prior to the accident to take measures to reduce the risk to road users at what was known to be a dangerous junction: the view that the defendant had to her right when at the stop line in Cemetery Road was restricted by a bank on land belonging to British Rail".

In STOVIN (ibid) LORD JUSTICE ROCH in his judgment concurring said:

"that where a danger of physical damage existed for users of the highway due to the construction and layout of the highway, the highway authority was the only person to whom road users could look to remedy the situation.

The position of a highway authority bore a resemblance to that of an occupier of premises in relation to those whom he invited or allowed to come on his premises. In circumstances where the construction and layout of the highway presented an obvious risk of physical injury to users of the highway, or physical damage to vehicles, a duty of care arose.

There was a foreseeability of personal injury or physical damage to vehicles; a proximity between the highway user and the highway authority and it was fair, just and reasonable that the law should impose a duty on the council."

Although I have referred to STOVIN on the aspect of duty of care, I would read the case with this rider which KENNEDY LJ imposed when he said:

"It was worth noting that the decision should not lead to a flood of litigation against highway authorities for failing to improve visibility. The circumstances here were probably unique. The danger was significant, it was known to the council and subject to a landowner's agreement the council had actually decided to act at its own expense long before the accident had occurred."

Having determined that there was a duty of care and a breach of that duty, the next question is to determine whether the defendants' breach of duty to the Plaintiff was the cause of his injuries.

I find that the second defendant's failure to mount or display appropriate road signs in close proximity to the work site warning of danger ahead was the direct cause of the Plaintiff's injury. Its failure to take appropriate measures led to the Plaintiff's driver taking evasive action from a point about 100 metres after passing a dangerous bend before the first heap of gravel which was in the middle of the left carriageway coming from the direction of Nadi. This is essentially what happened. But because it failed to ensure that the danger is evident to the Plaintiff's driver to whom the duty is owed, it is liable in damages.

However, in the present case the driver (PW5) and the Plaintiff (PW6) and the passenger (PW4) all said that a truck came from the opposite direction and threw up a lot of dust and this "impeded" the driver's vision ahead. It it clear from the evidence that had dust not obstructed his view ahead he would have to some extent been able to manoeuvre his vehicle and would have thus avoided going off the road. Also had PW5 been driving at a slower speed he may have managed to avoid the heaps of gravel without a mishap but this does not mean that the heap of gravel did not have the potential to cause an accident.

All this boils down to the fact that there was contributory negligence on the part of the driver coupled with the cloud of dust which obscured his vision. Nevertheless, it would not be right or reasonable for the second defendant to ignore a risk of accident or injury which it has created by pouring these heaps of gravel on the highway in the manner outlined above.

In this case I am satisfied and find as fact on a balance of probability that the cause of the plaintiff's injury was the dumping of heaps of gravel in the middle of the left carriageway on the highway (Queen's Road) without proper road signs in 'close proximity' to the heaps to warn of danger ahead just past a sharp bend between Naboutini Village and the turn off to Man Friday in the direction of Matanipusi Hill on the Queen's Road.

For the above reasons I find that the defendants are 70 per cent to be blamed for this accident.

In the outcome, for the above reasons, I find that the defendants are liable in damages to the Plaintiff for the injuries suffered by him as a result of this accident.

I therefore order that the defendants pay damages to the Plaintiff which is to be assessed unless parties are able to agree on the quantum. The plaintiff is ordered to be paid the costs of this action.

D. Pathik
Judge

At Suva
27 March 1995

HBC0007J.94S