IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC0225 OF 1994

BETWEEN:

CHARLES VALENTINE
Plaintiff

AND

THE ATTORNEY-GENERAL
1st Defendant

AND

PUBLIC WORKS DEPARTMENT
2nd Defendant

AND

BISUN DEO
(f/n Ram Deo)
3rd Defendant

A. Seru with S. Valenitabua for the Plaintiff
S. Idris for the Defendants

JUDGMENT

This is an action for damages for personal injuries said to have been suffered by the Plaintiff on 25 February 1993 when a van driven by him collided with a loader driven by the third Defendant who was at the time employed by the Public Works Department which was carrying out road works on the Navua to Deuba stretch of the Queens Road.

The writ was issued on 13 May 1994. After various interlocutory applications an Order was made in the terms of the summons for directions on 18 January 1995. A pre-trial conference took place on 14 March 1995 under the provisions of Order 34 r2(2) and having considered the contents of the trial book I held a second pre-trial conference under the provisions of Order 34 r2(6) on 13 August 1996 at which both counsel attended. At that conference the dates for trial namely 5, 6, 7 November were fixed and the exchange of documents and reports was ordered.

On the first day of the trial, 5 November, Mr. Idris, who had filed a motion in support on 22 October, sought leave to replace the existing defence with an amended defence exhibited to the affidavit in support. The principal ground for wishing to replace the existing defence was that counsel who had previously handled the file in the Attorney-General's Chambers had left the service. Mr. Idris who had taken over the file wished to file a new defence which more adequately pleaded the two central planks of the defence case namely that the Plaintiff was entirely at fault for driving into the third Defendant's stationary vehicle and that the conviction entered against the third Defendant on a charge of dangerous driving by the Magistrates Court was bad in law and could not be relied on by the Plaintiff under the provisions of Section 9 of the Evidence Act (Cap 41). Mr. Idris sought to have the trial dates vacated in order to allow the amended pleadings to be filed and answered. Not surprisingly Mr. Seru strenuously objected. He told me that his witnesses were present and that he was ready to proceed; the Plaintiff had been waiting for many months for the matter to come on for trial and the cost of the adjournment would be in the region of $2500.

Having compared the proposed new defence with the defence on file I concluded that there was no need for the suggested amendment. In my view the defence as already filed raised the gist of the lines of defence which Mr. Idris now wished to emphasise. There was accordingly no question of the Plaintiff being taken by surprise and if really necessary the pleadings could be amended during the course of the trial. The fact that Mr. Idris had made no mention of possible amendment when he appeared in August before me and indicated that the matter was ready for trial was in my view highly relevant. The application for leave to file the amended defence was refused and the matter proceeded to trial. I indicated that I would make no order on the second limb of the application - a motion to strike out the second Defendant - until the close of the evidence; Mr. Seru did not resist the second limb of the application in any event.

I then heard evidence from the Plaintiff and from his wife. The Plaintiff told me that he had been driving at a safe speed, about 65kmph when on approaching the Batinikia bridge a loader, which he had first seen when it was about 1 mile away and which was travelling towards him on its correct side of the road had suddenly, when only about 15 metres away, swivelled its bucket around into his path. Although he had slammed on the brakes of his van there had been no time either to swerve or avoid the collision in which he had suffered severe injuries to his leg.

The Plaintiff's wife's evidence supported the Plaintiff. She told me that she had seen the loader coming from about 10 steps away. She had thought it would continue on its way to Navua but it "suddenly turned and then bang!".

I also heard evidence from PC 2030 Tasogosogo who had attended at the scene of the accident albeit sometime later and after the loader had been driven away. He had assisted with the preparation of a rough sketch plan which was tendered by consent (Exhibit P2) and which indicated that the point of impact was about 1.2 metres from the centre line of the road on the Plaintiff's side.

At the close of the Plaintiff's case as to liability Mr. Idris told me that he would call evidence to prove that the Plaintiff was solely at fault in that he had collided with the PWD loader while driving at "break neck" speed. He would also call evidence to prove that the conviction entered against the third Defendant by the Suva Magistrates Court on 17 November 1993 was bad in law or alternatively could not be relied on (see certified copy of the record of the proceedings in the Suva Magistrates Court - Exhibit P1). It was not denied that the third Defendant was the driver of the loader and that he was employed by the PWD at the time (see paragraph one of the defence).

Having heard Mr. Idris outline his case I then asked him to call his first witness but Mr. Idris told me that unfortunately he had no witnesses to call. Although the PWD knew of the date of the trial the defence witnesses had not turned up. He had not subpoenaed them because they were all government employees. He asked for an adjournment "until such time as they could be found".

I refused this application which not unnaturally Mr. Seru vigorously opposed. I explained to Mr. Idris that the trial had been fixed for three days back in August. The judges of the High Court are struggling, one judge short for almost twelve months, to keep up with an ever rising case load. Diaries are fully booked for months ahead and parties anxious to have matters brought on for trial are being kept waiting. In these circumstances it was absolutely essential that valuable time allocated by the Courts was not wasted. I indicated that I would be prepared to hear any witness that the defence had available at 9.30 a.m. on the last day of trial, 7 November, but that in the absence of evidence for the defence I would proceed to judgement on such evidence as I had heard.

On 7 November at 9.45a.m. Mr. Idris still had no witnesses. He told me, and I accept, that he had done all he could to secure their attendance but PWD had simply "not co-operated". They had in fact sent the wrong Bissun Deo over to Suva. Mr. Idris repeated his request for an adjournment and I again refused it. In my view the incompetence of Government Departments is no good ground for bringing litigation to a standstill and if the Public Works Department fails to co-operate with the Courts then it must live with the consequences. I was in any event not in a position to offer adjourned dates for the trial to continue until well into 1997 and given the past performance of the defence there was no guarantee that the defence witnesses would attend on any adjourned date.

Having refused the adjournment the position was that the evidence of the Plaintiff, his wife and the Police Officer were uncontradicted by evidence for the defence. Having heard and seen the Plaintiff I was impressed by him as being a straight forward witness of truth. His wife, although obviously shocked by the accident and somewhat flustered by the Court proceedings, corroborated his evidence on the material particulars. The independent police evidence and the exhibits were also consistent with the Plaintiff's case. In these circumstances I have no hesitation in giving judgment for the Plaintiff against the first and third Defendants with damages to be assessed if not agreed. The second Defendant is not, in my opinion, an entity for the purposes of legal proceedings and is accordingly struck out.

The action will be mentioned before the Deputy Registrar Legal on 4 December 1997 at 11.00 a.m. when a date will be fixed for the assessment of damages if they have not been previously agreed.

M.D. Scott
JUDGE

7 November 1996
HBC0225j.94s