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Nisha v Basant [1997] FJHC 288; Civil Action 401 of 1993 (15 January 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 401 OF 1993

BETWEEN:

ZAIBUN NISHA
Plaintiff

AND:

1. BASANT s/o Sugrim
2. NAREND s/o Raghwan
3. QUEENSLAND INSURANCE COMPANY LIMITED
Defendants

Mr. V. Maharaj for the Plaintiff
Mr. Ram Krishna for the Defendants

JUDGMENT

This is a claim for damages for personal injuries suffered by the Plaintiff Ismail Dean (since deceased) arising out of an accident in which he was hit by motor vehicle Reg. No. A1774 owned by the first defendant and driven by the second defendant as agent of the first defendant on 15 October 1991. The Plaintiff claims (a) general damages, (b) damages in respect of car Reg. No. AN967, (c) special damages, (d) interest under the Law Reform Miscellaneous Provisions Death and Interest Act and (e) costs.

The third defendant has been joined as a party (nominal defendant) as it had issued a Third Party Policy of Insurance in name of the first defendant pursuant to the provisions of Motor Vehicles (Third Party Insurance) Act, Cap. 177.

The said Ismail Dean who was a businessman died on 19 March 1996 during the course of the trial; and pursuant to the Order of this Court made on 25 March 1996 the deceased's widow ZAIBUN NISHA was substituted as Plaintiff in place of her deceased husband. She continued the proceedings as the sole Executrix and Trustee of the Estate of Ismail Dean under Probate of the decease's Will granted on 15 May 1996.

The Issues

After the case proceeded some distance it was agreed by counsel, although I had suggested this at a very early stage, that Court decides the issue of liability first and depending on the outcome to assess damages as a separate exercise.

The issues, as agreed, are whether:

(a) the Second Defendant is solely negligent; or

(b) the deceased, Ismail Dean, was solely negligent; or

(c) the deceased, Ismail Dean, contributed to the accident; or

(d) there should be apportionment of blame;

(e) the accident was inevitable; or

(f) the deceased, Ismail Dean, voluntarily consented to accept the risk and waive any claim for damages; or

(g) the Plaintiff has pleaded a cause of action against the Third Defendant, Queensland Insurance (Fiji) Limited.

Plaintiff's case

It is the Plaintiff's case that whilst changing a punctured tyre on his motor vehicle Regd. No. AN967 at Sarava, Ba on the Queen's Road, the second defendant as servant and/or agent of the first defendant so negligently drove, managed and controlled the said vehicle Regd. No. AI774 the property of first defendant that he caused or permitted the same violently to collide with the Plaintiff himself and Mazda Cosmo Private Car Regd. No. AN967 in consequence whereof his said motor vehicle No. AN967 was extensively damaged and the plaintiff was knocked down and suffered severe injuries and thereby has suffered pain and suffering, loss and damage.

The Plaintiff contends that it has not only established liability against the first and second defendants but they are wholly to be blamed for the accident without any element of contributory negligence on the part of the original plaintiff, namely, Ismail Dean.

The Plaintiff further says that:

"at all material times there was in force in relation to its use by the 1st Defendant and/or his servant and/or agent an Insurance Policy issued by the Third Defendants risks in terms of the Motor vehicle (Third Party Insurance) Ordinance Cap. 153 by virtue of which Ordinance, the Third Defendant is under a Statutory duty to indemnify the 1st Defendant against any damages that may be awarded in favour of the Plaintiff against the 1st Defendant."

Evidence Adduced by Plaintiff

Evidence was given by ISMAIL DEAN (PW1) before he died.

According to him the accident occurred on a straight section of the Kings Road at Sarava, Ba on 15 October 1991 at about 11.30 p.m. When he was driving he had a puncture to the front right hand tyre; he then parked his car by the side of the road on his correct side facing Ba. One Ashik Ali who came to assist PW1 parked his car across the road in the half section of the road on PW1's correct side with his head lights on pointing in the direction of the punctured tyre. He said that there was a 29' space on the other section of the road that is on the left hand side, to enable vehicles approaching from Ba towards Lautoka to pass and some cars did pass. The PW1 was standing near driver's side of Ashik's car.

The PW1 said that on this 50 kmph limit zone a "small car" A1774 driven by the second defendant (D2) came very fast from Ba side; seeing this PW1 tried to move to back of Ashik's car and just then this other car hit him on his right leg whereupon the PW1 became unconscious and later found himself at Nailaga Hospital, Ba. The driver's side door was damaged.

In cross-examination he said his car is 4'6" wide and Ashik's is 12' long approximately. There is a hard shoulder of 5' where he was parked. The distance between the two cars would be 3' to 4'. He said that he was there to give signal to "oncoming" vehicles. The witness said that he knew that D2 was charged for careless driving in the Magistrate's Court for this accident.

During cross-examination photographs relating to the scene of the accident were tendered to Court (Exhibits D1 & D2) by consent. He said that he saw one truck with logs pass through the space that was left in the other section of the road. The witness said that the D1's car went on to its incorrect side i.e. on PW1's side and collided.

In re-examination he said that Ashik's car was not beyond the white centre line.

The deceased's wife ZAIBUN NISHA (PW2) who was present at the time of the accident corroborated the testimony of her husband in regard to material particulars. She said that cars had no difficulty in passing through the vacant space and that her husband gave them signal to go past.

Defendants' case

In the Amended Statement of Defence filed on 10 November 1995 the defendants plead as follows:-

(a) The Defendants do not admit that it was the negligence of the Second Defendant which caused the subject accident;

(b) In the alternative the Defendants say that it was the negligence of the deceased (original Plaintiff) which caused and/or contributed to the subject collision;

(c) That the accident was inevitable;

(d) That the said deceased voluntarily consented to accept the risk and waive any claim in respect of any injury or damage that may be occasioned to him;

(e) The Plaintiff failed to plead a cause of action against the Third Defendant.

The defendants, further or in the alternative say that the said accident was caused and/or contributed by negligence of the Plaintiff.

According to the Defendants the Particulars of Negligence are that one Ashik Ali's vehicle was parked across the road in order to show light to deceased's vehicle when repairing the puncture; the deceased exposed himself to a risk of injury; the accident was inevitable notwithstanding the exercise of all reasonable care and skill on the part of the second defendant and he was unable to avoid the accident.

It is pleaded by the second defendant that he was coming from Ba towards Lautoka and his view was obstructed by the nature of terrain of the road from seeing the vehicle of Ashik Ali parked across the road.

Further or in the alternative the defendants say that with full knowledge to risk of injury of damage to himself by his act or conduct of the Second Defendant referred to in paragraphs 7 and 8 of the Statement of Defence the Plaintiff voluntarily consented to accept such risk and to waive any claim in respect of any injury or damage that may be occasioned to him by reason of such acts or conduct of the Second Defendant.

Evidence adduced by defendants

For the defendants, PANAPASA MATAILEVU (DW1) a former Senior Police Superintendent told the court how upon instruction from counsel on 16 November 1995 (long after the accident) he took measurements of the road and the scene of the accident.

He said that the tar-sealed section is 24'9" and the hard section facing Ba direction is 4'5" and at left it is 5'5". He tendered the diagram which is Exhibit D3. He said that "towards Ba is an incline and then get to top is an incline which is about 100 yards from scene of accident".

When asked by Court he said that when "coming from Ba there is incline and a bend and vision of scene of alleged accident is obscured until you get to top of incline". He said that if vision is obscured you "drive slow".

The second defence witness AJAY KUMAR (DW2), a motor mechanic who has a garage near to the scene of the accident, said that he remembered the time the accident happened and he rushed to the scene. He testified along the same lines as the deceased regarding the position of the two cars. He also said that before the accident two or three cars went past including a logging truck (10 wheeler). When asked in cross-examination that "put to you if 3rd car went like others accident would not have happened" he replied "yes, correct".

He said that when he came to the scene he found PW1 lying on the right side of Ashik's car and two of them took him to Nailaga Hospital at Ba. He then returned to the scene and all three cars involved were still there. The Police were also there.

The second defendant NARENDRA MICHAEL (DW3) a garage owner, testified that he was driving from Ba direction towards Lautoka at between 70-80 kmph. There is a bend and then an incline before getting to apex. When he got to the top he saw a "vehicle parked right in the middle of the road" with light pointing towards a parked vehicle (car) on his right. The distance would be about 100 yards. He traced the position of the two cars as if Ashik's car was protruding 3-4' in the witness's section of the road. He said that when he came "near this red car I didn't know what was happening - red car I assumed was moving either forward or backward - I didn't see any driver there. I applied brakes, reduced speed but when I reached red car it was too late. My car hit the driver's door-red car moved and hit white car". When he came out he saw PW1 (the victim) on the road.

In cross-examination he admitted that he was convicted careless driving in Case No. 3/92 at Ba Magistrate's Court and was fined $25 in default 25 days. He said he saw "danger" so he reduced speed to 50-60 kmph. He said it was not his fault "despite I admitted careless driving".

The defendant said that he did not go on the "wrong side" of the road. When asked by Court he said that the "accident happened on my section of the road". He said that the road is 15' wide and he does not think it is 24' wide.

Determination of Issues

Findings

The facts which are not in dispute are (a) that the said deceased at the material time was the registered proprietor of AN967, (b) the first defendant was the registered owner of AI774, (c) the second defendant at the relevant time was the driver of AI774 and collided with the Plaintiff's aforesaid vehicle and (d) that the accident happened on the King's Road at Sarava, Ba on 15 October 1991 at about 11.30 p.m. The third defendant has admitted that there is an insurance policy in respect of the first defendant's motor vehicle AI774 issued by it.

I have carefully considered the whole of the evidence in this case. The salient features of the evidence adduced through the witnesses are as outlined hereabove.

The determination of the issues before me depend entirely on my findings of fact.

I accept the evidence of PWI in toto in regard to the material particulars. He was a witness of truth and he was not shaken at all in cross-examination. I accept as fact the position the two vehicles were in before the accident and I completely reject the second defendant's evidence in this connection. If it was as described by D2 then the vehicles would not have been in the position as they were in after the accident and the PW1 would not have been found lying on the road where he was found. In this regard the evidence of defence witness Ajay Kumar is acceptable and he has corroborated the testimony of PW1 in this connection.

I find that the second defendant drove without due care and attention and that is why he was charged and convicted and fined on his own plea. For him to say that he was not at fault cannot be accepted on the evidence before me. He is definitely lying when he said that he did not go on the wrong side of the road or that the accident happened on his section of the road for his statements do not tally with the evidence before me and which I have accepted as fact.

I am not at all convinced that the incline that D2 is talking about obstructed his view ahead at all that he could not pull up within 100 yards from the scene of the accident. He had at least 100 yards clear and unobstructed view ahead of him. He knows the road well and with knowledge of the incline he should have driven at a speed which would have enabled him to pull up in time to avoid the accident. He admitted he was driving at 70-80 kmph and reduced it to 50-60 kmph before the accident. Why could he not have stopped in time to avoid colliding with another vehicle which was not even on his section of the road? The answer is that he was driving too fast and not keeping a proper look out.

This is a clear cut case of driving without due care and attention. The character of the highway was such that he should have cut down his speed considerably particularly when he saw the two cars stationary about 100 yards in front of him. It is pertinent to note here that it was Ashik's car and not plaintiff's car which was parked across the road. He is not a party to the action. It is Ashik who should shoulder all the blame if any blame is to be attached to anyone by this manner of parking. However, I have found otherwise in any case. When other cars were able to pass why could he not pass? The width of the road according to him was 15' but that could not be so; PW1 says it was 40' and as ex Superintendent Panapasa said it could be 24' 9". Even if allowing for the length of 12' of Ashik's car and the distance of 3' between Ashik's car and PW1's and where PW1's car was parked, there was ample space for D2 to pass on his own correct side without having to come on to the wrong side of the road and colliding with Ashik's car.

It was incumbent on D2 to have exercised reasonable care if he considered the width of the roadway too narrow and naturally more care would have to be exercised when travelling on a narrow road and made so allegedly by the two stationary vehicles, then when travelling on a good highway without any obstruction.

Here D2 was definitely on the wrong side of the road immediately after he negotiated the slight bend and had gone past the incline. I find on the evidence before me that this violation of the rule of the road was not necessitated by the presence of the two vehicles on the road for D2 had sufficient time to pull up or to go past on his correct side had he exercised greater care and vigilance and had he not been travelling at an excessive speed in the circumstances. Even if D2 thought the cars parked across the road in the manner he himself described and created difficulties for him to pass, it did not allow him to run down everything in his path with impunity. He had a duty of exercising reasonable care.

Mr. Krishna submitted that the Plaintiff created a 'danger without sufficient justification or excuse' and therefore he should be "totally liable in negligence". With respect I disagree on the facts and for the reasons stated hereabove.

Contributory Negligence

The learned defence counsel raised a defence that there was contributory negligence on the part of the plaintiff by Ashik parking his vehicle across the road in order to show light to PW1's vehicle when "repairing the said puncture". He also said that the Plaintiff was sitting in Ashik's car which definitely was not so on the evidence before me. He said that the Plaintiff thereby exposed himself to a risk of injury.

"Contributory negligence" is defined as "a technical expression of law used to describe a special defence available to a negligent defendant, namely, failure on the part of the plaintiff to exercise sufficient care for his own safety when such failure cannot be excused under any well-recognised rule of law". (THE LAW AND PRACTICE RELATING TO ACTIONS FOR NEGLIGENCE ON THE HIGHWAY, MAZENGARB 2nd Ed. (1952)).

In order to establish the defence of contributory negligence, the defendant must prove, first, that the plaintiff failed to take "ordinary care for himself" or, in other words, such care as a reasonable man would take for his own safety, and secondly, that his failure to take care was a contributory cause of the accident (LEWIS v DENYL 1939 1 K.B. 540). It is in this sense that a plaintiff's negligence (not a defendant's) is correctly described as "contributory negligence". He has been "negligent as regards himself" (SWAN v NORTH BRITISH AUSTRALIAN CO (1863), 2H & C 175).

The test of contributory negligence is as stated by LORD PARMOOR in GRAYSON v ELLERMAN LINES LTD (1920) A.C. 466 at 477:

"I do not think that the question of contributory negligence depends upon any breach of duty as between the plaintiff and a negligent dependant; it depends entirely on the question whether the plaintiff could reasonably have avoided the consequences of the defendant's negligence".

The burden of proving contributory negligence is on the defendant which they have failed to do. Here, I find as fact on the evidence before me, that it was the second defendant who is to be blamed solely for the accident as he has failed in a duty he owed to the Plaintiff.

Inevitable Accident

The second defendant also raised the defence of "inevitable accident" in that "notwithstanding the exercise of all reasonable care and skill on the part of the second defendant he was unable to avoid the same".

In this regard also, I do not find that the defence of inevitable accident has been made out in view of my findings of fact as outlined hereabove.

What has to be proved by the second defendant is set out in the judgment of LORD JUSTICE FRY in THE MERCHANT PRINCE 1892 P179 as follows:

"The burden rests on the defendants to show inevitable accident. To sustain that, the defendants must do one of two things. They must either show what was the cause of the accident, and show that the result of that cause was inevitable; or they must show all the possible causes, one or other of which produced the effect, and must further show with regard to everyone of these possible causes that the result could not have been avoided. Unless they do one or other of these two things, it does not appear to me that they have shown inevitable accident."

For the above reasons I find as fact that on the day in question it was solely through the negligent driving on second defendant that this accident happened. I further find as fact that there was no evidence of contributory negligence on the part of the Plaintiff to make him partly liable for the accident. The defence of inevitable accident also fails on the facts of this case.

Liability of the first defendant

I find D1 vicariously liable for negligent driving on the part of D2. As submitted by Mr. Maharaj D1 admitted in his Defence that he was the proprietor of A1774 and that is prima facie evidence that D2 was the servant and or agent of D1. The D1 has not denied that D2 was not driving at the relevant time but he does say that it was not the negligence of D2 that caused the accident. Why would he say that unless he authorized him to drive it. D1 has not rebutted this by proof. This is a civil action and not a criminal case where he could sit quiet and say nothing or no more than what he has said. It is a case of quiescence being acquiescence. The following passage from BARNAM v SCULLY (1931) 47 TLR is pertinent:

"Where a Plaintiff in an action for negligence proves that damage has been caused by Defendant's motor car, the fact of ownership of the motor car is prima facie evidence that the motor car, at the material time, was being driven by the owner, or by his servant or agent".

Also on rebuttal of presumption of law PHIPSON ON EVIDENCE 12th Ed. at p.112 states:

"Where a disputable presumption of law exists in favour of a party, it lies upon his adversary to rebut it."

Mr. Maharaj referred the Court to two other cases on this very aspect and it is so pertinent to the facts of this case that I quote the relevant extracts from them hereunder.

The first case is CHRISTMAS v NICOL BROS PTY LIMITED (1941) N.S.W. S.R. 317 where SIR FREDERICK JORDON C.J. said:

"Ownership of the vehicle by the person alleged to be vicariously responsible for the act of the driver becomes, however, significance, if in the circumstances of the particular case, the fact of ownership enables or assists the inferences that at the time of the accident the driver was probably the employee of the owner and was then acting within the scope of his employment. There is no hard and fast rule for determining what evidence may be regarded as sufficient to enable these inferences, or when and how ownership is material and there is no difference in principle between a commercial vehicle and a private vehicle. It is a matter of common sense, depending on each case upon the circumstances."

The above case was later applied in the case of WISEMAN v HARSE; COOMBES v HARSE (1948) 65 W.N. (N .S .W) 159 by SIR FREDERICK JORDON when he said:

"In my opinion, it is now established by the authorities referred to in CHRISTMAS v/s NICOL BROS PTY LIMITED, that in the case of a commercial vehicle, and probably also in the case of a private vehicle, evidence that at a particular time it was being driven is, in the absence of evidence, sufficient to justify a different conclusion, evidence that it was being driven by or on behalf of its owner. The presumption of fact arising from the mere evidence of the ownership may, in the absence of some statutory provision to the contrary, be displaced by evidence pointing to the contrary..... But if evidence of ownership is given, and the matter is simply left at that, there being nothing in the circumstances proved by the Plaintiff to indicate that the vehicle was not being driven on the owner's behalf, and no explanation, or no explanation accepted by the Tribunal of Fact, is given on behalf of the owner, it is a reasonable inference that the owner is responsible." at 160.

"In the instant case the First Defendant being party to the proceedings, carried with him evidential burden to prove on balance of probabilities that the Second Defendant at the material time was not his servant and or agent. The fact is that the First Defendant was never called as a witness and as such no evidence was produced by the Defendant to rebut the presumption that the law placed in favour of the Plaintiff. We submit therefore that there is no merit in the Submissions made by the Defendant's Counsel on this issue and ought to be rejected."

For the above reasons the first defendant is vicariously liable to suffer the consequences of negligent driving on the part of' his driver, namely the second defendant.

Liability of the third defendant

The third defendant as insurers do not dispute that there is a third party insurance policy with the second defendant as the insured.

The learned counsel for D2 states that D3's "legal obligation is to satisfy any judgment" that the Plaintiff obtains against the First and Second Defendant in respect of personal injuries that the Plaintiff may obtain and not damages against property damage and he refers the Court to section 11 of the Motor Vehicle (Third Party) Insurance Act Cap. 177 in this regard which provides:

"11. - (1) If, after a certificate of insurance has been delivered under the provisions of subsection (4) of section 6 to the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under the provisions of paragraph (b) of subsection (1) of section 6, being a liability covered by the terms of the policy, is obtained against any person insured by the policy, then, notwithstanding that the insurance company may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurance company shall, subject to the provisions of this section, pay to the persons entitled to the benefit of such judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable by virtue of any written law in respect of interest on that sum."

Mr. Maharaj accepts this suggestion but submits that D3 has been properly joined as a party for he says that under the said Act the D3 as insurers are under a statutory duty to supply various particulars of the Policy to the Plaintiff to enable him or her to lodge claims under the Policy. He says that since D3 has not applied to have itself struck out as a party to the action, no harm will be done to it in the event the Court finds D1 and D2 liable.

No authority has been cited to show that D3 cannot be joined as party to the action in the circumstances of this case. No doubt D3's liability will depend on my finding on D1 and D2 particularly when it is not in dispute that there was a third party policy in existence at the time of the accident.

Conclusion

To sum up, I find the second defendant who was the driver of the vehicle of which the first defendant was the owner and which said vehicle the third defendant insured for third party, solely liable for the accident with no contributory negligence established against the Plaintiff nor was it a case of inevitable accident.

As far as the third defendant is concerned it has been joined as a nominal defendant mainly for the purpose of satisfying any judgment to which the insured (the first defendant) may be liable under the said section 11.

In the outcome, for these reasons there will therefore be judgment against the first and second defendants for damages suffered by the Plaintiff which is to be assessed unless agreed with costs against them to be taxed if not agreed. As far as the third defendant is concerned since it is a nominal defendant and is liable to satisfy a judgment under the said section 11 I do not propose in the circumstances of this case to enter judgment against it but leave to it to comply with section 11 in so far as it is applicable to it with liberty reserved to it to apply to Court generally with no order as to costs against it.

D. Pathik
Judge

At Suva
15 January 1997