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Draunidalo v National Bank of Fiji [2003] FJHC 307; HBC0259j.1997s (7 October 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0259 OF 1997

Between:

RATU JONE DRAUNIDALO
Plaintiff

And

NATIONAL BANK OF FIJI
Defendant

Mr. T. Fa for the Plaintiff
Ms. R. Lal with Ms. K. Brewer for the Defendant

JUDGMENT

By writ of summons dated 17 July 1997 the plaintiff claims against the defendant damages as per ‘particulars of loss and damage’ set out in paragraph 23 of the Statement of Claim filed herein together with interest and costs and any other relief that this Court may deem just.

Background facts

The plaintiff is a Fijian businessman from the village of Lovoni in the island of Ovalau, Lomaiviti.

The defendant is an incorporated body, which can sue and be sued, established as a banking institution under the National Bank of Fiji Act, Cap. 213

The facts which are agreed are clearly set out in the Minutes of the Pre-trial Conference and are as hereunder:

1. On 16.12.92, the Plaintiff executed a Bill of Sale with the Defendant wherein the Defendant advanced him $17,000.00 to allow the Plaintiff to purchase a 5 ton Isuzu truck Registration No. E5601 from Western Wreckers. The said Bill of Sale was collateral to a mortgage over Native Lease No. 18662.
   
2. The said truck, Registration No. E5601, was defective and was unacceptable to the Plaintiff upon test-driving whilst in Suva; it was returned to Western Wreckers.
   
3. The Plaintiff with the authority of the Defendant was given another truck, a three ton Toyota Dyna Light Goods Registration No. E5803 by Western Wreckers for the same consideration of $17,000.00.
   
4. The said Toyota Dna Registration No. E5803 was secured with the Defendant by mortgage No. 33148 over Native Lease No. 18662, Bill of Sale No. 93/56521 and the personal unlimited guarantee of one Vatini Turaga.
   
5. The truck would be used to carry goods, food crops and excess passengers from Levuka to Suva twice a week and funds would be generated for the repayment of the loan.
   
6. The said vehicle suffered an accident on Lovoni Road, Ovalau on 10.7.94 when its front left tyre burst whilst the vehicle was heading toward Burusale.
   
7. The extent of damage as assessed by Eskay Motors Ltd and Granville Motors in their quotation dated 19.7.94 came to $9,352.01 and $7,279.00 for extensive damages to the front cabin and to the body of the truck, including its tray.
   
8. The Defendant Bank without accepting liability on the insurance claim and the costs of bringing the truck to Suva gave the Plaintiff another $7,685.00 to assist the Plaintiff in repairs.
   
9. The repayment of the new loan was to be included with the balance of the previous loan, for which the Plaintiff was to pay $898.00 instead of $511.00 per month.
   
10. The sum of $7,685.00 was expanded on repairs but it was not sufficient.
    
11. The Defendant Bank has refused further request for funds.
    

Issues for determination

The issues for Court’s determination are as follows (as stated in the defendant’s written submission at p3):

1. Whether the defendant owed the plaintiff a duty of care.
   
2. If yes, the defendant breached that duty.
   
3. Was there an oral contract entered between the parties with respect to insurance of the vehicle?
   
4. If yes, did the oral contract preclude reliance on the written bill of sale?
   
5. If yes, what were the terms of the contract and did the Bank breach those terms?
   

Determination of the issues

It was ordered that both counsel file written submission. The defendant’s counsel filed hers on 24 October 2002, but Mr. T. Fa failed to file his despite repeated reminders.

I have considered the evidence adduced in this case and the submissions made by the defendant’s counsel.

Evidence for the plaintiff was given by the plaintiff himself (PWI), and Vatini Turaga (PW2). The defendant called a Bank Officer Navila Koro to testify on its behalf.

It is the plaintiff’s argument that the parties entered into an oral contract on or about 16 December 1992 when the defendant agreed to arrange and pay for insurance for the plaintiff’s vehicle for the duration of the plaintiff’s loan with the defendant.

As submitted by counsel it is important in the context of this case to look at the distinguishing features of an action in ‘Tort’ as opposed to an action in ‘Contract’. In Chitty on Contracts, 25^th Edition at p.8 they are distinguished as follows:

“... the duties of a tort are primarily fixed by the law whereas the duties of a contract are fixed by the parties in the terms of the contract. Secondly, a tortuous duty is towards a class of people, or persons generally; in contract the duty is to a specific person or persons as are, once again, defined in the contract.”

Whereas it is alleged by the defendant that the Bill of Sale was the written contract signed by both parties and that contract assigned responsibility for insuring and keeping insured the vehicle to the plaintiff.

On the evidence before me, I agree with the defendant’s counsel that no ‘duty of care’ is owed by the defendant to the plaintiff. The parties are parties to the contract i.e. the Bill of Sale. Their duties and obligations to each other are recorded in that contract. I agree there is no reason why any other further duties or obligations should be conferred on one party in tort when clearly the contract between them is comprehensive, it is in a standard form; the parties to the action are parties to the contract and both parties have been independently legally advised as to the effects and implications of entering the contract. The plaintiff has not established that there exists an alternative action in tort.

On the issue whether the oral contract precludes reliance on Bill of Sale, I agree with Ms. Lal’s submission that if the Court finds as a question of fact that an oral contract did exist between the parties with respect to the insurance of the vehicle, the weight and worth of that contract needs to be assessed in relation to the written Bill of Sale. As a starting point Courts faced with this situation turn to assess (a) the contract’s construction; and (b) the Parol Evidence Rule.

Upon a careful analysis of the whole of the evidence, I find on a balance of probabilities that there was no oral contract to preclude reliance on the Bill of Sale. The words of the contract are clear enough. On the construction of the contract the words of Lord Cottenham L.C. as quoted in Lloyd v Lloyd (1837) 2 Mg and Cr. 192, 202 are pertinent when he said:

“If the provisions are clearly expressed and there is nothing to enable the Court to put upon them a construction different from that which the words import doubt the words must prevail.”

In the outcome, for the above reasons, I find on the ‘issues’ that there was no ‘duty of care’ owed the plaintiff and that there was no oral contract between the parties in regard to the insurance of the vehicle in question.

The plaintiff’s action and is therefore dismissed with costs the sum of $400.00 payable to the defendant within 21 days.

D. Pathik
Judge

At Suva
7 October 2003