IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL NO. HBA0001 OF 2004

Between:

DEE CEE’S BUS SERVICE LIMITED
Appellant/Defendant

and

CAR RENTALS PACIFIC LIMITED
T/A AVIS RENT A CAR
Respondent/Plaintiff

Mr. S. P. Sharma for the Appellant
Ms. B. Narayan for the Respondent

Date of Judgment: 24.8.05

JUDGMENT

This is an appeal from the Judgment of the Resident Magistrate Ms. Laisa Laveti delivered on 19 December 2003 when the appellant’s claim was dismissed with costs and judgment was entered for the respondent against the appellant in the sum of $4578.34 with costs to be taxed if not agreed.

In the Magistrate’s Court at Suva in Civil Action No. 1866 of 2000 the respondent/plaintiff brought the action claiming damages to its motor vehicle registration No. DL292 (hereafter referred to as the ‘said vehicle’) arising out of a collision with the defendant’s/appellant’s bus on 28 February 2000 at the junction of King’s Road and Cunningham Road.

A number of grounds of appeal were filed but the grounds 2, 3, 4 & 5 were abandoned leaving the following:

“The learned Magistrate erred in law in:

1.	deciding that the Plaintiff had proved its claim on the balance of probabilities;

2.	 …..
3.	 …..
4.	 …..
5.	 …..

6.	holding that the Respondent’s failure to summon the driver of the Appellants did not nullify any liability on the part of the Appellant Company;

7.	failing to apply the principles of negligence and adjudicating whether on the balance of probabilities the Appellant was in any manner or form negligent towards the Respondent;

8.	ignoring that the Respondents claim as against the Appellant was based upon, whether the Appellant was vicariously liable for any acts of its agent and/or servant;

9.	failing to apply the principles of agency to establish whether the appellant was liable for the damages suffered by the Respondent;

10.	holding that the Appellant’s liability was imputed on the mere basis that the Appellant had admitted that its registration no. AW 532 was involved in the said accident”.

Issues

The issues can be summarised thus:

1.	Whether the Appellant was negligent;

2.	Whether failure to summon the driver of the Appellant to the court proceedings nullified any liability on the Appellant’s part.

3.	If the Appellant was negligent, should it be vicariously liable for the acts and/or conduct of its agents and/or servants despite the agent not named in the proceedings;

Determination of the issues

I shall now deal with the issues.

Issue 1 

Whether the Appellant was negligent?

On the evidence before it the Magistrate’s Court found that the appellant’s driver was negligent.

The learned Magistrate accepted the evidence of the plaintiff’s witness Whippy in the absence of any other cogent evidence.

The Plaintiff’s witness, Lavenia Whippy, gave her testimony as to how the accident occurred. On 28 February 2000, at about 6 p.m the witness was driving towards Kings Road, intending to make a left turn at Cunningham Road. Whilst approaching the traffic lights, she indicated that she was intending to make a left turn. According to her, the bus hit the said vehicle from behind whilst pulling out from the bus bay and while she was waiting for the lights to turn green.

According to her testimony, the lights at the main road, indicating traffic flow via Kings Road was green whilst the arrow at the junction, indicating a left turn at Cunningham Road, was red.

The photograph (exhibit 2) tendered to court depicts the damages sustained.

It is apparent that the defendant’s driver had failed to maintain a safe distance from the vehicle involved in the accident. Furthermore, it is obvious that he was oblivious to the traffic lights and the indicator by the Plaintiff of her intention to make a left turn.

Since the Defendant’s driver was not summoned to court to give testimony, it is difficult to ascertain whether he had given any warning of his approach to the traffic lights.

In the case of Island Buses Ltd v Intercities Buses Services Limited C.A. 1420 of 2000 Justice Jiten Singh stated that:

“A person who collides from rear is prima facie negligent. He must keep a safe distance. Vehicles do at times have to stop suddenly. One applies brakes to stop. Brake lights illuminate which is an indicator for vehicle behind to slow or stop”.

The Court will not interfere with the Magistrate’s finding as this Court is also of the view that the findings were correct. 

Issue 2

The Defendant had failed to summon witnesses in the matter and had only brought in the Accountant, Mr. Ashok Chandar Pal by virtue of the fact that he had been served with the Writ of Summons.

Where there is allegation of negligence, the burden of proof is on the party alleging negligence. However, the Defence has an onus to present its case and bring in evidence to negate the allegations. The onus of proof in any civil matter is on a balance of probabilities. The plaintiff’s witness was adamant that the accident was solely caused by the negligent act of the Defendant and evidence such as the photograph tendered as exhibit no. 2 substantiated this claim. The defendant did not rebut this claim and failed to bring in any other witness. As a result the Court was left with only the evidence of the plaintiff’s witnesses.

I find that the failure to join the driver of the defendant’s bus did not prevent action being brought as in this case.

Issues 3

In this case the driver of the defendant’s bus was neither joined as a party nor produced as a witness on behalf of the defendant.

I hold that the case could still be decided without the driver. The defendant was at liberty to call the driver but it decided not to in its wisdom.

There is no dispute that there was an accident between the motor vehicles DL 292 and AW 532 on 28 of February 2000. The Plaintiff instituted the action against the owner of the motor vehicle registration no. AW 532 and did not join the driver of the said vehicle. The Plaintiff was satisfied that the said vehicle belonged to the Defendant company. The accident was reported at the Nabua Police Station and no statements were taken by the investigating officer in question. Therefore, there was no means of identifying the driver of the Defendant and this is also apparent in the oral testimony given by the only witness brought by the Defendant, that is, he explicitly stated a large number of drivers are employed by the Defendant company and routes change. Therefore, the likelihood of identifying the driver in question was not possible.

In the case of Barnard v Sully (1931) 47 T.L.R. 557 it was held that:

“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 his servant or agent”.

Lord Justice Scrutton at 558 said:

“But it was evidence which was liable to be rebutted by proof of the actual facts”.

An interesting question has been raised, namely, whether the driver of the bus should have been specifically named a party. That is not so for the case could still be proved on the facts and circumstances of a particular case as I discuss hereafter.

What is meant by vicarious liability?

In the book The Law of Torts by John Fleming (9th Ed. 1998 at 409) it is stated:

“We speak of vicarious liability when the law holds one person responsible for the misconduct of another, although he is himself free from personal blameworthiness or fault. It is therefore an instance of strict (no fault) liability.”

It should be remembered that ‘vicarious liability’ is incident only to a relationship of controlled employment situation i.e. which is traditionally described as that of ‘master and servant’; and in the absence of that relationship, the situation would be that of principal and independent contractor if one were to engage someone to accomplish a specific task.

It is clear from the evidence that the relationship of master and servant existed in this case even in the absence of the driver of the bus having been produced to Court.

In accidents involving motor vehicle collisions, extensions of vicarious liability, ‘enable the accident victim to reach beyond the careless driver and fasten responsibility upon the owner of the car, even if the latter is personally free from blame’ (Fleming ibid p.429).

In the present case the defendant’s driver was its servant and it retained the right to control the manner of driving and there is strong presumption of that in the absence of any evidence to the contrary. Vicarious liability attaches without more ado once it is found that the driver, whoever he may be, because there are too many drivers employed by the defendant, has been negligent.

The Claim was instituted by the Plaintiff against the Defendant in its capacity as the owner of the bus in question. The Plaintiff did not bring the driver of the bus as a party to the proceedings due to the apparent reason that the driver was unidentifiable. Additionally, as no charges were laid along with the fact that the Defendant Company allocated different drivers at different routes randomly leaves little room to identify the driver.

Additionally, the Defendant/Appellant failed to call any evidence to rebut the evidence of negligence against its bus driver or to prove their allegation of negligence against the Plaintiff’s driver.

In my view, the learned magistrate had arrived at the right decision after evaluating all the evidence presented to her. The oral testimony of the Plaintiff’s witness indicates that the driver of the defendant was negligent whilst driving. He was not attentive and the accident occurred at around 6 p.m. which is a rush hour. He failed to consider the traffic on the road and other motorists at the relevant time.

Secondly, the very fact that the Defendant did not bring in the driver of the bus involved in the accident is a failure on their part. The Defence should have been adequately prepared to rebut any allegations made by the Plaintiff. It is not up to the learned magistrate to call a witness to establish the defendant’s case.

Thirdly, as the driver of the bus was unidentifiable, the Plaintiff brought the proceedings against the owner of the bus in question. Proof of ownership of the vehicle is sufficient to institute proceedings especially where the driver in unidentifiable and he was acting on the instructions of the principal and/or employer.

The quantum of damages sought by the Plaintiff is substantiated by the invoices and receipts tendered as exhibits. The third witness of the Plaintiff, Mr. Mohammed Idris, gave sworn testimony that the Plaintiff’s vehicle was a brand new model and thus genuine parts were required. The Plaintiff obtained two quotations, one from Shankar Pratap, and the other from Asco Motors. Therefore, the Plaintiff did attempt to mitigate its loss and due to business efficacy, the Plaintiff took the 25% discount offered on spare parts. Thus, the Plaintiff had established its case on a balance of probabilities.

For these reasons I uphold the decision of the Learned Magistrate.

The appeal is disallowed with costs against the appellant in the sum of $400.00 to be paid within 21 days.

D. Pathik
Judge

At Suva
24 August 2005