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Kumar v Michael's Taxi & Tours Ltd [2010] FJHC 427; HBC233.2007L (16 September 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 233 of 2007L

BETWEEN:

SURYA KUMAR
Plaintiff

AND:

MICHAEL'S TAXI & TOURS LTD
1st Defendant

AND:

NEMANI RAIKUNA
2nd Defendant

FINAL JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mishra Prakash & Assocs for the Plaintiff
Suresh Maharaj & Assocs for the Defendants

Solicitors: Mr V Mishra for the Plaintiff
Mr S Maharaj for the Defendants

Date of Hearing: 26, 27 April 2010
Date of Judgment: 16 September 2010

INTRODUCTION

[1] The Plaintiff was attending to his roadside barbeque stall when the Second Defendant drove the First Defendant's vehicle into him and his barbeque stall. The driver was apparently distracted by the headlights of another van parked next to the barbeque stall facing towards him.

[2] The Plaintiff now sues the driver and the owner of the vehicle for damages for the personal injuries suffered by him and for the destruction of his stall.

THE STATEMENT OF CLAIM

[3] The Statement of Claim states that on 22 June 2006, the Plaintiff was attending to his roadside barbeque stall on the verge of the Queens Road at Navoci on the left hand side as you travel from Nadi to Sigatoka. Parked beside the stall was a vehicle registration number ES394. The Plaintiff was serving the passengers from ES394. A second vehicle driven by the Second Defendant, registration number LH566, drove straight into the side of vehicle ES394 then struck the Plaintiff. He was thrown ten feet from where he was standing and suffered injuries to his shoulder, head, back and hip. His barbeque stall was also struck by LH566 and damaged. The Plaintiff alleged that the First Defendant drove negligently by:

1. Going off the tarsealed part of Queens Road and colliding with the Plaintiff;
   
2. Driving at excessive speed in all circumstances of the case.
   
3. Losing control and going off the tarsealed part of the road.
   
4. Failing to brake, swerve or maneuver the car in such a manner as to avoid colliding with the Plaintiff.
   
5. Failure to keep a proper and adequate lookout.
   

THE DEFENCE

[4] The Defendants deny negligence. They say the Plaintiff contributed to his own injuries by his actions and omissions by:

1. Setting up his barbeque so close to the road side thereby creating a road hazard for traffic and vehicle LH566.
   
2. Allowing vehicle ES384 (sic) to be parked alongside the barbeque stall on the left side of the road that is on the wrong side of the road with its headlights (turned on) and facing (vehicle LH566).
   
3. Being a careless reckless barbeque seller not caring for his own safety.
   
4. Exposing himself to a dangerous position in relation to (vehicle LH566 which was travelling) on the correct side of the road towards Suva from Nadi.
   

THE AGREED FACTS

[5] The First Defendant was the owner of vehicle LH566 and the Second Defendant was driving it on 22 June 2006 as the servant or agent of the First Defendant. The Plaintiff was attending to his road side barbeque on that day.

THE DOCUMENTARY EVIDENCE

[6] The parties agreed to a bundle of documents to be used at the trial numbered 1 to 15. In the course of the trial Mr Maharaj objected to the statements of witnesses taken by the police numbered AD10 – AD14 on the grounds that the police officers had not been called to give evidence. Mr Mishra objected strongly. He submitted that Mr Maharaj had agreed to the bundle and countersigned the list and should not be allowed to go back on his word.

[7] I allowed the bundle to be accepted into evidence as documents of a public authority under the provisions of s 11 of the Civil Evidence Act 2002.

THE EVIDENCE AT THE HEARING

[8] At the commencement of the hearing, Mr Maharaj who appeared as counsel representing the third party insurer informed me that his client had not been able to locate the Second Defendant driver. A subpoena was issued to him on 12 February 2010 and served on 27 February 2010. But the driver did not turn up at the trial. Counsel asked the Court to issue a warrant for apprehension of the Second Defendant. An affidavit of service was filed but it simply said the subpoena was personally served without explaining how it was done. The Second Defendant refused to accept and acknowledge receipt. I refused to issue the warrant because I was of the view that the subpoena may not have been properly served.

[9] I will first deal with the evidence on liability.

LIABILITY

[10] The Plaintiff's evidence on how the accident happened was that he was serving barbeque to a girl from the car parked in front of his stall. He was wrapping her barbeque parcel when someone shouted. He turned and saw the lights of a car. He did not hear the car because it was going very fast he said. He only felt the "car come on me". The car hit him on his right side hips. He was standing inside his stall. He demonstrated that there was a space of about ten feet between his stall and the road.

[11] No other witnesses gave evidence on how the accident happened.

[12] The only other evidence was the documentary evidence, the statements given to police AD10 – AD14 by the witnesses and the Plaintiff and the Second Defendant's record of interview with the police, Defendant's Exhibit D7.

[13] The statement AD10 was given by Parmend Sharma, the driver of ES399, to the police on 24 August 2006. He said he was returning from Suva in the company vehicle at about 9.45pm on 22 June 2006. He pulled over and stopped at the Plaintiff's barbeque stall on his right hand side of the road to buy barbeque. One of his passengers and co-worker, Merelita Bennion, got off to buy barbeque. "Suddenly, a car just slightly bumped onto the front right side of our car and then bumped onto the barbeque stall, with the man who was selling BBQ and also bumping onto Merelita who was standing right in front of the BBQ stall. And upon hearing Merelita groaning in pain, John who was another passenger then boarded Merelita into our car and we rushed her to Lautoka hospital". Mr Sharma also wrote in his statement that he did see the car coming towards them and he pressed the horn but by then it was too late. I note however, that in the earlier part of his statement he had crossed out the words "I had my eye on the man Indian man who was selling BBQ when" suddenly the car bumped his car.

[14] AD11 is the statement of John Fitzsimmons Sila, the other passenger in ES394, also given on 24 August 2006. He had gone to relieve himself and on his way back to the car: "I saw that this car was coming from Nadi towards Suva begin to veer off the road, bumped onto our vehicle then smashed onto the BBQ stall. I then quickly ran to the scene and picked up Merelita and boarded her into our vehicle and then we brought her to Lautoka hospital".

[15] AD12 is the statement of Merelita Bennion, also given on 24 August 2006 at the Nadi Police Station. She said: "Our driver, Parmend had stopped our vehicle in front of a BBQ stall on Queens Road, Nacovi. I then got off to buy BBQ and also to stretch my legs after a long ride. Just as I was going to get into the car after buying BBQ I could see a car coming off the road and towards Suva. I then quickly tried to move back and avoid any accident but by then the car hit our vehicle before bumping into the BBQ stall and also bumped me". She was treated at the Lautoka hospital then sent home.

[16] AD13 is the Plaintiff's statement given to the Nadi Police on 24 June 2006. He said: "At about 9.45pm, whilst serving a customer, who had parked his Pajero right in front of my stall and not on the road, when suddenly a car bumped onto my stall and also bumped me from my right. This car was on its way to Sigatoka from Nadi I was facing my customer when the car hit me. I was badly hurt and my stall damaged and BBQ ingredients all wasted. The total cost of damages done to my business that night would be $640."

[17] The witnesses Sharma, Bennion and Sila were subpoenaed by the Plaintiff but did not come to court to give evidence.

[18] There is no allegation that the Second Defendant was speeding in these statements. Evidence of speeding has to be inferred. Both Ms Bennion and the Plaintiff were treated at hospital and sent home. There was no independent evidence of the extent of the damage to the BBQ stall. The other driver, Parmend Sharma, said the other car "just slightly" bumped his car. Taking all these into consideration I find that the Plaintiff has failed to prove that the Second Defendant was driving at an excessive speed from which an inference of negligence could be drawn.

[19] All the witnesses said LH566 "veered" or went off the road. I think the only plausible explanation for this is that because vehicle ES394 was on the left side (the "wrong side" with respect to its direction of travel) of the road with its headlights on, the Second Defendant, unbeknown to him that ES394 was off the road on the same side as him, drove to the left of ES394 to avoid colliding with it and instead ran into the Plaintiff and his BBQ stall. This is indeed confirmed by the Second Defendant in his statement of interview with the police. He said he was blinded by the full beam of ES394.

[20] I therefore find that the Second Defendant did not drive vehicle LH566 negligently.

[21] Further, even if I am wrong in so finding, I would have held that the sole cause of the accident was the presence of the second vehicle ES394 on the "wrong" side of the road with its headlights on.

[22] Much was made of the fact that the Plaintiff did not have a licence to operate his BBQ stall but I do not find it relevant and have not considered it.

[23] The Plaintiff's claim therefore fails.

QUANTUM

[24] I have not referred to the evidence on quantum in this judgement because of my finding on liability. But I would have rejected the Plaintiff's evidence on the extent of his injuries. Having heard and seen him give evidence I think he was faking his injuries. I would also reject Dr Mareko's evidence because his reports were all based on what the Plaintiff told him.

[25] On the other hand, I find the two expert witnesses for the Defendants and their reports very convincing. The Plaintiff did not suffer any permanent injury. I would have only allowed for damages for the non-permanent injuries that he suffered immediately after the accident. I do not accept that he was unable to work. I think he was less than frank with this too.

COSTS

[26] Most of the evidence given in the two day hearing was towards quantum. I think the trial should not have taking that long, part of the blame lay at the Defendants feet. The Plaintiff may have to re-open his BBQ stall. I exercise my discretion in not making an award for costs.

ORDERS

[27] The Orders are as follows:

1. The Plaintiff's claim is dismissed.
   
2. There is no order as to costs.
   

Sosefo Inoke
Judge