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Nand v Tacirua Transport Company Ltd [2011] FJHC 452; HBC208.2007 (18 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION HBC 208 OF 2007

BETWEEN:

NEELAM BANDHANA NAND
Plaintiff

AND:

TACIRUA TRANSPORT COMPANY LIMITED
First Defendant

AND:

BIJENDRA PRASAD
Second Defendant

Mr D Singh for the Plaintiff
Ms P Narayan for the Defendants

JUDGMENT

This action is brought by the Plaintiff as the administratrix of the estate of her late husband Niraj Chaudhary (the deceased) who died as a result of injuries received in a motor vehicle collision. The collision occurred on 6 June 2005 on Princes Road close to Dilkusha Road near Sawani and a short distance from Nausori. It was a two vehicle head on collision involving a taxi, driven by the deceased, that was travelling from Nausori towards Sawani and a bus, owned by the First Defendant and driven by the Second Defendant, which was travelling from Tacirua towards Nausori. The Plaintiff's husband (the deceased) sustained injuries and died shortly afterwards. The driver of the bus was not injured apart from shock.

The Plaintiff claims damages pursuant to the provisions of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27 and the Compensation to Relatives Act Cap 29.

The Plaintiff alleges that the collision was caused by the negligence of the Second Defendant. Particulars of negligence were pleaded on the Plaintiff's Statement of Claim. Furthermore the Plaintiff alleges that the Second Defendant was driving the bus at the time of the collision as the servant and or agent of the First Defendant who owned the bus. The Statement of Claim set out the particulars of damages claimed under the legislation.

In the Defence liability in negligence was denied and the Defendant asserted that the collision was caused by the negligence of the deceased. Particulars of contributory negligence on the part of the deceased were pleaded in the Defence.

In Pre-Trial Conference Minutes dated 8 May 2008 ownership of the bus and employment of the Second Defendant by the First Defendant was admitted. It was also admitted that at the time of the collision the Second Defendant was driving the bus in the course of employment.

In the Minutes of the Pre-Trial Conference on assessment of damages dated 1 December 2008 the parties agreed on quantum and interest that would form the basis of any apportionment in the event that there was a finding of contributory negligence. The amounts agreed upon in respect of interest were no doubt calculated on the basis that the trial would start on 3 December 2008. The interest now payable in the event of a finding of negligence will be calculated on the basis that the trial started on 18 July 2011.

The Court notes that the hearing of this action did start on 3 December 2008. At the end of the hearing directions were given for simultaneous written closing submissions to be filed within 21 days and thereafter judgment on notice. There is no indication in the file that written submissions were filed. As at April 2009 when the learned trial Judge left the Bench the judgment had not been delivered. As a result it was necessary for the action to be re-heard. The re-hearing took place in Suva on 18 – 19 July 2011. At the conclusion of the evidence Counsel for the parties presented oral closing submissions.

A sketch plan and various photographs of the approximate location of the collision were admitted by consent into evidence as exhibits. A number of amendments were made by consent to the Statement of Claim. The amendments were made during the course of the hearing to accurately reflect the circumstances of the collision.

The Plaintiff called four witnesses to give evidence. The Plaintiff herself did not give evidence and in fact did not attend the hearing. The first witness called by the Plaintiff was Constable Inoke Luveni who had prepared the sketch plan and who had attended at the scene of the collision a short time after the collision. His sketch plan contained some measurements and showed the approximate position of each vehicle when he arrived at the scene after the collision. The second witness was the deceased's father who had taken photographs of the scene of the collision some three weeks after the collision. The third and fourth witnesses were Mr Jone Turagavuli and Mr Ramesh Prasad. These two gentlemen were walking to work along Princes Road towards Sawani on the right side of the road. They gave evidence as to their observations concerning the collision.

The Defendants called one witness. He was Mr Bijendra Prasad, the Second Defendant and the driver of the bus.

The only issue before the Court was whether the collision was caused by the negligence of the Second Defendant and if so was there any contributory negligence on the part of the deceased.

Having carefully considered and weighed the evidence given by all the witnesses and having considered the sketch plan and the photographs I shall set out what I consider to be the essential findings of fact.

I am satisfied that the collision occurred sometime between 6.00a.m and 6.10a.m on Monday 6 June 2005. I have no hesitation in concluding that at that time of the year it was still dark at that time. The weather was fine. The road was dry.

I am also satisfied that the collision occurred on Princes Road close to its intersection with Dilkusha Road and at a location that was between Nausori and Sawani. The road surface was sealed with marked double continous white lines in the centre of the road. On the bus driver's side of the road in the vicinity of the point of impact a portion of the sealed surface of the road had broken up. The extent of the damage was the subject of inconsistent evidence and I make no findings on the extent of the damaged surface. The damage extended to more than half the width of the bus driver's side of the sealed road. It would appear that the road rises gradually and that the point of impact occurred a short distance from a gradual bend in the road to the right viewed from the direction that the bus was travelling. Although the sketch plan has a marking 'C' which purports to indicate the total width of the sealed road, no measurement was given in the key that accompanied the sketch plan. However from the sketch plan the letter 'k' indicates that the width from the centre line to the edge of the sealed portion on the taxi's side was about 3.9 metres. The photographs taken by the deceased's father some three weeks after the collision indicate that the sealed lanes in each direction were wide enough for vehicles to travel without having to straddle the marked double centre lines.

I am satisfied that the bus driver was driving an empty bus to Nausori and shortly before the collision was travelling at a speed between 50 – 60 kph. I am satisfied that before he left the bus depot at Tacirua the driver checked the bus and left the depot at about 5.40am. I am satisfied that his headlights were working and were still on when the collision occurred. I also accept that the driver of the bus was required to be at the Nausori bus station at 6.10am.

The deceased was driving a Toyota Corolla hatchback vehicle coloured white. There were no passengers in the deceased's taxi. There was no evidence before the Court as to where the deceased was travelling or for what purpose. It was not made known to the Court whether the deceased was driving his taxi to collect a fare or was on his way to work at Rups in Marks Street in Suva City or some other purpose.

I accept the evidence of Constable Luveni as to the position of the vehicles when he arrived at the scene. The bus was located on its correct side of the double centre line with the driver's side of the bus virtually on the centre lines. The taxi was located on the gravel off its own side of the road at an angle to the direction it had been travelling. I accept that there were no skid marks on the road way from either vehicle and that the bus had come to a stop a short distance past the point of impact.

On the evidence before me I am satisfied that the point of impact was in about the centre of the road. The sketch plan prepared by Constable Luveni showed the point of impact as being on the bus driver's side of the centre line. In reaching that conclusion the Constable relied on what he had been told by the bus driver. I am satisfied that both drivers were driving their vehicles some distance from the left or near side of their respective lanes.

The damage to the taxi was across the entire front of the vehicle and was severe. The damage to the bus was on the front to the driver's side.

I am also satisfied that speed must have been a factor in the sense that both drivers were travelling at speeds that gave them neither time nor opportunity to avoid the collision by moving slightly to the left and away from the centre of the road.

I am also satisfied that neither driver was keeping a proper lookout in the sense that there were no tyre marks on the road to indicate that either driver had applied the brakes to either reduce speed or to avoid the collision.

I find that the Second Defendant was negligent in that he was driving his bus too far from the left side of the road. There was sufficient space on the sealed road for him to be further to the left. I find that he was travelling at a speed that was excessive under the circumstances and that he failed to keep a proper lookout.

I also find the deceased had contributed to the collision by his negligence. It is clear that the taxi was also travelling too far from the left of the road. There was also sufficient space on the sealed part of the road for him to position his taxi further to the left. I am satisfied that the deceased was travelling at an excessive speed that prevented him from avoiding the collision. The deceased failed to keep a proper lookout in the sense that there appeared to be no attempt to apply his brakes to avoid the collision.

Furthermore I find that both drivers were in breach of Regulation 3 (1) (a) of the Land Transport (Traffic) Regulations 2000 which requires a driver of a vehicle to keep the vehicle as close as practicable to the left or near side of the carriage-way.

Under the circumstances I have concluded that the Second Defendant was negligent and that his negligence was in part responsible for or caused the collision. Since the Plaintiff has established negligence on the part of the Second Defendant, that finding attracts vicarious liability to the First Defendant.

In assessing contributory negligence the issue to be considered is whether the deceased acted in a way that indicated that he had failed to take reasonable care of himself and as a result contributed to his injuries. Furthermore in a situation such as the present where the two vehicles are moving in relation to one another as to involve risk of collision, each driver owes the other a duty to move with due care. (See Nance –v- British Columbia Electric Railway Co. Ltd [1951] AC 601 at page 611)

For the reasons stated above I am satisfied that the deceased was driving his taxi at the time of the collision in a manner that indicated that he failed to take reasonable care for his own safety and failed in his duty to the driver of the bus to drive his vehicle with due care.

I find both drivers contributed equally to the collision and I fix contributory negligence at 50%.

I consider it appropriate to comment briefly on the evidence given by the two witnesses called by the Plaintiff, both of whom appeared not to have any interest in the outcome and both of whom were called on the bases that they were independent. At the outset both witnesses admitted that they had never driven a motor vehicle and had never held a licence to drive a motor vehicle. Although they both gave evidence that they saw the bus travelling at a fast speed and move over the centre line onto its incorrect side of the road, that observation was made at last 30 metres from where point of impact occurred. It was still dark and they were not able to recall whether there were street lights operating at the time. One of the two witnesses gave evidence that the bus "dragged" the taxi vehicle for a distance. However he also accepted that there were no tyre marks on the road.

Their assertion that the bus was travelling very fast was not supported by the fact that the bus came to a stop only a short distance beyond the point of impact and that there were no tyre marks or skid marks anywhere on the sealed road to indicate sudden severe application of brakes. That, of course, does not detract from my finding that the speed of 50 – 60 kph was excessive under the circumstances.

In my judgment the evidence of these two gentlemen was unreliable for a number of reasons. First, they had no driving experience whatsoever. Secondly they were casually walking along the road to work one behind the other not for one moment expecting to view an accident which happened suddenly in a split second. Thirdly they viewed the collision a distance at least 30 metres away. There was no evidence as to the period of time they had observed either vehicle before impact. It was accepted that the headlights of the bus were operating at the time. Finally some aspects of their evidence indicated that they had discussed the circumstances of the collision between themselves.

In assessing the weight to be given to their evidence I have taken into account the observations on Faryna –v- Choiny [1952] 2 D.L.R 354 a decision of the British Columbia Court of Appeal. The Court said at page 356:

"If a trial judge's finding of credibility (and I would add reliability) is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility. _ _ _

_ _ _The test must necessarily subject his story to an examination of its consistency with the probabilities that surround the currently existing condition."

For the reasons stated above I do not consider the evidence of the two independent witnesses to be in accordance with the preponderance of probabilities that emerged from the unchallenged objective evidence derived from the sketch plan prepared by Constable Luveni. I accept the cautionary words in Nickisson –v- R [1963] W.A.R. 114 that:

"Nor does a Police Officer's experience in investigating traffic accidents make him an expert for the purpose of reconstructing a particular traffic accident."

However the sketch plan and the evidence given by Constable Luveni provided sufficient objective material to support the conclusion that there was negligence on the part of the Second Defendant and contributory negligence on the part of the deceased in the manner in which they drove, managed and controlled their respective vehicles.

The order of the Court is that the Plaintiff is entitled to damages agreed and interest to be assessed both of which are to be reduced by 50% on the basis of contributory negligence. As the Plaintiff has succeeded in her claim I order that the Defendants pay the Plaintiff's costs of the proceedings on the standard basis (party and party) to be agreed and if no agreement to be taxed.

W D Calanchini
JUDGE

18 August 2011
At Suva