IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION

ACTION NO: HBC 326 OF 2002

BETWEEN

CHANDRA DEO of Drasa, Lautoka
PLAINTIFF

AND:

RAMENDRA SHARMA of Drasa, Lautoka
1ST DEFENDANT

RAJENDRA SHARMA
2ND DEFENDANT

BEFORE: Priyantha Nawana J.

COUNSEL
For Plaintiff : Mr C B Young
For Defendants : Mr A Sudhakar with Mr A Narayan

TRIAL
Dates of Trial : 22-24 August 2011

WRITTEN SUBMISSIONS
By Plaintiff : 13 September 2011; 22 September 2011
By 1st Defendant : 14 September 2011; 23 September 2011 

JUDGEMENT

Delivered on : 29 September 2011

1.	The plaintiff, by his writ of summons dated 09 October 2002, filed this action against the defendants claiming special damages, general damages, interest thereon and costs.
 
2.	The suit was founded on negligence against the 1st defendant alleging that he (the 1st defendant) hit and collided with the plaintiff while driving motor vehicle No BI 711 as an agent and servant of the 2nd defendant on 30 October 2000 having inter alia failed to have a proper look-out and control of the vehicle. 

3.	The 1st defendant is the son of the 2nd defendant. The action proceeded only against the 1st defendant as the 2nd defendant was dead at the commencement of the trial.

4.	The plaintiff stated in the statement of claim that, as a result of the incident, the right knee, legs, shoulder and the left hand were severely affected with their power being diminished, causing loss of amenities and comfort.

5.	The defendants denied the allegations and challenged the plea for damages. They pleaded inter alia that injuries on the plaintiff were resulted due to his own criminal acts, negligence and recklessness as he was brandishing a dangerous object to assault the 2nd defendant and one Jitendra Narayan and, in fact, assaulted them causing breach of the peace and risked his own safety in the process.

6.	Admittedly, there were no meaningful admissions between the parties; and, the trial on disputant and divergent claims, proceeded for three days from 22 August 2011. 

7.	At the trial, the plaintiff-Chandra Deo, witness-Jone Rokodinono and Dr Joeli Mareko, Consultant-Orthopedic Surgeon, gave evidence for the plaintiff.

8.	The plaintiff, 57, a resident at Johnson Road, Lautoka, had been a former Police Constable in the Fiji Police Force for ten years from 1975-1985. After resigning the Force, he took to sugarcane cultivation on a twenty-acre land in Drasa Sector in Lautoka. The land was inherited from his late father. 

9.	On 30 October 2000, the plaintiff, on his way to the sugarcane farm, was found to have obstructed the right of way of the defendants and one Jitendra Narayan as he (the plaintiff) had stopped his vehicle on the middle of a public roadway. The incident irked the defendants. The roadway was subsequently cleared by the plaintiff by removing the vehicle at the insistence of the defendants; but, the feelings of hatred and ill-will were set to grow as the defendants had remarked: 

"[That was] not your father's road!",

as they were passing the plaintiff.

10.	Thereafter, the plaintiff while proceeding towards Ba, saw the 2nd defendant and Jitendra Narayan at the bus-bay at Matawalu along King's Road and confronted them by asking as to why they swore at him for nothing and abused his parents. Thereupon, according to the evidence of the plaintiff, both the 2nd defendant and Jitendra Narayan started to assault him in the course of which the plaintiff got hold of a stick and started swinging at them. The 2nd defendant and Jitendra Narayan then ran towards a shop, which was a few meters away right behind the bus-bay. 

11.	The 1st defendant, in the meantime, driving his car towards Ba, crossed the middle line of the highway, came to the roadway beside the shop at a speed of 30 KMPH and collided with the plaintiff on his right side. The plaintiff, upon receipt of the impact, was said to have been thrown away by a few yards on to the hard surface of the tar-seal and got both bones in the left forearm broken (Pages 7 and 12 of Notes of Proceedings). He also had got his sternum broken and right knees injured. The plaintiff further said in evidence that after 'bumping', the 1st defendant parked his car near the shop. The plaintiff, who was said to be in pain, went and sat on the driver's seat of his van. 

12.	The plaintiff said that he was hospitalized for about eleven days to receive treatment for the injuries that he allegedly had sustained in the incident. He said that he was a full-time farmer doing almost all activities in farming. In addition, he went on fishing, pig-hunting, riding horses, swimming and playing soccer etc. The plaintiff asserted that he had got so many sicknesses after the accident, lost libido and suffered sexual dysfunction.

13.	The plaintiff guesstimated incomes of $ 12,000.00-15,000.00 and 30,000.00-35,000.00 a month from his vegetable farms and sugarcane cultivations respectively and undertook to bring proof on 23 August 2011.

14.	Documents 'PE-1'-'PE-11' were produced by the plaintiff. (Documents 'PE-1'-'PE-10' were marked in the course of the testimony of the plaintiff, while 'PE-11', being a sketch depicting the relevant locations of the scene, was marked in the course of the 1st defendant's evidence on behalf of the plaintiff). 'PE-1', was the plaintiff's driving licence; 'PE2'-'PE-3' were plaintiff's Sugar Industry Tribunal Registrations; 'PE-4' was the Judgement on appeal by the plaintiff in the criminal case; 'PE-5' was the Medical Report on the plaintiff dated 05 June 2001; 'PE-6'-'PE-7' were Statements of Account; and 'PE-8'-'PE-10' were X-Rays on the plaintiff.

15.	Answering cross-examination, the plaintiff confirmed that the 1st defendant drove the car and purposely hit him when he was having the problem only with the 2nd defendant and Jitendra Narayan. He also confirmed that the 1st defendant did reverse the car and parked it; but, did not proceed towards Ba to take a 'U-Turn' to return to the scene (Pages 11 and 12 of the Notes of Proceedings).

16.	Answering further, the plaintiff said that he met the Turaga ni Koro of the area to look for a witness to the incident and found Jone Rokodinono. The plaintiff, however, had not met Jone Rokodinono before, until he met him for the first time a week or so before the trial.

17.	Jone Rokodinono, 37, a resident in Matawalu, giving evidence on behalf of the plaintiff said that, around 6.30 a.m. on 30 October 2010, he was waiting for his transport at the bus-stop at Matawalu to go to Denarau in Nadi. He saw the plaintiff stopping his vehicle at the bus stop and getting off to the dirt beside the edge of the tar-sealed King's Road and standing on the dirt. Some people were yelling from the nearby shop behind the bus-stop while some boys were throwing stones at the plaintiff's vehicle breaking its windscreen. 

18.	The witness saw one Indian man, driving a car towards Ba, came close to the point where the plaintiff was standing on and 'bumped' him. Witness saw the plaintiff-Deo falling on the ground and breaking his forearm. After hitting the plaintiff, the driver did not get off from the vehicle. Instead, he turned the vehicle and drove towards Ba for about 10 meters before taking a 'U Turn' on King's Road to return to pick-up some boys at the scene (Pages 1 and 2 of Notes of Proceedings).

19.	Answering cross-examination, witness said that the plaintiff knew him well as he (the plaintiff) had hired him for work in his sugarcane farms and confirmed that the plaintiff was hit by a car.

20.	The witness admitted that he had not given the above account in favour of the plaintiff before the Magistrate's Court and that he came forward only after the plaintiff came in search of him (the witness) about two weeks before the trial in this case.

21.	Ramendra Sharma, the 1st defendant, testified in support of his case. He said that his late father, the 2nd defendant, and Jitendra Narayan were going to get themselves dropped at Matawalu along King's Road in a car to catch a bus to go to work in the early morning on 30 October 2010. They found the vehicle of the plaintiff stopped at the middle of a road leading to Matawalu Junction obstructing their right of way. Witness said that an argument ensued over the removal of the vehicle and that they swore at each other as the vehicle was being removed by the plaintiff.

22.	After dropping the 2nd defendant and Jitendra Narayan at the bus stop at Matawalu, the 1st defendant was returning home. He saw the plaintiff going in his vehicle at a speed towards King's Road, having swerved into his side of the road. A curiosity-stricken 1st defendant then turned back and went towards the bus stop, where he saw the plaintiff trying to assault the 2nd defendant and J. Narayan with a stick. Narayan ran towards the shop, which was behind the bus-stop, followed by the 2nd defendant in order to escape the attack. As the witness came to the shop where the 2nd defendant and Jitendra Narayan were standing, he saw the plaintiff assaulting the 2nd defendant and Narayan, in the course of which the plaintiff fell on the ground having slipped his foot. The 1st defendant denied that he had 'bumped' the plaintiff (Pages 21 and 22 of Notes of Proceedings).

23.	Testifying further, the 1st defendant said that police arrived at the scene soon thereafter and took the plaintiff to the police station and wanted them to follow. The 2nd defendant and J Narayan were then accompanied to the hospital by the 1st defendant as both of them had received injuries.

24.	The 1st defendant further stated that there was a criminal case accusing both defendants of having assaulted the plaintiff. They were, however, acquitted, of the charge, which was later affirmed on appeal. Jone Rokodinono did not stand as a witness in that case. There was also a criminal case against the plaintiff for assaulting the 2nd defendant and Jitendra Narayan; but, the witness was not certain as to the outcome of that case (page 23 of Notes of Proceedings).

25.	Answering cross-examination, the 1st defendant reasserted that the plaintiff fell on the slippery grass in the course of the quarrel (Page 24 of Notes of Proceedings).

26.	Dr Joeli Mareko, Consultant-Orthopedic Surgeon gave evidence for the plaintiff, while Dr E D Taloga, Consultant-Orthopedic Surgeon, testified for the 1st defendant.

27.	Dr Mareko said that the injuries were consistent with a fall after being hit by a car. 

28.	Under cross-examination, Dr Mareko, however, admitted that if the plaintiff had fallen on a hard surface, similar injuries could have been caused. Answering further, the doctor said that he would have expected injuries on the hip if the plaintiff was hit by a car and added that no such injuries were seen by Dr Tunidau when the plaintiff was first examined after the incident (Notes of Proceedings at pages 18 and 19). Moreover, the 1st defendant produced 'DE-1' and 'DE-2', being the Medical Folder maintained at Lautoka Hospital on the plaintiff; and, the Report of Dr Taloga relating to the examination of the plaintiff on 15 August 2011 in the course of the cross-examination of Dr Mareko to negate the assertion that the injuries were resulted from an act of intentional collision. 

29.	Evidence Dr Taloga, Consultant-Orthopedic Surgeon, too, was relied upon by the 1st defendant to show that the injuries complained of by the plaintiff were resulted only from a fall.

30.	Closing the case for the 1st defendant, documents marked 'DE-3'-'DE-12' were admitted to the Record by mutual agreement of parties reserving the right, however, for the learned counsel for the plaintiff to comment and canvass the validity and probative value of the contents of the documents. 'DE-3' was the Charge Sheet regarding the assault on the 2nd defendant and Jitendra Narayan; 'DE-4' was a copy of Magistrate's Court (MC) Case Record; 'DE-5' was the MC decision; 'DE-6'-'DE-7' Medical Reports on the 2nd defendant and Jitendra Narayan; and 'DE-8'-'DE-12' were relevant statements of parties to police.

31.	In light of the evidence summarized above, it is clear that the plaintiff presented his case on the basis that the injuries that he suffered were due to an intentional act of 'bumping', as they called it, with the vehicle driven by the 1st defendant. 

32.	The 1st defendant, on the other hand, denied any involvement of a vehicle to the injuries sustained by the plaintiff. Instead, he presented his case on the basis that the plaintiff had suffered injuries due to his own voluntary acts of criminal nature in attacking the 2nd defendant and Jitendra Narayan; and, attributed the injuries to a fall on the ground in the process. 

33.	Medical evidence of the two Consultant-Orthopedic Surgeons is of importance primarily to consider the cause of the injuries with forensic impetus; and, secondarily for ascertainment of the degree of incapacitation, if any, to assess damages. Medical evidence for assessment of damages, however, needs be considered only after court's conclusion as to the causation of the injuries on the plaintiff upon an overall evaluation of respective cases of each party as such conclusion alone would give rise to the tortious liability against the 1st defendant.

34.	The plaintiff, in terms of the statement of claim, founded his case on negligence alleging negligent conduct of the 1st defendant in that he (the 1st defendant): 

(i)	Failed to have a proper look-out; and, 
(ii)	Failed to stop, swerve, maneuver, steer or control the vehicle to avoid hitting the plaintiff while driving the car on King's Road near Matawalu. 

35.	The defendants, in terms of their statement of defence, answered the case of the plaintiff by denying the allegations and attributed the injuries to plaintiff's own conduct of negligence in the course of assaulting the 2nd defendant and Jitendra Narayan.

36.	However, evidence presented on behalf of the plaintiff at the trial was to the effect of an intentional act of injuring the plaintiff by 'bumping' or deliberately knocking him down. Both the plaintiff and his witness, Jone Rokodinodino, were, accordingly, assertive on such manner of causation of the injuries by such deliberate act of collision with a vehicle. The 1st defendant, on the other hand, maintained his position at the trial that the injuries were caused by a fall on a slippery grassed ground in the course of the assault on the 2nd defendant and Jitendra Narayan.

37.	It could, therefore, be seen that the evidence presented for and on behalf of the plaintiff, was not in line with a case of negligence, as pleaded. Instead, it was in relation to a case of trespass arising out of an intentional act of the 1st defendant. Two instances give rise to two different causes of action to found two different torts. The English Court of Appeal, in Letang v Cooper; 1965 1 QB 232 at 239, dealing with a similar case of causing injuries by a defendant by driving his car on a sunbathing plaintiff, held per Lord Denning M.R. and Dankwerts L.J. that: 

…Instead of dividing actions for personal injuries into trespass (direct damage) or case (consequential damage), we divide the causes of action now according as the defendant did the injury intentionally or unintentionally. If one man intentionally applies force directly to another, the plaintiff has a cause of action in assault or battery, or, if you please describe it, in trespass to the person…If he does not inflict injury intentionally, but only unintentionally, the plaintiff has no cause of action today in trespass. His only cause of action is in negligence, and then only on proof of want of reasonable care. If the plaintiff cannot prove want of reasonable care, he may have no cause of action at all. Thus, it is not enough nowadays for the plaintiff to plead that 'the defendant shot the plaintiff.' He must also allege that he did it intentionally or negligently. If intentional, it is the tort of assault or battery. If negligent and causing damage, it is the tort of negligence. … 

38.	In this case, it is not, therefore, difficult to comprehend that the plaintiff based his case, as pleaded, on the cause of action of negligence arising out of an unintentional act of the 1st defendant in causing injuries to the plaintiff. Nevertheless, he presented, in the course of the trial, a totally different case on another cause of action of trespass arising out of an intentional act. 

39.	The objects and the importance of pleadings; and, the parties' legal obligation of conforming to them, were considered in the case of Anderson v Salaitoga [1994] FJHC 42, where it was held as follows:

To bring the parties to an issue, and to prevent the issue being enlarged, which would prevent either party from knowing, when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to definite issues, and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.

40.	Justice John Byrne, as he then was, dealing with the issue of pleadings further in the above case also adopted the principle laid down in Banque Commerciale SA En Liquidation v Akhil Hodings Limited [1990] HCA 11; (1990) 169 CLR 279 at 288 in following terms:

When the pleadings bring the parties to the issue, the court's function is to determine that issue and to grant relief founded on the pleadings unless the parties are allowed to alter the issues at the trial without amendment of the pleadings (…) The rule is clearly laid down in in the judgement of this court in Dare v Pulham […] [1982] HCA 70; (1982) 148 CLR 658 at p 664:

Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon [v Mount Oxide Mines Ltd (In Liq.)] […]; Sri Mahant Govind Rao v Sita Ram Kesho […]
(My Emphasis)

41.	It is, therefore, trite law that a party must conform to the pleadings, especially in relation to the cause of action, and present evidence accordingly. Such conformity is required not for pedantic satisfaction of rules and/or procedure of court but for achievement of substantive justice. Doing otherwise will occasion undesirable results inter alia of: 

(i)	 Loss of evidence in plaintiff's own case to support his own cause of action and the claims; 

(ii)	Placing a defendant at an disadvantaged position of not knowing what exactly he/she had to meet; and,

(iii)	Deprivation of the opportunity for court to decide on issues relevant to the cause of action as pleaded by the plaintiff.

42.	In the case of negligence, as pleaded by the plaintiff, the exercise of reasonable care by the 1st defendant - indeed at the point of time of the incident - is the core issue relevant to the cause of action. The 1st defendant, therefore, could be faulted for acting in breach of such reasonable care on the premise of negligence, if and only if, his conduct fell below the standard required by law. The standard required by law is measured in the context of a reasonable and prudent man in relation to the principles in Blyth v Birmingham Waterworks [1856] AER 478 (at 479) on the issue of negligence, which reads:

[…] omission to do something [,] which a reasonable man guided upon those considerations [,] which ordinarily regulate the conduct of human affairs, would do; or doing something [,] which a prudent and reasonable man would not do.
See also Glasgow Corporation v Muir [1943] AC 448 at 457 and London Graving Dock v Horton [1951] AC 737 at 785.

43.	The requirement of duty of care in the tort of negligence has, furthermore, been explained in 'Clerk and Lindsell on Torts'; 19th Ed.; Sweet and Maxwell [2006] at page 383 as follows:

The duty in negligence, therefore, is not simply a duty not to act carelessly; it is a duty not to inflict damage carelessly. Since damage is the gist of the action, what is meant by 'duty of care situation' is that it has to be shown that the courts recognize as actionable the careless infliction of the kind of damage of which the claimant complains, on the type of person to which he belongs, and by the type of person to which the defendant belongs.
 (My Emphasis)

44.	 The duty of reasonable care envisaged by law in the tort of negligence, therefore, largely, if not exclusively, depends on the type of the person that the plaintiff belonged to; and, the type of the person that the 1st defendant belonged to. Consequently, identification of the relationship between the plaintiff and the 1st defendant and their respective status at the relevant point of time is of paramount importance to understand the extent of duty of care that the law imposed on the defendant; and, its breach.

45.	'The key notion of reasonableness [in the breach of duty of reasonable care] provides the law with a flexible test capable of being adapted to the circumstances of each case. … The behaviour of individuals and circumstances giving rise to harm are so variable that a flexible test of this nature is essential. Consequently, the courts resist attempts to crystalize the required standard into a series of more definite, discrete rules. Decisions in individual cases as to what amounts to reasonable or unreasonable conduct are regarded as useful guides but no more'. 

See Clerk and Lindsell on Torts (Supra).

46.	 A careful consideration of the foregoing principles in light of the evidence summarized below would, in my view, be necessary in law to determine the tortious liability against the 1st defendant. 

47.	Scrutiny of evidence of the plaintiff and the 2nd defendant point to one common factor. And, that is the fact that the 2nd defendant and the Jitendra Narayan who were waiting for the bus were not found to be at the bus-stop little later; and, the plaintiff who went to question them, too, were not at the bus-bay. The 2nd defendant and Jitendra Nrayan, instead, were made to be at a place close to the shop away from the bus-stop, not out of their own choice; but, due to the act of pursuit as stated by the 1st defendant. This evidence remained uncontradicted; and, in fact, there was no even a suggestion to assail that item of evidence by the plaintiff. Instead, plaintiff's evidence provided corroboration by admitting that the 2nd defendant and Jitendra Narayan ran to the shop after he started 'swinging the stick' at them (Page 7 of Notes of Proceedings). The 1st defendant also confirmed in his answers to cross-examination that the 2nd defendant was being attacked by the plaintiff with a stick, as seen from the point marked 'Z' on the sketch, which was drawn by the 1st defendant at the request of the learned counsel for the plaintiff and marked as 'PE-11'. The 1st defendant saw Jitendra Narayan running towards the shop from the point marked 'Y', which was at the turn-off to the roadway leading to the shop as marked on 'PE-11' (Pages 24 and 25 of Notes of Proceedings) and that the plaintiff was wielding the stick at the 2nd defendant and Jitendra Narayan as he (the 1st defendant) came close to the shop (Page 22 of Notes of Proceedings).

48.	I, accordingly, accept the evidence, as testified to by the 1st defendant, that the 2nd defendant and Jitendra Narayan were being attacked by the plaintiff as he returned to Matawalu Junction out of curiosity after seeing the plaintiff going in that direction in a haste. And, that the 2nd defendant and Jitendra Narayan continued to be under attack as the 1st defendant reached the junction marked 'Y' on 'PE-11' to take turn to the roadway leading to the shop where the incident took place.

49.	It could be deduced, upon the above analysis and the conclusions, that the 1st defendant-son rushed to the scene to give succour to his beleaguered 2nd defendant- father at the hands of the assailant-plaintiff. This conduct of the 1st defendant was not […] something, which a prudent and reasonable man would not [have done,] guided upon those considerations, which ordinarily regulate the conduct of human affairs (See paragraph 42 above). In that sense, the 1st defendant was not negligent in arriving at the scene in response to the circumstances that existed at the time; but, he still was under a duty of reasonable care in driving to the scene. The standard of reasonableness in the duty of care exercisable towards the plaintiff by the 1st defendant, in the circumstances, must be measured in the context of such a person in 1st defendant's shoes and in relation to such circumstances.

50.	The law mandates that the plaintiff must establish such level of reasonable care and its breach upon a preponderance of probabilities for the plaintiff to succeed in his action to impute tortious liability on the 1st defendant on negligence. This, I think, is an uphill task by any means. And, I would not be slow in leading to the conclusion that this herculean task, among other reasons, would have led the plaintiff to jettison his case for negligence and embrace a case for trespass.

51.	For whatever the reasons, there is no case before court now, as presented by the plaintiff, in line with his pleadings for negligence based on an unintentional act as particularized by the plaintiff in his statement. The salient issues, as summarized above, to impute tortious liability for negligence on the 1st defendant, consequently, remain unaddressed. 

52.	Leave aside the proof of the constituent elements of negligence, the exact location of the plaintiff at the point of time of the alleged 'bumping' or intentional collision by the 1st defendant, itself is in conflict. There are two versions within the plaintiff's case itself. The first is that he was bumped on the roadway to the shop as deposed to by the plaintiff himself (Page 7 of Notes of Proceedings). The other is that he was bumped as he was standing on the dirt besides King's Road after alighting from his vehicle near the bus-bay, as testified to by plaintiff's witness Jone Rokodinono (Page 1 of Notes of Proceedings).

53.	If the evidence of the plaintiff is worthy of credit to go by, there was no reason for the plaintiff to be on the roadway away from the bus-bay, if his acts of arming himself with a stick and its swinging were entirely for self-defence, as he claimed. There was no explanation either forthcoming from the plaintiff as to how and why he (the plaintiff) happened to be at any other place away from the bus-bay to be collided by the 1st defendant after questioning the 2nd defendant and Jitendra Narayan, having left his vehicle at the bus-bay as shown by the sketch marked 'PE-11'.

54.	Be that as it may, the plaintiff in addition to his own evidence, called withness-Jone Rokodinono to establish the indispensable fact of intentional collision or 'bumping'. Jone Rokodinono, though professed to be an eye-witness, had not stood as a witness to any of the criminal proceedings had against the plaintiff or the defendants before. He was, instead, discovered by the plaintiff only a week or so before the trial through the village headman Turaga ni Koro of Matawalu. 

55.	The manner of discovery of this witness alone is conflicting. The plaintiff said that he went in search of some witness to the incident of 30 October 2000 and met the Turaga ni Koro in August 2011 and explained his need of finding a witness for this case. Jone Rokodinono, who was not even seen before but only on that day by the plaintiff, came forward, saying that he could tell whatever he had seen. Jone Rokodinono, quite contrary to that evidence, said that he had known the plaintiff well as a resident on Johnson Road as he (the plaintiff) hired his work for wages. The plaintiff, according to his witness-Jone, had gone in search specifically of him (Jone Rokodinono) about two weeks before the trial.

56.	Jone Rokodinono, therefore, was a witness, who testified after almost eleven years on an incident of 30 October 2000 for the first time, without furnishing any information whatsoever to any of the authorities regarding the incident that he testified on. His evidence, accordingly, needs be considered with great care as his testimony could be directed at the main point of 'bumping' in order to mechanically corroborate the plaintiff. When a witness's evidence is considered, in circumstances such as these, credibility and weight depends to a greater extent on how the witness deals with peripheral matters.

57.	There is a clear contradiction between the plaintiff and his witness, in addition to the main point as set-out in paragraph 52 above, as to what happened soon after the 'bumping' of the plaintiff. It was the plaintiff's position that the 1st defendant after the collision stopped the car in front of the shop off the driveway. His witness-Jone Rokodinono, contrary to that, said that the 1st defendant, after colliding with the plaintiff sped the car towards Ba along King's Road for a few meters and took a 'U-Turn' and returned to the scene and picked up some boys and went.

58.	Moreover, witness contradicted the plaintiff when he affirmatively said that the windscreen of the plaintiff's vehicle was broken as a result of stones being pelted at it quite contrary to the plaintiff's denial of such damage to the windscreen at all.

59.	More importantly, witness-Rokodinono sought to explain the incident from the point of very start when the plaintiff got off at the bus-stop; but, he cautiously chose not to refer to the incidents at the bus-stop and also as to how the two parties had got into a point away from the bus-bay in the course of an ensuing quarrel. This omission on the part of the witness in relating the incident, if he had in fact seen it wholly, is material in the circumstances of this case to assess credibility as well as the weight of evidence.

60.	If the witness was present at the bus-bay from the very moment of the plaintiff's arrival, he should have seen the entire incidents of confrontation and the ensuing quarrel between two warring parties, followed by the 2nd defendant and Jitendra Narayan running to the shop. It is not the point of plaintiff's arrival at the bus-bay that evoked the incidents of alleged bumping or pelting stones, as stated by witness-Jone Rokodinono; but, after the 2nd defendant and Jitendra Narayan ran to the shop after the quarrel triggered-off. Therefore, the evidence of witness-Jone Rokodinono, apart from completely contradicting the plaintiff as to the place of alleged 'bumping', also contradicts the plaintiff in relation to the events that followed immediately after arrival of the plaintiff at the bus-bay.

61.	In common law, there is no requirement to call a particular number of witnesses to establish a fact. This stands to reason as a court of law would not count; but, would, instead, weigh the evidence. In fact, what matters to a court of law is not the quantity but the quality of evidence. 

62.	Nevertheless, it has been hardened as a practice for parties to call more than one witness to establish a particular fact. The advantage in such practice is that the case of a party is strengthened if the evidence of each witness mutually corroborates. The practice, on the other hand, has its inherent disadvantage if two witnesses contradict each other resulting in loss of credibility of witnesses leading perhaps to the demolition of one's own case. In this case, it is the latter that has been projected to yield. 

63.	Mr C B Young, learned counsel for the plaintiff in his closing speech after filing written-submissions, admitted that he advanced the case for the plaintiff on the basis of an intentional act of 'bumping'. He submitted that 'bumping' denoted a deliberate act resulting in a forceful impact with a ricochet movement of the person hit. Learned counsel compared and contrasted the act of 'bumping' with an act of 'grazing' and submitted that the latter could only cause a loss of balance. 

64.	Mr Young's concession is pertinent when one considers the evidence under oath of the plaintiff in Magistrate's Court Case No 365/2001 where the plaintiff stood charged for assaulting the 2nd defendant and Jitendra Narayan. In that case, the plaintiff in his evidence under oath had stated that: 

'I was standing near my van, Ramendra [2nd defendant] came from right side and grazed his side with the car. Right leg was hurt and left forearm as I fell'.

(Page 15 of the MC Record marked as 'DE-3').

65.	An act of 'grazing' was, therefore, the wrongful conduct attributed to the 1st defendant by the plaintiff in his own evidence before the Magistrate's Court at a time proximate to the incident. Many years later in 2011, 'grazing' was sought to be converted to 'bumping' in this court attaching an element of criminality and a greater degree of blameworthiness, perhaps, in order to multiply the quantum of damages in a newly invented case of trespass. Inevitably, the result was the addition of one more decisive inconsistency to the plaintiff's case. 

66.	In dealing with the issue of propriety of considering the plaintiff's evidence in previous judicial proceedings, I accept the legal position, as advanced by Mr Sudhakar on the basis of the principles in Browne v Dunn ([1893] 6 R 67) in his supplementary written-submissions. The above segment of evidence was not taken as substantive evidence; but, as an instance where the plaintiff had taken-up a contradictory position on the material point in previous judicial proceedings so as to affect his testimonial creditworthiness and weight in this court. 

67.	Thus, instead of adducing evidence to satisfy his cause of action on negligence on a balance of probability, the plaintiff presented a case tainted with glaring contradictions affecting the credibility and evidential weight to support a case of trespass totally outside the pleadings.

68.	Mr Young, on the other hand, did not make any application for amendment of pleadings to alter the cause of action to be in line with the evidence elicited to suit the case for the tort of trespass, notwithstanding the matter being raised by learned counsel for the 1st defendant. Instead, he filed, amidst objections by the 1st defendant, an amended statement of claim dated 20 September 2011 to include particulars of special damages and sought to give a new lease of life to the issue of damages but not to the case. In supplementary written-submissions of 23 September 2011, too, learned counsel did not address the all-important issue of liability that sprang-up due to the diametrically mismatching evidence to the case pleaded. Therefore, it was clear as clear could be, that the irreconcilability of the evidence with the pleadings was a manifest and conscious eventuation. 

69.	Mr S Sudhakar, learned counsel for the 1st defendant, however, submitted that there was no evidence placed to satisfy the cause of action on negligence, as pleaded, and moved for dismissal of the action on that ground alone. He also addressed court on issues of unreliability and unacceptability of the version of the plaintiff in view of the infirmities and serious contradictions in the evidence.

70.	Upon above analysis, I come to the finding that the plaintiff did not place evidence at all in support of his cause of action for negligence as particularized in his statement of claim. On being guided by the words of His Lordship Justice Byrne in Anderson v Salaitoga (Supra), I hold that the plaintiff is entitled only to what he had pleaded on the basis of the cause of action. Accordingly, the absence of evidence to support the plaintiff's cause of action on negligence, disentitles him to the relief prayed for.

71.	In the circumstances, I do not proceed to consider the evidence adduced on behalf of the plaintiff, in support of the case for trespass based on an intentional act; because, such an exercise will simply be contrary to law and prejudicial to the 1st defendant. Even if I do, it will not help the plaintiff's cause in view of the unreliable nature of evidence touching upon the very act of 'bumping' both in relation to its place and the manner of occurrence. 

72.	For the foregoing reasons and particularly for those in paragraph 33 above, I refrain from considering the medical evidence on either side as such consideration would not now be relevant in light of the fundamental legal issue of failure to satisfy the plaintiff's cause of action on negligence.

73.	I, accordingly, hold that the plaintiff has failed to prove his case on a balance of probability.

74.	In the result, the plaintiff's action is dismissed with costs. In assessing the quantum of costs, I consider the matters set out in my judgement as compelling to fix the costs at $ 3250.00 payable to the 1st defendant. 

75.	Accordingly, orders are: 

(i)	Plaintiff's action is dismissed with costs fixed at $ 3250.00; and, 

(ii)	Plaintiff to pay the costs within thirty (30) days from 29 September 2011 to the 1st defendant.

Priyantha Nawana
Judge
High Court
Lautoka
29 September 2011