IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil ACTION No: hbC 52 of 2014Lbs

BETWEEN:

SATISH CHAND, RAM CHANDAR, RESHMI DEVI, VEER WATI, PREM CHANDRA, BISSUN DEI, ISHNE LATA, KIRAN WATI, SUMAR DEO aka SUMMAT DEO, RAKESH CHAND, VIKASHNI CHAND, VIJAY KUMAR, UMESH CHAND
Plaintiffs

AND:

SANT LAL
1st Defendant

: PARMOD ENTERPRISES LIMITED
2nd Defendant

BEFORE : The Hon. Mr Justice David Alfred

Counsel : Mr A Sen for the Plaintiffs
 Mr P R Lomaloma for the Defendants

Dates of Hearing : 10, 11 and 12 August 2015
Date of Judgment : 18 September 2015

JUDGMENT

A.	Introduction 

1.	According to the Statement of Claim, the 13 Plaintiffs were on 14 March 2013 (the day) passengers in a motor bus registration number CX 080 (the bus), which while being driven by the 1st Defendant as a servant and agent of the 2nd Defendant, its owner, was involved in a collision (the collision) with a locomotive. 

The collision occurred along the Labasa/Bulileka Road at Batinikama junction and as a consequence thereof, the Plaintiffs sustained injuries and suffered pain, loss and damage. 

B.	Pleadings

2.	The Statement of Claim further averred that the aforesaid collision was caused solely by the negligence of the 1st Defendant, and that the Plaintiffs would rely on the doctrine of res ipsa loquitor.

3.	The Statement of Defence of both Defendants while admitting the collision, averred, in a very indistinct and vague way, what I could only infer as attributing the blame for it, on the locomotive (driver). I noted that there was no allegation whatsoever of any contributory negligence against the Plaintiffs.

4.	There was a Reply to Defence, which does not need any comment.

5.	A perusal of the Minutes of the Pre-Trial Conference (Minutes) shows, inter alia, among the Agreed Facts the following:

•	The Plaintiffs were passengers in the bus, driven by the 1st Defendant as servant or agent of the 2nd Defendant who was liable as the employer.

•	As a result of the collision, the Plaintiffs were injured.

•	The 1st Defendant was charged with careless driving.

 It also shows that among the issues were:

•	Whether the collision was caused through the negligence of the 1st Defendant in driving the bus.

•	Whether the doctrine of res ipsa loquitor was applicable.

6.	In the light of the above state of the pleadings and the Minutes, I ruled at the outset of the hearing on 10 August 2015, it would be expedient in the particular circumstance of this action, to decide the issue of liability first, the issue of damages would come thereafter. 

C.	Hearing

7.	The Agreed Bundle, which Plaintiffs' Counsel informed me was agreed by both parties, was then marked as 1.

8.	In the course of the hearing, it became clear to me, that the witnesses and counsel, were using the words 'train' and 'locomotive', 'siren' and 'horn', 'light' and 'beacon' and 'tram', and 'railway', and 'digger' and 'excavator', interchangeably and I have accepted this in my judgment.

9.	The hearing commenced with 3 of the Plaintiffs giving evidence in turn. They were Prem Chandra (PW1), followed by Kiran Wati (PW2) and then (after the Sergeant, PW3) Ishne Lata (PW4).

10.	The evidence of PW1, PW2 and PW4 can be summarised as follows:

"On the day, they were passengers in the bus, driven by the 1st Defendant. When they reached the railway crossing known as Batinikama, they heard the siren of the locomotive and saw the yellow beacon on top of it. The bus driver slowed down then accelerated. It was a two way road and they saw an oncoming white van stop because the locomotive was crossing. The (bus) driver accelerated in front of the locomotive, but he could not avoid the front of the locomotive colliding with the rear of the bus. The collision was actually on the railway line. Although the passengers were yelling in Hindustani to the bus driver to stop, because the locomotive was coming, he did not pay any heed."

11.	I found that, under cross examination, these 3 witnesses stood unshaken in their testimony regarding how the collision had occurred.

12.	PW3 was Sergeant 1566, Samisoni Pita, who was on the day, the traffic officer at Labasa Police Station. He said he had more than 8 years experience in traffic (investigation) and had obtained training in reconstructing scenes of accidents. He had attended the scene of the accident with P.C Irwin, the investigating officer and assisted him in drawing the sketch plan. He tendered the rough sketch, the fair sketch and the key and these were marked as Exhibits P1(A), (B) and (C) respectively. On the rough sketch 'X' marked the place where the locomotive hit the bus. The rear of the bus had travelled 42.3 metres from the point of impact. The front of the bus had travelled 52.9 metres from the point of impact. He said it is always the locomotive which has its siren on, which has priority over a motor vehicle at the intersection. 

13.	Under cross-examination PW3 was asked a number of questions which he could not answer, but which to my mind do not really help in the resolution of the issue regarding liability. He was able to say that the locomotive always has the right of way. He could not recollect whether there was a building or hedges or whether these restricted the view. He disagreed that the sketch is not reliable.

14.	With PW4's evidence, the Plaintiffs' case, regarding liability only, concluded.

15.	The Defendants' case started with the evidence of the 1st Defendant, Sant Lal, (DW1). He said on the day he was driving the bus in the direction of Bulileka junction. There were 31 passengers onboard. There was a bend to the right and then to the left. On the left was a big building on piles and beside it were flower trees 4-5 feet in height. He was travelling at 30-40 kmh. It was an old bus, 10 years old. He had been driving for 3 years at the time of the accident. In front of him was a vehicle and on the right was a big hill. He could not see anything. As he approached the tram line he felt a stationary locomotive on the left. There was a building being constructed. He thought there was a digger parked, which was painted yellow. He did not think it was a locomotive because it was not the crushing season for sugarcane. He saw the locomotive and its driver was looking at the back of the locomotive. If he had stopped the bus, it would have stopped in the middle of the tramline. As he approached the tramline, he saw the locomotive coming. He was 12 metres away when he saw the locomotive. It was travelling at 20kmh. He tried to prevent an accident by swerving to the left as the road was wide. The locomotive hit the bus near the bus's right rear wheels. If he had stopped, the locomotive would have hit the bus in its middle. 

16.	At this juncture, questions regarding the alleged construction site were stopped on the objection of Plaintiffs' Counsel.

17.	DW1 continued by saying he did not hear any horn from the locomotive. It was not true he was talking on the phone. He did not see the side road. He was looking at the front and the road was clear. 

18.	Under cross examination, DW1 said:

•	He was driving the bus owned by the Second Defendant. He was acquainted with the road. One should not drive very fast on bends. There is a sign 'Railway Crossing' conspicuously displayed. After the accident he was interviewed by the police at 12 noon on the same day. 

•	His duty as a public service driver is to give correct answers to the police to enable them to reconstruct the accident. He was interviewed in Hindustani. His statement (from page 30 of the Agreed Bundle) was in Hindustani and translated into English. On page 33 was his signature. 

•	In answer to the Court he said he gave his interview in Hindustani from start to finish, it was read back to him, he did not make any changes and he then signed it.

•	When paragraph 5 of the Statement of Defence was translated to him by the court interpreter, he (DW1) said it was correct. He did not mention anything about the digger, the building and hedges in the Statement of Defence.

19.	At this point Defendants' Counsel objected to this line of cross examination. I ruled that Plaintiffs' Counsel should adopt another line of questioning, as this was for oral submissions.

20.	DW1 said the speed limit at that place is 40 kmh. His speed was 35kmh, which was less than the speed limit. It was the police who wrote 50-55kmh. His obligation under the law is that the locomotive crossing the railway line has precedence. He denied he was travelling at high speed with a phone to his ear.

21.	In answer to the question that the locomotive was approaching from the right with continuous horning, he answered there was no horning and no phone to his ear. The passengers were screaming in fear. He saw the locomotive and he thought he could drive through, but the accident happened. He knows the law.

22.	Counsel for the Plaintiffs tendered Exhibits P2A and P2B which the witness confirmed were his statement to the Police in Hindustani and English, respectively.

23.	Under re-examination DW1 said the interview was in the form of Q and A and the police gave him a chance to speak regarding the accident. He answered questions put to him by the police. The police did not give him a chance to say what he wanted to say. With this, the Defendants' case, regarding liability only, concluded.

D.	Submission for Defendants

24.	Counsel for the Defendants submitted that only Regulation 59(c) and (d) of the Land Transport (Traffic) Regulations 2000 (the Regulations) was relevant in the instant case. 

25.	The issue was whether the horn was heard and the light seen in time. 

26.	PW1 said the bus was travelling at a normal speed, the siren was heard, the bus slowed down then accelerated. PW2 said the bus was travelling at speed. The light was seen and the horn heard and the train was seen when it was 13 metres away from the bus. All the passengers yelled but the bus sped on. The driver had a phone to his ear.

27.	PW3, the Sergeant, drew the sketch but it could not be relied on and must be treated with some caution.

28.	PW4 heard the continuous horning for 1 minute. She first saw the locomotive when it was about 40 metres away. The (bus) driver had a phone to his ear. She saw the flashing lights. Her evidence should be treated with caution as it was in conflict with what the other witnesses said. She was trying to patch up the evidence of the other witnesses and her evidence should be disregarded.

29.	The First Defendant, DW1, in his evidence said the road curved and there was a hedge and a hill. When he first saw and recognized the train, he saw its driver looking to the rear and it was stationary. The train was moving when he was 4 metres away. As a reasonable driver, he speeded up to avoid being hit by the train.

30.	Counsel for the Defendants agreed with me that if he did not satisfy the Court that the locomotive driver was entirely liable, the Plaintiffs will be entitled to succeed completely. His instructions were not to file third party proceedings against the locomotive driver. He would be relying on the case of Simpson v Peat [1952] 1 All ER page 449A. The court should look at the circumstances. There was a bend. The shrubs obscured the junction. The hill obscured the view of the driver. It was an old bus travelling at a normal speed. 

31.	The locomotive was stationary. At 13 metres it was moving. The option for the bus driver was to stop or to speed up. The driver chose to speed up and try to get out of the railway junction and that was what a prudent driver would do.

32.	The traffic conviction needed to be studied as to its circumstances. If the court considers the conviction, it is abdicating its duty. In the Magistrates' court the negligence of the other party is not considered. The Plaintiffs were not entitled to rely on the conviction.

33.	Counsel concluded by submitting that the evidence of PW1 and PW2 were consistent with the evidence of DW1, except that Plaintiffs' witnesses said they heard the siren and saw the light, but DW1 said there was no siren and no light.

E.	Submission for Plaintiffs

34.	Plaintiffs' Counsel said that the day was a fine day with clear vision. The driver said he speeded on. He gave his statement to the Police on the day. In it he said his speed was 50-55 kmh in a 40kmh zone. He saw the 'Railway Crossing' sign. Regulation 59(a) required the Defendant to slow down. The (Plaintiffs') pleadings pleaded the manner of the accident, the negligence of the driver and the conviction." 

35.	Relying on Order 18 rule 21(2) of the Rules of the High Court, Counsel submitted that the driver did not deny his conviction. 

36.	There was no atmospheric impediment. The bus had large windows. All Plaintiffs' witnesses said that at a considerable distance they saw the light and heard the horn. The traffic on the right had stopped and this was not challenged. The passengers screamed but the driver did not stop. PW2 said the locomotive approached in an orderly manner. The bus driver had a phone to his ear and this contravened regulation 51 prohibiting the use of mobile communications. DW1 did not contradict the evidence of the Plaintiffs' witnesses. 

37.	The Statement of Defence binds the Defendants and paragraph 5 thereof that the 1st Defendant had the right of way is erroneous. The negligence alleged against the train (driver) is irrelevant.

38.	The Defendant had given 3 different versions viz:

(1)	In the Statement of Defence.
(2)	In his statement to the Police.
(3)	In his evidence in Court.

39.	Counsel further submitted that distances are not relevant. The Court should not engage in hair splitting. There had been no earlier mention of the digger. The (bus) driver said he knew the law. Counsel said that Defence Counsel had conceded the locomotive was not stationary. 

40.	The Plaintiffs were relying on the maxim re ipsa loquitor.

41.	The factual situation in Sharma v Waqa were different in that:

(1)	It was night then.

(2)	The measurements were those of the parties and not of the police.

(3)	There was a long queue of traffic so the locomotive driver should have seen the lights of the vehicles.

(4)	The witnesses there said there were no whistle and no lights.

42.	In the instant case the situation was as follows:

(1)	DW1 said he drove without looking left or right.

(2)	The Defendants are bound by the rule in Brown v Dunn in not Having put the Defence case to the Plaintiffs' witnesses.

(3)	The Defence conceded the locomotive was moving.

(4)	The Defendants departed from their pleadings in mentioning an excavator and this should not be allowed.

43.	The Defence fails in law as the accident happened because:

(1)	It was not safe to proceed, and

(2)	The bus was going at an inherently dangerous speed.

44.	Plaintiffs' Counsel concluded by saying both the Defendants are wholly liable. The 1st Defendant was liable and the 2nd Defendant is vicariously liable.

F.	Reply for Defendants

45.	Defence Counsel in his reply said that DW1 in his evidence said that the police wrote down his answers and he signed it. The statement was unsworn while his evidence was on oath. The police did not question him regarding the hill or shrubbery. His cautioned statement showed the police had decided DW1 was responsible for the accident. Before the police he was defensive.

46.	An inspection of the scene was not necessary because the situation had changed. In the Statement of Defence, paragraph 8 contained the general denial.

47.	Counsel said he had complied with Brown v Dunn as he had put the defence case to the Plaintiffs' witnesses. The judgment here would depend on which witnesses and which version of the accident, the court is to believe. 

48.	The Defendant behaved as a prudent driver and he was not careless. He was trying to save the passengers. Simpson v Peat applies.

G.	Judgment

49.	At the conclusion of the hearing, I reserved judgment on the issue of liability to a date to be notified.

50.	Before I deliver my judgment, there is one matter that needs to be disposed of first. It is this.

51.	In paragraph 11 of the Statement of Claim filed by the Solicitors for the Plaintiffs, it is stated that the 1st Defendant was charged for careless driving and was fined $200.00 and that the Plaintiffs intend to rely on the conviction as evidence in this action. 

52.	Counsel for the Defendants submitted that the Plaintiffs were not entitled to rely on the conviction.

53.	In his oral submission Counsel for the Plaintiffs referred to Order 18 rule 21(2) of the Rules of the High Court and said the Defendant did not deny the conviction.

54.	It has since been confirmed in writing to me by both Counsel, after the hearing was concluded, that the allegation of the conviction and fine in the aforementioned paragraph 11 of the Statement of Claim is not true.

55.	In my considered opinion, it was wrong for the Plaintiffs' Counsel to state an unsubstantiated allegation as a fact in his submission. He cannot excuse himself by saying the pleadings were filed on instructions of the Plaintiffs. Counsel in such circumstances should have ascertained the actual position before pleading and submitting during the hearing. Also, Counsel for the Defendants should have taken the trouble before the hearing, and not after, to ascertain the correct position.

56.	I now proceed to deliver my judgment.

57.	The issue of liability is not a complex one. Nor is it difficult of resolution. There is only one issue here and that is was the negligence of the 1st Defendant as the servant or agent of the 2nd Defendant solely responsible for the collision between the Defendants' bus and the locomotive. 

58.	The Plaintiffs were passengers in the bus. The Statement of Defence does not make any averments at all that Plaintiffs were in any way negligent.

59.	If the Defendants fail to satisfy me that the locomotive driver was wholly to blame, then as their Counsel confirmed, the plaintiffs/passengers are entitled to wholly succeed in their claims against the Defendants. This is indeed the correct legal position as shown by the decision of the English High Court in Skeen v British Railways Board [1976] RTR 281.

60.	This case involved a collision between a motor vehicle, with a driver and a passenger, and a train at a level crossing. Both the driver and the passenger were killed in the accident.

61.	Latey J held that, in the absence of authority, the passenger had no duty of care, for decisions were in the hands of the driver; so there was no contributory negligence by the passenger. 

62.	I turn now to the case of Virendra Sharma v Viliame Waqa and FSC Ltd., Fiji High Court, Lautoka Civil Action HBC 0092.98L, a Judgment of the Chief Justice, Gates J as he then was.

63.	The Plaintiff therein, was a passenger in a private motor vehicle which was involved in a collision with the Defendants' locomotive which was reversing across an unfenced level crossing. He claimed the train driver was negligent.

64.	The Defendants asserted the accident occurred because of the inattention of the vehicle driver and its excessive speed. 

65.	Gates J found "the plaintiff's witnesses to be more credible and their evidence to be more plausible" and concluded the Defendants were 'liable for the breach of duty of care to the plaintiff for the negligent driving of the train that night".

66.	I do not see how this decision helps the Defendants' case at all. On the contrary, it supports the proposition that the Plaintiff, being a passenger, succeeded wholly against the Defendants. It also states that it is much easier to accord precedence in the day time to rail traffic at a crossing because it is easier to see a locomotive. Finally the judge stated "the driver miscalculated and was negligent". All these fortify the instant Plaintiffs' case, because the collision here occurred in broad daylight.

67.	Turning now to the case of Simpson v Peat, a decision of the Divisional Court in England, reported in [1952] 1 All ER where the relevant passage in the judgment of Lord Goddard, C.J. is reported at page 449. Again, it does not help the present Defendants because it concerns a criminal appeal in a traffic prosecution and moreover the Lord Chief Justice said the case had to go back to the justices, with a direction to convict (for careless driving).

68.	I have reviewed the evidence of the witnesses for the Plaintiffs and the witness for the Defendants based on my having seen and heard them and observed their demeanour in the witness box.

69.	I am of opinion that the Plaintiffs have succeeded in satisfying me on the civil standard of proof, on a balance of probabilities of the following:

1.	Although they were passengers, they were aware of the approach of the locomotive because of both its visibility and its audibility(horning).

2.	The bus driver had a mobile phone to his ear, in clear breach of the law, and this led to his inattention.

3.	The bus driver did not behave as a reasonable and prudent driver would have done in the circumstances, which would have been to stop his bus to accord due precedence to the locomotive and only proceeding across the level crossing when the locomotive had completely and safely cleared the crossing.

70.	I am also of opinion that the 1st Defendants evidence in court departed significantly from the statement of defence and the statement he gave to the police a few hours after the collision.

71.	In my experience, a driver giving his statement, shortly after an accident, reveals therein the true, accurate and full account of what actually transpired. It is only later when he has had the opportunity to consider the consequences of what he has said or is made cognizant of them, that he embroiders his account with a view to exculpating himself. This is clearly what has happened here.

72.	For DW1 now talked in court, for the first time, of a building being constructed, of flower trees, of a hill and of a digger (excavator). A careful perusal of both the Statement of Defence and the police statement made by him in his vernacular, Hindustani, reveal no trace of any reference to any such building, hill, shrubbery or excavator.

73.	Further the 1st Defendant by his own evidence has breached either (a) or (b) or both, of Regulation 59, which reads as follows:

"The driver of a motor vehicle –

(a)	When approaching a level crossing must drive at a speed which will enable the driver to give right of way to an engine or trolley or any carriages or wagons approaching or crossing the level crossing;

(b)	When approaching a railway level crossing on which any engine, 

trolley, carriage, or wagon is stationary – must stop before reaching that crossing and must not proceed across the crossing until it is safe to do so;

74.	DW1's evidence did not reveal that he was driving at a speed which would enable him to give right of way to an engine which was approaching or crossing the level crossing. Even if it were true the locomotive was stationary he was obliged to stop before reaching the crossing. But his evidence shows that to the contrary he did not stop but accelerated. If he thought it would be more reasonable to cross the level crossing in front of the locomotive, this would clearly be evidence of the fact that he was actually travelling much faster than he purportedly was, and therefore thought that his speed would both preclude him stopping in time and also enable his safe and clear passage in front of the locomotive. This is borne out by the distance the bus travelled after the collision, as recorded in the police sketch plan.

75.	Further, I have accepted the Plaintiffs' witnesses' evidence that they heard the horn of the locomotive. This alone should have given any reasonable or prudent motorist sufficient warning and indication of the approach of the locomotive in broad daylight. Such reasonable and prudent motorist would have immediately stopped his vehicle to allow the locomotive, which had the right of way in law (Regulation 59 (a)) to proceed first.

76.	The 1st Defendant's failure to do so compounded by his willful decision to accelerate into the path, and in front of the locomotive was something no reasonable and prudent driver would have done.

77.	A careful evaluation of all the evidence has left me with no alternative but to find and I so find and so hold that the 1st Defendant as servant or agent of the 2nd Defendant solely to blame for the collision.

H. Order

1.	I therefore enter judgment for all the Plaintiffs against both Defendants, with costs, to be summarily assessed by me at the end of the proceedings.

2.	I also order this action be called up before the Master of the High Court at Labasa forthwith for the Master to fix the date for the assessment, by me, of the general and special damages payable by the Defendants to the Plaintiffs, on 27 November 2015 at 9:30am, at the High Court, Labasa.

Delivered at Suva this 18th day of September 2015.

David Alfred
JUDGE

High Court of Fiji