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Shalil v Salacakau [2018] FJHC 333; HBC66.2016 (16 February 2018)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 66 of 2016


BETWEEN : MOHAMMED SHALIL

PLAINTIFF


AND : MANASA SALACAKAU
DEFENDANT


Appearances : Kohli & Singh for the Plaintiff

Gibson & Company for the Defendant


Ruling : 16 February 2018


RULING
Background

  1. The Plaintiff was a passenger in vehicle registration number DQ 215 travelling to Labasa Town along the Bulileka/Labasa Road when, at the junction to the Labasa Hospital, the said vehicle was involved in an accident with taxi registration number LT 5837 driven by the Defendant. The Plaintiff alleges that the Defendant had, at the junction, made a right turn on to the Labasa Hospital Road so negligently that it collided with the vehicle the Plaintiff was travelling in, causing injuries to the Plaintiff. He seeks damages for the injuries he says he sustained as a result of the motor vehicle accident.
  2. In his defence, the Defendant denies liability saying that the collision occurred solely through the negligence of the driver of the vehicle the Plaintiff was travelling in, and that the Defendant was not in any way negligent.
  3. The Defendant now seeks to join Nadeem Shah and Farzeem Shah, driver and owner respectively of the vehicle the Plaintiff had been travelling in, as the 3rd and 4th Defendants in this action.

The law

  1. The application is made pursuant to Order 15 Rule 4, Rule 6 (2) (b) (i) and (ii), and Order 32 rr 1-2 of the High Court Rules.
  2. Order 15 Rule 4 provides:

Joinder of parties


(1) Subject to rule 5(1), two or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the Court or where –

(2) Where the plaintiff in any action claims any relief to which any other person is entitled jointly with him, all persons so entitled must, subject to the provisions of any Act and unless the Court gives leave to the contrary, be parties to the action and any of them who does not consent to being joined as a plaintiff must, subject to any order made by the Court on an application for leave under this paragraph, be made a defendant.

This paragraph shall not apply to a probate action.


  1. Order 15 Rule 6 (2) (b) (i) (ii) states:

Subject to the provisions of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application order any of the following persons to be added as a party, namely –


(i) any person who ought to have joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.
  1. The Supreme Court Practice1999 Vol 1 at 15/6/2 states that the Rule should be interpreted

... so as to effectuate what was one of the great objects of the Judicature Acts, namely, to bring all parties to disputes relating to one subject-matter before the Court at the same time so that the disputes may be determined without the delay, inconvenience and expense of separate actions and trials (per Lord Esher M.R., in Byrne v. Brown [1889] UKLawRpKQB 31; (1889) 22 Q.B.D. 657 at 666-7, and again in Montgomery v. Foy [1895] UKLawRpKQB 128; [1895] 2 Q.B. 321 at 324)...Under it the Court has power to carry out the intention of the Judicature Acts, namely, to secure the determination of all disputes relating to the same subject matter, without delay and the expense of separate actions (Montgomery v. Foy (ante); McCheane v. Gyles (No.2) [1902] UKLawRpCh 59; [1902] 1 Ch. 911; Bentley Motors v. Lagonda (1945) 114 L.J.Ch. 208).


  1. At 15/6/8, The Supreme Court Practice (supra) notes:

Generally in common law and Chancery matters a plaintiff who conceives that he has a cause of action against a defendant is entitled to pursue his remedy against that defendant alone. He cannot be compelled to proceed against other persons whom he has no desire to sue (quoted with approval by Wynn-Parry J. in Dollfus Mieg, etc. v. Bank of England [1951] Ch. 33).


Under this rule, however, a person who is not a party may be added as defendant against the wishes of the plaintiff either on the application of the defendant or on his own intervention, or in rare cases by the Court of its own motion. The jurisdiction of the court under this rule is entirely discretionary.


  1. At 15/6/10:

One of the main objects of the rule is to prevent multiplicity of proceedings (see, per Lord Esher M.R. in Byrne v. Brown [1889] UKLawRpKQB 31; (1889) 22 Q.B.D. 657 at 666-667; Montgomery v. Foy, Morgan & Co. [1895] UKLawRpKQB 128; [1895] 2 Q.B. 321; Bentley Motors (1931) Ltd v. Lagonda Ltd [1945] 2 All E.R. 211, per Evershed J. at 212-213.


  1. In Prasad v Saheed Civil Action No. HBC 50 of 2003 at [26], the Master stated:

The intent and purpose behind Order 15, Rule 6 is to give a very wide power to the court to allow joinder of a party to ensure the determination of all the issues in a proceedings pending before it. In Lucy –v- W.T. Henleys Telegraph Works Co. Ltd Imperial Chemical Industries Ltd [1970] 1 QB393 at 404p Lord Denning said; “It gives the court power to add a person as a defendant if his presence is necessary to ensure all matters in dispute are effectively and completely determined;”. This rule operates in congeniality with the general proposition of law that multiplicity of actions arising out of the same fact amounts to abuse of the process of the Court.


Analysis

  1. The issues for the Court’s determination are:
  2. In this case, the Plaintiff alleges that the accident causing his injuries was caused by the Defendant’s negligence in failing to, amongst other things, slow down and give right of way to the Plaintiff’s vehicle which had been travelling on his right side of the road.
  3. In its defence, the Defendant admits being the registered owner and driver of vehicle registration LT 5837 which collided with the vehicle the Plaintiff had been travelling in. He denies not only being at fault, but also that anyone was injured in the collision. He says that the driver of vehicle registration number DQ 215 had been at fault in that he had, amongst other things, been travelling at an excessive speed in the middle of the road and in the path of the Defendant’s vehicle instead of staying on the left side.
  4. In the alternative, the Defendant says that it was the negligence of the driver of vehicle number DQ 215 that contributed wholly and/or substantially to the accident and the resulting injuries. He seeks to join the driver and the owner of the vehicle as additional defendants.
  5. Resisting the application for joinder, the Plaintiff deposes that the driver of DQ 215 was not at fault and that the Defendant has been rightfully sued. In any event, following police investigations into the accident, the Defendant was charged with Careless Driving and convicted after a Magistrate’s Court trial. A copy of the judgment, witness statements, rough sketch plan of the scene of accident, and the Defendant’s cautioned interview statement are annexed. In opposing the application for joinder, the Plaintiff places much reliance not only on his perception as to who had been at fault, but also on the conviction entered against the Defendant in the Magistrates Court proceedings.
  6. Singh v Knowles Civil Action No. 92 of 1976 was a personal injury case with facts not dissimilar to this action. The plaintiff there had been a passenger in a private vehicle when it was involved in an accident with a vehicle driven by the defendant. In criminal proceedings in the Magistrate’s Court, the defendant had been found guilty and convicted of careless driving. The defendant’s defence in High Court proceedings denied negligence, saying that it was the Plaintiff’s driver that had been negligent and was the sole or the contributory cause of the accident. They joinedthe insurance company as a third party,but did not seek joinder of the Plaintiff’s driver.
  7. Of the effect of the conviction in the Magistrate’s Court on civil proceedings, the Court cited Stupple v Royal Insurance Co. Ltd. (1970) 3 All E.R. 239 where Lord Denning was of the view that

If the defendant has not been convicted, the legal burden is on the plaintiff throughout. But if the defendant has been convicted of careless driving, the legal burden is shifted. It is on the defendant himself. At the end of the day, if the judge is left in doubt the defendant fails because the defendant has not discharged the legal burden which is on him. The burden is, no doubt, the civil burden. He must show, on the balance of probabilities, that he was not negligent: see Public Prosecutor v. Yuvaraj in the Privy Council quicenrecently. But he must show it nevertheless. Otherwise he loses by the very force of the conviction.


  1. At page 239, Buckleyckley L.J. stated:

Although the section has made proof of conviction admissible and has given proof of conviction a particular statutory effect under s.11 (2) (a), it remains, I think, as true today as before the Act that mere proof of conviction proves nothing relevant to the plaintiff's claim, and it clearly cannot be intended to shut out or, I think, to mitigate the effect of any evidence tending to show that the convicted person did not commit the offence. In my judgment, proof of conviction under this section gives rise to the statutory presumption laid down in s.11(2)(a), which like any other presumption, will give way to evidence establishing the contrary on the balance of probability, without itself affording any evidential weight to be taken into account in determining whether that onus has been discharged.


  1. Whilst Knowles,Stupples (supra) and section 9 (2) (a) of the Evidence Act indicate that evidence of a conviction is admissible in proving, insofar as it is relevant to the issues in the proceedings concerned, the commission of an offence, it is a presumption capable of rebuttal, by evidence establishing the contrary on the balance of probability. A conviction is not necessarily irrefutable proof of liability, for it is always open to a defendant to disprove negligence if he is to avoid the statutory presumption that he had committed the act of careless driving, resulting in injury to the plaintiff. (Knowles, supra)
  2. For this reason, I do not think that the Plaintiff’s objection to the application on the basis of the conviction in the Magistrate’s Court can be sustained.
  3. Rather, I am satisfied that if separate actions were brought by or against the Defendant and the intended defendants, some common question of law or fact would arise in all the actions – namely, who was negligent and responsible for the accident and therefore liable in damages for the injuries sustained by the Plaintiff.
  4. In addition, I have no doubt that all rights to relief claimed in the action are in respect of or arise out of the same transaction, namely, the motor vehicle accident between DQ 215 and LT 5837 at the junction to Hospital Road.
  5. Furthermore, I am satisfied that the proposed defendants’ presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon.
  6. In the same vein, I am of the view that there exists, between the proposed defendants and the Defendant, a question or issue arising out of or relating to any relief or remedy which it would be just and convenient to determine as between them and the Defendant, as well as between the Plaintiff and the Defendant in this matter – namely, which of the Defendants was negligent and/or contributed to the accident by his negligence and if both, the apportionment of liability.
  7. In Knowles (supra) the Defendant had not sought to join the plaintiff’s driver even though it had pleaded that it was the negligent driving of the said driver that was the sole or the contributory cause of the accident. Said the Court:

On the pleadings the alleged contributory negligence by Narsimlu is not an issue I have to decide. The proper course the defendants should have followed was to join Narsimlu as a defendant and claim contribution from him, either total or partial, depending on whether they could establish that the first defendant was not negligent or that Narsimlu contributed by his negligence to the accident.

Where there are two independent tortfeasors who cause the same damage to the plaintiff, as is alleged in the defendant's allegation of contributory negligence, the law is clear that the plaintiff can sue either or both of the tortfeasors. In this case he sued the first defendant and, subject to any right the first defendant may have to contribution from the other alleged tortfeasor Narsimlu, the first defendant is liable for the whole of the damage even though he may have been responsible merely for just a small part of it. (Longdon-Griffiths v. Small (195K.B. 295).

An unAn unsatisfactory feature of the pleadings (it is not the only one as will appear later) is that Narsimlu was not joined as a defendant by the defendants as he should haen. Had he been joined the the question of his contributory negligence would have been in issue and, if established, the Court would have apportioned liability.


  1. On the whole, having considered Order 15 Rules 4 and 6, the affidavit material, counsel’s submissions and the authorities above, I am of the view that the intended defendants ought to be joined, so as to “ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon”, to avoid a multiplicity of actions and therefore abuse of the Court’s process.
    1. Order
      1. The Defendant’s application to join Nadeem Shah as the 3rd Defendant, and Farzeem Shah as the 4th Defendant, is granted.
      2. The Plaintiff is to file and serve the amended writ on or before 09 March 2018.
      3. The 3rd and 4th Defendants are to be served in accordance with Order 15 Rule 9.
      4. Thereafter, the action is to take its normal course in accordance with the Rules.
      5. Case adjourned to 09 April 2018, at 9am, for mention.

S.F. Bull
Master

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