IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 54 of 2016

BETWEEN:	
SAMUELA SAUTAMATA RITOVA of Lot 59, Makoi Road, Nasinu.
PLAINTIFF

AND:	
RAIWAQA BUSES LIMITED a limited liability company having its registered office at 211 Ratu Sukuna Road, Suva.
DEFENDANT

AND:	
SUN INSURANCE COMPANY LIMITED a limited liability company having its registered office at Level G & 1 Kaunikuila House, Laucala Bay Road, Suva.
THIRD PARTY

Representation:
Plaintiff – Mr. D. Prasad (Diven Prasad Lawyers). 
Defendant – Mr. M. A. Khan, Ms. S.D. Prasad & Mr. Y. Ali (M.A. Khan Esq).
3rd Party – Mr. A. K Narayan & Mr. R. Vananalagi (AK Lawyers).

Trial Dates: 10th, 11th, 12th, 13th & 14th June 2024, 17th, 18th & 19th June 2024. 

Judgment

A. 	Introduction

[1]	Samuela Sautamata Ritova was a school teacher. On 28th May 2014 he left his home for school. He travelled by the Defendant company’s bus.  Along its journey the bus was involved in an accident. Samuela filed a claim against the Defendant seeking compensation and damages for personal injuries he suffered as a result of the bus accident. 

[2]	This judgment covers the issue of liability. This is a Test Case. It was agreed between the parties in this matter and the below listed matters that once liability was determined in this matter, it would apply to the following matters:

		(a) 	Seru Sauliga v. Akhtar Ali & Ors – Action No. 7 of 2015.
		(b)	Kanchan Lal v. Akhtar Ali & Ors – Action No. 324 of 2015.
		(c) 	Shameem Ali v. Akhtar Ali & Ors – Action No. 127 of 2017.
(d) 	Mosese Daulakeba v. Akhtar Ali & Ors – Action No. 144 of 2017.

B. 	Brief History of the Matter

[3]	The plaintiff initiated action by filing writ of summons on 8th March 2016. His action was against Akhtar Ali (1st Defendant) and Raiwaqa Buses Limited (2nd Defendant). Akhtar was the driver. Raiwaqa Buses owned the bus. 

[4]	A statement of defence of the 2nd Defendant was filed on 27th April 2016. The 2nd Defendant sought leave of the court to amend and file amended statement of defence and issue third party notice to Sun Insurance Company Limited. On 16th August 2016 leave was granted to amend and file amended statement of Defence and issue third party notice to Sun Insurance Company Limited.

[5]	Amended statement of defence was filed on 14th December 2016. A reply to defence was filed. Affidavit verifying plaintiffs list of documents were filed on 28th November 2016. The 2nd Defendants affidavit verifying list of documents was filed on 26th April 2017. 

[6]	Amended writ of summons were filed 1st December 2022. The amended statement of defence to the amended statement of claim was filed on 27th January 2023. Plaintiffs reply to defendant’s statement of defence was filed 16th February 2023. The amended 3rd Party’s statement of claim was filed on 7th March 2023. Later the 3rd Party’s amended defence to the amended 3rd Party’s statement of claim was filed. The Defendant then filed a reply to the 3rd Party’s amended statement of defence on 5th April 2023. 

[7]	Amended minutes of the pre-trial conference was filed on behalf of the parties on 26th May 2023. 

C.	The Witnesses and Documents 

[8]	The Plaintiff (PW-6) gave evidence. The other witnesses were: (i) Dr. Emosi Taloga (PW-1), (ii) Joseva Cakautabu Raboiliku (PW-2), (iii) Corporal Prakash Chand (PW-3), (iv) Shalendra Deo (PW-4), (v) Kasan Lal (PW-5), and (vi) Salote Daunibau Ritova (PW-7). 
	
[9]	The witnesses for Raiwaqa Buses Limited (RBL) were: (i) Krishan Kumar (DW-1), (ii) Ishran Ali (DW-2), and (iii) Etuate Koroi (DW-3).

[10]		The third party called Teddy Matailevu, Dr. Frank Grigg and Malcolm Cumberlidge. 

[11]		The exhibits for the Plaintiff were:
(a)	Medical Report of Plaintiff – dated 29th July 2014.
(b)	Medical Report of Plaintiff – dated 6th August 2015.
(c)	Medical Board Report of Plaintiff – convened dated 3rd March 2015.
(d)	Permanent Impairment assessment of Plaintiff – dated 26th May 2024.
(e)	Police report – dated 28th August 2015.
(f)	Police record of interview of Akhtar Ali - dated 9th June 2014.
(g)	Police statement of Joseva Raboiliku – dated 29th May 2014.
(h)	Vehicle registration certificate of DU927.
(i)	Defect order # 218691– DU927 dated – 26th May 2014.
(j)	Defect order # 218734– DU927 dated – 26th May 2014.
(k)	LTA accident report for DU 927 – dated 5th June 2014.
(l)	Medical Board report for plaintiff – dated 5th May 2015.
(m)	 Ministry of Education Letter – retirement from service dated 13th may 2015.
(n)	Plaintiffs’ pay slips – 9th April 2014 to 22nd April 2014 and 26th March 2014 to 8th April 2014. 
(o)	FNPF statement of plaintiff – as at 31st August 2014 (from 31st August 2011).
(p)	Plaintiffs’ birth certificate.
(q)	Permanent impairment assessment report (CWM) – dated 8th July 2016.
(r)	Pictures of accident in Fiji Sun dated 29th may 2014.
(s)	Medical report receipt ($57.50) – dated 26th May 2015 and Oceania Hospital Receipt ($479.40) – dated 20th May 2024. 
(t)	Photos of injuries of Plaintiff.
(u)	Plaintiffs’ pay-slips from 1st to 15th May 2024. 
The 21 tabs in plaintiffs’ bundle of exhibits were respectively admitted as PE-1 to PE-21.
[12]		The other documents that were admitted into evidence for the plaintiff were:
(i)	 Email dated 5th June 2024 (5.19pm) from plaintiff’s lawyers to defendant’s lawyers (PE-22).
(ii)	Email from defendants lawyers to plaintiff’s lawyers dated 6th June 2024 (1.51pm) (PE-23).
(iii)	Diary entry of RBL from 24th May 2014 to 27th May 2014 (PE-24).
(All of the above listed were tendered by consent of all parties)
[13]	The Defendant’s exhibits were:
(a) Copy of statement of Ishran Isa Ali.
(b) Copy of LTA vehicle registration of DU 927.
(c) Copy of LTA vehicle test result sheet for DU 927.
(d) Copy of Aon (Fiji) Limited Tax invoice No. 1074527 for period 21/1/14 to 21/1/15.
(e) Copy of AON (Fiji) Limited Client coverage summary for period 25/9/14 to 25/9/15 together with bus fleet insurance placement.
(f) Tab 6 of Defendants bundle of documents – IMS Fleet maintenance reports – (Marked as Exhibit 6 (a) and 6 (b)).
(g) Raiwaqa Buses Limited Vs Sun Insurance motor vehicle accident claim. Motor vehicle reference No. CLOM1400029, Motor Vehicle bus registration DU 927, state of accident: 28th May 2014: by E. C. Koroi (10th February 2022).
(h) Raiwaqa Buses Limited Vs Sun Insurance motor vehicle accident report: by E. C. Koroi (3rd July 2023)

 [14]	The Third Party’s exhibits were:
	(a) Sgt Mosese Qiolele’s Police interview dated 30th May 2014 – (Exhibit 1)
	(b) Photos of site – (Exhibit 2A)
	(c) Photos of site (Exhibit 2B)
	(d) Photos of witnesses (Exhibit 3)
	(e) Letter from Sun Insurance dated 27th November 2014 declining Claim (Exhibit 4)
	(f) Letter from AK lawyers to MA Khan Esq dated 7th June 2024 (Exhibit 5)
(g) Notice to produce by AK Lawyers to Defendant and his lawyers dated 7th June 2024 (Exhibit 6)

[15]	In addition to the above these were the Third Party’s other exhibits:
(i)	Copy of Sun Insurance Motor Policy.
(ii)	Copy of LTA defect Order No. 218734.
(iii)	Copy of LTA defect Order No. 218691.
(iv)	Copy of statement by Shuwani Sanjana Prasad (31/5/2014).
(v)	Copy of statement by Adlyne Anjaly Narayan (31/5/2014).
(vi)	Copy of statement of Justine Darren Lal (31/5/2014).
(vii)	Copy of statement of Zia Bibi.
(viii)	Copy of statement of Salesi Temo (31/5/2014)
(ix)	Copy of statement of Jone Uluinaceva Bakoso (31/5/2014).
(x)	Copy of statement of Filomena Vera.
(xi)	Copy of statement of Seru Vakatalebola (8/6/2014)
(xii)	Copy of statement of Maria Bausiri (28/5/2014)
(xiii)	Copy of statement of Alipate Natoba (31/5/2014)
(xiv)	Copy of statement of Mosese Daulakeba (20/6/2014)
(xv)	Copy of statement of Marika Ritova (20/6/2014)
(xvi)	Copy of statement of Sailosi Ritova (20/6/2014)
(xvii)	Copy of statement of Shaheem Ali.
(xviii)	Copy of statement of Sereana Nasilivata (28/5/2014)
(xix)	Copy of statement of Matelita Tubuya (28/5/2014)
(xx)	Copy of statement of Fiuni Tuiauga (28/5/2014)
(xxi)	Copy of statement of Finau Kilion (28/5/2014)
(xxii)	Copy of statement of Semi Rasiga  Korovulavula (28/5/2014)
(xxiii)	Copy of statement of Amori Matanitabua.
(xxiv)	Copy of statement of Mere Ritova (28/5/2014)
(xxv)	Copy of statement of Inoke Kitione (28/5/2014)
(xxvi)	Copy of statement of Jovesa Rabiuloku – LTA Officer (29/5/2014)
(xxvii)	Copy of police record of interview of Akhtar Ali (9/6/2014)
(xxviii)	 Copy of Akhtar Ali’s driving licence.
(xxix)	Copy of LTA accident Report for DU 927 by Shalendra Deo, vehicle examination officer (6/5/2014)
(xxx)	Copy of interview of Waisea Ritova (20/6/2014)
(xxxi)	Copy of medical report of Ziya Bibi (28/5/2014).
(xxxii)	Copy of medical report of Maria Bausiri (28/5/2014)
(xxxiii)	 Copy of forensic accident investigation services – (FAI) collision reconstruction report (21/7/2017)
(xxxiv)	 Copy of photograph’s
(xxxv)	Report on bus accident by forensic engineering consulting Pty Ltd (14/2/23)

[16]	The expert reports that were tendered on behalf of the Third Party were:
(a)	Forensic Accident Investigation Services – Collision Reconstruction Report: Prepared by Malcolm Cumberlidge - dated 21st July 2014. 
(b)	Factual Investigation Report prepared by Teddy Manulevu - dated 8th August 2014.
(c)	Forensic Engineering Consulting Pty Ltd – report on a bus accident prepared by Dr. Frank W Grigg - dated 14th February 2023.
(d)	Response by Dr. Frank W Grigg to report on Raiwaqa Bus prepared by Etuate C. Koroi - dated 3rd July 2023.
(e)	The road side inspection and the issuance of two defect orders by LTA to omnibus registration No. DU 927 on 26th May 2014 at 1310 hours and 1700 hours the same day report: By E C Koroi (dated 21st January 2022).
D.	The Agreed Facts

[17]	The parties agreed on following:
(a)	Akhtar Ali (deceased) was the authorized driver of the bus registration number DU 927 and Raiwaqa Buses Limited (“RBL”) was the owner of the bus.
(b)	On or about 28th May 2014 the DU 927 (bus) was involved in an accident while carrying passengers along Kubukawa Road, Tovata, Nasinu.
(c)	Akhtar Ali, the driver an employee, servant or agent of RBL was driving the bus registration no. DU 927 in the course of his employment with Raiwaqa Buses Limited and if Akhtar Ali is found to be negligent then Raiwaqa Buses Limited shall be vicariously liable for the negligence of Akhtar Ali.
(d)	Samuela Sautamata Ritova instituted proceedings on his own behalf claiming general damages, special damages and costs against the defendants, fully set out in statement of claim endorsed on the writ of summons.
(e)	The bus at the time of the accident was insured under the Motor Vehicle (Third Party Insurance) Act (now repealed) and under a comprehensive motor vehicle insurance policy. 
(f)	The bus (DU 927) was insured with New India Assurance Company PTE Ltd under the Motor Vehicle (Third Party Insurance) Act (now repealed).
(g)	RBL held a comprehensive motor vehicle insurance policy covering damage and passenger liability with Sun Insurance Company Limited for DU 927. 
(h)	The insurance policy with Sun Insurance was placed by RBL through AON (Fiji) Limited.
(i)	Both the policies of insurance over DU927 were valid at the time of the incident. RBL claims an indemnity under the comprehensive vehicle policy from Sun Insurance.
(j)	New India Assurance paid into court the maximum payable under the compulsory motor vehicle insurance under the Act being $40,000.00. Orders were granted and monies were deposited in judicial department trust account. New India are now relieved from further participation in these proceedings and the above sum will be apportioned in respect of all claims brought by passengers in RBL’s vehicle in respect of the collision of 28th May 2014.
E. 	Issues for Determination

		Between Plaintiff and RBL

[18]	(i) 	Cause of accident – whether the accident was caused due to the negligent
driving of Akhtar Ali, an employee, servant or agent of RBL or negligence of RBL in requiring Akhtar Ali an employee, servant or agent of RBL to drive a 
defective, unsafe and un-roadworthy bus? 

(ii)	Injuries and extent of injuries – (a) Whether plaintiff suffered injuries as a result of the bus accident on 28th May 2014? (b) Whether plaintiff is suffering from any permanent incapacity as a result of the bus accident?

(iii)	Damages – whether plaintiff is entitled to claim general and special damages for the injuries sustained from the bus accident. Whether RBL is liable to pay general and special damages for injuries sustained?

[19]		Between RBL and Sun Insurance Company Limited
(i)	Safety and condition of bus – (a) Whether the bus was driven in an unsafe and un-roadworthy condition? (b) Whether RBL caused the bus (insured) to be driven with a defective hand brake and gear system and generally in an unsafe and un-roadworthy condition?

(ii)	Compliance – Whether the bus complied with proper standard required of a public service vehicle?

(iii)	Term of insurance policy – (a) Whether it was an express term of the policy of insurance issued to RBL by virtue of clause 11 that the policy did not provide cover for any “loss or damage caused by or due to mechanical, electrical, structural breakdown, wear or tear”? (b) Whether the incident, the loss, damage and injuries sustained on 28th May 2014 caused to and by the bus were due to the breach by RBL of clause 11 of the policy? (c) Whether it was an express term of the policy issued to RBL by virtue of clause 17 thereof that RBL “or the authorized driver would take reasonable steps to protect and safeguard the insured vehicle from loss or damage” in breach of which there would not be any cover? (d) Whether the aforesaid clause 17 of the policy was breached when the bus was caused to be driven by RBL’s servant or agent in the circumstances stated in paragraphs 7 and 8 of the defence which led to the accident? (e) Whether RBL is entitled to maintain an action under the policy or otherwise?

(iv)	Indemnity – (a) Whether Sun Insurance Company Limited is obliged to provide an indemnity for any liability of RBL to the Plaintiff by virtue of RBL having a valid comprehensive motor vehicle insurance policy? (b) Whether Sun Insurance Company Limited was and is obliged to provide any indemnity to RBL?

(v)	Fitness and safety of bus – (a) Whether the bus (DU927) was safe to be driven on the public road and to carry passengers and had proper certificate of fitness issued by LTA and if it did what was the effect of the certificate? (b) Whether all reasonable steps were taken by Akhtar Ali and RBL to ensure that the bus was fit and safe to be driven on public road and to carry passengers? 

F.	 Determination

[20]	Having noted the issues for determination. I would deal with each issue in turn.
(i)	Cause of accident
[21]	The evidence of the plaintiff who was a passenger in the bus was that he took the front seat directly opposite the driver, on the other side of the isle from the front seat. He had travelled the route all the time in 2014 while going to school. He knew the driver. At some point during the journey, the driver stopped the bus and filled some liquid in the vehicle. After some time when the driver engaged the gear, the bus was making sound. The bus did not stop at the school. The bus went off the road into the bushes after some minutes of negotiating by the driver.
[22]	Kanchan Lal was the other eyewitness. He was 82 years old at the time of giving evidence. He has been a driver (private) for over 50 years He was a passenger in the bus. He sat on the right side behind the driver on the 3rd seat. He could see the driver from where he was seated. On the journey the driver stopped the bus near the church. The driver went out and filled something in the engine. After filling the engine, the bus took off, it was a roll and then the bus could not stop, it went zig zag until it crashed. In cross-examination, Mr. Lal stated that the bus made noises. It was the gear noise. The brake did not catch. The driver tried to stop the bus. He could not stop it.
[23]	The evidence of Samuela and Kanchan Lal, the passengers in the bus do not show that the driver was at fault or that he was negligent. They did not give any evidence of the driver driving carelessly or recklessly. They did not blame the driver for the accident. Both the witnesses saw the driver fill some liquid in the engine. Both saw the driver trying to bring the bus into control. The gears were sounding and clashing. 
[24]	The evidence of Joseva, the LTA vehicle examiner who had inspected the bus, 2 days before the accident was that he issued the defect order No. 218734 for DU927. He checked the hand brake by pulling it. It came right up. He also found that there was no radiator cap. It was located just beside the driver on the dashboard. He also found the seats to be loose. They were shaking. These were Joseva’s personal observations.
 [25]	The other evidence of note is that of Shalendra Deo, LTA vehicle examiner. He is a vehicle examiner for over 19 years. He also carried out accident investigations. He carried out investigations on the cause of the bus accident. He prepared a report of his investigations dated 5th June 2014. He examined the bus on the same day at LTA Valelevu. He took photos of the bus and visited the scene. Mr. Deo noted that the bus was issued two defect orders.  He found this out through the LTA registration and licensing system. According to him the defect orders were not complied with. 
[26]	According to Mr. Deo his investigation revealed that the driver of the bus had difficulty in operating hand-brake and changing gears. He opened the braking system. There were no damages sustained during the accident. His inspection of the brake revealed that there was no hydraulic leakage, no brake fluid leakage, the brake linings were not worn out. It was in good condition. He found that the plunger of the brake pedal (foot valve) ceased. It was not operating. It was stuck in one position. The plunger head was rusted. According to Mr Deo it was not serviced or replaced. He could not check the gear components due to the severity of the damage. 
[27]	The bus (DU 927) employed air over hydraulic, where air assisted the braking system. Mr. Deo’s evidence was that he opened and inspected the plunger, it had corroded. It had not been maintained. The bus was registered for 6 months by LTA. It was to allow re-inspection of older buses. The bus was manufactured in 1987. The plunger damage occurred overtime. 
[28]	Mr. Deo’s conclusion was that it appeared to him that the vehicle had not been well maintained prior to the accident. He found mechanical defects which in his opinion may have been a contributing cause of the accident. The mechanical defects being brake failure and the difficulty in engaging gears.
[29]	Another LTA Defect Notice No 218691 was issued for DU927 at 1.10pm on 26th May 2014.  It also related to hand brake, among other things. The LTA had no record of these defects being rectified and DU 927 being presented for examination to show that the defects were remedied. 
[30]	Ishran Ali was a witness for RBL. He is a senior mechanic. He has been working for over 21 years with RBL. His responsibility is to maintain and check all buses. His evidence was that on 25th May 2014 the fuel filter for DU 927 was changed. Greasing done, engine oil and air was checked, it was leaking. His other evidence was that the vehicle was checked daily. It was also checked on 27th, and 28th May 2014. That repairs and maintenance were constant and the vehicle was kept in good repair. According to Ishran, DU 927 was a spare bus and it was used as a replacement for buses that broke down. 
[31]	Ishran’s statement to the 3rd party on 25th June 2014 which is part of Mr. Matailevu’s evidence recorded inspection of the bus was on 26th May 2014. Later on we will see from Mr. Matailevus’s evidence of what he inspected on the IMS log and what has been tendered in court by RBL.   
[32]	The evidence of Krishan Kumar a Director of RBL was that DU927 was certified road worthy 2 or 3 months earlier. The bus was maintained well. He argued how one “can tell the bus was not maintained well so that it means LTA was not doing the job right because three [3] months before he did fitness LTA has done it.” Mr. Kumar’s evidence was that he knew of the defect orders but he had not seen it. 
[33]	It is evident from the evidence that DU927 was issued with 2 defect notices. It seems to correspond with the work that was purportedly carried out on the bus by the workers of RBL. The hand brake was defective and not operating properly. The seats of the bus were lose. They were not secure according to the evidence of Joseva. These evidences are unrefuted. They show that the bus was not well maintained. Defect orders are not issued for well-maintained buses. The evidence also shows that the bus was regularly being repaired to fix things. They involved various components. It is not expected that public service vehicles be repaired daily. They are serviced on timely intervals. This bus was over 30 years old.  It needed to be attended to daily, which is for regular service. Which is check for oil, water, etc.
[34]	Pisieli Teddy Matailevu’s evidence was that he is a Senior Loss Adjuster, engaged by the 3rd Party. He prepared a report dated 8th August 2014. He had interviewed Krishan Kumar, Irshad Ali, Ramesh Chand and the driver Akhtar Ali. He requested for a print out of the repair, service and maintenance history conducted on DU927 from February 2014 to the date of the accident. RBL was not able to print the records.
[35]	Mr. Matailevu manually recorded the information, which was reviewed by the Neelam Kumar, who added log entries which may have been missed. Neelam also identified the mechanic who did the repair/service or maintenance. The IMS record of repair/maintenance/ service log for DU927 for the date of the accident and the days preceding were as follows:
	
Date 
2014	Description of mechanical work undertaken upon bus DU927	Mechanic
Ramesh/Ishran or other	

28/05	
Doom Light, 1 tyre	
Ishran	
26/05	Air Leakage, adjust brake, greasing, doom light, tyre	Ishran	
21/05	Clutch Plate	Not identified	
16/05	Horn/Bulbs	”               ”	
15/05	Tighten drive shaft	”               ”	
11/05	Gear Box, drive shaft, brake adjust, drain sevo (air tank compressor, diff oil	Ramesh/Pawan/Vishal	

[36]	According to Mr. Matailevu at the time of attendance and inspection the above information was what was provided to him. In contrast what RBL provided later on for 28th May 2014 is as follows:
	“28/05/2014    150,189	general checkup by Isran.
					change tyre, brake tested…all ok by Isran

		maintenance performed
		Tyre Roden (check for wear & Tear)
		Radiator(Top & Bottom Hose)
		Greasing
		General electrical wiring (Chasis and Body, Interior & Exterior)
		Gearbox oil inspection
		Gear Linkage (Check for Wear and Tear)
		Fan Belt (Check for Wear and Tear)
		Drain Sevo
		Drive Shaft (universal Joint and bolts)
		Draglink Arm (Check for Wear and Tear)
		Diff Oil Inspection
		Dash Board Guages (Oil Pressure, Battery light…etc)
		Check Tyre tread Depth
		Brake adjust
		Air Leakage (stop engine to hear any Air Leak)

	Labour-Tech		Description		Hours
	Ramesh			general checkup		1
	
	Isran			general checkup		1”

[37]	According to Mr. Matailevu at the time he attended and inspected the IMS log with Neelam, the above-listed entries were not there. These seem to have been added on later on. It is an attempt by RBL to show that they attended to DU927 and did substantial work on it. The fact remains they did not after attending to various rectifications take the vehicle to LTA to show that they attended to the defects and sought clearance from LTA to operate the bus. The other evidence of Mr. Matailevu was that the Akhtar Ali (bus driver) had admitted to him that the demand notice was issued to him. The LTA inspector stuck a defect sticker on the front windscreen of DU927. 

[38]	The information Mr. Matailevu gathered following the interview of Akhtar Ali was that Ashish Kumar told him to keep driving the bus despite the defect notice and he would be told when to park the bus to have it repaired. Ashish Kumar is one of the Directors of RBL. This information shows that a Director had knowledge of the defect notice and the evidence before this court is that the defects were not attended to. The IMS log of RBL were manipulated to show me that they attended to the bus. 

[39]	Dr. Frank Grigg, a forensic engineer in his evidence stated that “…there can be little doubt that the failure of the service brakes was the direct cause of the loss of control that led to the crash, this occurred when the driver is known have had difficulty in engaging the gears and the handbrake was defective. This meant that as a result of the lack of adequate regular servicing there was no alternative ways of controlling the speed of the bus on the downhill grade.” Dr. Grigg did not inspect the bus. He relied on the materials that were provided to him. This included Mr. Deo’s report and Mr. Cumberlidge’s collision reconstruction report. Dr. Grigg’s qualifications and expertise were unchallenged. He had carried out over 1950 motor vehicle accident investigations. He has been an expert witness since 1967. I accept Dr. Griggs evidence.  

[40]	The evidence of Mr. Malcolm Cumberlidge, a forensic collision investigator was that he prepared a report. He inspected the bus on 23rd June 2014 at Raiwaqa Buses yard. He was provided the witnesses’ statements, the defect notices, LTA accident and vehicle inspection report and the summary of the driver’s statement to police. He inspected the scene of the accident. 

[41]	Mr. Cumberlidge’s conclusions were that the crash occurred because the vehicle suffered a complete failure in the braking system which was exacerbated by the driver’s inability to select a gear. The brake failure was caused by lack of appropriate daily and scheduled maintenance of the braking system.  

[42]	Raiwaqa Buses Limited relied on Mr. Etuate Koroi, who holds a Degree in Engineering. He was previously the CEO of LTA and taught engineering and automotive studies at Fiji National University. Mr. Koroi’s evidence was based on what was provided to him by RBL. According to him just saw they gave him. He did not interview anyone. He did not visit the scene. He basically prepared reports on what he was told. He did not cite documents or interview the mechanics. He was told by someone that the driver was at fault. He did not know who told him. Mr. Koroi agreed in cross-examination that it would have been an advantage if he saw things or inspected things himself. Mr. Koroi’s evidence was not reliable. 

[43]	Having noted all the evidence I find that the cause of accident was brake failure. It was caused by lack of appropriate daily and scheduled maintenance of the braking system of DU927. I also find that RBL (Defendant) was negligent in requiring Akhtar Ali an employee, servant or agent of RBL to drive a defective, unsafe and un-roadworthy bus while being aware of the defects in the bus. The hand brake was defective. They were served two defect notices. LTA placed defect stickers on the bus. The bus driver, Akhtar Ali notified Ashish Kumar. Ashish Kumar, a Director of RBL should have ensured that the defects were attended to. In addition, the brake system was not appropriately serviced or had its scheduled service. The cause of the bus accident was failure by RBL in maintaining the brake system of DU927.
(ii)	Injuries and extent of injuries
[44]	Four medical reports were tendered which confirmed the injuries suffered by Samuela Ritova as a result of the bus accident on 28th May 2014. Upon presentation at the accident and emergency department, it was revealed that Samuela Ritova suffered the following injuries:
			(a) Closed Left Shoulder - Anterior Dislocation.
			(b) Open fracture Right Tibia.
			(c) Closed fracture Left Midshaft Femur.
			(d) Lumbar Vertebrae L1 / L2 Fractures.
			(e) Closed Fracture Right Distal Radius.

[45]	The assessment by Dr. Kumar on 8th July 2016 gave a permanent impairment rating for Samuela Ritova of 82%. Later an assessment was made by Dr. Taloga in May 2024. The permanent impairment rating of the May 2024 assessment is 42%. 
(iii)	Fitness, Compliance, Safety and Condition of Bus (DU927)
[46]	Mr Cumberlidge’s evidence and report to court on the structural condition of the bus is that “..the floor was corroded and many seats were not properly bolted to the floor, several seats detached from the floor and were thrown forwards in the vehicle.” Mr. Cumberlidge also stated that the “corroded condition of the cabin and chassis and insecure seats contributed significantly to the frequency an extent of the passengers injury.”
[47]	The bus was issued two defect notices. The defects were not rectified. The bus continued to operate despite the defect notices. There were witnesses who described the driver periodically stopping the bus to fill some fluid. It is not clear what fluid was being replenished. One of the defects was radiator cap. The conclusion of Mr. Cumberlidge was that the bus not in a road worthy condition. The observations and the defects noted in the bus, a public service vehicle were such that it was not road worthy. The evidence indicates that the driver and the owners knew of this. They kept on driving the bus and operated it despite knowing its defects.   
[48]	The bus (DU927) was inspected by LTA on 19th February 2014. It was valid until 18th August 2014. The registration period for the vehicle was the same.  It was for 6 months. The evidence before me was that older vehicles were given shorter periods of registration to get them inspected two times in a year. 
[49]	From the date of inspection of the bus to the accident was about 3 months. Half the period was due until it next inspection. The responsibility of maintaining the bus was upon RBL. Few days before the accident the bus was checked while it was on route. The LTA officers gave it defect notices. Two notices were issued within a day. The notices required RBL to remedy the defects and present the bus to LTA for inspection. I have accepted that the driver informed the director, Ashish Kumar. Nothing was done to remedy the defects. The driver was told to keep driving and he would be told when to park and then the defects would be remedied. 
[50]	RBL did not take heed of the defect notices. Those were serious defects. The hand brake was faulty. Radiator cap needed to be attended to. The bus required general body work. The gears were not engaging. These are all serious issues which RBL had notification and cognizance of but they failed to address them. The bus accident was caused by brake failure. 
[51]	RBL being the owners of DU927 were to ensure that the bus was safe to be driven on the road and to carry passengers. By disregarding the defect notice and not remedying the defects they ignored serious defects pointed out by LTA. RBL failed in their duty as a road service licence holder. They failed by not maintaining and ensuring that the bus was fit and safe to be on the public road and to carry passengers. The bus did not comply with proper standard required of a public service vehicle. Following the defect notices the defects should have been remedied. It should have been taken off the road and until the defects were remedied and inspected by LTA. RBL took risk by continuing to operate the bus despite knowledge of the defects. The risk they took endangered the lives of the passengers. The injuries they received were a result of the risk taken by RBL. 
(iv)	Term of insurance policy
[52]	RBL’s fleet of buses were covered by insurance. Insurance was provided by Sun Insurance Company Limited (3rd Party). DU 927 was included in this. Liability for personal injury/death of passengers (all claims arising out of one event) was $1,000,000.00. 
[53]	The bus (DU927) was issued defect notices. The defects were serious enough to require immediate attention by RBL. RBL did not attend to the defects. They allowed the bus (DU927) to be driven in unroadworthy conditions. The vehicle was poorly maintained. The seats were not secure. They were not properly bolted to the floor. These were hazards and risks for the travelling public. 
[54]	Clause 10 of the motor vehicle insurance policy provides for the relevant exclusion (when and what insured is not covered for). It provides that where a vehicle is driven in an unsafe and unroadworthy condition it is not covered in the policy. DU 927 continued to be driven when RBL was notified that the bus needed attention. The defects were to be remedied and checked by LTA. The bus continued to be driven  while the handbrake was defective. Other defects were also made known to RBL. The defect order specified that the bus was not to used on any public street except for the purposes of repairs at garage. There is no evidence that the repairs were carried out and cleared by LTA as was required under the defect notice.  
[55]	It was an express term of the policy (clause 10) that if the vehicles which were covered under the policy were in unroadworthy conditions, coverage would not be provided. 
[56]	Clause 11 of the policy covers loss or damage due to mechanical. The evidence shows that the bus was poorly maintained. The brake failure was caused by lack of appropriate daily and scheduled maintenance by RBL. It was mechanical in nature. The accident was caused due to the failure of RBL to address mechanical aspects of the bus (DU 927). RBL also did not take reasonable steps to protect and safeguard the bus from loss or damage. They did not ensure that the defects were addressed and rectified. They allowed the bus to be driven despite the defects. This was in breach of clause 17 of the policy. 
(v)	Indemnity
[57]		RBL is not entitled to any indemnity under the policy and is to bear the damages (which is to be assessed) awarded on its own. RBL are not covered for failing to maintain a roadworthy bus (DU927) and ignoring mechanical defects and not remedying the defects despite having notice of the same. 
(vi)	Damages
[58]	Samuela Ritova is entitled to claim general and special damages for the injuries he sustained as a result of the bus accident. RBL is liable to pay those. RBL is liable for injuries that Samuela Ritova suffered as a result of the bus accident. The damages are to be assessed. 
F.	Court Orders

[59]	This Court orders as follows:
	(a) 	Raiwaqa Buses Limited (Defendant) is liable for the injuries suffered by Samuela Ritova (Plaintiff) following the accident involving its bus (DU 927) on 28th May 2014.
	(b)	The liability determined in this matter applies to the following matters:
				(i) Seru Sauliga v. Akhtar Ali & Ors – Action No. 7 of 2015.
				(ii) Kanchan Lal v. Akhtar Ali & Ors – Action No. 324 of 2015.
				(iii) Shameem Ali v. Akhtar Ali & Ors – Action No. 127 of 2017.
(iv) Mosese Daulakeba v. Akhtar Ali & Ors – Action No. 144 of 2017.
(c)	The Plaintiff in this matter and those listed in (b) are entitled to claim general and special damages for the injuries sustained in the bus accident. 
(d)	Raiwaqa Buses Limited is liable to pay damages to Samuela Ritova and the Plaintiffs’ listed in (b). 
(e)	Raiwaqa Buses Limited (Defendant) indemnity claim against Sun Insurance Company Limited (3rd Party) is dismissed.  
(f)	The parties will be heard on damages.

………………………………………………………….
Hon. Justice Chaitanya S. C. A Lakshman
Puisne Judge

29th August 2025