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Zhong Fei Shipping Agencies Services Ltd v Mudaliar [2015] FJMC 38; Civil Action 212.2014 (17 March 2015)

IN THE FIRST CLASS MAGISTRATES COURT
AT SUVA
CIVIL JURISDICTION

Civil Action No. 212/2014

BETWEEN:

ZHONG FEI SHIPPING AGENCIES LIMITED
a limited liability
company duly incorporated under the Companies Act and having its registered office at Suva.
PLAINTIFF

AND:

RABECCA MUDALIAR
occupation unknown to the Plaintiff of 32 High
Street, Suva.
FIRST DEFENDANT

AND :

ASHWANT PRASAD
Church Pastor of Suva, whose exact address is
unknown to the Plaintiff.
SECOND DEFENDANT

Counsel : Mr. Savou for the Plaintiff
Both defendants in persons

Date of Hearing : 16th March 2015
Date of Judgment : 17th March 2015

JUDGMENT

1. The Plaintiff filed a writ of summons on 21st November 2014 against the defendants seeking following orders inter alia:
   
   • (i) Judgment in the sum of $25,925.00
   • (ii) Cost of this action
   • (iii) Interest on the judgment
     
2. The plaintiff claimed the above amount for the damaged caused to a vehicle of the plaintiff . This vehicle collided with a vehicle owned by the 2nd defendant and being driven by the 1st defendant on 28th February 2014 on Domain Road, Suva . The plaintiff alleged that the accident happened due to the negligent of the 2nd defendant .
   
3. The defendants filed their statement of defence on 07th January 2015 denying the negligent and damages. Only admissions made in the defence were that the 1st defendant was the owner and the 2nd defendant drove the vehicle on that date.
   
4. The hearing was conducted on 16th March 2015 where the plaintiff called two witnesses and both defendants also gave evidence.
   
5. PW1 was Vanil Roy, the driver of the plaintiff's vehicle and he said while he was driving the vehicle in the Domain Road near the bend he saw the defendant's vehicle suddenly coming to his lane . PW1 tried to stop the vehicle but the defendant's vehicle kept coming and collided with his vehicle . Before the accident he also saw the 1st defendant talking with passengers in his vehicle . PW1 called his boss and informed about the accident. In cross-examination by the 2nd defendant also he confirmed that in the bend the defendant's vehicle came to his lane and collided with his vehicle.
   
6. PW2 was Ms.Lin, the director of the plaintiff company and said after getting to know about the accident she visited the scene and took photos. The quotations were called about the damages and also a letter of demand was sent to the defendant about the damages which was not answered.
   
7. The 2nd defendant said on that date he was taking a patient to the hospital and suddenly his vehicle veered to the other lane and he did not see the other vehicle coming. The 1st defendant said she was the owner of the vehicle and didn't know how the accident happened.
   
8. Both parties informed this Court that they would not file closing submissions and would rely on the evidence presented in the hearing.
   
9. Having considered the evidence in the above manner I would pronounce my judgment in this case. The burden placed on the plaintiff to prove the negligent is on balance of probabilities and this was defined by Lord Denning In the case of Miller v Minister of Pensions [1947] 2 All ER 372, Lord Denning in the following manner .
   

"The...[standard of proof]...is well settled. It must carry a reasonable degree of probability...if the evidence is such that the tribunal can say: 'We think it more probable than not' the burden is discharged, but, if the probabilities are equal, it is not."

10. PW1 in his testimony said in the bend suddenly the defendant's vehicle came to his lane and collided with his vehicle. This was admitted by the 2nd defendant also in his evidence . But he failed to explain how this happened even though from the bar table he informed me it was due to a mechanical fault of his vehicle. Apart from this evidence from bar table which I can't accept this was also not mentioned in their statement of defence. Therefore I disregard that .
    
11. Therefore after considering all the evidence I find the accident was caused due to the 2nd defendant driving in a negligent manner in the bend and the 1st defendant being the owner would be vicariously liable for this damage .
    
12. Accordingly I grant the following orders.
    
    1. Judgment in the sum of $$25,925.00 against the both defendants
    2. Interest of 5% per annum from the date of judgment until full payment. (Total sum with the interest not to exceed $50,000)
    100. Cost of $1000.00 summarily determined to be paid to the plaintiff .
         
13. 07 days to file notice of intention to appeal
    

H.S.P.Somaratne
Resident Magistrate , Suva