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Magistrates Court of Fiji |
IN THE FIRST CLASS MAGISTRATES COURT AT NASINU
CIVIL JURISDICTION
Civil Case No. 100/2012
BETWEEN:
S. KARAN'S CONSTRUCTION LTD
a limited company incorporated in Fiji having its registered office at Lot. 5,Jai Hanuman Road, Vatuwanqa,Fiji.
[Plaintiff]
AND:
FRINCOS HIRE (FIJI) LIMITED
a limited company incorporated in Fiji having its registered office lot 26, Wainibuku Sub Division, Nakasi
[1st Defendant]
KARTSHAN KRISHNA
31 VolavolaRoad,Tama, Fiji.
[2nd Defendant]
Siwatibau and Sloan Solicitors for the Plaintiff
the Defendant did not present or represent by any Solicitor
Ruling
Facts
[1] Above named Plaintiff filed an action by way of writ of summons claiming compensation for the damages it's sustained as a consequence of a collisional accident caused by negligent and reckless driving the vehicle registration no: FP 431owned by 1st defendant by the 2ndDefendant on 26/09/2011. More specifically the plaintiff has claimed damages of $5,387.10 based on direct liability for the loss it suffered from 2nd defendant and vicarious liability from the 1st defendant for the loss as the owner of the vehicle in issue. Further prayed for b. Interest on the judgment sum at 5% per annum from the date of issuance of the Writ until full payment pursuant to Order XXXII Rule 8 of the Magistrates Court Rules; Costs in the action on a solicitor client basis. And seek the Total claim and costs to be limited to $50,000.00 and to be within the jurisdiction of this Court and Such further or other relief as may be deemed just by Court.
[2]The 1st and 2nd defendant were initially represented by Messrs Reddy & Nandan Lawyers who filed Statement of Defense and counter Claim on their behalf on 31st July 2013 but then appear to have abandoned their case after 25/9/2013. The Plaintiff filed the Reply to Statement of Defense on 24 September 2013. Since the defendant did abandon their case the plaintiff on 20/08/2014 moved the matter for formal proof with notice to the defendants. Formal proof fixed for 30/09/2014 and commenced by the plaintiff on the fixed date with one witness named ALVIN PRANESH MANI (The Director of the plaintiff company and the Driver of the plaintiff's vehicle) and marked and tendered an affidavit of BINAY DUTT the Supervisor Special Projects for Sun Insurance Company Limited.
[3] The plaintiff's witness Alvin Pranesh Mani gave evidence and stated that: He is a director of the plaintiff company. On 26 September 2011 he was driving the plaintiff's vehicle and was authorized to do so by the plaintiff and He was heading towards Nausori on Ratu Dovi Road, Nasinu when the accident occurred. It was a clear fine day, around midday. He had slowed and stopped due to traffic, and the 1st defendant's vehicle rammed into the rear of the plaintiff's vehicle. Further He recognized the 1st defendant as the son of the director of the 2nd defendant company. He confirmed that the plaintiff's vehicle sustained damages from the accident and confirmed that the damages were as per the photographs shown to him (Dutt Affidavit BDG – Photographs).He lodged a claim with SICL regarding the accident and a copy was shown to him and he confirmed that it was the claim he lodged (Dutt affidavit BD4 – SICL claim).He was aware that the 1st defendant was charged with Careless Driving and he was shown a copy of the Certificate of Court Proceeding (Dutt Affidavit BD11 – Certificate of Court Proceeding).After the plaintiff's vehicle had been repaired, Alvin paid the excess amount to Asco Motors and signed off on the Discharge. He was shown a copy of the Discharge and confirmed that it was the Discharge he had signed (Dutt Affidavit BD10 – Discharge).He was provided with a rental car by SICL from Faiz Rental while his vehicle was under repair which he paid the rental fee which was then reimbursed by SICL (Dutt Affidvait BD11 – Rental invoice, receipt, payment instruction and payment voucher).
[4] Binay Dutt the Supervisor Special Projects for SICL was present in Court for the formal proof and confirmed to the Court that he had sworn as to the contents of the affidavit. Therefore this Court advised that it would not be necessary for Mr. Dutt to give oral testimony of matters already contained in his affidavit which is itself sufficient sworn evidence .in his affidavit Mr Dutt's has stated, inter alia:
a. This action was brought in the name of the plaintiff by, and at the behest of SICL Pursuant to its subrogation rights and the policy of insurance SICL had over the plaintiff's vehicle at the material time.
b. A search of Land Transport Authority confirmed the ownership of the plaintiff's and the 1st Defendant vehicles at the material time (BD1 – LTA search).
c. Police report from Valelevu Police Station confirms the 2nd Defendant was at fault and charged with Careless Driving (BD2 – Police Report).
d. The 2nd Defendant was found guilty of Careless Driving and fined $200.00 (BD3 – Certificate of Court Proceeding).
e. The Plaintiff filed a claim regarding the accident (BD4 – SICL claim).
f. SICL's Renewal Certificate showed that the Plaintiff's insurance coverage was valid at the material time (BD5 – SICL's Renewal Certificate).
g. Photographs of damage to the Plaintiff's vehicle were taken prior to repairs (BD6 – Photographs).
h. An assessment report on the damages was carried out by SICL (BD7 – Assessment report).
i.The total owed by the Defendants as a result of the collisions amounts to $9387.10.
i.$212.10 – for labour from Asco Motors (BD8 – invoice, purchase, order, payment instruction, and payment voucher);
ii. $2195.00 – for parts from Dai Ichi Auto House Limited (BD9 – invoice, purchase order, payment instruction, and payment voucher).
iii. $1000.00 – excess payment to Asco Motors for discharge allowing SICL to exercise its rights of subrogation (BD10 – Discharge and BD8 – refers to excess amount).
iv. $1980.00 – payment to Faiz Rental for rental vehicle (BD11 – invoice, receipt, payment instruction and payment voucher).
[5] Thereafter the plaintiff filed Witten submissions. Since the defendant has filed statement of defence with counter claim of damages limited to $ 5000.00 and post judgment interest. The defendant has reserving the right to tender the particulars of the repairs at the trial but which the defendant had failed to submit any up to date. Since the defendants are not disputing the fact that the parties met anaccident but they are not liable and the plaintiff is liable for the same main issues to be resolve by this court are;
A] Whether the plaintiff is in fault or the defendant in fault at the accident in issue?
B] If either plaintiff or defendantsare liablefor the accident what are the available remedy for the aggrieved party?
Law
[6] In the case of Dee Cee's Bus Services Ltd v Car Rentals Pacific Ltd [2005] FJHC 239; HBA0001j.2004s (24 August 2005) the High Court of Fiji provides a useful discussion at paragraph 6 on page 3 of the case of Island Buses Ltd v Intercities Buses Services Limited C.A. 1420 of 2000 Justice Jiten Singh which stated that:
"A person who collides from rear is prima facie negligent. He must keep a safe distance. Vehicles do at times have to stop suddenly. One applies brakes to stop. Brake lights illuminate which is an indicator for vehicle behind, to slow or stop"
Civil Evidence Act
[7] Section 17 of the Civil Evidence Act states as follows:
Part V: Convictions as evidence in civil proceedings
"Sec 17.(1) In any civil proceedings the fact that a person has been convicted of an offence by or before any Court in Fiji Islands or elsewhere is, subject to subsection (3), admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that the person committed the offence, whether the person was so convicted upon a plea of guilty or otherwise and whether or not the person is a party to the civil proceedings.
(2) No conviction other than a subsisting one is admissible in evidence by virtue of this section.
(3) In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any Court in the Fiji Islands.
a.The person is taken to have committed that offence unless the contrary is proven; and
b.Without affecting the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document which is admissible as evidence of the conviction and the contents of the information, complaint, indictment or charge sheet on which the person was convicted are admissible in evidence for that purpose.
(4). Nothing in this Section affects the operation of Section 19 of this Act or any other written law whereby a conviction or a finding of fact in any criminal proceedings is for the purposes of any other proceedings made conclusive evidence of any fact.
(5). If in any civil proceedings the contents of any document are admissible in evidence by virtue of subsection (3), a copy of that document, or of the material part of it, purporting to be certified or otherwise authenticated by or on behalf of the Court or authority having custody of that document, is admissible in evidence and must be taken to be a true copy of that document or part unless the contrary is shown.
[8] In the case of Broadbridge v Maka [2011] FJHC 318; [2001] 1 FLR 389 (7 November 2001) which was a claim in negligence against the First defendant who had been convicted of careless driving in the Magistrate Court is relevant. The evidence given by the first defendant in cross examination in the High Court trial did not persuade the Court that he drove safely and as the Court states in the fifth paragraph at page 6, in the context of this evidence, this (failure to rebut the presumption) amounts to negligence.
Further in the case of Kumar v Rabukawaqa [2011] FJHC 507; Civil Action 100.2006 (8 September 2011) in which the first defendant was convicted of Dangerous Driving after pleading guilty, is relevant. At paragraph 2 of page 2, the Court referred to Prasad v Lata [2005] FJCA 39 citing Lord Denning in Stupple v Royal Insurance Co [1971] 1 QB 50 at page 72 in explaining the equivalent section in England as follows:
"It shifts the legal burden of proof...the defendant must show that he has not negligent...otherwise he loses by the very fact of his conviction....."
Further Buckley L.J. in Stupple v Royal Insutance (1971) 1 Q.B. 50 at p.76:
"...The Judge's duty in the civil proceedings is still to decide that case on the evidence adduced to him. He is not concerned with the evidence in the criminal proceedings, except so far as it is reproduced in the evidence called before him or is made evidence in the civil proceedings under the Civil Evidence Act 1968 Section 2 or is established before him in cross-examination.................."
In Kumar v Prasad [1992] FJHC 28; Hba0007j.92s (24 July 1992) the High Court held;
"......Needless to say learned Counsel for the respondent correctly points out that an acquittal in a criminal prosecution is not conclusive evidence in a civil action based on the same facts having regard to the different standards of proof and moreso where the Magistrate conducting the civil case did not have the benefit of hearing the defendant give sworn evidence before him as occurred in the criminal trial of the 1st defendant".
[9] In Hewitt v Bonvin [1940] 1 K.B. 188 the House of Lords approved the following statement by MacKinnon I.J. at the beginning of his judgment at p. 191:
"If A suffers damage by the wrongful act of B, and seeks to say that C is liable for that damage he must establish that in doing the act B acted as the agent or servant of C. If he says that he was C's agent he must further show that C authorized the act. If he can establish that B was the servant of C the question of authority need not arise. A master is jointly and severally liable with his servant for any tort committed by the servant in the course of the employment. If in this case the plaintiff is to make Bonvin the father liable for the damages he claims he must establish that the son was driving the car as the servant of his father and in the course of employment".
[10] The locisclassicus for the law of vicarious liability is Morgans v Launchbury [1972] UKHL 5; (1972) 2 ALL E.R. 606 and Lord Salmon on page 620 of the same case said:
"As I understand the authorities the law at present makes the owner or bailee of a car vicariously responsible for the negligence of the person driving it, if, but only if, that person is (a) his servant and driving the car in the course of his employment or (b) his authorized agent driving the car for and on his behalf...Thus, mere permission to drive is not enough to create vicarious responsibility for negligence...So far as I know until the present case, du Parcq LJ's statement of the law in Hewitt v Bonvin [1940] 1 KB at 194, has never been questioned:
'The driver of a car may not be the owner's servant, and the owner will be nevertheless liable for his negligent driving if it be proved that at the material time he had authority, express or implied, to drive on the owner's behalf. Such liability depends not on ownership, but on the delegation of a task or duty".
Issue No: A] Whether the plaintiff is in fault or the defendant in fault at the accident in issue?
[11]The statement of defence dose contains a defence which is a counter claim as well more specifically since the plaintiff failed to drove his vehicle in a manner that is required from a prudent driver in a similar circumstances by stopped his car all of a suddenly and failed to slow down gradually before stopping the plaintiff is liable for the losses suffered by the defendant.By mentioning this averment the 1st and 2nd defendants have admits the fact that the 2nd defendant has bumped his vehicle front from the rear side of the plaintiff's vehicle. It is evident that All the photographs containing in the affidavit of BINAY DUTT is corroborates with the same.
[12] And the 2nd defendant was charged careless driving for the same accident in traffic case number: 10999/11 pleaded guilty and imposed $200.00 fine by the court. Therefore since the fine has been imposed up on the plea of guilt by the 2nd defendant has no legitimate right what soever to put the blemishes to the other party of the accident. If the defendant think or have grounds or excused firstly he should testified the same before court. This court thinks this stand will be the same even if the defendant proceeds to defend him at criminal trail but convicted on the evidence as the faultiness of the defendant (the accused) has been measured in high scale without reasonable doubt. But as mentionedin case authorities if the defendant acquitted at criminal proceeding will more possibly gives a chance to defend him at a civil claim against him due to the deference of standard of proof applicable in two types of court.
[13] Further it is correct to say that all the accidents will not create criminal liability up on drivers but onlythe accident happened on very serious neglect act may cause. Therefore if someone convicted irrespective of the fact that is it a conviction on plea of guilty or conviction after trail, it will definitely create cause of action for civil claim as this case and the burden of proof of due care shifted to the defendant and the plaintiff have to prove the particulars of damage only. But in contrary if the defendant acquitted the burden of proofs of negligence will be on the plaintiff's side. The plaintiff yet has to prove his case with balance of probability.If the civil and criminal both matters heard by the same magistrate court eitheracquittalor conviction will creates more hardship on the party bearing the onus of proof.
[14] Even though the defendants filed a defence they failed to present their case or prove the same with evidence. Since the 2nd defendant admitted his liability before the court for careless driving at the time of accident.It is well settled rule that every driver should keep sufficient gap to prevent collision with the ongoing vehicle in front whilst driving and there is no exception for this rule. If the defendant thinks otherwise onus is on the defendant to prove it but in this matter the defendant has failed to do so. Thereforethis court founds the 2nd defendant is in fault at the relevant accident and not the plaintiff and liable for the any damages caused as a result of the same.
[15] The plaintiff must establish that the 2nd defendant at the time of driving vehicle in issue was acting for the benefit of the 1st defendant to determine the vicarious liability of the 1st defendant which is a company duly registered. The statement of claim Paragraph 3 has specifically mentioned the 2nd defendant is an employee of the 1st defendant. At the 2nd paragraph of statement of defence both the 1st and 2nd defendant admitted this fact. Further 1st defendant agreed on the ownership of the vehicle registration no: FP 431. Since the 1st defendant did not disputed on delegated authority to use the vehicle by 2nd defendant this court found there is sufficient relationship to find 1st defendant vicariously liable for the act of 2nd defendant as the employer of the same. Therefor this court further founds the 1st defendant also vicariously liable for any damage caused as a result of the negligent act of the 2nd defendant.
Issue No: B] If either plaintiff or defendants are liable for the accident what are the available remedy for the aggrieved party?
[16] Since the 1st and 2nd defendant found liable for the damages and other connected losses suffered by the plaintiff this court rule the plaintiff is entitle to claim the same from the 1st and 2nd defendant. This court is satisfied with the below mentioned documental evidence tendered by the plaintiff as the proof of loss.
parts from Dai Ichi Auto House Limited marked as "BD9"=$ 2,195.00
its rights of subrogation marked as "BD8" =$1,000.00
Rental for rental vehicle marked as "BD11" = $1,980.00
Total Loss Damage =$5,387.10
[17] Therefore this court make following orders;
Accordingly Orders to be entered.
On 11thMarch 2015, at Nasinu, Fiji Islands
Neil Rupasinghe
Resident Magistrate-Nasinu
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