Krishna Brothers v Post and Telcommunications Ltd [2005] FJCA 36; ABU0028.2004S (29 July 2005)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CIVIL APPEAL N0. ABU0028.2004S
(High Court (Labasa) Civil Appeal No. HBA0001.2003)

BETWEEN:

KRISHNA BROTHERS
APPELLANT

AND:

POST AND TELECOMMUNICATIONS LIMITED
RESPONDENT

Coram: Ward, P
Eichelbaum, JA
Gallen, JA

Counsel: G P Shankar for the appellant
V.J. Parshu Ram for the respondent

Hearing: Thursday 21 July 2005
Judgment: Friday 29 July 2005

JUDGMENT OF THE COURT

[1] This is an appeal from the decision of the High Court on appeal from the magistrates’ court. The original claim, filed in September 1997 in the Labasa Magistrates’ Court, was for damages resulting from a traffic accident on Taveuni. It was claimed that the plaintiff’s (the present appellant’s) vehicle had been struck whilst on its correct side of the road by a vehicle driven negligently by the, then, first defendant in the course of his employment with the second defendant, the present respondent. Judgment in default of defence was given against the first defendant in December 1997 but was set aside in March 1998 and a defence was filed on behalf of both defendants in April 1998. This was followed by an amended statement of claim in March 1999.

[2] There followed a series of, largely unexplained, adjournments until counsel for the plaintiff applied in December 1999 to have the case transferred to the Taveuni magistrates’ court. The transfer was opposed by the defence but the magistrate ruled:

“Case arose in Taveuni. Witnesses are from Taveuni even though defendants’ witnesses are from here. Even though it is late in the day, order is granted for case to be transferred to Taveuni.”

[3] In what is an all too familiar pattern, there followed another series of adjournments until the case was set down for hearing on 21 May 2001. On that day, both parties were represented but counsel for the defendant applied to have the matter transferred back to Labasa court. The court took the view that the application was frivolous and vexatious and was simply to defeat the hearing of the case. It was refused.

[4] Counsel for the defendant then advised the court that he was only instructed for the application and could not appear in the trial. The magistrate, properly, stood by his decision to proceed with the trial at which counsel stated he would appeal that decision. The magistrate, again quite properly, proceeded to try the action. It is improper conduct by counsel to appear on a date set for hearing with sufficient instructions only to seek an adjournment. If he cannot be ready to conduct the case on a date he knows is already fixed for hearing, he should not accept instructions.

[5] Order XXX of the Magistrates’ Courts Rules deals with non-attendance of parties at the hearing. Rule 3 provides:

“3. If the plaintiff appears, and the defendant does not appear or sufficiently excuse his absence, or neglects to answer when duly called, the court may, upon proof of service of the summons proceed to hear the cause and give judgment on the evidence adduced by the plaintiff, or may postpone the hearing of the cause and direct notice of such postponement to be given to the plaintiff.”

[6] The rule clearly gives the magistrate a discretion to hear the evidence and determine the claim or postpone the hearing. The magistrate took the former course in the present case. The appellant gave evidence and called two further witnesses. Evidence called for the plaintiff described the accident and the negligence of the first defendant, the damage to the plaintiff’s vehicle, the cost of repair (being $1,850.00 for parts and $1,150.00 for labour) and the loss of $2,100.00 caused to him by having his vehicle off the road for three weeks (wrongly pleaded as $5,100.00 in the amended statement of claim).

[7] The negligence had been pleaded and the sums described had been stated in the claim as special damages. The amended statement of claim also claimed $5,000.00 general damages and costs. No evidence was given to demonstrate how general damages could have arisen and no evidence was given of the actual costs or disbursements.

[8] The magistrate gave a brief judgment in which he found for the plaintiff in the following terms:

“I have now carefully considered all the evidence presented before me and I am satisfied that the plaintiff has proved its case on the balance of probability. I also believe that the plaintiff has incurred losses in the sum of $5,100.00 which amount I now award as special damage.

Plaintiff has also asked for general damages of $3,000.00. After considering all the circumstances of the case, I am prepared to award $2,000.00 as general damages.

The record of the case shows that plaintiff’s solicitor made various trips from Labasa to Taveuni for this case which had to be adjourned on the pretext that the defendant would settle. Settlement did not eventuate and I see prudence (sic) that costs be paid to the plaintiff as he has incurred expenses in air fares, hotel expenses etc. I summarily assess the cost against the defendant as $1,900.00.”

[9] The defendant appealed to the High Court on a number of grounds. Most were rejected by the learned judge but he allowed the appeal on three related grounds concerning failure by the magistrate to find negligence, a claim that the judgment was against the weight of the evidence and criticising the contents of the judgment. The judge explained his decision:

“...in the present case I do not see any specific findings of facts nor was the evidence analysed as required of a Magistrate.

All that the Magistrate said was that: ‘I have now carefully considered all the evidence presented before me and I am satisfied that the plaintiff had proved its case on the balance of probability’.

There is no proper evidence of how the sum of $5,100.00 for losses is made up. There is no documentary or supporting evidence of it. Similarly, there is no indication how the sum of $2,000.00 has been allowed. Also there are no details of how the sum of $1,900.00 being expenses in “air fares, hotel expenses etc” is made up. ...

In the present case there is no proper analysis of the evidence. There are no findings of fact. Merely saying ‘I am satisfied that the plaintiff has proved its case on the balance of probability’ is not satisfactory enough.”

[10] He then set the magistrate’s judgment aside, gave the defendant leave to defend the action and ordered that the action be heard by a different magistrate in Labasa ‘unless there is an order of transfer to Taveuni’. He concluded:

“That although the appeal is allowed on certain grounds, the appellant is ordered to pay costs to plaintiff’s solicitors within 21 days the sum of $750.00 being costs thrown away for failure to attend court in Taveuni at the hearing of the case.”

[11] Mr Shankar for the appellant simply asks the Court to accept that, as the case had been set down for hearing, the magistrate had a right to hear the evidence and, in the absence of any defence, had no reason to require further proof. In such a case, the judgment need not analyse the evidence and was adequate in the present case.

[12] Counsel for the respondent suggests that, even in the absence of defence counsel or defence witnesses, the magistrate should have borne in mind the challenges raised in the statement of defence.

[13] We disagree. The fundamental rule of trial is that the court must decide on the evidence adduced at the hearing. If the defence wished to challenge any of that evidence, it needed to cross examine the plaintiff’s witnesses and to call any necessary witnesses to support its case.

[14] The learned judge referred to cases in which the High Court has explained what is needed in a judgment in the magistrates’ court, in particular Chandar Pal v Reginam [1971] 20 FLR 1. We accept the general guidance given in that case but it cannot be taken as a guide to a case in which the evidence is entirely uncontested as occurred here. In such circumstances the magistrate only needs to consider whether the plaintiff’s witnesses have given credible evidence sufficient to prove the essential facts. If he is satisfied they have, he need only state that fact.

[15] This was a very brief judgment but the magistrate covered all the aspects of the claim. He failed specifically to state that he found the first defendant negligent and he should have done so. However, the evidence of the accident which he accepted, was clearly of negligent driving by the first defendant and that was equally clearly the basis of the magistrate’s finding of liability.

[16] Counsel for the respondent urged the Court to find that there should have been documentary proof of the sum claimed for special damages. Had there been a challenge to those figures, the court may well have felt that such evidence was necessary but, in the absence of challenge, the court was entitled to find, as it did, that the plaintiff’s evidence on that matter was credible and needed no further proof.

[17] We would not interfere with the magistrate’s finding of liability and his award of special damages. However, the manner in which he dealt with the claim for general damages was unsatisfactory.

[18] This was not a default judgment and so, although the claim was for an unliquidated sum, the court was entitled to consider general damages. The statement of claim gave no guidance on which aspects of the case were suggested as deserving such an award. The court may have considered general damages appropriate for such matters as shock from the accident or an overall reduction in the value of the vehicle but the court must state in the judgment the factors it took into account in assessing the sum. The party against whom they are awarded is entitled to know the basis for the award. It is not sufficient for the court simply to state, as it did here, that it awarded a particular figure and it leaves this court with no way of assessing whether his reasons were correct or reasonable.

[19] Similarly, the summary manner in which the costs were assessed was inadequate. The plaintiff was entitled to make such a claim and the magistrate clearly felt that the plaintiff was entitled to be reimbursed for the earlier trips to Taveuni. However, the plaintiff should have supplied figures of the actual costs involved. In the absence of such evidence the court should have refused that aspect of the claim or should have adjourned to have the costs taxed or to hear further evidence in support of the claim.

[20] We have considered sending the case back to the magistrate to hear evidence of the costs but, in a case which has already taken so long to reach finality, we do not feel that is appropriate and will order 50% of the costs awarded in the lower court.

[21] The appeal is allowed in the following terms:

1. The order of the High Court setting aside the judgment in the magistrates’ court is set aside and the finding of the magistrate of liability and special damages of $5,100.00 is confirmed.
   
2. The order of the magistrate awarding $2,000.00 general damages is set aside.
   
3. The order of the High Court that the present respondent shall pay $750.00 costs is set aside and substituted therefore is an order that the respondent shall pay the appellant $950.00 costs in the court below.
   
4. It appears no costs were ordered for the High Court appeal and we order that the respondent shall pay $500.00 costs in this appeal.
   

Ward, P
Eichelbaum, JA
Gallen, JA

Solicitors:

Maqbool & Co., Labasa for appellant
Gibson & Co., for the respondent