Yen-Hee Kim v Patel.doc [2006] FJCA 19; ABU0039.2005S (24 March 2006)

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

CIVIL APPEAL NO. ABU0039 of 2005S
(High Court Civil Action No. 202 of 2003S)

BETWEEN:

KATHERINE YEN-HEE KIM
Appellant

AND:

AMRATBHAI PATEL
Respondent

Coram: Ward, President
Stein, JA
Ford, JA

Hearing: Wednesday, 15 March 2006, Suva

Counsel: Mr Isireli Fa for the Appellant
Mr Nilesh Prasad for the Respondent

Date of Judgment: Friday, 24 March 2006, Suva

JUDGMENT OF THE COURT

[1] This is an appeal from the judgment of Justice Singh giving judgment for the plaintiff (respondent) in the sum of $12,450.40 for damage to his motor vehicle.

[2] The appellant (defendant) maintains that the court erred in its finding of negligence against her. It is submitted that it should have been found that it was the excessive speed of the respondent which caused the accident.

[3] The facts are within a simple scope. The accident occurred at about 5 pm on 10 March 2003 when the traffic was moderate. The respondent was driving his vehicle along Waimanu Road in the direction of Suva at a speed, he said, of 30-35 kmph. At the intersection with Extension Street, which is the minor road, the appellant came out of Extension Street to turn right into Waimanu Road. The two vehicles collided, the front of the respondent’s car striking the driver’s side door of the appellant’s motor car.

[4] The respondent’s evidence was that the traffic was heavy and the appellant’s car came out suddenly and he hit it. His evidence was confirmed by his passenger PW2 Rakesh Kumar.

[5] The appellant said that when she first saw the respondent’s car it was 70-80m away and it was safe for her to cross. She did however admit in cross-examination that it was not right for her to come out on Waimanu Road seeing the other vehicle coming at 60 -70 kmph. She should have waited but she believed it was safe for her to make the turn.

[6] The appellant called a witness DW4 Hemant Kumar, who was a bystander on the side of the road and saw the accident. He saw the respondent’s motor vehicle coming along Waimanu Road. It was about 25m behind another car which was traveling slowly at about 30-35 kmph. He saw the appellant stop her vehicle at the intersection. The car in front of the respondent went by then the appellant moved out but was struck by the respondent’s vehicle.

[7] Justice Singh considered the issue of negligence under a heading in his judgment Who was Negligent. He said:

"Waimanu Road is a major road viv-a-vis Extension Street. Those who come out of Extension Street therefore must ensure that it is safe to proceed onto Waimanu Road before they do so. The defendant says that she stopped at the junction of Extension Street and Waimanu Road and saw the plaintiff about 70 meters away coming at 60 to 70 kilometers per hour. In cross-examination she admitted that considering the plaintiff’s speed she should have waited. I agree that she should have waited knowing that a danger or risk exists as one ought not to take a deliberate risk. I am of the view that it was a busy time for traffic on the road and the first defendant seeing a slight gap in traffic pushed her way onto the Waimanu Road which resulted in the accident. This is confirmed by the evidence of DW4 Hemant Kumar who was standing on the footpath close to the scene of accident waiting for his wife. He said the plaintiff’s car was following about 25 meters behind another vehicle. The car in front went past but plaintiff’s car hit the first defendant’s vehicle. Any one trying to go across a road from a stationery position with another vehicle only 25 meters away assumes a huge risk even if the other car is moving at 50 kmph."

[8] These observations of the learned Judge were all perfectly open to be made on the evidence and his assessment of the witnesses.

[9] After the accident the appellant signed a statement authorising the repair of the respondent’s vehicle. Of this document the Judge said:

"Further why would the first defendant who is a doctor by profession agree to have plaintiff’s car repaired at Asco’s through the insurance company. The plaintiff also told the court that the defendants had his car towed away to Asco Motors. Why would someone offer to have his/hers insurance company to repair another vehicle unless he/she felt they were at fault. It surely could not be an act of charity."

[10] In summing-up the case and finding the appellant to be negligent the judge said that he had no doubt that it was the appellant’s act of moving onto Waimanu Road suddenly into the path of the respondent’s vehicle which caused the accident.

[11] There is no occasion for this court to intervene in his Lordship’s judgment which was fully justified. The court was entitled to accept and rely on the evidence of the respondent and his witness, the evidence of the appellant’s witness Hemant Kumar and indeed the admissions of the appellant herself. No error has been shown.

[12] The appeal is dismissed and the appellant is ordered to pay the respondent’s costs in the sum of $500.

Ward, President
Stein, JA
Ford, JA

Solicitors:
Messrs. Fa and Company, Suva for the Appellant
Messrs. Mitchell, Keil and Associates, Suva for the Respondent