Ali v Patterson Brothers Shipping Co. Ltd [2015] FJCA 138; ABU0045.2012 (2 October 2015)

IN THE COURT OF APPEAL
[On Appeal from the High Court]

CIVIL APPEAL NO. ABU 0045OF 2012
[High Court Civil Case No. HBC 41 of 2008]

BETWEEN:

ZAHID AFWAZ ALI
Appellant

AND:

1. PATTERSON BROTHERS SHIPPING CO. LTD
2. PRASAD HODLINGS LIMITED
3. SABIR HUSSEIN
4. FAIYAZ ALI
Respondents

Coram : Almeida Guneratne, JA
Anthony Fernando, JA
Ariam Mutunayagam, JA

Counsel : Mr. A. Sen for the Appellant
Mr. S. Valenitabua for the 1stRespondent
Mr. A. Ram for the 2nd and 4th Respondent

Date of Hearing : 11 September 2015
Date of Judgment : 2 October 2015

JUDGMENT

Almeida Guneratne JA

[1] I agree with the reasons and conclusion in the judgment of Fernando JA.

Fernando JA

[2] These are two appeals, namely Civil Appeals numbered ABU 0045 and ABU 0046 of 2012, against the judgment of the High Court in Fiji at Labasa, in the exercise of its civil jurisdiction in Civil Action No: HBC 41 of 2008.

[3] ABU 0045 has been filed by Appellant Zahid Afwaz Ali, referred to hereinafter in this judgment as 'Zahid', the Plaintiff in the High Court civil action; and ABU 0046 had been filed by Patterson Brothers Shipping Company Limited referred to hereinafter as 'PBS', the 1st Defendant in the said High Court civil action. We have decided to consolidate the two appeals.

[4] 'Zahid', as Plaintiff, had brought Civil Action No: HBC 41 of 2008 in the High Court of Labasa against 'PBS' having its registered office in Suva, as the 1st Defendant, Prasad Holdings Limited, hereinafter referred to as 'PHL', having its registered office in Labasa, as the 2nd Defendant, Sabir Hussein, a bus driver hereinafter referred to as 'Hussein' as the 3rd Defendant and Faiyaz Ali, a bus driver hereinafter referred to as 'Faiyaz' as the 4th Defendant.

[5] 'Zahid' in his Statement of Claim had stated that he had brought the action against the four defendants "for damages of injuries sustained by him in an accident on the 18th of November 2007 when he was a passenger in bus registration no. BD 653 driven along Labasa / Seaqaqa Road near Tabia". In the Statement of Claim it had been averred that at all material times 'PBS' "was carrying on business of sea transport undertaking and carrying passengers for reward on its various vessels from Nabouwalu Jetty to Natovi and by road from Labasa to Nabouwalu and from Natovi to Suva and vice versa"; that 'PHL' "was owner of bus registration nos. BD 653 and CX 565"; that 'Hussein' was the driver of bus registration n. BD 653 and that 'Faiyaz' was the driver of bus registration n. CX 565. In the Statement of Claim it was averred that pursuant to the contract of carriage, 'PBS' was to provide to 'Zahid' transportation by road from Suva to Natovi and by sea from Natovi to Nabouwalu and thereafter by road from Nabouwalu to Labasa. 'Zahid' had averred that he was a passenger for reward on the vessel of 'PBS' from Suva to Labasa and it was on the last leg of the journey from Nabowalu to Labasa that the accident occurred due to the negligent driving of bus no. BD 653 by the 3rd Defendant ('Hussein'). The averment is to the effect that "he so negligently drove, managed and controlled the said bus, .....that he caused or permitted the same to violently collide with bus registration no. CX 565 driven by the 4th Defendant ('Faiyaz') and further caused and permitted the same to further violently collide with an electric pole thereby crushing the plaintiff ('Zahid')" (emphasis added by us).

[6] Having thus pleaded that it was the negligence of 'Hussein' that caused the accident the Statement of Claim had gone on to particularise the negligence of 'Hussein' as follows:

1. Driving at a speed that was too fast in the circumstances.
   
2. Failing to keep any or proper lookout or to have any or any sufficient regard to other vehicles along the said road.
   
3. Failing to give any or any adequate warning of his approach.
   
4. Driving on incorrect side of the road.
   
5. Overtaking in such a way that was dangerous to the public.
   
6. Failing to stop, to slow down, to swerve or in other way so to manage or control their said bus to avoid colliding each other.
   
7. Driving in a manner that was dangerous in all circumstances.
   

[7] The Statement of Claim sets out the particulars of negligence of 'Faiyaz' as follows:

1. Failing to give way to bus registration no BD 653 on the road.
   
2. Driving on the path of BD 653
   
3. Obstructing BD 653 from overtaking
   
4. Failing to stop, to slow down, to swerve or in other way so to manage or control his said buses to avoid colliding with BD 653.
   
5. Driving in a manner that was dangerous in all circumstances.
   

[8] At a glance of the averments in paragraph 4(iv) & (v) and paragraph 5(ii) & (iii), there is a contradiction as regards to the particulars of negligence alleged against 'Hussein' and 'Faiyaz'.

[9] Paragraphs 9, 10 & 11 are as follows:

1. The 3rd('Hussein') and 4th('Faiyaz') defendants are liable to the plaintiff ('Zahid') for their negligence and the 2nd defendant ('PHL') is vicariously liable for the negligence of the 3rd('Hussein') and 4th('Faiyaz') defendants, his servants and/or his agents.
   
2. That the 1st defendant('PBS') is liable to the plaintiff ('Zahid') for the negligence of the 2nd('PBS'), 3rd('Hussein'), and 4th('Faiyaz') defendants either servants and/or agents.
   

100. Further and/or in the alternative the 1stdefendant ('PBS') is vicariously liable to the plaintiff('Zahid') for the negligence of other defendants as his servants and agents and/or employees.
     

[10] It is clear from the averments in the Statement of Claim that this was an action based on tort and not on breach of contract. There had been no issue raised at the Pre-Trial conference as to whether there was a breach of contract on the part of 'PBS' in relation to 'Zahid'.

[11] 'Zahid' had thereafter in his Statement of Claim set out the particulars of injuries suffered by him, the incapacity, the treatment he had to undergo and will have to undergo in the future, and the particulars of special damages and special damages for future nursing care and prosthesis. Both of 'Zahid's legs had to be amputated, right leg above the knee and the left leg below the knee.

[12] 'PBS' in its Statement of Defence moving for a dismissal of the Claim, states that it is the owner of several ships which operates ferry services throughout Fiji, however for land transportation of passengers it engages the services of private contractors to carry the passengers from the ports to their final destination and had specifically averred that 'PHL' was an independent contractor and that it cannot be made liable for the actions of independent contractors that it engaged. 'PBS' has gone on to state that it is not liable for the actions of 'Hussein' and 'Faiyaz' as there is no legal nexus between them and itself.

[13] The Learned Trial Judge had decided the case in favour of 'Zahid' and had held that 'PBS', 'PHL' and 'Hussein' are jointly and severally liable to pay 'Zahid' a total sum of Fiji dollars 667,722.00. He had dismissed the action brought against 'Faiyaz' on the basis that negligence on his part for the accident had not been established on a balance of probabilities.

[14] In Civil Appeal No. ABU 0045 of 2012'Zahid' (Plaintiff, before the Labasa High Court) appeals against the decision of the Learned Trial Judge, in failing to hold 'Faiyaz', the 4th Defendant, in the civil action in the Labasa High Court liable; while in Civil Appeal No. ABU 0046 of 2012, 'PBS' (1st Defendant, before the Labasa High Court) appeals against the same decision in holding itself liable. 'PHL' and 'Hussein' (2nd and 3rd Defendants before the Labasa High Court) have not appealed against the decision of the Learned Trial Judge.

[15] The grounds of appeal of the Appellant 'Zahid' are:

1. That the Learned Trail Judge erred in Law and in fact in failing to hold liability against the 'Hussein' when there was sufficient evidence adduced in court to make a finding of negligence.
   
2. That the Learned Trail Judge erred in Law and in fact in taking into consideration irrelevant matters and failed to take into consideration relevant matters before deciding on the issue of negligence against 'Hussein'.
   
3. That the Learned Trail Judge erred in Law and in fact in failing to give adequate weight to his evidence and the witnesses and in particular failing to take into consideration the evidence that put bus registration no. BD 653 off the path.
   

[16] The grounds of appeal of 'PBS' are:

1. The Learned Trial Judge erred in finding that 'PBS' was vicariously liable for the act of 'PHL'.
   
2. The Learned Trial Judge erred in finding that 'PHL' was not an independent contractor of 'PBS'
   
3. The Learned Trial Judge erred in how he applied the control and business integration test to the facts of this case.
   

[17] I have decided to deal first with the appeal of 'PBS'. It is clear that the Learned Trial Judge had decided to examine the liability of 'PBS' and rightly in my view, as one in tort and not one of breach of contract, when he poses the question as to whether the 1st Defendant ('PBS') is vicariously liable for the negligent act committed by the 3rd Defendant ('Hussein') who was an employee of the 2nd Defendant('PHL') and whether 'PHL' was an independent contractor or an employee under 'PBS'. The pleadings before the High Court and the issues raised at the Pre-Trial conference as stated at paragraph 9 above confirm this.

[18] The Learned Trial Judge had set out in his judgment the following facts admitted by the witness of 'PBS' as being of significance in deciding the above issue:

1. "The 1st witness ordered the buses and it was the 1st defendant ('PBS') who decided how many buses should go.
   
2. Clause 13 and clause 16 of the contract were admitted by the witness.
   

100. It was also admitted in cross examination that the witness specifically told that the two buses to go to Labasa and one bus has to stop at Seaqaqa.
     

4. The 1st Defendant ('PBS') would have to pay for the 2nd defendant ('PHL') the same hire whether the bus was to travel from Nabouwalu to Seaqaqa or Nabouwalu to Labasa.
   
5. The buses were exclusively for the ferry passengers.
   
6. The bus drivers were not allowed to take money from passengers and all monetary dealings and ticketing were done by the 1st Defendant ('PBS').
   
7. Money was paid to the 1st defendant.
   
8. The allocation of passengers to a particular bus was also determined by the 1st defendant ('PBS').
   
9. More importantly the witness admitted that once the 1st defendant sells ticket it undertakes to bring passengers back to Labasa safely.
   
10. He further admitted that buses for ferry have a distinctive colour i.e. blue, yellow and white. These colours were used by the 1st defendant ('PBS') in their flags, boats and offices."
    

[19] The Learned Trial Judge had also made reference to the contract for hire of the buses between 'PBS' and 'PHL' which provided:

1. "That all tickets sold to its passengers will be sold by various branches and agents of 'PBS'.
   
2. That the buses are chartered exclusively for passengers travelling to and from ferries.
   

100. 'PBS' had given a time schedule to 'PHL' for picking up of passengers from designated places."
     

[20] According to the Learned Trial Judge "The above facts clearly demonstrate the extent of control the 1st defendant ('PBS') had over the 2nd ('PHL'), 3rd ('Hussein') and 4th ('Faiyaz') defendants while transporting passengers to and from the ferry. Therefore, it is apparent that it was the 1st defendant('PBS') who decided not only what was to be done by the other defendants but also how it was done, which further confirms the fact that the 2nd defendant ('PHL') cannot be treated as an independent contractor".(verbatim-emphasis added by us).

[21] In my view the facts relied upon by the Learned Trial Judge are essentially relating to the terms of the contract between 'PBS' and 'PHL' and there is nothing to indicate that there has even been a breach of these contractual terms.The Learned Trial Judge had failed to take into consideration the contents of Exhibit 2 produced before the Trial Court, which is a copy of the passenger ticket issued to 'Zahid' by 'PBS'. Exhibit 2 states: "This ticket......provides sea passage between the sectors stated on the ticket."(emphasis added by us). The sectors stated on the Customer Copy of the ticket are: "Labasa/Suva/Labasa."There is nothing in Exhibit 2 to state that 'PBS' was to provide to 'Zahid' transportation by road from Suva to Natovi and thereafter by road from Nabouwalu to Labasa as averred in the statement of claim of 'Zahid'.

[22] There is also a disclaimer of liability in Exhibit 2 to the effect: "Proprietors and Operators of the ship or shipping company will not be held responsible for, and shall be exempt from any liability in respect of any injuries or causality to a passenger(s)...".Surely the affirmative answer by Lemeki Matenawa, the Branch Manager of 'PBS' to the question posed in cross-examination: "When you sell this ticket do you undertake to take passengers back to Labasa safely?" cannot be interpreted to pin liability on 'PBS' as the Learned Trial Judge had done, for he could not have said otherwise.

[23] I am also in a difficulty to agree with the finding of the Learned Trial Judge as none of the facts relied upon by the Learned Trial Judge show that it was 'PBS' who decided how the buses were to be driven,which is the overriding question in this case of negligent driving.The Learned Trial Judge had failed to take into consideration the uncontradicted evidence of Vinay Vikash Chand, the Managing Director of 'PHL' which was to the following effect:

"Q. How did you control your drivers?

1. We had a conversation in the garage but during the journey there is no communication unless it is a breakdown.
   

Q. Do they have company rule?

A. Yes.

Q. What are they?

A. Punctuality, not to race, safety

Q. Your drivers are to follow your strict instructions?

A. Yes

Q. They are not supposed to raise against others?

A. No

Q. The 3rd defendant ('Hussein') is a driver of your company?

A. Yes.

Q. He was suspended subsequent to another accident?

A. Yes

Q. It seems he did not follow your instructions?

A. Yes

Q. Sabir Hussein a driver of BD 653 was an employee of your company?

A. Yes

Q. Mr Faiyaz Ali the driver of CX 565 was an employee of your company?

A. Yes

Q. They did not have a contract with Patterson?

A. No they did not have".

According to V.V.Chand 'PHL' set the rules as to the order in which buses should travel when two buses were hired, namely, the open windowed bus had to go in front when travelling on a gravel road so that the passengers don't get the dust.

[24] There is no evidence before us that 'PBS' had a say as regards the type of buses that were to be used, the choice of bus drivers, payments to bus drivers, the hours of their work, any disciplinary authority over the bus drivers, the manner and speed the buses were to be driven and the maintenance of the buses as regards their roadworthiness, any of which would have had a bearing on the control 'PBS' would have had over 'PHL', 'Hussein' and 'Faiyaz'.

[25] The evidence set out above clearly show that the control of the two drivers 'Hussein' and 'Faiyaz' was with 'PHL' and not 'PBS'. Thus the 'Control Test' which the Learned Trial Judge had applied in holding that 'PBS' is liable does not fit into the facts of this case. In Yewens V Noakes [1880] UKLawRpKQB 25; (1880) 6 QBD 530, a case cited by the Learned Trial Judge,Bramwell LJ stated:

"A person was an employee, if his employer has the right to control not only what work he does but the way in which that work is done".

In Humberstone V Northern Timber Mills (1949) 79 CLR at 396 it was held:

"The worker was an employee if the worker was subject to the control and direction of the employer as to the manner in which it was done"

In Federal Commissioner of Taxation V Walter Thompson (Aust) Pty Ltd [1944] HCA 23; (1994) 69 CLR 227 at 231 it was held: "The worker, it was said, was told not only what to do, but also how to do it".

[26] In the case of Mersey Docks & Harbour Board V Coggins & Griffith (Liverpool) Ltd, [1946] UKHL 1; (1947) AC 1; 2 All ER345 (HL) The board owned many mobile cranes, each handled by skilled operators engaged and paid by it. In the ordinary course of its business, it hired out a crane to the respondents, a stevedoring company, for use in unloading a ship. The power to dismiss remained with the board, but the contract provided that the driver was to be the employee of the hirers. While loading the cargo, the driver was under the immediate control of the hirers in the sense that hirers could tell him which boxes to load and where to place them, but they could not tell him how to manipulate the controls of the crane. Through the negligent handling of the crane by the driver while loading, a third party was injured. The House of Lords held that the board was solely liable. In the same way it could be said that both 'Hussein' and 'Faiyaz' remained the employees of 'PHL' even if the buses driven by them were hired by 'PBS'. This case illustrates the point that a worker remains the employee of the general or permanent employer even where another employer borrows the worker, although the jurisprudence on the liability of independent contractors has further developed since this decision.

[27] The authority of Colonial Mutual Life Assurance Ltd V Producers and Citizens Co-operative Assurance Co of Australia Ltd [1931] HCA 53; (1931) 46 CLR 41 at 48, cited by the Learned Trial Judge in support of his contention in making 'PBS' vicariously liable for the negligence of 'PHL' in our view runs contrary to his contention. The authority is to the effect:

"The work although done at his request and or his benefit, is considered as the independent function of the person who undertakes it, and not something which the person obtaining the benefit does by his representative standing in his place and therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal."

It is my view that although the buses were supplied by 'PHL' at the request of 'PBS' it must be considered as the independent function of 'PHL' and not as a representative of 'PBS'. Further in this case the benefit accrued to both 'PBS' and 'PHL'.

[28] The 'Business Integration Test' relied upon by the Learned Trial Judge also has no application in making 'PBS' liable. According to this test as propounded by Denning LJ in Stevenson, Jordan and Harrison Ltd V Macdonald (1952) 1 TLR 101 "a worker who is an employee does his work as an integral part of the business whereas an independent contractor is not integrated into the business but is merely accessory to it." Persons or bodies involved with the maintenance of the ships operated by 'PBS', those who supplied goods and necessary equipment to the ships, could be considered an integral part of the business of 'PBS' but certainly not 'PHL' who ran a bus service, just like many others. 'PHL' did not serve only 'PBS'.

[29] It had been the evidence of L Matenawa, the Branch Manager of 'PBS' that they arrange buses with bus companies for their clients who used their ferry services and that in 2007 'PBS' had a contract with 'PHL' for such purpose. The contract with 'PHL' had been entered into in September 2009, for a period of three years. The ticket issued to passengers was in two parts, one for the bus and the other for the ferry and when boarding the bus the bus checker tears of the bus ticket and when boarding the ferry the bursar collets the other part. This is an indication of the two separate functions performed by 'PBS' and 'PHS'. Matenawa's uncontradicted evidence as to the arrangement of buses is of importance. According to his evidence when buses are requested from 'PHL' by 'PBS', 'PBS' has no control of the buses, does not know the registration numbers of the buses that would be sent.

[30] Clerk and Lindsell on Torts, 20th edition (2010) explains at P 6-56:

"If the employer has employed an independent contractor to do work on his behalf the general rule is that the employer is not responsible for any tort committed by the contractor in the course of the execution of the work and in this respect the employees of the contractor, whilst acting as such, stand in the same position as their employer, so that the employer of the contractor is not liable for the torts committed by the contractor's employees."

However if the employer has negligently selected an incompetent contractor (as in the case of Pinn V Rew (1916) 32 T.L.R. 451) or has himself interfered with the manner of carrying out the work that damage results (as in the cases of McLaughlin V Pryor (1842) 4 M.G. 48; Burgess V Gray [1845] EngR 768; (1845) 1 CB 578), he will himself have committed a tort for which he can be held liable. Again in accordance with Ellis V Sheffield Gas Consumer's Co [1853] EngR 919; (1853) 2 E. & B. 767, if the employer has authorised or ratified the independent contractor's tort then, on normal principles, he will be jointly liable for that tort.It is clear that the facts of this case before us do not come within any of these exceptions.

[31] If however the circumstances are such that the law imposes a strict duty upon the employer, then he cannot discharge his duty by delegating performance of the work in question to an independent contractor. In such circumstances if the duty is not fulfilled, the employer is liable even though the immediate cause of the damage is the contractor's wrongful act or omission. These are called 'Non-Delegable Duties', and may arise either by statute or at common law. A non-delegable duty, is a duty, not merely to take care as in the case of an ordinary duty to take reasonable care which can be discharged by the employment of a contractor reasonably supposed by the employer to be competent; but a strict duty to provide that care is taken so that if care is not taken, the duty is broken. Per Langton J in the Pass of Ballater (1942) P 112 at 117. I am of the view that this was not a case where there was a strict duty to provide that care is taken.

[32] "Even where the duty is non-delegable, employers of independent contractors, unlike those employing employees, are never liable for the 'collateral negligence of their contractors.", Law of Torts by R P Balkin& J L R Davis 5th edition, 2013. The case of Padbury V Holliday & Greenwood Ltd (1912) 28 TLR 494 (CA) furnishes facts which illustrate this principle: A employed B to fit casement windows into certain premises. B's employee negligently put a tool on the sill of the window on which he was working at the time. The wind blew the casement open and the tool was knocked off the sill on to a passer- by. Fletcher Moulton LJ holding the employer not liable said:

"......before a superior employer could be held liable for the negligent act of an employee of a subcontractor it must be shown that the work which the subcontractor was employed to do was work the nature of which, and not merely the performance of which, cast on the superior employer the duty of taking precautions."

[33] Again as stated in Hyams V Webster (1867) L.R. 2 Q.B. 264, where a statute requires a person to do a particular act, and an independent contractor employed by him fails to do that act, he cannot escape liability by pleading that the fault was not his, but that of his independent contractor. A duty may also be non-delegable where a statute confers on a person a power to carry out certain works, and expressly or by implication, impose upon that person a duty to take reasonable care in the exercise of the power. It was never argued before us in this case, that there was a statutory duty to take care.

[34] The question whether a non-delegable duty is to be imposed under common law as stated in Farraj V King's Healthcare NHS Trust (2009) EWCA Civ 1203 by Dyson L.J.: "is one of policy for the courts to determine by reference to what is fair, just and reasonable". For instance where if the act done by the independent contractor is one which in its very nature is inherently dangerous or one which involves a special danger, for example 'bungee jumping' or 'skydiving' then the employer of the contractor may be held responsible, if there is a failure to take the necessary precaution to avert the danger.The emphasis is upon the dangerous nature of the contractor's undertaking which insist on a higher standard of care in the performance of the duty.To hold 'PBS' liable would amount to discouraging any ordinary travel agent from carrying out his work.

[35] I therefore have no hesitation in allowing the appeal of 'PBS' and setting aside the judgment of the learned Trial Judge against 'PBS'. I do not make an order for costs against 'Zahid' taking into consideration his unfortunate circumstances.

[36] I now turn to the appeal by 'Zahid'against the decision of the Learned Trial Judge, in failing to hold 'Faiyaz', the 4th Defendant, in the civil action in the Labasa High Court liable. The Learned Trial Judge had come to the finding that "it is proved on the balance of probability that the negligent driving of the 3rd defendant ('Hussein') was the sole reason for the accident..." He had gone on to state: "In the absence of consistent evidence to establish the link between the conduct of the 4th Defendant ('Faiyaz') (driver of CX 565) and the accident, it is not safe to conclude that the 4th defendant was also negligent. Hence, I am not persuaded to find negligence on the part of the 4th defendant liable for the accident. Therefore, I conclude that the negligence of the 4th defendant was not proved on the balance of probabilities." On an examination of the judgment the reasoning for such a finding can be clearly seen.

1. The failure of 'Zahid' and his witnesses J. Naidu and P. Chand to state in their police statements that the collision was due to the negligence of 'Faiyaz' who was the driver of bus CX 565. In their testimony before the Court it had been their position that bus CX 565 which was travelling in front of bus BD 653 had come on to the middle of the road and blocked the way of BD 653 when BD 653 was about to overtake CX 565 and that was the cause of the accident. They had come up with this version of the accident for the first time in Court, and that, is three years after the accident. The Learned Trial Judge had however not taken into consideration this inconsistency in 'Zahid's' testimony before Court and the police statement, because when 'Zahid' made his statement to the police he "......had lost both his legs and obviously would have suffered excruciating pain physically as well as mentally." But the failure of both the other witnesses to mention it had been considered by the Trial Judge as a serious omission putting their testimony before the court in doubt.
   
   2. The sketch drawn by the investigating police officer, according to the learned Trial Judge confirmed "that BD 653 was driving at an excessive speed".
      
   3. 'Hussein' had been charged for negligent driving subsequent to the police investigation.
      

[37] I have closely examined the statements made to the police by all three witnesses and find that there is nothing in their statements indicative of 'Faiyaz' being negligent, leave aside of his blocking the way of bus BD 653. Although all three witnesses had tried to make out while testifying in Court that they did mention about the bus driven by 'Fayaz blocking the path of BD 653, the police officers who recorded their respective statements have specifically denied this while testifying before the Court. I consider the failure to mention that the accident was as a result of bus CX 565 blocking the way of BD 653 is a material omission which puts the testimony especially of witnesses J. Naidu and P. Chand in doubt. 'Hussein', the driver of bus BD 653 who would have been in the best position to state whether the bus CX 565 driven by 'Faiyaz' blocked his path when he tried to overtake it, had not testified at the trial. I am therefore in agreement with the finding of the Learned Trial Judge, that in the absence of consistent evidence to establish the link between the conduct of the 4th Defendant ('Faiyaz') (driver of CX 565) and the accident, it is not safe to conclude that the 4th defendant was negligent.

[38] Further the averments in Zahid's Statement of Claim that the accident occurred due to the negligent driving of bus no. BD 653 by Hussein and the specific averments that "he so negligently drove, managed and controlled the said bus, .....that he caused or permitted the same to violently collide with bus registration no. CX 565 driven by 'Faiyaz',would militate against a finding of liability for the accident on 'Faiyaz'. Paragraphs 17 & 18 of Zahid's Statement of Claim further suggests that it had been the position of 'Zahid' up to the time he testified before the Court, that it is 'Hussein' who is liable:

"17. FURTHER the 3rd defendant (Hussein') was charged for Dangerous Driving contrary to Section 97(4) (c) and 114 of Land Transport Act 1998.

18. THE plaintiff ('Zahid') intends to rely on the conviction of the defendant as evidence in this action." (as set out in the Statement of Claim."

[38] The purpose of a Statement of Claim is to inform the other party of the case against him. This imposes an obligation to inform the defendant in the simplest terms of the case the defendant has to meet and for the court to be able to see what the issues are. In the case of The New India Assurance Company Limited v Fiji Development Bank & Brigtspot Fashions Limited (2008) ABU 75/07 (apf HBC 299/03S) it was held that "Pleadings in civil cases are no mere technicality. They are fundamental to the administration of justice in civil causes.They set out the position of the parties. They define the scope of the litigation .Pleadings identify with precision who is making the claim and who is said to be liable." In Rajeshwar Dayal & Others V Watisoni Vunivi & Others FCA Civil Appeal Nos. 46 of 1991, 25 of 1992 and 66 0f 1991 this Court held that when a pleading does not adequately direct attention to an issue, the issue will not be entertained by the Court. In that case negligence in providing seating arrangements had not been specifically pleaded and was not allowed. In S.L. Shankar V Fiji Foods Ltd, Court of Appeal No. 113 of 1985 this Court held: "The misleading state of the respondent's pleadings in the present case resulted in the Appellant being left to face Court with a defence which it could not have anticipated or been expected to meet, resulting in substantial miscarriage of justice...." In Clarke v Marlborough Fine Art (London) Ltd (2002) 1 WLR 1731 it was held a claim with contradictory facts should not be permitted. I am of the view that the Statement of Claim in this case contained contradictory facts as stated at paragraph 7 above and did not inform 'Faiyaz, the case he had to meet and was misleading. 'Faiyaz' in his Statement of Defence had averred that there is no cause of action pleaded against him. Although Counsel for 'Zahid' argued before us that 'Faiyaz' had failed to testify at the trial, in my view it was not necessary for him to give evidence at the trial in view of the pleadings.

[39] I therefore dismiss the appeal of 'Zahid' against the decision of the Learned Trial Judge, in failing to hold 'Faiyaz', liable. I make no order as to costs.

Mutunayagam JA

[39] I agree with the findings and conclusion of Fernando JA.

The Orders of the Court are:

1. Appeal of Patterson Brothers Shipping Company Limited is allowed and judgment dated 8th June, 2012 against it is set aside. No order for costs.
   
2. Appeal of Zahid Afwaz Ali against the judgment dated 8th June, 2012 is dismissed. No order for costs.
   

Hon. Justice Almeida Guneratne
JUSTICE OF APPEAL

Hon. Justice A. Fernando
JUSTICE OF APPEAL

Hon. Justice A. Mutunayagam
JUSTICE OF APPEAL

Solicitors:
Maqbool & Co. for the Appellant
Toganivalu and Valenitabua Associates for the 1stRespondent
Gibson & Co. for the 2nd and 4th Respondent.