|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT OF FIJI
Civil Appeal No. ABU 147 of 2017
(High Court Civil Action No. HBC235 of 2015)
BETWEEN:
PARSU RAM
1st Appellant
AND:
JET SET HARDWARE
2nd Appellant
AND:
SETARIKI VAKALOLOMA
Respondent
Coram: Lecamwasam, JA
Guneratne, JA
Jameel, JA
Counsel: Mr. R.R. Gordon for the Appellants
Mr. D.Singh for the Respondent
Date of Hearing: 21 February 2019
Date of Judgment: 8 March 2019
JUDGMENT
Lecamwasam JA
[1] I agree with the reasoning and conclusion of Jameel, JA.
Guneratne, JA
[2] I agree with the reasoning, conclusion and the proposed orders in the judgment of Jameel, JA.
Jameel, JA
Introduction
[3] This is an appeal from the judgment of the High Court dated 8 November 2017 awarding the Respondent (the original Plaintiff) damages in a sum of $ 60,270.00, and interest at the rate of 5% per annum. This sum comprises of $20,000.00 in General Damages, $3000.00 as Funeral Expenses, $700.00 as Travel Expenses, $25, 830.00 as Loss of Future Earnings, (having deducted a sum in respect of contributory negligence of the deceased, which the learned Judge set at 20%).
[4] This is an unfortunate case in which the Respondent’s son died as a result of an accident which occurred on 11 September 2013, when the vehicle driven by the 1st Appellant, collided with the deceased on the highway between Nadi and Sigatoka, causing injuries so severe that he died shortly thereafter, on the same night.
[5] The facts have been set out by the learned Judge in some detail and will be set out in the consideration of the judgment of the High Court. In view of the Appellants having taken up in their Statement of Defence, the position of voluntary assumption of risk on the part of the deceased, the learned Judge ordered the Appellants to begin the trial. The objection of the Appellants was recorded but they did not challenge the order, and the court proceeded to trial, (RHC 89). At that point, the Appellants opted not to give evidence, but agreed to tender as Defence Exhibits three documents contained in the Agreed Bundle of Documents. They were the Police statements of the eye witness, Viliame Tuba Koro (“Viliame”), Ravendra Lal Banfal both dated 13 September 2013, and the Key, Rough and Fair Sketch of the scene of the accident drawn by PC3459 Ramesh Naidu. These events have led to the Appellants raising them as grounds of appeal before this court, and will be considered below.
The Trial in the High Court
[6] At the pre-trial conference, the agreed facts were that Setoki Ceinaturaga, the son of the Respondent died on 11 September 2013, and that at all material times, the 1st Appellant was driving a motor vehicle whose registration number was JET SET, of which the 2nd Appellant was the registered owner. It was also agreed that there was in existence with respect to the said motor vehicle a contract of insurance in accordance with the Motor Vehicle (Third Party Insurance) Act with New India Assurance Company Limited.
The evidence, findings and reasons of the court
[7] Setariki Vakaloloma (“Setariki”) the father of the deceased, was the original Plaintiff and is now the Respondent. Setariki and Viliame Tubakoto (“Viliame”) gave evidence on behalf of the Plaintiff. The first witness was Viliame Tubakoto (“Viliame). The learned Judge found the only eye witness Viliame, to be a credible witness, whose testimony he accepted. In view of the matters raised in the grounds of appeal, it is helpful to recount some of the evidence that transpired in the court below. Just before the accident occurred, Viliame was standing next to the deceased on the Sigatoka corner of Queens’s Highway and Malolo Road going towards Swami Vivekananda College. They were both waiting to cross the road. The car that hit the deceased was travelling from the direction of Nadi towards Sigatoka. At that point, someone with whom they had been playing volley ball, called out Viliame’s name and he turned to look back. However, when he looked back at the road again, he saw the car hit the deceased. It happened very swiftly, and did not take more than a second. A taxi was travelling in front of the car that hit the deceased. This particular car was 10 to 15 meters from where he was standing when he first saw it. The vehicle that collided with the deceased, was at the back of the taxi. It was between 6 and 7 p.m. According to Viliame, the lights of the car that hit the deceased, were not “that bright”, and there were no street lights in the area. After the vehicle hit the deceased, it carried the deceased about 40 meters away from the point of impact. The deceased was bleeding, and Viliame had used his T’shirt in an attempt to stop the bleeding from the deceased’s head. He then took him to the hospital with two others. The deceased had been trying to talk but could not. He died in hospital about four hours after the accident.
[8] During cross-examination Viliame maintained the position he had taken in evidence-in-chief. Viliame said the ligh the vthe vehicle that struck the deceased were not “that bright”, but that if the lights of the car had been bright and full, the driver could have the deceased and stopped the car.
[9] The Rehe Respondent Setariki testified that the deceased was his son, was born on 11 August 1995, had attended Swami Vivekananda College and was in Form 6, he played rugby, volleyball and engaged in athletics, and his ambition was to become a High School Teacher. Setariki testified that he had spent $3,000 on funeral expenses and $1,000 for travel, but had not kept receipts for those expenses.
[10] The Appellants did not testify nor call any witnesses to testify on their behalf. They however, tendered statements of Viliame Tubakoto and Ravendra Raj made to the Police, both dated 11 September 2013, and a Key Rough and Fair Sketch of accident drawn by PC Ramesh Naidu.
Judgment of the High Court
[11] The learned Judge recounted the evidence of the eye witness Viliame, all of which need not be repeated here except for those elements that relate to the matters challenged in appeal.
[12] The learned Judge found that the 1st Appellant was speeding in an attempt to overtake the Taxi that was travelling in front of the vehicle driven by the 1st Appellant. The car had gone on the other side of the road but at the time it collided with the deceased it was on the correct side of the road, and after the collision the car carried the deceased on the bonnet and stopped some 40 metres away from the point of impact towards the Sigatoka side from where he was standing.
[13] The 1st Appellant could not have seen the deceased in the middle of the road as the lights of his car were not bright, and he could not apply the brakes because of the speed at which he was travelling. In these circumstances, the learned Judge found that there was sufficient evidence before the court that the first defendant drove negligently, caused it to hit the deceased who was walking on the road, and thereby caused his death shortly thereafter.
[14] The learned judge found that the 2nd Appellant was the owner of the vehicle at the time of the accident, and that the 1st Appellant was driving the vehicle during the course of his employment, under the second defendant, and found the 2nd Appellant vicariously liable for the negligent driving of the 1st Appellant.
The Amended Grounds of Appeal
[15] The Appellants have pleaded 31 (amended grounds of appeal), which are reproduced below.
28. The Learned Trial Judge erred in law and and/or in fact when he awarded and /or assessed $62,400 for loss of earnings to the dependant estate when there was no evidence of same.
Discussion of the grounds of appeal
[16] The 31 grounds of appeal will be considered by consolidating them according to relevance.
Grounds one to four - voluntary assumption of risk, burden of proof
[17] Grounds 1 – 4 are based on the contention that the learned Judge was in error because he held that voluntary assumption of risk is a positive defence and, misunderstood the principles formulated by the court in The Merchant Prince 1892 LTR. 179. However, in addressing the first to fourth grounds of appeal, I observe that in Paragraph 2.1 of the Appellant’s Written submissions dated 11 February 2019, the Appellants state that at the commencement of the trial, the Respondent’s Counsel made an application that the burden of proof had shifted because the Appellants had pleaded inevitable accident as a defence, and that the Appellants ought to therefore begin the trial, to establish the defence. The learned Counsel for the Appellants states in paragraph 2.7 that the Appellants never pleaded inevitable accident in their Statement of Defence.
[18] However, I have examined the proceedings of 13 April 2013, (at RHC 84) and observe that the learned Counsel for the Respondent had not submitted that the Appellants had pleaded Inevitable Accident. Instead, Counsel for the Respondent had submitted that since the Appellants had pleaded Voluntary Assumption of Risk, which is an affirmative defence, the Appellants are “entitled to proceed with the case and do the opening”. I therefore reject the submission contained in paragraph 2.7 of the Appellant’s written submissions, as they do not accurately reflect the Record.
[19] In this regard, the Appellants contend that the learned Judge misapplied the reasoning in Intercities Buses Services Limited v Haroon’s General Hardware Store and Shahida Khatoon; HBC 48 of 2012 (3 July 2017), and Singh v Katonivere [1997] FJHC 203; HBC 242.94 (20 March 1997), and takes this argument further, by submitting that the trial judges in both cases, misconstrued the ratio in The Merchant Prince (supra), and that therefore using the ratio in The Merchant Prince (supra) to order the Appellants to start the case is an error of law For this court to determine the justification of these grounds of appeal, it is necessary to examine those judgments in some detail.
[20] In Intercities Buses Services (supra), the Plaintiff alleged that the accident occurred when the Plaintiff’s vehicle collided with the Defendant’s vehicle due to negligence on the part of the Defendant. The Defendants admitted the collision, but claimed it was due to a mechanical defect in the vehicle, and which was beyond their knowledge. In those circumstances, the court held that the Defendants must begin the trial.
[21] In Singh v Katonivere [1997] FJHC 203; HBC 242.94 (20 March 1997), the defendant raised the defence of inevitable accident. Pathik J, drew his attention to the dictum of Lord Justice Fry in The Merchant Prince (supra); and held that in the case before him, the evidence had not shown that there had been an inevitable accident.
[22] I observe once again that in paragraphs 2.15 and 2.16 of the written submissions of the Appellants, there is reference to “inevitable accident” and the Appellants submit that the courts in Singh v Katonivere (supra) and The Merchant Prince (supra) did not lay down the law with regard to the right to begin.
[23] In my view, the court in The Merchant Prince (supra) did not state that it was laying down the law of evidence with regard to the burden of proof in a civil trial, or the right to begin. In substance and effect what it did was, to set down on whom the burden of proof lies, if a particular state of facts exists and from which a reasonable presumption can be drawn that the defendant was negligent. In such a situation, because of the existing state of affairs and the presumption that can be reasonably drawn, the burden of proving that the accident occurred due to reasons beyond his control, will lie on the defendant.
[24] When a defendant pleads inevitable accident, he is deemed to have admitted the accident, however, in regard to the allegation of negligence, he uses the defence of inevitable accident to establish that blameworthiness is not to be attributed to him, because of reasons beyond his control, or because the accident could not have been avoided at all, despite all reasonable efforts. The facts of the case will indicate what presumptions could reasonably operate, and this will in turn indicate on whom the evidential burden will lie. That was basically the crux of the decision in the Merchant Prince (supra).
[25] The complaint of the Appellants is that requiring them to commence the trial, amounted to procedural error which resulted in procedural unfairness and prejudice. The argument of the Appellants as extracted from their written and oral submissions, is this; the Appellants did not plead inevitable accident and this is correct; but, by requiring the Appellants to begin, the learned Judge placed the Appellants in a position, from which they were unable to anticipate the evidence that would be led by the Respondents to establish the negligence of the Appellants. During the hearing of this appeal, the learned Counsel for the Appellants submitted that the issue of dull lights of the car driven by the 1st Appellant was not contained in the Police Statement of Viliame, and that therefore they were taken by surprise when Viliame testified that the car driven by the 1st Appellant did not have adequate lights.
[26] I find this position to be unacceptable because the case of the Respondent was straight forward, one of negligent driving by the 1st Appellant. The 1st Appellant cannot possibly claim that he was unaware or could not foresee that in challenging the position of the Respondent, he would have to establish that the car he drove was mechanically sound, had adequate lights and that he drove it at a reasonable speed. He could no doubt do this by impeaching the veracity of the Respondent’s evidence.
[27] The relevant portions of the Appellants’ Statement of Defence are reproduced below:
“7.a. Whilst the 1st Defendant was driving along a stretch of highway the Plaintiff of his own accord, moved to the path of the 1st Defendant’s vehicle at the center mark of the said stretch of highway causing the Plaintiff to collide with the 1st Defendant’s vehicle.”
8. c. Failed to use properly designated pedestrian footpaths and or walkways and voluntarily and / or carelessly and /or recklessly and or negligently walked or used a busy stretch of highway as a walkway and or footpath;
a. That the Plaintiff’s actions as particularized therein amounts to a voluntary assumption of risk as a complete defence to the allegations of the Plaintiff in the Statement of Claim.
b. That the Plaintiff’s actions and any purported injuries were a result of the total negligence and recklessness on the fault of the Plaintiff/
c. That the Plaintiff’s actions and any purported injuries were a result of contributory negligence on the fault of the Plaintiff”.
[28] On a plain reading of the Statement of Defence, it is clear that the Appellants had taken up the defence of voluntary assumption of risk The three elements of voluntary assumption of risk which must be proved by the defendant at common law include the following: - (a) that the plaintiff perceived the existence of the danger or risk; (b) that he or she fully appreciated it; and (c) that he or she voluntarily agreed to accept the risk.
[29] For voluntary assumption of risk to assist the Appellants in this case, the burden was on them to prove that the deceased had knowledge of the risks associated with crossing the road when he saw a single car approaching from Nadi travelling towards Sigatoka. Thus, in my view, it is a defence that can succeed only in rare cases in which the activity of the defendant is itself inherently dangerous.
[30] To opt to refrain from giving evidence, despite having denied negligence after having taken up the position of voluntary assumption of risk on the part of the deceased; it is not reasonable for the Appellants to now claim that the Order of the learned Judge resulted in prejudice to them. It was for the Appellants to have taken the opportunity given to them by court to establish that the deceased had been negligent, and that it was the deceased who had put himself in harm’s way. This, they did not do, and it is now too late to contend otherwise.
[31] In paragraphs 2.19 and 2.20 of the written submissions the Appellants they state as follows:
“2.19. The present proceedings concerns a motor vehicle colliding with a pedestrian whilst the motor vehicle was travelling in its correct lane on the correct side of the highway and at a lawful speed and collided with the pedestrian who crossed the highway unlawfully and came into contact with the motor vehicle”.
“2.20 As such there can be no presumption of negligence on the part of the driver of the motor vehicle.”
[32] Was the deceased required to assume that the highway is full of only speeding vehicles and that because there are no specific pedestrian crossings on the said highway, no pedestrian is ever permitted to cross it? I think not. In this regard, it appears to me to be more reasonable to conclude that in the absence of specifically designated pedestrian crossings, there is also a responsibility cast on drivers who use such a highway to anticipate the presence of pedestrians at reasonable hours of the day. The accident in this case occurred between 6 and 7.00 p.m. a time at which there would ordinarily be no basis to presume that the highway would be “deserted” or free of pedestrians. In that context, it would be reasonable to assume that drivers on the highway ought to anticipate pedestrians. Accordingly, the evidence establishes that the 1st Appellant was negligent and that he drove the car at a speed that was excessive in the circumstances and failed to have a clear and unobstructed view of the road ahead of him so that he could stop in a timely manner so as to avoid the accident.
[33] A defendant who denies negligence, and instead takes the unequivocal position that the claimant voluntarily assumed a risk which he had knowledge of, and despite this knowledge, opted and volunteered to run the risk anyway, must then begin the case. This is because such a defendant makes a positive assertion that he is not at fault, that his conduct was reasonable and lawful, but that the activity he engages in is by itself dangerous and therefore, the claimant is aware of it, but nevertheless opts to take the risk and proceed. The onus is then on him to begin. However, once a defendant has taken up the position of voluntary assumption of risk, it is for the defendant to establish that the Plaintiff’s conduct has all the features described above. This, the Appellants did not do.
[34] Finally in regard to Grounds 1 to 4 of the appeal, the question for this court is whether the learned Judge caused a miscarriage of justice in this case by requiring the Appellants to begin. I think not. As set out above, the Appellants have pleaded in their Statement of Defence that the deceased put himself voluntarily in the path of a moving vehicle. This was pleaded as a defence (alternative or otherwise), to the allegation of negligence contained in the Statement of Claim.
[35] In my view, in all the circumstances of the case, there was no miscarriage of justice. It was open to the 1st Appellant to have established that he was driving within the speed limit, he had a clear view of the road ahead of him and that despite his lawful actions, the deceased put himself in danger’s way by doing something unreasonable. However, the 1st Appellant did not give evidence and the Appellants closed their case leading in evidence, only the three documents referred to above and submitted that relied on those documents to establish their “defence”, (RHC90).
[36] It is in this context that the Appellants have formulated grounds one to four of the appeal. I have carefully considered both the oral and written submissions of learned Counsel for the Appellants, as well as the judgments in support of those submissions. For the reasons set out above, grounds one to four of the appeal, are dismissed.
Grounds five, six, seven, eight, eighteen, twenty - was negligence of the 1st Appellant correctly established?
(a) Was negligence of the 1st Appellant properly established?
[37] The essence of these grounds of appeal is that the findings of the trial Judge were not consistent with the evidence. The evidence of Viliame that immediately after the accident, he saw the body of the deceased being carried on the bonnet of the car up to about 40 meters, establishes that the car stopped only 40 metres away from the initial point of impact, because the 1st Appellant was speeding at a pace which prevented him from bringing the car to a halt in a timely manner. Therefore, the negligence of the 1st Appellant has been established on acceptable evidence, and I see no reason to set aside the finding of the learned Judge.
[38] The fact that the 1st Appellant drove at a speed that was excessive and uncontrolled in the circumstances, and in addition due to poor visibility (caused by his own negligence) failed to see the deceased, is established by the evidence. The number plate was dislodged and found about 38 metres from the point of impact when the vehicle stopped. All of these evidence can only indicate one thing – negligent driving on the part of the 1st Appellant.
[39] As a result, the 1st Respondent has established the primary liability of the 1st Appellant and that he drover negligently and caused the death of the deceased. Grounds 5, 6, 7 and 8 are therefore dismissed.
(b) Contributory negligence of the deceased
[40] The essence of this ground is that the there is no basis on which the learned Judge found that the extent of the contributory negligence on the part of the deceased was 30 %. The Appellants contend that the deceased breached Regulation 62(2) (a) of the Land Transport (Traffic Regulations) 2000, which requires that a pedestrian cross a carriage-way (highway) within the limits of a pedestrian crossing or as nearly as practicable, by the shortest and most direct route to the edge of the carriage-way, since there was no pedestrian crossing it was not practicable for the deceased to have crossed the highway, as there was traffic and cars travelling in both directions. However, as I have observed above, a reasonable driver ought to anticipate the presence of pedestrians on a road that does not have a pedestrian crossing. This submission is therefore rejected.
[41] In this appeal, the learned Judge has found that the deceased had failed to keep a proper look-out for vehicles and vehicular traffic on a busy stretch of highway. In these circumstances, the learned Judge assessed the negligence of the deceased as 20%. The evidence established that the 1st Respondent was driving at high speed with insufficient lights. He did not see the deceased early enough because of the lack of sufficient light. He could not reduce the impact of the collision because of the speed at which he drove. The deceased was carried on the bonnet of the car, and the car came to a halt only after 40 meters. In comparison, the deceased could not have anticipated that the car would not stop for him. In all the circumstances, the learned Judge’s finding was correct and I see no reason to interfere with it. Accordingly, grounds eight and nine of the appeal are dismissed.
(c) Ground eleven - failure to have bright headlights
[42] The complaint in this regard is that there was no evidence before the court that the headlights were insufficient; the only eye witness, Viliame had not stated in his statement to the Police that the headlights were not bright, but it was a convenient afterthought, and that the statement that Ravendra Raj Banfal made to the Police does not mention dull headlights. However, the learned Judge found Viliame to be a credible witness and that the 1st Appellant was speeding with headlights that were not bright enough in the circumstances, and since he was speeding with dull lights, the 1st Appellant was unable to both; see the deceased at a reasonable distance, as well as stop the car in a timely manner. The Appellants contend that even if the car lights had been brighter, the accident would not have been prevented. However, the evidence revealed that it was the excessive speed at which the 1st Appellant drove coupled with insufficient lights in the car which caused the accident.
[43] To drive without lights or with insufficient lights amounts to negligence. Thus, in the case of Tart v G.W. Chitty and Co. (1933) 2 K.B. 453, a man was walking along a road at 10pm, the motorist’s lights showed about thirty yards ahead. He drove into the man and injured him from behind. It was held the motorist was liable either because he was not keeping a proper lookout, or he was driving fast.
[44] In all the circumstances, the finding of the learned Judge that the headlights were insufficient is correct. Grounds ten and eleven of the appeal are therefore dismissed.
Grounds twelve, thirteen and fourteen - reference to the Land Transport Authority Act and Regulations
[45] If the car had brighter lights, it is possible that the 1st Respondent may have seen the deceased earlier, and may have avoided the accident or reduced the impact of the accident. The evidence of Viliame was correctly accepted by the learned Judge. The witness Raveendra Raj Banfal did not testify. Thus, it is of no use to the 1st Appellant to contend that Banfal did not mention low lights in his statement to the Police. The learned Judge did not err in law in referring to the Land Transport Authority Act and the Regulations made thereunder. Statutory provisions need not be pleaded, for the court to consider them. Grounds thirteen and fourteen are dismissed.
Grounds fifteen, sixteen and seventeen - application of the principle in Jones v Dunkel
[46] The Appellants contend that the learned Judge misapplied the principles laid down in Jones v Dunkel [1959] HCA 8; 101 CLR 298. An adverse inference cannot be drawn merely because a witness was not called. An unfavourable inference can be drawn only if there is some other evidence to support an inference, and despite that, if a party fails to rebut that inference by not calling a witness, then an inference may, in an appropriate case be drawn that, had the witness been called, his evidence would not have assisted to rebut the inference that already exists. In all the circumstances of the case, the learned Judge did not use the inference contemplated in Jones v Dunkel (supra); to arrive at the conclusion that the 1st Appellant was negligent. His finding of negligence on the part of the 1st Appellant was based on based on admissible and relevant evidence, which has been dealt with above. Therefore, Grounds fifteen, sixteen and seventeen are dismissed.
Ground nineteen - finding of vicarious liability
[47] In the Statement of Defence the Appellants did not admit that the 1st Appellant drove in the course of his employment. However, at the Pre- Trial Conference, (RHC 45), there was no issue raised as to whether the 1st Appellant drove in the course of his employment, and this matter went uncontested at the trial. The car was registered in the name of the 2nd Respondent and the insurance policy was tendered to court. It has been taken up only in this appeal. There is no merit in this ground of appeal and Ground nineteen is dismissed.
Grounds twenty one to thirty one - award of damages, loss of earnings and loss of expectation of life
[48] In regard to damages for pain and suffering, on the evidence that the accident occurred around 7 p.m. that day, the deceased died in the hospital at 11pm on the same day shortly after the accident, the deceased had attempted to talk but was unable to, indicated the nature, extent and gravity of the pain and suffering. The Medical Cause of Death Certificate of the deceased reveals the grave nature of the injuries suffered by the deceased, inter-alia fracture of the vertebra and haemorrhage. On a consideration of these facts, the learned Judge awarded $20,000 for pain and suffering. I have no reason to disagree with these findings of the learned Judge.
Funeral expenses
[49] The Respondent claimed $3,000 for funeral expenses, unsupported by receipts for payment, and admitted that he did not retain receipts. The learned Judge considered this reasonable in view of expenses normally incurred in respect of traditional Fijian funeral rites, and awarded $3000.00. I see no reason to interfere with this award.
Travel expenses
[50] The Respondent claimed $ 1000.00 as travel expenses. Although he failed to establish this with any evidence in the form of receipts, the learned Judge awarded $700.00 for travel expenses as being a reasonable sum in the circumstances. I see no reason to interfere with this award.
[51] In all the circumstances of the case, the learned Judge did not fall into appealable error in respect of the sums awarded under the different heads of damages. The sums awarded are upheld.
The Orders of the Court are:
Hon. Justice S. Lecamwasam
JUSTICE OF APPEAL
Hon. Justice J. Almeida Guneratne
JUSTICE OF APPEAL
Hon. Justice Farzana Jameel
JUSTICE OF APPEAL
`
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJCA/2019/40.html