Prasad v Public Trustee of Fiji [2004] FJHC 190; HBC0156j.1999s (30 March 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0156 OF 1999

Between:

SHILA WATI PRASAD
d/o Alak Narain widow as the Administratrix of the estate
of her late husband Sharda Prasad
s/o Shew Prasad
Plaintiff

and

PUBLIC TRUSTEE OF FIJI,
as the Administrator of the estate of
Bal Krishna Naicker s/o Chinadoy Deceased

TEVITA RATUVA

SHAN MUGA VELLU
S/o Saga Dewan

DIAMOND EXPRESS
Defendants

Mr. D. Singh for the Plaintiff
Mr. H. Nagin for 3rd and 4th Defendants

JUDGMENT

By writ of summons dated 22 March 1999 Shila Wati Prasad as the administratrix of the estate of her late husband Sharda Prasad (the ‘deceased’) has sued the defendants The Public Trustee of Fiji (D1), Tevita Ratuva (D2), Shan Muga Vellu (D3) and Diamond Express (D4) for damages under the Compensation to Relatives Act, Cap. 29 and damages under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act, Cap. 27 as a result of a road traffic accident on Queen’s Road near Korovisilou on 21 June 1996. The plaintiff is not now proceeding against the first and second defendants.

Background facts

In this case there was a collision between a taxi registered No. E6390 driven by Bal Krishna Naicker (also deceased) in which the said Sharda Prasad (the deceased) was a passenger and a heavy goods vehicle registered number CH907 coming from the opposite direction and going towards Nadi.

The said Naicker was killed in the accident together with the said Prasad. The Public Trustee has been sued as the nominal defendant (D1) as the administrator of Naicker’s Estate under Section 8 of the Succession Probate and Administration Act, Cap. 60. The D1 appeared in Court but ‘dropped out’ as he is only a nominal defendant. The taxi was owned by Tevita Ratuva, the second defendant (D2). He could not be traced so the claim against him was withdrawn.

The third defendant Shan Muga Vellu (D3) was the driver of the said goods vehicle acting as the servant or agent of the fourth defendant Diamond Express (D4).

As a result of the said collision the deceased Sharda Prasad sustained serious personal injuries resulting in his death on the same day.

It is the plaintiff’s case that the accident occurred as a result of negligent driving on the part of both the drivers.

The issue for the Court’s determination is as to whose negligence was it that caused the death of the deceased Sharda Prasad.

Before the hearing of the action commenced there was a long discussion on whether the Court should decide liability first, and depending on the outcome to assess damages. Mr Nagin insisted that liability should be decided first whereas Mr. D. Singh for the plaintiff was of the contrary view as he wanted both liability and assessment dealt with together.

Having heard both counsel on this aspect I decided that in all fairness I ought to consider liability first and thereafter, if necessary, do assessment of damages separately after hearing evidence from both sides.

Consideration of the issue of liability

It is agreed that there was a collision between the two vehicles resulting in the death of the deceased. The accident took place at about 7.00 p.m. on Queen’s Road near Korovisilou at a bend on the road. It was a dark night and the road was wet.

There was no prosecution arising out of the accident. The D3 (the present driver) was not charged whereas the taxi driver (the deceased) died.

Mr. D. Singh, counsel for the plaintiff, concedes this much that both drivers were equally to be blamed for the accident. But then he says that the Court is to decide on the evidence before it the degree of negligence on the part of each of the drivers.

Mr. Singh submits that Serjeant Naidu came on the scene afterwards and he therefore could not have witnessed the accident. His opinion that the deceased was at fault could not be accepted without analysing all the other evidence in this case. If either driver was prosecuted, the proof would have to be beyond all reasonable doubt. It appears that the police thought that both the drivers were at fault, neither was charged.

The D3 (the truck driver) says that he saw the taxi 4 chains away from where he first saw it but he took no evasive action although he did not say that the taxi was on the incorrect side, but then he admitted in cross-examination that both of them were driving in their own lanes.

It appears from P.C. Josaia Naisarani’s evidence that the point of impact was in the centre of the road as all the debris i.e. broken glasses and vehicle parts of the taxi were in the centre of the road. P.C. Josaia was the one who drew the sketch plan of the scene of the accident and has given the necessary measurements.

The evidence reveals that both the drivers were at one stage on their correct side and they were attempting to pass each other when the truck driver went too close to the centre of the road when the tray of the truck hit the right hand side of the taxi causing damage to it. The front of both the vehicles passed each other safely.

It is in evidence that the D3 should have been more careful particularly when negotiating a bend. The D3 could not have been keeping a proper look out when he said in evidence that he does not know what happened particularly when he saw the other driver coming from the opposite direction 4 chains away.

On the law as to negligence both counsel have made useful written submissions.

There was a possibility of danger emerging. It has been said:

“The root of this liability is negligence, and what is negligence depends on the facts with which you have to deal.

If the possibility of danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions. Per Lord Dunedin in Fardon v. Harcourt-Rivington (1932), 146 L.T. 391; 48 T.L.R. 215; 76 S. J. 81”

Further Charlesworth on Negligence 6^th Ed. in para 197 at p.132 stated:

“The likelihood of injury or damage being caused is a matter to be taken into account in determining what degree of care, if any, need be taken in any given circumstances when a duty to take care exists.”

Also the following passage from Bingham’s Claims Cases 7^th Ed. at p.5 is pertinent:

“In running down accidents, when two parties are so moving in relation to one another as to involve risk of collision, each owes to the other a duty to move with due care, and that is true whether they are both in control of vehicles, or both proceeding on foot, or whether one is on foot and the other controlling a moving vehicle.”

In the circumstances of this case when the vehicles were going in different directions on a wet night close to a bend on the road where the accident happened the following passage from Charlesworth (ibid) in para.256 and 257 should be borne in mind in considering the issue:

“Accordingly where two motor-vehicles, going in opposite directions, collided during the hours of darkness in the centre of the road as a result of which both were killed, it was held that the proper inference was that both were equally to blame, there being no evidence pointing to one driver being any more blameworthy than the other. Similarly in another fatal accident where there was a collision at cross-roads, both roads being of equal status, or on the brow of a hill, in the absence of special circumstances, the inference to be drawn was that both the deceased drivers had been equally negligent so that the innocent passenger has a prima facie case against both drivers or either of them.”

Some helpful submissions were made by counsel on the question of liability and he referred the Court to a number of cases which are quite apt and I state them below to complete my treatment of the subject to determine the issue.

In North West Transport Co. Ltd v. Iferemi Kubukawa and Another FC.A 14 F.L.R. 207 on apportionment of degrees of blame attachable to the drivers, the Court held that “where the evidence at the trial did not support the finding of the trial judge that one vehicle was on its wrong side of the road, the Court of Appeal varied the apportionment of the degrees of responsibility in the light of that fact.”

The trial judge found that the bus was on its wrong side at the point of impact.

The Court of Appeal found that there was no definite proof that this was the case and held the drivers were equally negligent.

Counsel referred the Court to another helpful case of Bala Krishna v. Veerasami 4 FLR 153 where both parties were found equally to be blamed and damage was apportioned on a 50% basis.

Also in Baker v. Market Harborough Industrial Co-operative Society Ltd (1953) 1. W.L.R. 1472, the English Court of Appeal had this to say on a situation somewhat similar to the present – the headnote reads:

“Where the evidence established that a collision between two motor vehicles proceeding in opposite directions occurred in the centre of a straight road during the hours of darkness, when both drivers were killed, the inference, in the absence of any other evidence enabling the Court to draw a distinction between them, was that each driver was committing almost the same acts of negligence – failing to keep a proper lookout and to drive his vehicle on the correct side of the road – and accordingly both were equally to blame.”

There Denning L.J. said at p.1477:

“Even assuming that one of the vehicles was over the centre line, and thus to blame, the absence of any avoiding action by the other vehicle made that vehicle also to blame. Once both were to blame, and there was no means of distinguishing between them, the blame should be cast equally on each.”

Mr. D. Singh for the plaintiff finally referred the Court to the case of Edward Michael Broadbridge v. Jone Kama and Attorney-General of Fiji C.A. 201 of 1993 where a small car was travelling uphill and a Renault Army truck down hill. The facts were very similar to this case. The truck driver while negotiating the bend came obliquely across the path of the car. Adopting Denning L.J’s views (supra) in such a situation ‘blame should be cast equally on each’.

In the outcome, on the evidence before me and on the authorities I find that in all the circumstances of this case both drivers were equally negligent in the manner of their driving resulting in the death of the plaintiff’s husband who was a passenger in the taxi.

I therefore find liability established against the third and fourth defendants and they are 50% to be blamed for the accident. The plaintiff should now within 14 days apply for a date of assessment of compensation and damages under Chapters 27 and 29 respectively.

D. Pathik
Judge

At Suva
30 March 2004