Kumar v Prasad [2004] FJHC 287; HBC0247d.2003s (13 May 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0247 OF 2003

Between:

RAMESH KUMAR
f/n Ram Jattan
Plaintiff

and

RAKUWAR PRASAD
CORE TECHNOLOGIES
JET PATCHER WORKS FIJI LIMITED
TELECOM FIJI LIMITED
Defendants

Mr. S.P. Sharma for the Plaintiff
Ms. P. Narayan for the 4th Defendant

DECISION

This is Telecom Fiji Limited’s (4th defendant – applicant) application under Order 18 Rule 1 of the High Court Rules 1988 seeking an order to strike out the plaintiff’s Writ of Summons and the Statement of Claim on the ground that it discloses no reasonable cause of action against it and that it is scandalous and vexatious.

As ordered both counsel filed written submissions which I have considered.

The facts are fully set out in the Statement of Claim. All it says about the applicant is that it was “at all material times responsible for proper maintenance of telephone cables and pine pole to which these cables are affixed to.”

Mr. Sharma for the plaintiff submits that: “the 4th Defendant which has a statutory duty to safely and professionally erect pine poles was negligent to ensure that pine poles were erected of a reasonable durability and reliability. On this premise it is respectfully submitted a reasonable cause of action which has some chance of success is now evident”.

I completely disagree with the plaintiff’s submissions and accept wholly the applicant’s (4th defendant’s) counsel’s submission.

In this case the plaintiff was a bus driver driving along the road at Lami when the first defendant drove a ‘prime mover’ conveying a digger on the 3rd defendant’s tractor so negligently that the arm of the digger snapped a telephone cable causing the power pole on which the cable was attached to fall on to the bus.

I agree with Ms. Narayan that the following facts (as in her submission) emerge from the pleadings:

(a) the digger was negligently placed on the trailer

(b) the arm of the digger was outstretched;

(c) the arm of the digger pulled the telephone cables whilst it was moving forward;

(d) as a result of the cables being pulled, the pine pole upon which the cables were attached was forcefully uprooted.

(e) the uprooted pine pole fell on the bus driven by the Plaintiff

By no stretch of imagination can it be said that in the circumstances the applicant is liable. No question of negligence or a duty of care arises on the part of the applicant. Why blame the applicant if others strike against the cable and bring down the pole? In fact they should be the ones paying for damage caused to applicant’s properties.

The plaintiff certainly has no chance of success against the applicant.

The claim against the 4th defendant is therefore dismissed as it is frivolous and there is no reasonable or any cause of action against it. I award costs against the plaintiff in the sum of $250.00 to be paid within 14 days.

D. Pathik
Judge

At Suva
13 May 2004