Sami v Kalyan [2005] FJHC 163; HBA0005.2005 (4 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL NO.: HBA0005 OF 2005

BETWEEN:

MANOR SAMI
1ST APPELLANT

INTER-CITIES BUS SERVICES LIMITED
2ND APPELLANT

AND:

JAWAHAR LAL KALYAN
RESPONDENT

Date of Hearing - 23rd June 2005
Date of Judgment- 4th July 2005

Mr. M. Arjun for the Appellants
Mr. D. Sharma for the Respondent

JUDGMENT

This is an appeal from the judgment of Suva Magistrate’s Court where the learned Magistrate in a traffic accident case awarded the plaintiff/respondent damages in the sum of $10,621.99 and on counterclaim awarded the second defendant/appellant a sum of $1,020.00 in damages.

There is an appeal and a cross appeal by the respondent.

BACKGROUND:

On the afternoon of 26th July 2003 the respondent’s wife was driving along Waimanu Road in a private vehicle owned by her husband. The registration number was E3835. She stopped at the junction of Waimanu Road and Edinburgh Drive as the lights were red. Hers was the first car in front of lights. Other vehicles stopped behind her.

At the same time a bus owned by the second appellant and driven by the first appellant was travelling along Kings Road from Lautoka to Suva. The registration number of the bus was AP 579.

There was a collision at the lights between the bus and the car. The learned Magistrate found the driver of the bus negligent because he drove at excessive speed, did not keep a proper look out, and failed to stop at lights. In short he found the bus went through when the lights were to red. This finding is not challenged by the appellants so the appellants accept liability for purposes of the appeal.

The learned Magistrate found the respondent liable for contributory negligence. He found that the lights for the respondent had turned green and in normal circumstances she would be entitled to move without care. However, he found that a van was on the lane to her right and her visibility to the right was obscured. He therefore reasoned that a prudent driver in the circumstances would only move after getting clear view of the road. Mr. Sharma takes exception to this conclusion and this view of the law. He says that respondent could not be held liable for contributory negligence in these circumstances.

The learned Magistrate having found the respondent liable for contributory negligence failed to apportion the faults of the parties as Section 3 of the Law Reform (Contributory Negligence and Tortfeasors) Act Cap 30 requires. Having found the respondent guilty of contributory negligence the learned Magistrate still entered judgment for the full sum claimed by the respondent without any reduction. Section 3(1) of the above Act requires the court to reduce damages “to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”.

I could have sent the file back to the learned Magistrate for apportionment of responsibility and reduction of damages as this was a valid criticism of the judgment. However, there was a cross appeal on this issue so I chose to hear the entire appeal.

The second ground of appeal argued was that there was insufficient evidence as to quantum of damages. Mr. Arjun submitted that the damages were awarded on the basis of a quotation which is an estimate only. That quotation he says is unsigned.

There was evidence from witnesses about the damage. There were also photographs tendered which show that the front portion of the car was a total wreck. There was evidence that the car has not been repaired. The respondent tendered quotes without objection from the appellant or cross-examination as to the authenticity of quotes. This was a Toyota car and Asco Motors are its agents so on that basis the learned Magistrate may have allowed the sum shown on quotation from Asco Motors.

The vehicle remains unrepaired so the respondent could not have bought exact amount spent on repairs. In Shiri Shankara v. John R. Thoman – Civil Appeal 13 of 1979 (unreported) Justice Tuivaga later the Chief Justice at page 5 in discussing a quotation for repairs said

“Although the document is not evidence of the actual repairs carried out on the car, it is nonetheless evidence of the general nature of repairs that the respondent’s car required and of the probable costs such repairs would entail. As can be seen the admission of the document is therefore for a limited purpose only but be that as it may it nevertheless provides in the absence of anything better some material on which the court may assess damages”.

On appeal the Court of Appeal (Civil Appeal 53 of 1979) agreed with the reasoning of Justice Tuivaga.

Here the learned Magistrate had heard witnesses, seen photos of the car and seen three quotations and he was therefore quite justified in assessing the extent of damages and accepting this quotation as the basis. So this ground of appeal fails.

The third ground of appeal is that the learned Magistrate gave his decision without there being proper evidence of the market value or replacement value of the vehicle. The defence on this aspect is a bare denial which says no admission is made as to any loss of damage. There is no mention of damages exceeding the market value of the vehicle. There was no cross-examination of the plaintiff on this aspect. If the appellants felt that the amount claimed was excessive in view of what they considered was its market value, they should have raised the issue in the Magistrate’s Court. The learned Magistrate could not have embarked on journey of speculation as evidence was lacking on this aspect.

The law on compensation is clear. A plaintiff whose vehicle is damaged is entitled to full and fair compensation that is restitutio integrum. This is achieved by giving him/her cost of repairs to damaged vehicle. Where the cost of repairs exceeds the value of the vehicle to be repaired, then the measure of damages is the market value except where the plaintiff can show that there is no available market since the article damaged was unique or irreplaceable in which event the plaintiff is entitled to full cost of repairs even if they exceed the value of chattel itself – Darbishire v. Warran – [1963] EWCA Civ 2; 1963 1 WLR 1067: Hall v. Barclay – (1937) 3 ALL ER 620.

However as stated earlier the appellants must raise the issues in court below for them to be able to pursue them on appeal. The respondent had bought the car for $8,000.00. There was no cross-examination of the respondent as to the value of the car at the date of accident. Accordingly this ground fails.

The ground of cross appeal is that the learned Magistrate erred in holding that the driver of respondent’s car was guilty of contributory negligence in that she should have waited to allow the bus to pass. Mr. Sharma submitted that this was an unreasonable conclusion. He said that the learned Magistrate had found as a fact that the light for the respondent’s car had turned green. The driver of the car was therefore entitled to move.

Motorists he submitted are expected to look at lights not at vehicles around them before they move. He further stated that the learned Magistrate relied on authorities which concerned uncontrolled intersections and not those controlled by lights.

The normal requirement at common law is that a motorist ought to take care of his own safety. The care he ought to exercise is reasonable care for his own safety and not a standard of care which eliminates every possible risk. A motorist on a road can presume that other motorists like him will also act reasonably. He can presume that in acting reasonably motorists will generally conform to the traffic regulations. All a motorist has to do is to guard himself/herself against possible negligence of others.

Regulation 75(4) of Land Transport (Traffic) Regulations 2000 requires a motorist not to proceed beyond the stop line when the lights are red. This regulation also permits a driver to proceed ahead, turn left or right when lights are green. At an intersection controlled by lights, the lights take over. One can safely presume that all motorists will control their movements as indicated by lights. Lights do not suddenly go from green to red. There is an intermittent period of ember.

Sibley v. Kais – [1967] HCA 43; (1967) 118 CLR 424 involved an accident at an uncontrolled intersection where the applicant had looked to the right but not to the left before entering intersection. Purcell v. Watson – (1979) 26 ALR 235 involved a pedestrian who was walking on the road on a rainy night and the driver of a car had enough room to pass him but failed to do so and hit him instead. There appeared to be no concrete footpath beside the road. The circumstances in the present case are totally different.

I agree with Mr. Sharma that at a controlled intersection, the motorists’ attention is on the lights. A motorist is not expected to look in all directions before proceeding as that would hold other traffic. In the present case, the respondent’s driver moved; the vehicle to her right a van also moved. The van managed to stop but the respondent’s driver could not. However, reaction times vary from person to person. She may have taken time to react to a sudden crisis brought on solely by the bus driver. It takes motorists time to react. By the time she reacted, the collision had occurred. It was the bus driver who was in breach of statutory duty to stop at a red light. Apportioning blame in such a case would be undermining the object of the statutory duty. There is no reason why those who utterly disregard statutory obligations should be able to escape the full consequences of their actions. Accordingly the respondent ought not to be held guilty of contributory negligence. The cross appeal therefore succeeds. The judgment on the counterclaim is set aside.

The final orders therefore are :

(a) The appellants appeal is dismissed.

(b) The learned Magistrate’s judgment in favour of the respondent for payment of $10,621.99 is confirmed.

(c) The cross appeal is allowed.

(d) The judgment on the counterclaim is set aside in full.

(e) The appellants are ordered to pay costs in court below and in this court summarily fixed in the sum of $1,500.00.

[ Jiten Singh ]
JUDGE

At Suva
4th July 2005