Prasad v Land Transport Authority [2005] FJHC 712; HBC061.2004 (4 April 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC061/2004

BETWEEN

TRIKESHWAR PRASAD
PLAINTIFF

AND

LAND TRANSPORT AUTHORITY
DEFENDANT

Date of Hearing: 29 March 200
Date of Judgment: 4 April 2005

Mr. M. K. Sahu Khan for the Plaintiff
Mr. K. Vuataki and Mr. Qoro for the Defendant

JUDGMENT OF FINNIGAN J.

This is a claim for damages for personal injury suffered when the Plaintiff was knocked over by a van belonging to the Defendant.

I heard evidence from four witnesses, the Plaintiff himself, his daughter who was present at the time of the accident, the driver of the van in which they had been travelling, and a doctor from C.W.M. Hospital in Suva.

The Facts

All 4 witnesses were cross-examined, and from that body of evidence the facts are clear. On Sunday 9 February 2003 the Plaintiff and his family were travelling via Lautoka in the van of Ashok Kumar. They stopped in a bus bay by a foot crossing in Lautoka so the Plaintiff could cross to a shop and buy refreshments, The Plaintiff got out at the front and went to the crossing and crossed the road. He was on the marked foot crossing. When he was almost at the far side a white van came quickly and struck him, he was unconscious and suffered serious injuries. The white van was observed to have the Registration No. DS561 and to be marked with the letters LTA.

The van was the property of the Defendant, as admitted in the pleadings.

The Plaintiff had been drinking beer and kava, he was perhaps a little drunk otherwise not affected. In the event that is immaterial.

Nobody said so in evidence but I deduce that the driver of the white van did not stop.

Submissions

For authority to sheet home liability for the Plaintiff's injuries to the Defendant, Counsel relied on Section 6(1) and Section 21 of the Land Transport Act 1998. He expressly declined to rely on any claim of vicarious liability. The Defendant's Counsel submitted that there was no proof of any connection between the driver of the van and the Defendant. He invited me (without evidence) to assume that an LTA driver would not be driving in the course of his employment on a Sunday.

S 6 of the Act establishes the Authority, and S 21 protects officers and employees of the Authority from civil liability for actions done on the Authority's behalf.

Findings

The claim is that the LTA was liable for damage caused by the use of its vehicle. The Plaintiff had no evidence to bring about who was driving the LTA vehicle at the time o f this accident, or why.

The onus is on the Plaintiff to make out his case, but there is a gap. He has shown that an LTA vehicle was being used on a road on the Sunday in question, and that its use caused some at least of his injuries. In respect of liability for this accident, he has proved no more than that.

This amounts to claiming absolute liability. He relied on Sections 6(1) and 21 of the Act, but he must rely on proof that the vehicle was being used as an LTA vehicle for one of the functions of the LTA (Ss 8 and 9) and must then allege a negligent act by the LTA. Normally this would be an allegation of bad driving by an LTA driver. It could also be an allegation that the LTA negligently allowed its vehicle to fall into the hands of an unauthorized driver. However, these questions do not arise, nor does the question of whether the driver was in the course of employment because there has been no evidence at all about the driver. The facts are equally consistent with the vehicle being used illegally.

There was no evidence of driving at excessive speed, the main fact is that the pedestrian was struck on a crossing, which is a breach of statutory duty.

The plaintiff was innocent, he was struck hard and badly injured. The driver was in breach of a statutory duty to yield right of way. The accident has had bad consequences for the Plaintiff. The vehicle that struck him belonged to the defendant. However the Plaintiff needs to prove more than that and he has been unable to do so. I note in passing that it seems from the evidence that only some of the injuries for which he is claiming were caused directly by the accident. It is possible that some of the injuries, for example his throat problems, may be too remote, and may be attributable to the medical attendants who cared for him, but I will make no decision about that.

The Plaintiff's claim is dismissed. The Defendant was not fully ready for the hearing and in the circumstances of the whole hearing as known to Counsel I make no order for costs.

D. D. Finnigan
JUDGE

At Lautoka
4 April 2005