Lata v Limamaka [2010] FJHC 290; HBC113.2001L (10 August 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 113 of 2001L

BETWEEN:

SUMAN LATA & PRAVIN DEO
Plaintiffs

AND:

SAILASA LIMAMAKA
1st Defendant

AND:

PUBLIC WORKS DEPARTMENT
2nd Defendant

AND:

ATTORNEY GENERAL OF FIJI
3rd Defendant

FINAL JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr J Sharma for the Plaintiffs
Mr J Lewaravu for the Defendants

Solicitors: Janend Sharma for the Plaintiffs
A.G's Chambers for the Defendants

Date of Hearing: 2, 3 February 2009 and 20 April 2010
Date of Judgment: 10 August 2010

INTRODUCTION

[1] This is a claim for damages for personal injuries following a motor vehicle collision between a small van driven by the Second Plaintiff and a fully laden ten wheeler truck driven by the First Defendant. Both drivers accuse each other of speeding and both deny responsibility for the collision.

[2] The First Plaintiff, Suman Lata, is the wife of the Second Plaintiff and the owner of a minivan registration number BO273. The truck, registration number GM 231, was owned by the Public Works Department and was being driven back to the depot laden with gravel on its final trip for the day when it collided with the van.

CASE HISTORY

[3] The claim was filed on 9 April 2001. It eventually went to trial before another Judge on 2 and 3 February 2009 but the Judge did not return to the Bench to deliver his judgment. On 18 January 2010 I dismissed the Defendants' application for trial de novo. My decision is published in Lata v Limamaka [2010] FJHC 2; HBC113.2001L (18 January 2010). It also contains further details on the long history of this case. I gave directions for the filing of written submissions and on 20 April 2010 I heard oral submissions. This is my judgment based on the trial Judge's notes and counsel's submissions.

THE CRUCIAL ISSUE

[4] The facts can be briefly stated as follows. The collision took place on a narrow tar sealed country road. As is not unusual in the country side, a single land bridge had been built over a creek that ran across the road. Only one vehicle could cross it at any one time safely. The apparent rule in this situation, as there appeared to be no signs to the contrary, it is "first come first served". The two vehicles collided as they approached the bridge. Who got there first?

[5] This is one of those difficult cases where there is no common ground whatsoever between the testimony of witnesses from both sides. The Plaintiff and his witnesses say that the point of impact was on the village side of the bridge, suggesting that he got there first, whilst the Defendant and his witnesses say the point of impact was on the town side, in other words, he was on the bridge first. Which way does the pendulum sway? I think the answer is to be found in the trial documents.

DETERMINATION OF THE CRUCIAL ISSUE

[6] Included in the Agreed Bundle of Documents is a copy of the Nadi Magistrates Court Record for Criminal Case No 3276/00. The Record showed that the First Defendant was charged on 22 November 2000 under s 99(1) and s 114 of the Land Transport Act with careless driving after the 1 September 2000 collision. On 20 June 2002, the Nadi Magistrates Court heard the prosecution case and the accused and reserved its judgment to 24 June 2002 on which date he dismissed the charge and acquitted the First Defendant. His Worship's judgment is as follows:

The accused has been charged under s 99(1) and 114 of the Land Transport Act with having driven a vehicle carelessly on 01/09/00.

PW1 said he drove a van BO273 towards Nawaka Village on Nawaka Road. There was a single lane 3 or 4 metres long when he had almost crossed the bridge the accused came speeding in a ten wheeler truck collided with his van and pushed his van to the town side of the bridge. The front side of his van was damaged. The van was dragged on the reverse.

PW1 said he was travelling at 10km/hr. Head light, dash board, hood, chassis, all the meter, windscreen, 1 fender was damaged valued at $3,000.

PW1 was injured and taken to the Nadi Hospital.

PW2 said he live close by and saw the accident and corroborated PW1. He helped PW1 out of the van to be sent to the hospital. PW3 also corroborated PW2. PW1, PW2 and PW3 said was on the village end of the bridge when the van had almost crossed the road. All three witnesses said the accused's truck was travelling at a speed.

PW4 the IO in this case tendered Exhibit 1 – RSP – and Exhibit 2 and Exhibit 2A the interview statement and translation of the accused. He contradicted PW1, PW2 and PW3 in that he noticed piece of glass at the town end of the bridge and testified the collision has taken place at the town end. Both vehicle (sic) was at the town end of the bridge.

There is a burden on the prosecution to prove beyond reasonable doubt that the accused drove carelessly. D/1, the accused, and D/2 the accused's witness corroborated PW4 in that the collision was at the town end of the bridge. PW1, PW2 and PW3 said the truck was speeding. Motor vehicle examiner report or engineer's report were not tendered to evaluate the speed of the truck. Accordingly, the prosecution has failed to prove any carelessness on the part of the accused.

[7] I feel compelled to accept his Worship's findings of fact. His Worship had heard the case only two years after the accident and had fully considered and evaluated the evidence before coming to his judgment. The same witnesses who gave evidence in the Magistrates Court, apart from the medical witness and one other, gave evidence at the trial in this Court. I am not prepared to accept the submissions of counsel for the Plaintiffs on data of stopping distances for various speeds of vehicles in the absence of an expert witness being called by him. The various factors which were considered and assumptions that were made in the collection of such data must be made the subject of cross examination before such data could be safely taken as proper proof in a particular case.

[8] In any event, I have come to the same conclusions on the facts as the Magistrate did.

[9] The Plaintiffs could have presented their case better. They have had a rehearsal run in the Magistrates Court and it should have been clear to them that they needed independent evidence that the First Defendant was driving at speed to succeed. It is true the standard of proof in a civil case is lower but even with that lower standard of proof I too need to be swayed by such evidence.

[10] I therefore find that the Plaintiffs who have the onus of proof have failed to prove that the First Defendant drove negligently. Their claims fail and are dismissed.

COSTS

[11] This action was started in 2001. It went to sleep for 3 years. From 2004 not much happened either until the Plaintiffs' solicitors applied on 28 August 2006 to have the action set down for trial. It was first set down for hearing on 19 and 20 March 2007 then reset for 15 October 2007, then 30 June 2008 because the Plaintiffs were not ready, then again for 24 September 2008, and then finally the hearing took place on 2 and 3 February 2009 before another judge and I heard oral submission on 20 April 2010.

[12] I think the Plaintiffs have been guilty of delaying a very weak case by not being ready to proceed at the earliest opportunity and they have generated unnecessary costs. I therefore assess costs to be paid by them at $3,000.

ORDERS

[13] The Orders are as follows:

1. The Plaintiffs action is dismissed.
   
2. The Plaintiffs shall pay the Defendants costs of $3,000.
   

Sosefo Inoke
Judge