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Reddy v Saulekaleka [2011] FJHC 312; HBC43.2007 (1 June 2011)

IN THE HIGH COURT OF FIJI AT LABASA
CIVIL JURISDICTION


CASE NUMBER: HBC 43 OF 2007


BETWEEN:


YENKAT REDDY
PLAINTIFF


AND:


PONIJASI SAULEKALEKA
1st DEFENDANT
AND:


LAND TRANSPORT AUTHORITY
2nd DEFENDANT


Appearances: Mr. Amrit Sen for the Plaintiff.
Mr. Adrian Ram for the Defendants.
Date/Place of Judgment: Wednesday, 01st June, 2011 at Labasa.
Judgment of: The Hon. Justice Anjala Wati


JUDGMENT


TORT – NEGLIGENCE – MOTOR VEHICLE ACCIDENT – Issue of liability and quantum.


The Claim


  1. The plaintiff suffered an accident whilst he was a passenger in motor vehicle registration number EU 321. The other motor vehicle that was involved in the accident was DT 964, which was driven by the 1st defendant being the employee, servant and agent of the 2nd defendant. The latter is alleged liable on the principle of vicarious liability.
  2. It is alleged that the collision was as a result of the sole negligence of the 1st defendant.
  3. The plaintiff avers that the collision has caused him severe pain and suffering and injuries which equates to 18% permanent disability. He also alleges that he continues to suffer physically, psychologically, and socially. Consequently, a claim for general and special damages is sought by the plaintiff.

The Defence


  1. The defendants deny that the collision occurred due to the negligence of the 1st defendant but occurred due to the sole negligence of the driver of motor vehicle EU 321.
  2. The alternate defence is that the negligence of the plaintiff or his driver substantially contributed to the collision. In essence the defendants are raising the issue of contributory negligence as an alternate defence.

The Agreed Facts and Issues


  1. The parties have agreed to the following facts requiring the court to determine the agreed issues:-
  2. The Issues are:-

The Evidence


  1. The plaintiff called four witnesses. First, the plaintiff himself.
  2. In his evidence in chief, the plaintiff stated that:-
  3. Under cross-examination, the plaintiff's material testimony was that:-
  4. Under re-examination the plaintiff testified that he does not work in the weekends as a salesman. The poultry farming only requires feeding in the morning and in the afternoon. He has made a provision for providing water to the fouls. There is a bottle from which the water drips for the chicken to drink. He used to do farm work in the weekends. The LTA vehicle was only 2-3 yards infront of the bus.
  5. The second witness for the plaintiff was Mr. Mahendra Kumar. In his evidence in chief Mr. Mahendra Kumar stated as follows:-
  6. Under cross examination Mr. Mahendra Kumar stated:-
  7. The third witness for the plaintiff was Mr. Saten Prasad. His evidence in chief was:-
  8. Under cross-examination, Mr. Saten Prasad testified that:-
  9. In his examination in chief Mr. Saten Prasad had stated that at the time of the police interview he had told the police officer that the DT 964 had turned towards the driveway and not into the driveway.
  10. The plaintiff's fourth witness was a police officer, PC 2171, Mr. Umesh Prasad. In his evidence in chief he stated that:-
  11. Under cross-examination, the police officer stated that:-
  12. In re-examination the police officer witness testified that:-
  13. The plaintiff's fifth witness was Dr. Jaoji Vulibeci. He took the court through the report he had made on the 24th day of September, 2007. I will first outline the doctors report in its material part:-

"...The above man was admitted to our ward on 8/10/2005. He had a fractured arm bone sustained at his work place.


Examination and full investigation done showed a supra condyler fracture of his right arm with some intra – articular extension on x-rays. This was treated conservatively and he was discharged on 10/10/2005.


Yenkat was followed up in our clinic and was seen twice by a visiting orthopaedic specialist from Australia. He agreed that no further operation was needed for Yenkat.


Yenkat continues to complain of pain when he works hard and cold weather. Pain which radiates to the shoulder mostly. He also complains of inability to fully flex his elbow and inability to handle heavy good with his right hand.


Permanent impairment assessment was done on 29/8/2007 and showed the following findings:-


  1. Elbow joint - Extension 20
- Flexion 70
- Supination 70
- Pronation 80
  1. Grip strength 30% strength loss index.

Calculation for whole person impairment was done using the "Guides to the Evaluation of Permanent Impairment" by the American Medical Association.


1. Elbow join
= (a) Extension of 20

= 2% upper extremity impairment [figure 16.34]

= 1% whole person impairment [table 16.3]



(b)Flexion of 70

= 15% upper extremity impairment [figure 16.34]

= 9% whole person impairment [table 16.3]



(c) Supination of 70

= 1% upper extremity impairment [Figure 16-37]

= 1% whole person impairment [Table 16.3]



(d) Pronation of 80

= 0% upper extremity impairment [figure 16-37]

= whole person impairment [table 16.3]


2. Grip strength of 30% strength loss index

= 10% upper extremity impairment [table 16.34]

= 6% whole person impairment [table 16.3]

The other most important factor in his case is pain. I have found that there is one of the problems in his case and had limited his ability to work effectively. Pain assessment according to figure 18.1 page 574 states that "If pain related impairment appears to increase the burden of the individual's condition slightly, the examiner can increase the percentage found in steps I [above] by up to 3%. No formal pain related assessment is required".


Therefore pain impairment = 3%.


Total whole person impairment for this case is:

1% + 9% +1% +0% +6% + 3% = 20% permanent impairment.


Therefore the permanent impairment percentage for this case is = 20%..."


  1. The Doctor explained the contents of his report. He stated that the plaintiff has mal alignment of the bones. The pain would be there with the plaintiff for the rest of his life. He would not be able to lift heavy weight. He can have swelling in his fingers. For safety reason he is advised to wear a bandage at all times. He can lift things up but the movement would be limited. The plaintiff cannot be advised to do vigorous work. The X-Rays show communited fracture and this would have caused lots of pain in the beginning. The appearance of the hand does not look good from a cosmetic point of view as well. The words extension in his report meant "straight ahead", Flexion meant "lifting up", Supination meant "circling the hand" Pronation meant "putting hand down" and Grip meant "holding".
  2. Under cross examination the doctor testified that he does not have the plaintiff's folder to state whether he examined the plaintiff initially. He also could not say whether the plaintiff was referred to CWM. Sometimes it is good not to operate too early. He had conducted an X-Ray 2 months after. He took note from the file that there were multiple fractures. When fracture is healed then it cannot be made out as multiple fracture because the fracture joins as one. Dr. Bhushan Ogale says there is only one fracture but Dr. Ogale is not an orthopaedic surgeon. Further, when Dr. Bhushan made the report, the fractures would have united. The alignment can be operated but the operation sometimes does not fix all the problems. The operation could however have the benefit. He assessed the plaintiff's pain by the grip method and not the nerve method. He also did not assess a single nerve. It is difficult to say that the nerve has problems. The patient is asked to hold onto something and looking and observing his grip, the pain is assessed. It is truly a subjective assessment. In the plaintiff's case, all that could be done was done, so malunion is not as a result of medical flaws. In his report there is no complaint by plaintiff of swelling of elbows and fingers but it could be in his folder. The plaintiff has been asked to exercise his elbow so that his muscles are not wasted. Using of hands may also cause further injury in the plaintiff's case. The plaintiff can do normal chores like brushing, clothing, eating but that would be done with restricted movements. Light duties could be undertaken with restricted movements. The plaintiff has to be careful all the time.
  3. The first witness produced on behalf of the defendants was the 1st defendant Mr. Ponijasi Saulekaleka. In his evidence in chief he testified that:-
  1. Under cross examination, the first defendant testified that:-
  2. The defendants' second witness was Dr. Eddie McCaig. Dr. McCaig testified in chief that he examined the plaintiff and prepared a report dated the 10th day of March, 2009. I would first of all outline the doctors report in full:-

"Yenkat Reddy was seen in my clinic on 07/08/2008. Made available to me was a report by Dr Ogale dated 05/06/2006 and Dr Jaoji Vulibeci dated 24/09/2007.

Yenkat gave a vivid recollection of the incident on 08/10/2005. He was a back seat passenger in a Twin cab that crashed into a L.T.A. van that did an illegal u-turn in front of their vehicle.


He received his initial treatment at the Labasa Hospital and later sort consultation both in Suva and by a visiting Australian Orthopaedic Surgeon.


He sustained a closed fracture to his right distal arm. A supracondylar fracture to his right humerus. He was treated non-operatively.


Yenkat works as a Salesman with C.J Patel, he is right handed. He tells me that he was unable to work for about a year following the car crash.


When asked he list his present problems on being:


He also complains of a painful pea like lump over the right clavicle (collar bone). He lists the tasks that he cannot do included are chopping wood, lifting and driving etc.


Examination sees a gentleman very angry with the LTA and Labasa Hospital, he is keen on operation that will rid him of all symptoms.


He sits with his arm held by his side all attempted movement of the limb is resisted. With encouraged the extremes of motion to shoulder, elbow and wrist are restricted. He has lost his carrying angle, the elbow has a cubitus varus deformity. There is no measurable wasting to the major muscle group.


A pea like lump is noted over the right clavicle. It is subcutaneous, mobile and painful to touch. I feel that this is a neuroma and unrelated to his injury.


Radiographs taken of his chest show no pathology. The elbow show a malunited supracondylar fracture to his right humerus. He has a varus angle compared to the left of about 5 degrees normal valgus.


In the incident, Yenkat broke his right arm. The fracture has consolidated i.e. the fracture has healed. He has lost his carrying anglo.


Yenkat has a continuous unrelenting pain over the entire right upper limb. All movement is painful. I feel that he has a post traumatic pain syndrome a.k.a causalgia, shoulder hand syndrome.


This is a poorly understood self limiting condition. His fracture has healed and he is encouraged to use his limb as this will certainly help in his rehabilitation. He will not further damage his limb.


I would strongly advise against surgery that he so desperate, wants. In his present state, I feel that compensation for pain suffering and loss of employment for a year would certainly help this very angry gentleman".


  1. The doctor said in evidence in chief that the plaintiff really wanted an operation. His pain was disproportionate to his injury. His fracture has healed but he has a crooked arm. The doctor could not examine him because he resisted in pain. If there was so much pain, then there would be signs of muscle wasting but none could be noticed in the plaintiff. The carrying angle does not equate to the fact that one cannot work. It just looks ugly in appearance. He need not have a bandage. It is thought that bandage gives a comfort but there is none medically necessary. Grip assessment is a test to indicate how well one can grip. It is not a very objective test. The patient can also just avoid gripping hard. The plaintiff in this case did not say anything about swelling of elbows or fingers. The doctor said that he cannot prove or disprove the pain he has been complaining of. With the plaintiff, there was no pain in the specific area so he strongly advised against surgery. The plaintiff has pain everywhere ranging from hand, shoulder, wrist and elbow. If one has an unhealed fracture then pain would be in a specific area but in the plaintiff's case, the nature of pain was non-specific so surgery was not the answer. With the plaintiff, it could be post traumatic pain syndrome. It can last for months or years and it is not known as to what causes the same.
  2. Under cross examination Dr. McCaig stated that when fracture is at elbow joint, the ulna nerve could be disturbed or affected. The bandage support makes one feel better but it does not support the joints as the joints do not work then. He did not tell the plaintiff on the implications of a bandage. Another injury at the elbow would hurt the elbow and cause it to be swollen. He was not allowed to take any examination by the plaintiff's behaviour. The doctor said that he did not have an advantage of seeing the plaintiff's folder. He does not doubt Dr. Jaoji's report that the bones have several fragments. There is nothing wrong with Dr. Jaoji's tests and guides used to assess impairment. The plaintiff has to live with the deformity for the rest of his life and there is nothing to correct that.
  3. I also wish to outline the contents of another medical report which was tendered in by consent and the author doctor did not testify in court. The report was by Dr. Bhushan Ogale. The report in full reads:-

"Re: YENKAT REDDY F/N SUBRAMANI


The above named patient was admitted from Emergency Room, Labasa Hospital on 8/10/05 and clinical and x-ray findings were suggestive of right supracondylar Fracture of humerus.


He had history of alleged motor vehicular accident and sustained injury to his right upper limb.


His vital signs were stable and he had no other visible injury besides the right upper limb. Patient was treated with analgesics, sedatives, post POP slab for right elbow and discharged on 10/10/05.


He was reviewed in the surgical clinic on 20/10/05 and was referred to CWM Hospital Orthopaedic Surgeon for further management. Patient was readmitted on 23/10/05 for travel arrangement and referral to CWM Hospital but patient was discharged as he desired to travel by air and was making his own arrangement.


He went to CWM Hospital Orthopaedic Clinic on Tuesday however he was booked for Monday.


Patient could not be seen in Orthopaedic Clinic and returned to Labasa Hospital and again reviewed in Surgical Clinic when he was to be referred to orthopaedic clinic Lautoka Hospital. However patient opted to be seen at Labasa Hospital by the overseas visiting Orthopaedic Surgeon and accordingly reviewed by Dr Loefler, Orthopaedic Surgeon on 14.11.05. He opined that ROM was 20-100 flexion, good rotation and x-ray fracture uniting and on discussion with patient, to accept malunion.


Patient was reviewed in the Surgical Clinic then regularly on 30/11/05, 14/12/05, 11/01/06. On his last review in the surgical clinic he had no fresh complaints except some impairment of movements. On examination the R.O.M. right elbow joint was restricted terminally only and he was called for review. He was reviewed by visiting overseas Orthopaedic Surgeon, Dr. Loefler who opined that the fracture had healed and there was good R.O.M. of the elbow joint, however he would need ulnar nerve release/transposition in view of some paraesthesia in the hand. He would be referred to a Plastic/Hand Surgeon [visiting team in August 2006].


This medical report is issued as per request from the patient's Solicitor- Maqbool and Co for full medical report on the patient's authorization.


Yours faithfully
Dr Bhushan E. Ogale
Consultant Surgeon
For General Manager Hospital Services".


The Submissions


  1. Both counsels had at length made their closing submissions which I have thoroughly considered in order to determine the issues in this matter.

The Delay in the Judgment


  1. It is the courts duty to explain the reason why the judgment has been delayed in this matter.
  2. This file, was amongst the many that was sent from Labasa office to me for writing of the judgment. I had upon close of the case made this direction.
  3. The Labasa office as a matter of procedure sent all the files containing similar directions to the Suva office.
  4. The files were not delivered to me for writing of judgments until December 2010.
  5. A search revealed that the files were sent to the Suva office but was kept without being sent to me. This delay in receiving the files has caused the delay in delivery of the judgment in this matter.
  6. Nevertheless, the memories of the events of the trial, the demeanour and deportment of the witnesses are still fresh in my memory. With that benefit, I have had the advantage of reading the evidence which I had recorded by hand in a very comprehensive form.
  7. The quality of the judgment, as a result, is not affected by the delay.

The Determination


  1. The first issue that needs to be determined is how the accident happened. Each witness has given their version of how the accident has occurred. It is for me to assess the evidence to determine the cause of the collision.
  2. The plaintiff's version of the accident is that he was travelling on the straight road named Qelewaqa. As he approached a parked bus, the 1st defendant who was parked 2-3 yards infront of the bus, made a sudden turn across the road with an intention to make a U-Turn when the accident happened. The driver of EU321 tooted the horn and tried to avoid the collision but it could not be avoided.
  3. I have numerous difficulties in accepting the evidence of the plaintiff. The plaintiff's demeanour, deportment and evidence, all reflects that his testimony is an afterthought of how the accident has happened. He in fact has not witnessed the accident at all. His testimony and version of how the accident has happened is a sham to support his claim. I make this finding on the following basis:-
    1. The plaintiff was basically inconsistent in his own evidence as to where the vehicle EU 321 was being driven when the accident happened. Under cross examination, he initially said that the vehicle EU 321 could go past between the bus and the white mark and that the vehicle EU 321 could safely overtake the bus without having to cross the white centre line. Then upon continuous cross examination as to how EU 321 could go on the right hand side of the road, he changed his evidence to state that EU 321 had to go over the white mark to safely pass the bus.
    2. The plaintiff's description of how the accident happened is also totally inconsistent with:-
      • (i) The brake marks of 13 meters;
      • (ii) The positioning of the two vehicles after the accident;
      • (iii) The damage sustained to DT 964, and.
      • (iv) The logistics of making a U-Turn.

The rough sketch plan drawn by the police shows 13 meters brake mark of vehicle EU 321. This was undisputed evidence. The 13 meters brake mark is towards the extreme right of the right hand side of the road. This indicates that the driver of EU 321 was neither driving between the bus and the white mark when the accident happened nor was he little over the white mark when the accident happened. He infact was driving on the right hand side of the road. The brake mark is also indicative of the speed at which the EU 321 was travelling, about which I shall discuss later in my judgment.


After the accident, the LTA vehicle was found upside down with the front part in the drain and the back on the extreme right of the right hand side of the tarsealed road. The vehicle EU 321 was found facing in the direction it was being driven. EU 321 was found in the drain except for a little portion of the left rear on the tarsealed road. The alleged sudden swing by the LTA vehicle would have resulted in the accident either at the left or the centre of the road. It is conceivable as to how both the vehicles went to the extreme right.


The LTA vehicle sustained damage to its right hand side of the passenger door. I of course accept that the EU 321 did not hit the driver's side of the door, otherwise the result and injuries to the LTA driver would have been fatal and not minor as it was. The hit on the right side of the passenger door indicates that the LTA vehicle did not make a sudden swing from its place or else the impact would have been on the driver's right hand side.


The plaintiff also stated that the driver of DT 964 wanted to make a U-Turn. How does he speculate his intention when the DT 964 is alleged to have swung from its place across the road? That allegation could also be indicative of an intention to make a 3 point turn and also an intention to go into the driveway. The hypothetical description or opinion is a clear indication of how the plaintiff's version is an afterthought of how the accident happened.


  1. The plaintiff has also lied about the speed of vehicle EU 321. The plaintiff said that EU321 was being driven normally at 50 kmph and that the speed would have been reduced substantially if the brakes were being applied. At a speed of 50kmph or a substantially reduced speed, the LTA vehicle would not have tumbled once or twice and be written off after the accident.

Moreover, the plaintiff and the passenger Mahendra Kumar both received injuries from the seat belt. Mr. Mahendra Kumar also had blood clots in his chest. This chest injuries and blood clots were as a result of the seat belt jerks. I find that for the seat belt to give immense chest pains and blood clots, the speed of the vehicle EU 321 would be more than 50kmph. This consequential effect of the accident is proper to draw an inference of the speed of EU 321.


Even if I were to accept the plaintiff's evidence on the speed limit, I have to state that 50-60kmph is definitely not an overtaking speed limit in the circumstances. Overtaking is a serious road business, as one has to leave the correct side of the road and go to the other side. There is always a potential of inconspicuous things or objects pre-existing on the road and always potential of inconspicuous human or animal using the road. There is thus a need for a lower speed limit and precaution at all material times. In this instance there was a parked bus which blocked the front view of the bus. In such situation the overtaking at 50-60kmph is certainly negligent and not justified.


  1. The plaintiff had also given a statement to the police on the 12th day of October, 2005, just 4 days after the accident. In that statement to the police which was tendered as evidence in this court, the plaintiff had stated as follows:-

"I am employed for CJ Patel as a salesman for 4 years now.


I recall on Saturday 08/10/2005, my boss Mr. Mahendra Kumar came to pick me from home to proceed to Savusavu Wharf to pick our truck from there which has come by boat from Suva. Vinal Vasram was driving our company vehicle reg. No. EU321.

On our way to Savusavu at Qelewaqa I was relaxing at the back seat with my eyes closed but I was awake. I had put on my seat belt after I got into the van. I did not notice anything on the road as my eyes was closed. It came to my senses when I heard the brake sound and saw LTA van in front of our vehicle across the road. I then put my head down and do not know what happened after that. I then realized that my hand was injured on the elbow and chest pain. Vinal and my boss brought me one of the vehicle. I was then conveyed to hospital in Waiqele Sawmill van which was white in colour with green canopy. That is all I know that happened that day".

[Underlining is Mine]


The plaintiff told the police that he does not know how the accident happened as he had closed his eyes and was relaxing. He only saw the aftermath of the accident. The plaintiff has quite unconvincingly testified in cross examination that his statement to the police was given when he was in pain and so he said the above. I do not accept the plaintiff's explanation that his statement to the police in a totally different version from what he testified in court was due to pain. I accept that the version of the day's incident was correctly narrated by the plaintiff to the police then. His story has subsequently changed today in court or concocted at the time of filing the claim and this is obviously to support the allegation of negligence against the 1st defendant. Being in pain may result in inability to relate an incident at all or with minor omissions. Here I have a situation where the plaintiff initially said he saw nothing at all, and, then in court, he quite vividly recalls the incident with evasiveness to answer when being cross-examined.


  1. The plaintiff's dishonesty was also apparent when he stated that he would be fired from the employment if the Suva Office came to know that he was working with an assistant. Was that a secret favour granted to him by his supervisor Mr. Mahendra Kumar? Why would that favour be granted by Mr. Kumar and not disclosed to the head office? If the supervisor Mr. Mahendra Kumar gave such a favour without disclosing this to his superiors, then I have a lot of difficulty in placing weight on his credibility as well. I simply do not believe the plaintiff when he said that the Suva office does not know that he was working with an assistant. He has been having an assistant for the past three years which is a long time for the head office to be oblivious of this. The plaintiff's behaviour was also very peculiar when he was being cross examined on this subject making it obvious that he is saying all this so that he could support his claim for loss of future earnings. I am of the judgment that the head office in Suva has granted this assistance to the plaintiff to avoid potential liability of the employer in case the driver of the EU 321 was found for negligence. The issue of vicarious liability and workmen's compensation claim would not have escaped the minds of the employer or its legal advisers. One must not forget that the plaintiff got injured whilst in employment. It is also possible that the job the plaintiff is now undertaking is in reality a job for two workmen, coupled with the possibility that the plaintiff's ability to continue his employment had not diminished because of the injuries that he sustained.
  2. The plaintiff also lied in court when he said that he cannot work the cane farm now. He said that he gave his cane farm away because of the injuries he sustained. Under cross examination it was apparent that he gave or sold the cane farm to his brother at a price. Whether the sale transaction is legally effected and valid is not material but in fact the price has been paid for his share. The price money has been used to buy a car. With that the plaintiff maintains loss of income from the cane farm. This affects his credibility.
  3. It also very difficult for me to accept the plaintiff's evidence that his family could not maintain the poultry farm and the goat farm. He said that he used to undertake the two all by himself. It is practically impossible for a full time worker to carry on poultry farming and raising goat absolutely on his own. He would have had assistance from his family members to be able to manage all together. His total denial that his family is not involved at any level is incredible and affects his sincerity on important matters.
  4. The plaintiff also dishonestly said in examination in chief that he started poultry farming after marriage. Under cross examination he stated that he had poultry farming before and after marriage.
  5. Another inconsistency I noted with the plaintiffs evidence was that he stated that he was unemployed for a period of 1 year from the date of the accident. His immediate superior at employment stated to the court that the plaintiff was away from work for about 2-3 months. I wonder what is correct.

My above observations are clear and concise and with all the observations, I find the plaintiff to be an inconsistent and an apparently dishonest witness. His evidence also cannot be sustained in light of the other existing evidence and thus I reject his testimony of how the accident occurred.


  1. The second version of the accident was given by Mr. Saten Prasad. He also testified on behalf of the plaintiff. Mr. Prasad's evidence basically was that when the vehicle EU 321 started overtaking the bus, the LTA vehicle suddenly turned towards his driveway. He did not see any indicator of the LTA Vehicle. The EU 321 tooted the horn but the LTA Vehicle did not stop. He heard the scratching sound from EU 321 and the collision happened.
  2. Mr. Saten Prasad's evidence has now put the blame on the 1st defendant who is alleged to have suddenly turned to go into the driveway when the EU321 was overtaking. This evidence is definitely not consistent with what he told the police, his statement being tendered in evidence.
  3. The police statement of Mr. Prasad given itself on the date of accident, when memories are fresh and clear as crystal reads:-

"I have been residing on the above mentioned address for 18 years now with my family


I can clearly recall this morning after living my goats at the back of my house. I came to the front to wash my hands and then I saw a bus facing towards Seaqaqa and a LTA vehicle overtook the bus and stopped in front to off load some passengers who was sitting at the tray to board the bus. After dropping the passengers the driver of LTA vehicle made a right turn into my driveway. As soon as he made the right turn the CJ Patel vehicle came from Labasa town overtook the parked bus and collided with the right side of the LTA vehicle. After the collision the LTA vehicle tumbled and CJ Patel vehicle went to the right side of the road into the drain.


As I went to the accident site both the driver came out of the vehicle to the main road that is all I have to say".


  1. Mr. Prasad's statement to the police is apparently clear and obvious that DT 964 had first maneuvered into the driveway when EU 321 came and collided upon overtaking with DT 964. This version clearly indicates how negligently the EU 321 failed to observe and or notice DT 964 on the road, adhere to its presence and then control the vehicle which resulted in the collision. Mr. Prasad does not indicate why he has completely changed his statement. He did say in his evidence that he had told the police that the LTA vehicle had turned towards his driveway and not into the driveway. Even if that is so, the gist or the crux of the evidence remains that DT 964 had first turned when EU 321 decided to overtake. If this is so, then the plain and simple conclusion is that EU 321 should have noticed DT 964 on the road and the fact that it did not, is strange and overwhelming evidence of negligence against the driver of EU 321.
  2. I do not know why but Mr. Prasad has changed his evidence. However he has totally changed his evidence in court. I cannot accept his explanation for want of proper explanation for retracting from his statement. I am very skeptical about this witness's change in his version of how the accident happened. He surely will not derive any benefit by maintaining his statement he gave to the police. His demeanour in court suggested to me that he was going to receive some monetary benefit for his concocted stories and so is my finding. He behaved that he wanted to blame the 1st defendant in some way or the other. He is a witness who should just be independent but he acted more a witness supporting the plaintiff then an independent eye witness.
  3. It is still clear in my memory the demeanour and deportment of this Mr. Prasad who was asked to look at his police statement and the moment he was asked to identify his statement, his entire facial appearance changed, and to find some space he told the court that he did not have his glasses and so he could not read the statement and that he did not bring his glasses to court. My observation is that this act was a very careful act to avoid being questioned on the police statement for he well knew the potential problems that he would have to face. Yet he was taken through his statement where and when he could not explain his own inconsistency.
  4. Mr. Prasad's evidence is also unacceptable in that, if the EU 321 was overtaking and the LTA vehicle suddenly turned, then the accident would not occur on the extreme right side of the road. The two vehicles would have collided in the middle of the road.
  5. The LTA's vehicle tumbling also suggests that the EU 321 hit the LTA vehicle with force for it to tumble. The sketch plan also shows that the LTA vehicle was pushed forward from the point of impact indicating that EU 321 hit the 1st defendants vehicle and not vice versa. This does not fit in with Mr. Prasad's evidence that the LTA vehicle swung from its place causing the collision.
  6. Further, Mr. Prasad stated that the driver of the LTA vehicle had stopped 5-6 steps ahead of the bus which may mean maximum of 4 m. Mr. Prasad also stated that EU 321 was overtaking the bus when DT 964 swung from its place. This means that EU 321 was in the process of overtaking the bus. If such is his evidence then definitely the brake marks could not be 13 m long. It would infact be much shorter.
  7. The above police statement of Mr. Prasad clearly indicates total fault on the part of the EU 321 which overtook when the 1st defendant had completed the process of driving into the driveway. The 1st defendant could not have done anything to avoid the accident unless it had wings to fly up from the place of the macabre situation. It just had to stay where it was and wish that the unexpected did not happen, but it did. How can one lay negligence at his door then? I surely cannot, because I find that the EU 321 has caused the accident due to its being driven in a very negligent manner.
  8. Mr. Prasad was also inconsistent in his evidence:-
  9. I do not accept Mr. Prasad's court version of how the accident happened. His numerous inconsistencies, his apparent dishonesty from his demeanour and deportment and his change in his evidence on my finding that it was changed for an ulterior motive, is too dangerous to place any weight on. I dismiss his evidence as incredible, concocted and unreliable.
    1. The plaintiff's third witness was Mr. Mahendra Kumar who is also a totally unreliable witness. Mr. Kumar could also have been subjected to this claim as he was the owner of the vehicle EU 321. There is an obvious motive why Mr. Kumar has given evidence in the manner he did. He is saving both himself and the employers from the potential liability and his demeanour in court was nothing but an indication of his ulterior motives. If the employers have knowledge about the issue of an assistant being given to the plaintiff, then there is no reason to bring the subject of the plaintiff being terminated but to support the claim for loss of future earnings. This was in my view calculated evidence to extract for the plaintiff what appears to be a thin claim under the head "loss of future earnings".
    2. Mr. Mahendra Kumar has stated that the plaintiff was not employed for about 2-3 months but he was paid full salary. The plaintiff said that he was unemployed for a year. There is inconsistency even between the two witnesses in this respect when there should not be.
    3. Mr. Kumar stated in his testimony that the EU 321 was overtaking and about to pass the bus when the LTA vehicle suddenly swung from its place. Mr. Kumar is definitely lying. About to pass the bus would be about 1-2 meters left to pass the bus. If that is the case then the 13 meters brake mark cannot be possible.
    4. I am also astounded as to the gross manipulation of evidence by Mr. Kumar and his desparate attempt to blame the driver of DT 964. He said that the driver of DT 94 wanted to make a U-Turn by going forward and coming back and then going to Labasa side. The forward then backward manoeuvre will constitute a three point turn and not a U-turn.
    5. Mr. Kumar also tried to indicate to the court that the accident site was an overtaking zone and there was nothing wrong in overtaking at 60kmph. He said in his cross examination evidence that the EU321 would have hit DT 964 at a speed of 60kmph. Then he later changed and said that EU 321 may have hit the LTA vehicle at 40kmph. Subsequently he said he does not know the speed at which the LTA vehicle would have been hit. He tried very hard to put all the blame on the driver of DT 964. My finding is that instead of giving a true account of the accident, he came to court with one and only motive and that was to put the blame on the 1st defendant.
    6. Against his evidence Mr. Kumar was asked as to how there was a 13m brake mark, when stated that he did not know about that but the speed of EU 321 was 50-60 kmph before the accident. It was then put to him that if he asked the driver to slowdown, it would mean that he was more than 50-60kmph. Mr. Kumar then said that the driver would have been 70-80kmph before he dropped his speed. This portion of his evidence indicated to the court how Mr. Kumar was so reluctant to talk about the high speed of EU 321 because his duty in court as per his understanding was to be the plaintiff's savior.
    7. The scene of accident, the place of impact, the positioning of the vehicle after the accident, the place of damage to DT 964, the circumstance of LTA vehicle tumbling, the injuries received by the seat belts on passengers travelling in EU 321, all does not substantiate the witness Mr. Kumar's version of the accident and the speed at which the vehicle EU 321 was travelling. I reject Mr. Mahendra Kumar's evidence on how the accident has happened.
    8. The police officer who drew the sketch plan cannot describe how the accident happened. However the crucial evidence of the police officer given in court is also not in an equipoise with the scene of the accident, the brake marks, the positioning of the vehicle after accident, the place of impact on the vehicle, the place of impact on the road, the damage sustained during the collision and the accepted testimony of the defendant witness.
    9. The police officer indicated in the rough sketch plan which he drew that the point of impact is further up and ahead of the driveway but the vehicle EU 321 is found partly on the driveway. The EU 321 had hit DT 964 causing DT 964 to tumble. So if the EU 321 is found partly on the driveway, the point of impact cannot be further ahead because the vehicle EU 321 hit DT 964 in a moving motion and as such EU 321 moved forward and not backward. This obviously suggests that the point of impact was at the driveway and substantiates what the plaintiff's eye witness had described to the police to be so.
    10. The officer also told the court that he drew the point of impact but cannot tell how the point of impact was arrived at since it has been a long time when he drew the plan and that there was nothing in writing to indicate how he had picked up the point of impact.
    11. I am also surprised when the officer said that the brake marks are wheel marks of the vehicle but the impact cannot be within the brake marks. Where else would it be then? The officer just refused to accept the obvious because of his evasiveness when he was being cross examined. His evidence is cynical.
    12. Later under cross examination the officer stated that the point of impact had fallen debris of mud. It was then viciously put to him that he made up the evidence that he drew the point of impact because he saw the mud debris. The officer then replied that he attends a lot of accident and the mud debris is almost there in most accidents. He would have forgotten to write about the mud debris. I conclude from his this evidence that he has stereotyped his evidence when he said that most accidents have mud debris and so this one would have had mud debris as well for him to find a point of impact. In any event, the point of impact is inconsistent with the brake marks and outside the brake marks which is impossible in my finding. Furthermore, the positioning in which the EU 321 was found also explains that the point of impact as shown in the rough sketch plan cannot be correct.
    13. I have to reiterate that this officer cannot possibly say how the accident has happened. If anything he can do, is to show and/ or depict the state of affairs after the accident. This officer himself said that the collision could have occurred either in the middle of the road or further to the right hand side of the road. In my judgment, he can only make his observations and not a finding.
    14. The police officer also inconsistently stated that the impact indicates that the driver of LTA vehicle was making a U-Turn. He then later changed and said that he does not know what the LTA driver wanted to do. I can do no better than asking a simple rhetorical question of: how does this officer know of the intentions of the driver of DT 964 at the time? There is obviously nothing at the scene to indicate the motive of the driver of DT 964 then?
    15. Succinctly, I have to state that I do not accept the evidence of the plaintiff and his witnesses on their description of how the collision occurred. For the plaintiff, 3 people had given evidence of how the accident happened and I have rejected the evidence of the three people as of against the evidence of the defendant who is the remaining person who also gave evidence of how the accident happened. Quantity of witness does not matter and cannot override the truth. This is a clear case of such a situation.
    16. The 1st defendant testified that he wanted to turn into the driveway and go to a compound, turn around and return to Labasa. He looked at his side vision mirror saw the subject vehicle far away and so upon giving a right indicator he had turned into the driveway when he heard the tooting sound and the tyre scratch noise when he was hit. This is exactly how Mr. Saten Prasad had told the police on how the accident had happened. Further this statement of the defendant is substantiated by the surrounding circumstances of the accident which I have mentioned above, in particular, my finding that the point of impact is on the driveway leaving the rear of EU 321 partly on the driveway, the 13 meters brake mark towards the right indicating the speed at which EU 321 was travelling and the distance from which it saw the DT964 being a distance behind the bus and not when it was overtaking, the tumbling of DT 964 and the extent and place of damage sustained to it indicating the speed of EU 321. I have no reason and hesitation is accepting the evidence of the 1st defendant and I also accept it to be a true and credible account of how the accident has happened.
    17. Mr. Sen had indicated that the 1st defendant had retracted from his statement to the police. The 1st defendant had told the police that:-

" ... I was transporting LTA surveyors to board the Patterson Bus to go to Nabouwalu, at Qelewaqa stress I overtook the bus and signaled to the pull over and offload. I stopped the vehicle infront and the bus stopped from the rear. All my passengers got off. I then pull in to the lane after checking my side mirror and I could see a vehicle coming from the back towards Seaqaqa. The vehicle was quiet far from the bus and where I was and I decided to turn into the driveway on the other side of the road. I was about to turn into the driveway after giving my trafficator to do so, when I can hear a horn and a breaking sound of a vehicle. My vehicle tumbled after being hit and landed on its roof. I crawled out of the vehicle after a few minutes an LTA vehicle picked me from the scene and convey me to the hospital..."


The 1st defendant was being vigorously cross examined that when his memories were fresh and he had related the incident to the police, he had told the police that the accident happened when he was about to turn into the driveway. The 1st defendant testified that he told the police that he meant that he was into the driveway.


I do not find that the 1st defendant has changed his testimony. He has maintained his testimony that he was into the driveway. His informed the police officer who recorded the statement that he was into the driveway and that is what he meant.


In any event even if the 1st defendant was about to turn into the driveway, then the EU 321 should have seen the DT 964 as the driveway is at the extreme side of the right hand side of the road. The presence of DT 964 would have been noticeable from a far distance.


The police officers recording of the 1st defendant's statement has many errors as one can notice and I do not think that the police officer at the time of recording the 1st defendant's statement would have appreciated the accuracy of recording the statement. This change is insignificant and unlike the evidence of the plaintiff and Mr. Saten Prasad, is not a total change of the evidence with no explanation why there was such total change.


I find the evidence of the 1st defendant credible and consistent, his demeanour and deportment to have substantiated his honesty. I accept his version of how the accident has happened.


  1. The 1st defendant had obviously turned into the driveway when he was hit. I reiterate there was nothing that the 1st defendant could have done to avoid the accident. On the other hand I find it absolute negligence on the part of the driver of EU 321 which caused the accident in that:-
    1. Having noticed a vehicle on the driveway, the EU321 should have slowed down or stopped to allow the DT 964 to complete the tour.
    2. If EU 321 thought that overtaking was safe then it should have overtaken with due care, attention and diligence by going past the bus without having to go on the right hand side of the road thereby causing the collision.
    1. EU 321 was definitely driving at an excessive speed and I accept the defendant's version of the speed to be 120 kmph and not 50-60 kmph. The excessive speed can be inferred from the 13 meters brake mark, the collision in itself causing the impact and the vehicle DT 964 to tumble and be written off. Even if EU 321 was driven at a speed of 50-60kmph, it was excessive in the circumstances I have explained above and especially when it was overtaking a parked bus.
  2. I do not find any negligence on the part of the 1st defendant at all. However there is absolute and sole negligence on the part of the driver of vehicle registration number EU 321. The plaintiff's choice of the defendant is wrong, but my duty is to determine the matter at hand and do what is just and fair in light of the evidence before the court.
  3. I do not find the 1st defendant negligent and as a result, the 1st defendant and consequently the 2nd defendant are not liable for any claim in negligence against the plaintiff. The plaintiff's case must be dismissed and I do so now.
  4. The plaintiff has pleaded res ipsa loquitor. In light of my findings on the facts of the case, the doctrine of res ipsa loquitor does not apply.

The Costs


  1. I am firmly of the view that the bringing of the plaint against the driver of the vehicle registration number EU 321 was by choice of the plaintiff. Only the 1st defendant was sued and on the balance of probability the plaintiff has not proved its case against the 1st defendant and consequently the 2nd defendant. The defendants are entitled to costs which I have powers to summarily assess under the High Court Rules 1988.
  2. I do not lose sight of the fact that this was a 3 day trial with the defendant having to contest the matter with two persons travelling from Suva, being Dr. McCaig and the 1st defendant. Money surely would have been spent in travelling from Suva.
  3. Further, this matter was heavily contested in terms of liability. Mr. Ram surely would have had to do enormous preparation and has spent a lot of time in court. He has also been very thorough in cross examination and underwent a painstaking exercise of submitting his closing submissions.
  4. The plaintiff's counsel Mr. Sen had himself asked for costs of $6,000.
  5. I therefore summarily assess costs in the sum $3,500 in favour of the defendants.

Final Orders


  1. The plaintiff's claim is dismissed.
  2. The plaintiff is ordered to pay costs to the defendants in the sum of $3,500.
  3. Orders accordingly.

Anjala Wati
Judge
1.06.2011
At Labasa
To:

  1. Mr. Amrit Sen of Maqbool & Company, counsel for the plaintiff.
  2. Mr. Adrian Ram of Gibson & Company, counsel for the defendants.
  3. File HBC: 43 of 2007.

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