Hussein v Prasad [2011] FJHC 705; Civil Appeal 03.2011 (4 November 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CIVIL APPEAL NO. 3 OF 2011
(Magistrates Court Action No. 123 of 2007 at Labasa)

BETWEEN:

KAMAL HUSSEIN
First Appellant

AND:

PARMOD ENTERPRISES LIMITED
Second Appellant

AND:

HIRDESH PRASAD
Respondent

Mr A Kohli for the Appellants
Mr S Prasad for the Respondent

JUDGMENT

This is an appeal against the decision of the Resident Magistrate sitting in Labasa. The learned Magistrate found the First Appellant liable in negligence for the injuries suffered by the Respondent. It appears that the Magistrate made a finding of negligence against the Second Appellant. He also found the Second Appellant vicariously liable for the negligence of the First Appellant. The issue of quantum has not yet been dealt with by the learned Magistrate.

The background facts and the evidence were discussed in some detail by the learned Magistrate. I shall refer to the facts discussed by the learned Magistrate that are relevant to this appeal.

On 22 January 2007 at Korovatu near Labasa, a bus registered number AU190 owned by the Second Appellant was being driven by the First appellant. Whilst the bus was ascending Laulau Hill en route to Labasa town its engine "went dead" or stopped. It was apparently not disputed that the engine stopped or went dead when the First Appellant attempted to change gears about "midway up hill". The First Appellant managed to hold the bus stationery for a short period. At his request some passengers got off to look for stones to put behind the tyres to prevent the bus rolling back down the hill. Then the First Defendant tried to restart the bus. The engine did not respond. The bus then started to roll downhill for about 50 metres and came to a stop in a gully at the bottom of Laulau Hill. As a result the Plaintiff and most of the passengers suffered injuries and one passenger died.

It would appear that the injured passengers were conveyed to hospital. More significantly, before the bus could be examined by either the Police or officials from the Land Transport Authority(LTA) at the place where it had come to rest, employees of the Second Appellant had recovered the bus and taken it to Vulovi. It was there that the bus was subsequently inspected later the same day by Police and an Officer from the LTA.

The learned Magistrate found as a fact that for some time prior to the incident a number of passengers had noticed that smoke was coming from the bus. There was evidence that the driver had difficulty engaging gears after picking up passengers. They noticed that the bus did not move when the First Appellant engaged first or reverse gear. There was evidence that the First Appellant had to bend down and manually pull the clutch pedal. There was evidence that the passengers complained to the driver and requested him to either call for a replacement bus or wait till a mechanic could come to check the bus. There was evidence that the First Appellant rejected the request and insisted that he would continue the trip, driving slowly to Labasa where he would get the bus checked at a garage. It is quite clear that the learned Magistrate accepted this evidence.

The learned Magistrate found that, as the First Appellant was ascending Laulau Hill in second gear, he tried to change down to first gear. When the First Appellant pressed the clutch pedal it did not return to place and the engine in fact stalled and stopped running. The driver tried to restart the bus but was unsuccessful. The bus then started to roll down the hill. There was no dispute in the evidence that the First Appellant then applied the footbrake. Although there was conflicting evidence the learned Magistrate concluded that the First Appellant had applied the emergency hand brake. I take this to be a reference to the hand brake. It did not stop the bus from rolling down the hill.

At page 24 in paragraph 75 the learned Magistrate stated:

"AU 190 (the bus) rolled back and eventually ended up in the gully. Reddy (LTA inspector) later examined AU 190. He did not find anything wrong with the brake system. He formed the view that Hussein (the First Appellant) did not apply the emergency brake. But Hussein did apply the emergency brake. There is no evidence as to why the brake did not work. When Reddy examined and road tested AU 190 later – he found no obvious sign of any malfunction in the brake system. This, in my view, is reason enough to apply the doctrine of res ipsa loquitur on the evidence of this case."

It is not clear from the learned Magistrate's findings whether the doctrine was to be applied in respect of the claim against the First Appellant as driver and/or against the Second Appellant in its personal capacity as owner, as distinct from its vicarious liability as employer.

There is one further finding to which reference should be made. A witness (Pranil Sharma) employed as a mechanic by the Second Appellant gave evidence about the removal and repairing of the transmission clutch rod. The Magistrate found that the rod was bent and not broken when Reddy examined it. He then continued in paragraph 86 by noting:

"_ _ _. Had I found that the rod was broken, I would have analysed it in the following way: There is a strong prima facie evidence raising a presumption of negligence applying the principles of res ipsa loquitur. The onus is on the Defendants to rebut it. The rod was found to be broken. No evidence is offered as to what caused it to break."

In relation to his finding that the rod was only bent he stated:

"(87) _ _ _. There was nothing in anything that any of the Defendant's witnesses said that even attempts to explain why the rod was bent. Perhaps it cannot be explained. Again, this, in my view, is yet another factor which will go towards the application of the doctrine of res ipsa loquitur in this case."

There was the evidence of the bus having been removed from the scene of the incident by employees of the Second Appellant. On this matter the learned Magistrate made the following comments:

"(81) _ _ _ what Sharma and his colleagues did in effect was a tampering with AU 190 which was an exhibit. That totally undermines the integrity of the whole case of the defendants and the credibility of their witnesses.

(82) I have taken into account that there was a good 4 hours or so between the time the accident happened at about 9.30am to the time Reddy examined the bus at Vulovi which was at about (2.30pm to 4.00pm according to his statement to Police). One can only wonder what the 2nd Defendant's employees and agents were doing with the bus".

After discussing the principles that relate to the application of res ipsa loquitur, the learned Magistrate concluded at paragraph 108:

"It has not been suggested by the Defendants that these things could happen without negligence. The Defendants have failed to rebut the inference of negligence, and I find them, having control and management of AU 190, liable for the resultant injuries and loss suffered by the Plaintiff."

However it is apparent that, in finding the Appellants liable in negligence, the learned Magistrate also relied upon other findings that were open to him on the evidence. At paragraph 89 he touched upon an issue that in itself constituted a breach of the duty owed by the First Appellant as driver of the bus:

"It might be argued that Hussein should have stopped AU 190 in Korovatu and either call for a replacement bus or for a mechanic right there and then. His insistence on proceeding to town resolving to take (the bus) in for repairs as soon as the passengers disembarked in town more or less established at least that he knew (the bus) had problems worthy of a mechanic's attention."

And then in paragraph 107 the learned Magistrate concluded:

"The bus driver, Hussein, clearly owed a duty of care towards all passengers. By insisting on driving AU 190 to town regardless of the early warning signs and especially with the knowledge that he would have to take AU190 in that condition with all the passengers up the steep Laulau Hill, he took a risk the magnitude of which he most probably underestimated."

In my judgment the conclusion in paragraph 108 indicates that the learned Magistrate has concluded that the First Appellant and the Second Appellant were both personally negligent.

In paragraph 113 the learned Magistrate found that as the First Appellant was driving the bus in the course of employment, the Second Appellant was as a consequence vicariously liable.

The Appellants filed a notice of appeal and on 8 April 2010 filed the following grounds of appeal:

"1 That the learned Magistrate erred in law and in fact when he came to a conclusion that the doctrine of res ipsa loquitur applied in this case.

2 That the Learned Magistrate failed to take into consideration all the evidence of the defence witnesses.

3 That the Learned Magistrate failed to take into consideration the material contradiction in the evidence of the Plaintiff's witnesses.

4 That the finding of the Learned Magistrate is against the weight of evidence given in the Court."

The appeal was listed for hearing on 1 June 2011. On that day Counsel informed the Court that they wished to proceed by way of written submissions. A schedule for the filing of written submissions was agreed to by Counsel. The Appellants filed written submissions on 20 June 2011. The Respondent filed answering submissions on 14 July 2011. By letter dated 26 September 2011 Counsel for the Appellants advised the Court that the Appellants did not intend to file any submissions in reply.

In his written submissions Counsel for the Appellants indicated that grounds 2 and 3 were abandoned.

Ground one (1) of the grounds of appeal is in my judgment the substantive ground of appeal. The Respondent's amended Statement of Claim filed on 6 November 2008 is an appropriate starting point.

In paragraph 5 the Respondent alleged that the First Appellant drove, managed and controlled the bus so negligently, carelessly, dangerously or recklessly that he permitted or caused the said vehicle to roll down the hill and fall in the drain causing injuries to the Respondent.

In paragraph 6 the Respondent alleged that the accident was caused by the negligence of both Appellants. Particulars of negligence in respect of both Appellants were then alleged in some detail.

In paragraph 8 the Respondent pleaded that the Second Appellant was vicariously liable for the action of the First Appellant and was also liable for its own negligence. In paragraph 2 the Respondent had pleaded the necessary allegation to establish vicarious liability in that it was alleged that the First Appellant was driving the bus in the course of employment for the Second Appellant as servant and/or agent.

The Respondent also pleaded in paragraph 7:

"The Plaintiff will rely upon the doctrine of res ipsa loquitur (on the fact as evidence of negligence that the bus was under the control of the First Defendant who caused the bus to roll down the slope thereby injuring the Plaintiff)."

The ground of appeal states that the Magistrate erred when he concluded that the doctrine of res ipsa loquitur applied in this case. It must be inferred from this ground that the Appellants are claiming that the conclusion that res ipsa loquitur applied was the basis of the finding of negligence against the Appellants. In other words, but for the doctrine of res ipsa loquitur, the learned Magistrate could not have made a finding of negligence against the Defendants.

I accept that the learned Magistrate has made reference to the doctrine and does appear to have placed reliance on the doctrine in reaching his findings of negligence. However, it is quite clear that not only was there direct evidence of negligence against the First Appellant but also that the learned Magistrate by referring to that evidence in his decision must be taken to have based his findings of negligence in part on that evidence.

I need only refer to what appears to be the uncontradicted evidence before the Magistrate that on at least two occasions the First Appellant was asked by passengers to stop the bus and either call for a replacement bus or a mechanic. The evidence before the Magistrate was that these requests were made on the basis of the genuine concerns of the passengers. Those concerns were founded on their observations of smoke coming into the bus and the difficulty the driver experienced in engaging gears, his difficulty in using the clutch and his difficulty in managing to move the bus either forward or in reverse from a stationary position. The driver refused their requests. I have no hesitation in concluding that in doing so the First Appellant fell well below the standard expected of a prudent passenger bus driver exercising reasonable care. That finding alone is sufficient to establish negligence on the part of the First Appellant and vicarious negligence on the part of the Second Appellant.

I am by no means satisfied that the learned Magistrates made findings of negligence against the Appellants based on res ipsa loquitur alone. It is, as a result unnecessary to consider this ground any further and it is therefore rejected.

Ground 4 relates to the weight attached to the evidence by the learned Magistrate. The submission made by Counsel for the Appellants on this ground is extremely brief and is concerned only with the evidence relating to the rod and whether it was bent or broken. It is apparent from both the learned Magistrate's notes and from his decision that there was a considerable amount of evidence before the court that was relevant to the particulars of negligence pleaded in the amended Statement of Claim. The weight to be attached to the evidence was a matter for the Magistrate. Assessing what evidence should be accepted or preferred in reaching conclusions and making findings was a matter for the learned Magistrate and him alone.

It is apparent that the Magistrate accepted the evidence relating to the passengers who requested the First Appellant to stop the bus and call for a replacement bus or a mechanic. Those requests were based on the presence of smoke coming from the bus and the obvious problems concerning the clutch and engaging first and reverse gears. The Magistrate accepted that the First Appellant refused the request whilst at the same time being aware that his trip involved ascending a steep hill. It was whilst the bus was ascending the hill that the First Appellant attempted to engage a lower gear. In doing so he encountered the same problems that had resulted in the earlier requests by the passengers. The failure to effectively engage a lower gear then caused the bus to stall, the engine to stop and the bus to eventually roll down the hill. The question of whether the rod was broken or bent may or may not have given rise to an allegation of negligence but it was not a finding upon which the Magistrate needed to decide one way or the other in order to conclude that there was negligence on the part of the First Appellant. I therefore conclude that ground 4 fails.

As a result the appeal is dismissed. The Appellants are ordered to pay the costs of the appeal which are summarily fixed in the sum of $1,200.00 to the Respondent within 28 days.

W D Calanchini
JUDGE

4 November 2011
At Suva