Jas v Bharos [1969] FJLawRp 15; [1969] 15 FLR 95 (28 May 1969)

(1969) 15 FLR 95

SUPREME COURT OF FIJI

RARAM JAS

v

RAM BHAROS

[SUPREME REME COURT, 1969 (Thompson Ag. P.J^rd, 28^th May]ter">Appellate Jurisdiction

Judgment - construction of - magte's mind directed to correcorrect matters of law - assumption by appeal court that law correctly understood and applied in absence of any indication to the contrary.

Practice and procedure - pleading - Magistrate's Court - sufficiency of general traverse in Statement of Defence - Magistrates' Courts Rules (Cap 10) O.6 r.6

Court - magistrates' courts - pleadings in civil action - sufficiency of - Magistrates' Courts Rules (Cap 10) O.6 r.6

The appellant brought an action against the respondent for damage to his tractor caused by a collision with the respondent's taxi, driven by a man (killed in the collision) alleged to have been the servant of the respondent. There was evidence that the deceased man had driven the respondent's taxi on earlier occasions, but the respondent gave evidence that his employment had been terminated prior to the accident and that on the material occasion the deceased had taken the taxi without the respondent's knowledge or permission. The magistrate, in his judgment, referred to the law as laid down in Hewitt vin (pos;(post) and held, wi fiut finding specific facts, that the respondent could not be liable for any tort which the driver might have committed.

Held:

1. Tha magie had shown that that he had correctly ascertained the law law to be applied.

2. The court on appeal would assume, in the case of a professionally qualified magistrate, in the absence of any clear indication to the contrary, that he understood the law and did not misdirect himself; also that he weighed the evidence in the normal manner and decided the issue on the balance of probabilities.

In view of the summary nature of proceedings in the Magistrate's Court and the lack of formal pleadings, a general traverse of all allegations of a claim which were not specifically admitted in a Statement of Defence, was held adequate to indicate a denial that the driver was a servant or agent of the respondent.

Cases referred to:

Hewitt v Bonvin [1940] 1 KB 188; 161 LT 360; [1946] 1 All ER 339; 96 L.Jo. 108.

Appeal against a judgment of the Magistrgistrate's Court dismissing an action or damages for negligent driving.

K P Mishra for the aant.
M S SahS Sahu Khan for the respondent.

THOMPSON J: [28^th;May 1969] 969] -

This is an appeal against a judgment dismissing the appellantaim fe cost of repairipairing damage suffered by his tractor when it was in collision with the rthe respondent's taxi. The collision occurred between 8 pm and 9 pm on the King's Road near Naria. The respondent's taxi was being driven by a man named Onisi, who was killed in the collision.

Evidence was adduced by the appellant that Onisi used to drive that taxi as an employee of the respondent. The respondent gave evidence that Onisi had been employed by him only as a casual driver and that three months before the accident the number of his taxis had decreased and he had told Onisi that there was no further work for him. He said that on the day of the accident Onisi was not his servant and had borrowed the car without his knowledge while he was absent from home. He explained that he was not operating the taxi that day because it was "missing" and using a lot of fuel.

The learned trial magistrate rightly decided that, unless Onisi had been proved to be the respondent's servant on the day of the collision, the respondent was not liable for any tort which he might have committed. The judgment was, therefore, concerned entirely with the issue whether or not Onisi was driving the taxi as the respondent's servant.

He referred to the case of Hewitt v Bonv> [1940] 168 and quoted passage from the judgments of Mackinnon LJ and du Parcq LJ in that that appeal. In particular he quoted the following passage from du Parcq LJ's judgment:

"... It is plain that ownership of the car cannot of itself impose any liability on the owner. The owner, without further information, is prima facie liable, because the Court is entitled to draw the inference that the car was being driven by the owner, his servant or agent, but when the facts are given in evidence the Court is not left to draw an inference. The owner is liable if the driver had authority, express or implied, to drive on the owner's behalf. This depends, not on ownership, but on the delegation of a task or duty. Permission to drive the car is consistent with a mere loan or bailment."

He then went on to refer to evidence relevant to this issue in the following terms:

"in the present case although two witnesses called by the Plaintiff were able to say that they knew Onisi used to drive taxis for the Defendant and had seen him driving that particular car neither witness was able to say that at the time of the accident Onisi was still employed by the Defendant and was driving on his behalf, with his authority and on a task or duty. On the contrary the Defendant, in evidence on oath, stated that Onisi had taken the car that day without his knowledge or permission. He explained that Onisi had driven taxis for him but on the basis of a casual driver and further that Onisi had ceased to be in his the defendant's employment on the 10^th M966; the accident occurredurred on the 4^th June, 1966>

He did not rnot record any specific finding of fact but continued as follows:

"It is clear that the Defendant cannot be liable for any tort which mae been committed that day by the driver of the car and the the Plaintiff's claim must fail."

The first ground of appeal is:

"The Respondent/Defendant's vehicle being a commercial vehicle the learned trial Magistrate failed to direct his mind to the burden of proof cast in law on each party on proof of agency."

Mr Mishra has submitted on behalf of the appellant that the learned trial magistrate did not direct his mind to the weight of the evidence and did not make any proper finding of fact on the issue which he was deciding: and that he had misunderstood du Parcq LJ's judgment as meaning that the inference that the car was being driven by the owner's servant could not be drawn if any evidence was adduced to the contrary regardless of the credibility of that evidence.

Mr Mishra has submitted that, in view of the evidence adduced by the appellant that Onisi had previously been driving the taxi, the presumption was strengthened and the evidence of the respondent, who failed to produce the taxi's record of journeys, was not sufficient to rebut it.

This is essentially a matter of the weight to be accorded to the evidence of the respondent. Undoubtedly his evidence needed to be of some considerable weight to prevent the inference being drawn that Onisi was driving as his servant. It is unfortunate, therefore, that the learned trial magistrate did not adopt the course normally taken of stating clearly and unambiguously his findings of fact and the reasons for them.

Learned counsel for the respondent has submitted that there was no need for the magistrate to record his findings of fact and that he must be presumed to have made findings of such a nature as could properly form the basis for his statement that it was clear that the respondent "cannot be liable for any tort which may have been committed that day by the driver of the car." He referred to the case of Norman v King&#1 hrea href="http://www.paclii.org.vu/cgi-bin/LawCite?cit=%5b1946%5d%201%20All%20ER%20339" title="View LawCiteRecord">[1946] 1 All ER 339 as an authority forpropositposition that it is for an appellant to satisfy the court that a judge, or magistrate, has misdirected himself and that, if the court is left in any doubt, it should adopt a benevolenttruction of the judge's lans language so as to support his judgment. In that case Lord Greene MR said:

"The language of the arbitrator is not clear, but it is, to my mind, certainly very far from establishing with any certainty that he was misdirecting himself."

The same can well be said of the present case.

The learned trial magistrate has, by quoting certain passages from the judgments in , shown thwn that he has correctly ascertained the law to be applied. This Court must, I consider, in the absence of any clear indication that he has misunderstood, or misdirected himself upon, that law, assume that he has understood it correctly and has not misdirected himself. It must assume that, as a professionally qualified respondent against the evidence adduced by the appellant, taking into account the inference to be drawn in the absence of any acceptable evidence of the circumstances in which Onisi was driving the car on the day of the accident, and that he decided the issue on the balance of probabilities.

The appellant cannot, therefore, in my view succeed on the first ground of his appeal.

His second ground of appeal is:

"Since the dismissal of the servant and unauthorised user of the car at the time were matters especially within the knowledge of the defendant he ought to have pleaded same by way of a traverse."

Formal pleadings are not required in civil proceedings in magistrates' courts unless specifically ordered. The plaintiff did not set out his claim in a formal Statement of Claim but in a manner appropriate to summary hearing of the action. There was no affidavit of no defence under O.VI r.6 of the Magistrates' Courts Rules; consequently no affidavit setting out the grounds of defence was necessary. The so-called "Statement of Defence" filed by the defendant was not a formal pleading.

The defendant was under no obligation to state his defence before the hearing. As he chose to do so, however, he was not entitled to use his "Statement of Defence" to mislead the plaintiff and he should have traversed any allegations which he did not admit. In fact he did include in the second paragraph a general traverse of all allegations not specifically admitted. If there had been formal pleadings this general traverse would have lacked the proper particularity but, as Mr Sahu Khan pointed out, if there had been formal pleadings the plaintiff would first have set out his claim by paragraphs and the allegations in it could have been dealt with in the statement of defence seriatim in the usual manner. In view of the summary nature of the proceedings and the lack of formal pleadings, the general traverse in the "Statement of Defence" was, in my view, quite adequate to indicate to the plaintiff that the defendant denied the allegation that Onisi was his servant or agent and was not misleading.

The appellant's third ground is:

"Having regard to the circumstances of the case and especially in view of grounds 1 and 2 hereof the finding of the Learned Magistrate was against the weight of evidence generally."

The weight to be given to particular portions of the evidence depends essentially on the credibility of the witnesses. If the defendant is believed, that is the end of the matter. His evidence was not corroborated in any way; nonetheless the learned trial magistrate had the advantage not enjoyed by this Court of hearing him give his evidence and seeing the manner in which he respondent or reacted to cross-examination. I such a case it is unfortunate, as I have already observed, that the magistrate should not have followed the usual practice of reviewing the evidence and stating his reasons for his decision. However, it is clear that he must have believed the defendant otherwise he could not have decided the action as he did. That being so and in the absence of any strong reason for doing so, this Court cannot say that his decision was against the weight of the evidence.

Accordingly the appeal is dismissed. The appellant is to pay the respondent's costs, $60.

Appeal dismissed.

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