State v Bulivorovoro [2006] FJMC 30; Traffic Case No 1629 of 2005 (16 November 2006)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Traffic Case No. 1629 of 2005

STATE

V

SAKIUSA BULIVOROVORO

Before Ajmal Gulab Khan Esq
Resident Magistrate

Date of Hearing; 05/10/06
Date of Judgment: 16/11/06

Prosecution: Mr S Gosai
Defence: Mr T Terere.

JUDGMENT

The accused has been charged with one count of Dangerous Driving occasioning death and one count of Dangerous driving occasioning grievous bodily harm contrary to S97(1) and S97(3) of the Land Transport Act.

The facts are undisputed. On 29th April 2005 the accused was driving his 3 tonne truck No. DS253 down Edinburgh Drive. He was following a bus downhill and tried to slow down. His brakes were loose and he couldn’t stop or slow down. He saw a wall and trees to the left side. On his right was an empty space but another bus was coming uphill about 6 meters away. He swerved into the oncoming bus and came to a halt at the curve on the right side.

His vehicle was extensively damaged. The on coming bus suffered damage to its front left. The accused carried bags of root crops to sell at the market. Upon collision the bags were thrown on his passengers and consequently Nakosi Koroi died. Three others Isau Vukivou, Jone Yavu and Savaiva Wati suffered grievous bodily harm.

The defence did not dispute any facts except they say the cause of the accident was mechanical failure of the brakes and not within the control of the driver.

The Prosecution says it was his excessive speed and incorrect judgments on the road which led to the collision.

The question to determine is whether it was the defendant’s fault and in decision that led to the collision or was it outside the driver’s control?

The crucial evidence was of the expert witness, the LTA vehicle examining officer. He said the vehicle was badly damaged and he couldn’t test the brakes. To do so needed the engine to be on and it couldn’t start as the engine was badly damaged. It had preumatic brakes which fills with air on start of engine to be tested.

However, he said the fluid brake could be detected. The fluid pipe was broken on impact and when brakes were pressed the fluid flow could tell him the brakes were working.

Even if much reliance cannot be placed on this test. The vehicle showed tyre marks on road measuring 22.8 m which belonged to the vehicle of the accused. The examiner said if the brakes were defective, it would not leave any tyre marks.

Further more, the vehicle was over loaded with root crops and excessive passengers. A 3 tonne truck is permitted 3 passengers but he had 13. This overloading puts extra pressure and delays efficient braking or stopping of the vehicle.

The accused also stated he did not go to the left which was his correct side as he saw stone wall and trees on this side. He opted to go on his right after crossing a double lane in the middle.

The road has two lanes each going down and up the Edinburgh drive. When he turned to the right lane he saw a bus coming towards him about 6 - 10 meters away. He collided and went to the right curve to stop.

Given the situation if his brakes did fail, it would have been more prudent to go on the left wall and on his correct side in order to stop the vehicle. By choosing to go right he was putting his truck and passengers into greater danger particularly as a bus was coming from the opposite direction.

The defendant also explains in his caution interview and in cross examination that after deciding to turn right he speeded up to avoid the bus collision but could not prevent the accident. The speeding up was an added force to the impact which could have caused greater damage.

I am inclined to accept the version that if there was some mechanical failure of brakes, the accused has shown error of judgment as a prudent driver and was responsible for the collision that resulted.

However, the expert evidence is accepted that the brake fluid flow showed the brake was in working condition prior to the impact. Also the brake marks of such length indicate brake was working. The defendant’s explanation that he speeded up to avoid the bus also shows the risk he took and created a situation which was a fault in his manner of driving.

I am satisfied beyond reasonable doubt that it was his dangerous manner of driving which caused the incident and the injury which resulted.

The rest of the elements have been admitted by the defence. I am satisfied beyond reasonable doubt that he drove dangerously. I therefore find the accused guilty on both counts as charged.

Dated this 16th day of November 2006.

Ajmal Gulab Khan
RESIDENT MAGISTRATE