State v Lovo [2009] FJMC 7; Traffic Case 31.2009 (24 September 2009)

IN THE RESIDENT MAGISTRATES COURT
CENTRAL DIVISION, SUVA

Traffic Case No. 31 of 2009

STATE

V

AVIUTA LOVO

Prosecution: Corp. Yasin, Police Prosecutor
Accused: In person

Date of Hearing: 25 August 2009
Date of Ruling: 24 September 2009

JUDGMENT

[1] The Accused, Mr Aviuta Lovo, has been charged with Careless Driving contrary to s 99(1) and 114 of the Land Transport Act.

[2] The hearing of this charge was held on 25th August, 2009, with the Accused representing himself. The Accused was cautioned by the Court concerning the onus of proof being on the State and his right to remain silent, and on that basis the Accused chose not to give evidence.

[3] The State called three witnesses, being the complainant Mr Avinesh Chand [PW1], his passenger Mr Anendra Prasad [PW2] and the investigating officer PC 3254 Lote Vunibaka [PW3].

[4] The Prosecution tendered the following as exhibits, each of which was identified and authenticated by PW3:

Exhibit 1(a) Rough Sketch Plan

Exhibit 1(b) Fair Sketch Plan

Exhibit 1(c) Key to Fair Sketch Plan

Exhibit 2 Record of Interview of Aviuta Lovo dated 28/9/2008

The Evidence

[5] The evidence given by PW1 was that he was driving on Marine Drive (the main road) from Suva in the direction of Navua on 28 September 2008. He was driving a company van and had passengers with him. There was an accident with the Accused’s taxi just past the Vugalei bridge.

[6] The accident occurred when a taxi headed towards Suva parked on the right side of the road in the single lane there, one taxi stopped at the rear of that taxi, but a third taxi could not stop and pulled towards PW1’s side of the road. The third taxi was coming from Lami towards Suva.

[7] PW1 said he stopped his vehicle, and the third taxi came and hit him.

[8] He identified Exhibit 1(a) as the rough sketch plan prepared by the police in his presence. He identified the Accused as the driver of the taxi involved in the accident.

[9] On cross examination by the Accused, PW1 said he didn’t see any lights on the taxi that bumped him and he didn’t remember the Accused asking him one question after the accident. He also denied that the taxi reversed prior to the collision. He said the taxi tried to reverse back to its own side after bumping him.

[10] PW1 said the driver’s side of his vehicle was damaged in the accident.

[11] In cross examination it was put to PW1 that he didn’t slow down and he cut the Accused’s corner, and that if the accident had happened as he described it there would have been a head on collision.

[12] PW1’s response was that the Accused was moving right trying to get back on his own side when the collision occurred.

[13] The evidence of PW2 corroborated that of PW1. He said he was the front passenger in the company vehicle, and he saw the Accused’s taxi overtake the vehicle that had stopped and come onto the wrong side of the road. He said the vehicle that stopped was on the tarseal road, and there was no room to overtake.

[14] He said it was raining at the time, and that when PW1 braked the vehicle slid forward.

[15] PW3 was the traffic officer who attended the scene of the accident. He said the Accused did not dispute the rough sketch plan he prepared at the scene.

[16] He said there was a double line in the middle of the road, meaning no overtaking, and that the taxi was half on the lane heading towards Navua. He said there were footpaths on each side of the main road.

[17] PW3 said he conducted the caution interview of the Accused, and identified the same, which was tendered as Exhibit 2. The Accused objected to the caution interview being admitted into evidence but admitted he answered the questions of his own free will. The basis of the Accused’s objection was that he claimed he was told the passengers wouldn’t be witnesses in court. The Court notes that in the Caution Interview itself the Accused answered no when he was asked if he gave the statement of his own free will, but since the Accused admitted in the court room that the police had not pressured him to answer and he had answered their questions of his own free will, the Caution Interview is admissible.

[18] On cross examination PW3 said that the taxi was not straight and the collision was not head on but corner. He said there were no brake marks from the other vehicle.

[19] PW3 also said the taxi passengers had left the scene before he arrived and that is why they were not called as witnesses or their statements taken.

The Sketch Plan

[20] The Prosecution tendered the Rough Sketch Plan drawn by PW3 as Exhibit 1(a). The Fair Sketch Plan was tendered as Exhibit 1(b).

[21] The Rough Sketch Plan shows the Accused’s vehicle as being mostly on the side of the road headed towards Lami or Navua. The front of the Accused’s taxi is 10.4 m from his correct side of the road and only 1.6 m from his wrong side of the road, while the rear is 3.3 m from his correct side of the road and 2.4 m from the wrong side of the road. The double line is 3.5 m from his correct side of the road.

[22] The Accused’s taxi is clearly on the wrong side of the road as per the Rough Sketch Plan. However, the Accused while cross examining PW1 stated that he reversed before the accident, while PW1 said the Accused tried to reverse back to his side of the road after the accident. It is the reversing of the Accused’s vehicle that explains the unusual angle of the Accused’s vehicle in the Rough Sketch Plan. The damage to PW1’s vehicle was on his driver’s side, not head on.

[23] The Court is entitled to infer from the evidence before it that the Accused’s vehicle was not on its correct side of the road at the time of the collision but may have been at a different angle at the time of impact from that shown on the Rough Sketch Plan.

The Caution Interview

[24] The Accused’s Caution Interview was admitted into evidence over his objection as Exhibit 2.

[25] The Accused gave the following explanation of the accident at Q.13 of the Caution Interview:

"I was following a taxi driving on Jim and a taxi all of a sudden stop in front of Jim taxi at Vugalei. Then Jim stop and I swerved to the right to avoid it and I on the hazard light and reverse back to my lane. At the same time a carrier was coming near the 2 palm tree on his lane left side. He just drove on and bumped me without stopping or braking."

[26] At question 17 the Accused said he didn’t stop on his lane to avoid the accident because the front taxi stopped without giving signal and also Jim’s taxi.

[27] At question 18 the Accused said his taxi was 5 meters from Jim’s taxi.

[28] At question 21 the Accused stated that he had put on his hazard light and moved to the opposite lane.

Submissions

[29] The Accused chose not to give evidence, but he did make submissions. He submitted that he pulled to the right to avoid an accident with the vehicle in front of him, which had stopped suddenly without giving any signal. He said there was room for the Complainant to have stopped, and that he put his hazard lights on.

[30] The Prosecution submitted that the Accused should have stopped behind the taxi in front of him, that it was only 5 meters to the vehicle in front of him and that the Accused couldn’t pull to his left due to the footpaths.

[31] The Prosecution also submitted that the Accused pulled onto the wrong side of the road in an area with a double line meaning no overtaking.

Analysis of the Evidence

[32] It is abundantly clear from the evidence before this Court that the accident occurred because the Accused swerved onto the wrong side of the road to avoid hitting the taxi in front of him. The Accused told the traffic investigator that there was only 5 m between him and the taxi in front.

[33] The Court does not accept the Accused’s claim that PW1 did not stop or brake his vehicle. PW1 gave evidence that he stopped his vehicle. PW2 said when PW1 braked the van slid forward. The absence of a brake mark is not significant given that the road was wet from rain and PW1 was only travelling at 40 kmph.

[34] PW1 and PW2 were credible witnesses. PW2 was in the front passenger’s seat and had a good view. He said that PW1 was going 40 kmph, they turned the bend, he saw oncoming car 10 meters away, that car stopped, and the taxi came from behind it.

[35] PW2 said that as soon as he saw the first car, the taxi came towards the wrong side of the road and overtook.

[36] This is consistent with PW1’s evidence that he saw a taxi parking on the right side, he saw two other taxis, one stopped at the rear of the but the third taxi could not stop and pulled towards PW1’s side of the road.

[37] It has to be remembered that at a speed of 40 kmph a distance of 10 meters would be travelled in less than a second.

[38] The Court concludes that there was not sufficient time for PW1 to stop as alleged by the Accused.

[39] The Rough Sketch Plan, Exhibit 1(a), clearly shows the Accused’s taxi on the wrong side of the road.

[40] PW3 gave evidence of a double line, meaning no overtaking, at the scene of the accident.

[41] The Accused claimed that he had swerved left to avoid bumping the taxi in front of him, and had then started to reverse back to his side. Given the speed the Accused was travelling at according to his own statement to the police, it hardly seems likely that he had time to swerve right, stop and then reverse before the collision.

[42] Regardless of whether the Accused started to reverse before the collision or afterwards, as claimed by PW1, the Accused overtook the vehicle in front of him and drove on the wrong side of the road. He did so to avoid hitting the vehicle in front of him, and in so doing caused the accident with PW1 instead.

The Law on Careless Driving

[43] Careless Driving is defined by s 99 (1) of the Land Transport Act as driving "on a public street without due care and attention".

[44] The test for careless driving is stated in the case of Khan v State, High Court of Fiji Criminal Appeal No. 1 of 1994 (21 October, 1994) as follows:

"In order to determine whether the offence of careless driving is committed, the test, as LORD GODDARD C.J. said in SIMPSON v PEAT (1952 1 AER. 447 at p.449) is: "was D exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances?"

The standard of proof is an objective one . . . "

[45] In that case the High Court discussed the degree of care required of someone overtaking or travelling on the wrong side of the road:

"In DILIP KUMAR s/o Uttam Ram v REGINAM Cr. App. No. 102/73 GRANT Acting C.J. (then) said:

"A driver who is overtaking is executing a hazardous manoeuvre which imposes upon him the highest duty of care. He is, almost invariably, encroaching on his incorrect side of the road and accelerating while not having a wholly unobstructed view of the road ahead; and it is his responsibility to ensure that he is in a position to properly control his vehicle and to cope with any contingency that might arise without endangering other road-users."

In PLUCKWELL v WILSON, [1832] EngR 630; (1832, 5 C & P 375, 172 E.R. 1016) ALDERSON J said:

".... that the person was not bound to keep on the ordinary side of the road; but that, if he did not do so, he was bound to use more care and diligence, and keep a better lookout, that he might avoid any concussion, then would be requisite if he were to confine himself to his proper side of the road".

. . . .

The appellant travelling on the wrong side held a higher degree of care then the complainant who was on the proper course and was stationary. In McRONE v RIDING 1938 1 AER 157 LORD HEWART C.J. said:

"I think that it is not without significance that the statute uses both the word 'care' and the word 'attention'. In other words, the driver, whoever he may be, experienced or inexperienced, must see what he is about. He must pay attention to the thing he is doing, and, perceiving that which he is doing or entering upon, he must do his best, and he must show proper care in the doing of that thing upon which he is intent . . there is one standard only. 'Due care and attention' is something not related to the proficiency of the driver, but governed by the essential needs of the public on the highway."’

[46] We refer to the case of State v Singh, Suva Magistrates Court Traffic Case No. 1671 of 2005 (18 July 2006), in which the learned Magistrate Mr Ajmal Khan acquitted an accused of careless driving as follows:

"On 5th day of October 2005 the accused stopped at the junction of Alexander Street and Rewa Street to turn right. The approaching vehicle gave her way to turn. The complainant overtook the parked vehicle and moved forward to collide into the vehicle of the accused. It was a single lane road and the complainant was traveling straight going towards Milverton Road.

The complainant was also charged and he pleaded guilty to careless driving. The prosecution also charged the accused in this case for careless driving.

. . .

On the present facts I find the accused did not fall short of an expected prudent driver.

Further more, the complainant in this case is the one who had created the risk and the fault on the road. Had he not disobeyed the road rules, there would have been no accident."

[the emphasis is ours]

[47] In that case, the Court found that the driver overtaking the stopped or parked vehicle was at fault. Here there is no question of the complainant making a right turn, only of the Accused overtaking the taxi that stopped by going onto the complainant’s side of the road.

[48] That the Accused did so overtake in order to avoid hitting the taxi in front of him does not absolve him of blame for the accident. As noted above, any driver going onto the wrong side of the road is bound to use more care and diligence.

[49] Further, had the Accused been driving with due care and attention, he would have left sufficient space between his vehicle and the one he was following to stop suddenly if such a contingency arose.

[50] We refer to the case of State v Ravula, High Court of Fiji Criminal Appeal No. HAA 40 of 2004 (30 June 2004), in which the Honourable Mr Justice Winter held that an incident involving a driver who swerved to avoid a bus pulling out and lost control of his vehicle in rainy conditions was barely dangerous driving and in reality careless driving. He noted that the incident was created by the bus but continued by the driver’s lack of skill.

[51] Although that appeal focused on the partial disqualification granted by the lower court, there is some similarity to the circumstances of this case. Here the incident was caused initially by the sudden stopping of the first and second taxis but continued by the Accused choosing to swerve onto the wrong side of the road instead of stopping.

[52] The Court finds that the Accused Aviuta Lovo did not drive with the due care and attention of a prudent and reasonable driver in the circumstances. The Accused was following too closely behind another taxi. When that taxi stopped suddenly, the Accused was unable to stop his vehicle and so swerved onto the wrong side of the road to overtake despite there being a double line prohibiting overtaking and an oncoming vehicle.

[53] The Accused’s overtaking occurred suddenly and in wet road conditions. PW1 was only 10 meters away and PW1 was unable to stop in time. It is the Accused who went on the wrong side of the road. As such, the Accused had a high duty of care to the other road users.

[54] The Court finds that the State has met its burden of proof beyond reasonable doubt as to the Accused’s careless driving. The Court finds the Accused Aviuta Lovo guilty and convicts him of Careless Driving contrary to s 99(1) of the Land Transport Act.

DATED this 24th day of September, 2009

Mary L Muir
RESIDENT MAGISTRATE, SUVA