Sun Insurance Company Ltd v Qalilawa [2013] FJMC 267; Civil Action 26.2012 (4 July 2013)

IN THE RESIDENT MAGISTRATES COURT, SUVA
CIVIL JURISDICTION

Civil Action No. 26 of 2012

BETWEEN:

SUN INSURANCE COMPANY LTD

AND:

SEFANAIA QALILAWA

Mr. Katia P. for the Plaintiff
The Defendants were absent and unrepresented.

RULING ON FORMAL PROOF

1. The action, according to the Statement of Claim was founded on the basis that the Plaintiff on 23rd October 2010, being the material time, at the intersection of Gordon Street and Malcolm Street, the Defendant’s Vehicle collided into the left side of the Plaintiff’s Vehicle while executing a U-turn. The collision was caused as a result of the Defendant’s negligence.
   
2. The Plaintiff particularize the alleged negligence in the Statement of Claim as follows: That the defendant;
   
   1. Failed to keep a proper look out or to have any or sufficient regard for other road users;
      
   2. Failed to indicate the direction in which he would be turning;
      
   100. Failed to steer, slow down, swerve or control the Defendant’s Vehicle so as to avoid the Plaintiff’s Vehicle;
        
   4. Failed to apply the brakes at such time and in such manner so as to prevent the Defendant’s Vehicle from colliding into the Plaintiff’s Vehicle;
      
   5. The Plaintiff will rely upon the doctrine of res ipsa loquitur.
      
3. Plaintiff submits that by reason of the matters aforesaid the Plaintiff incurred the following expenses as a result of the collision and sought a Judgment in the sum of $4,481.29 (Four thousand four hundred and eighty-one dollars and twenty-nine cents) as per the below mentioned Particulars of Costs
   

Total Repair/replacement cost (as above)-	$4,290.04
Assessor’s Fee	$ 191.25
TOTAL-	$4,481.29

4. The plaintiff submits that the Defendant is well aware of the particulars contained herein as the Plaintiff has made demand for payment of the said sums but the Defendant has failed and/or refused to pay the said sums. Wherefore the Plaintiff sought;
   
   1. Judgment in the sum of $4,481.29 (Four thousand four hundred and eighty-one dollars and twenty-nine cents);
   2. Costs in the action on a solicitor client basis;
   100. Such further relief and orders as this Honorable Court deems fit under the circumstances.
        
5. The Defendants were absent and unrepresented. Counsel for the plaintiffs, moved that the matter to be formally proved stating that the Defendant is well aware of the particulars contained herein. And further stated that as the Plaintiff has made demand for payment of the said sums but the Defendant has failed and/or refused to pay the said sums.The court directed the learned counsel for the plaintiff to file affidavit of service at the registry prior to the date of ruling as the plaintiff only filed the acknowledgement of the service. The matter was then set down for Formal Proof.
   

Evidence, Law and Analysis

6. Order XXX, Rule 3 can apply so as to make the default judgment regular only if it is accepted that the Court entered judgment on the basis of evidence consistent with the nature of the defence and the statement of a default judgment only being regular if the Court entered judgment on the basis of evidence consistent with the claim and the nature of the Defence.
   
7. The burden lay on Plaintiff to establish that the Defendant had been negligent in his conduct in bringing about the situation of causing damages/loss to the Plaintiff. If the evidence of the Plaintiff does not show the presence of such negligent or careless conduct on the part of the Defendant, then the case for the Plaintiff fails. See Bonnington Castings Ltd v Wardlaw [1956] A.C613, Jones v. Great Western Railway. H.L. [1930] 47 TLR39], Alani v Shankar [2011] FJHC 499; HBC 80.2007 [5 September 2011]The Defendant, on the other hand, could be considered as having acted in breach of his duty of care on account of his negligence, if his conduct fell short below the standard required by law. The standard is that of a reasonable and prudent man. Jones v Great Western Railway [supra]
   
8. The principle in determining the tort of negligence was highlighted in the case of:In “Clerk and Lindsell on Torts; 19th Edition, Sweet and Maxwell (2006) at page 383 states;
   

“The duty in Negligence, therefore, is not simply a duty not to act carelessly. It is a duty not to inflict damage carelessly, since damage is the gist of the action, what is meant by “duty of care situation” is that it has to be shown that the Courts recognize as actionable the careless infliction of the kind of damage of which the claimant complains, on the type of person to which he belongs, and by the type of person to which the defendant belongs.

(i) The duty of care owed by the defendant to the plaintiff;

(ii) The breach of that duty of care by the defendant in the sense that he failed to measure up to the standard set by law;

(iii) A causal connection between the defendant’s careless conduct and the damage complained of; and,

(iv) That the particular damage to the plaintiff is not so unforeseeable or too remote.

9. Above mentioned four factors which impose liability in the tort of negligence on the defendant adopted by Justice P. Nawana in Alani v Shankar[supra]
   
10. What emerged from the evidence given by the witnesses at the hearing is as follows:
    
    • (a) The Plaintiff led the evidence of Lolesh Kanta Sharma CEO of Sun Insurance of 22 Crew Street, Flagstaff. And also produced and marked in evidence Exhibits A to F which as considered by this court.
    • (b) The witness testified that the Plaintiff was the duly registered owner of vehicle registration no. FJ 985[the plaintiff ‘’s Vehicle”.] and duly authorised to use the plaintiff’s Vehicle”. The witness further stated that on 23 October 2010, while he was driving alone he saw that the defendants ‘’s Vehicle registration no. LT 3654 (“Defendant’s Vehicle”) parked alongside the road. Further the witness testifies that when he at the intersection of Gordon Street and Malcolm Street, the Defendant’s Vehicle collided into the left side of the Plaintiff’s Vehicle while executing a U-turn.
      
    • (c) Further witness stated that the defendant should have taken caution to prevent the accident and the collision was caused as a result of the Defendant’s negligence.
      
    • (d) Witness stated where the accident took place the road was clear and he could have seen 100m vision clearly
      
    • (e) Furthermore, states that the matter was not reported to police as the defendant had admitted the liability for the collision and had given an undertaking to pay for the repaires. Witness tendered the letter as an exhibit marked the same as p[c].
      
11. The Principle of Law in Blyth v Birmingham Waterwares [1856] AER 478 (at 479), it can be cited and relied upon to explain negligence. That reads as follows:“Omission to do something, which a reasonable man guided upon those considerations which ordinary regulate the conduct of human affairs, would do; or doing something, which a prudent and reasonable man would not do.”In Wartaj Seafood Products Ltd v Ministry of Home affairs [2000] 1 FLR 200 Fatiaki J, I discussing the issue of negligence summed up the requirements for establishing a duty of care. His Lordship cited the case Caparo Industires P/c v. Dickman [1990] UKHL 2; (1990) 1 ALL E.R. 568], and stated at page 203:
    

“In deciding this fundamental issue I remind myself that: ‘the three criteria for the imposition of a duty of care (are) foreseeability of damage, proximity of relationship, and the reasonableness or otherwise of imposing a duty (and further). In determining whether there was a relationship of proximity between the parties, the court, guided by situations in which the existence, scope and limits of a duty of care had previously been held to exist rather than by a single general principle, would determine whether the particular damage suffered was the kind of damage which the defendant was under a duty to prevent and whether there were circumstances from which the court could pragmatically conclude that a duty of care existed.”

12. The burden entirely lay on the plaintiff to establish that the defendant had been negligent or careless in his conduct in bringing about the situation of causing damage to the plaintiff. see Bonnington Castings Limited –vs- Wardlaw [1956] UKHL 1; (1956) A. C 613 and Jones -vs- Great Wetern Railway H.L (1930) 47 TLR 39.
    
13. If the conduct of the defendant fell short below the standard required by the law, he is considered as having acted in breach of his duty of care on account of negligence. see Blyth -vs- Birmingham Waterworth (1856) AGR 478,Glasglow Corporation –vs- Muir [1943] UKHL 2; (1943) AC 448, London Graving Dock –vs- Horton (1951) AC 737.
    
14. In Kumar v Permanent Secretary for Health [2006] FJHC 130; Civil Action No. 45 of 2004 (20 July 2006) Pathic J stated at page 12: on matters which ought to be taken into consideration in deciding on whether there has been a breach of duty of care:-
    
15. The following passage from the judgment of Mason J in The Council of the Shire of Wyong v Shirt & Others [1980] HCA 12; (1980) 146 CLR 40 AT 47-48 .
    

"In deciding whether there has been a breach of the duty of care the tribunal of fact must, first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore, foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of provability remain to be considered with other relevant factors."

16. The following passage from the judgment of House of Lords in the case of Morgan's v. Launchbury and Others [1972] 2All ER 606 (quoted in Fiji case Ram Charan and Others v. The Public Trustee in FLR [1973] 19 p. 150:
    

"In order to fix liability on the owner of a car for the negligence of its driver, it was necessary to show either that the driver was the owner's servant or agent that, at the material time, the driver was acting on the owner's behalf as his agent. To establish the existence of the agency relationship it was necessary to show that the driver was using the car at the owner's request; express or implied, or on his instructions, and was doing so in performance of the task or duty thereby delegated to him by the owners..."

17. The Plaintiff rely upon the doctrine of res ipsa loquitur .Principle of Res ipsa loquitur is well established. In the present case there was no prima facie evidence of negligence Defendant.
    
18. In light of the above decided cases and evidence before this Court, I am of the view that;
    
    1. The Plaintiff has failed to prove its case balance of probabilities not proved that his vehicle was damaged by the defendant.
       
    2. The plaintiff failed to adduce evidence to establish sufficient evidence to determine that the Defendant being the registered owner and driver of vehicle registration no. LT 3654 had been negligent or careless in this conduct in bringing about the situation of causing loss and damage to the Plaintiff.
       
    100. It is also noted that there is no evidence before this court conclude that the Defendant breached the duty of care or performed according to particular standard of care and the plaintiff failed to prove the damages and liability of the defendants.
         
19. I therefore make following orders;
    
    1. The Plaintiff claim is dismissed
       
    2. I make no order with regard to costs.
       

------------------------
Lakshika Fernando
Resident Magistrate

Dated this 04th day of July 2013.