Singh v Knowles [1978] FJSC 13; Civil Action 092 of 1976 (15 June 1978)

IN THE SUPREME COURT OF FIJI
CIVIL JURISDICTION

CIVIL ACTION NO. 92 OF 1976

BETWEEN:

KHUSWANT SINGH
s/o Karam Singh
Plaintiff

AND:

JAMES KNOWLES
of Deuba, Driver, and
ROYAL TRANSPORT COMPANY
(a firm) of Rodwell Road, Suva,
Truck Proprietor
Defendants

And

NEW INDIA ASSURANCE COMPANY LIMITED
Third Party

JUDGMENT

On the 20th November, 1973 the plaintiff was a passenger in a private car registered No.R.498 driven by one Narsimlu s/o Appal Naidu.

On the Vunaniu Bridge on the Queens Road, vehicle R.498 was involved in a collision with a landrover registered No.AB.156 driven by the first defendant who at the time of the accident was driving in the course of his employment as an employee of the second defendant.

The plaintiff received personal injuries as a result of the accident.

The abovementioned facts were admitted in the Defence.

The writ was filed on the 22nd April, 1976. On the 1st June, 1976 the Supreme Court (Amendment) Rules 1976 came into force amending Order 18 of the Supreme Court Rules by adding a new rule 7A.

As Mr. Kapadia intended to rely on section 9 of the Evidence Ordinance (Convictions as Evidence in Civil Proceedings), he applied for and was granted leave to amend the Statement of Claim by adding a statement complying with Order 18 rule 7A(1).

The Defence, although later amended, contains no statement complying with Order 18 rule 7A(2). During the trial a certificate of conviction of the first defendant (Ex.A7) was admitted by consent. This certificate indicates that the first defendant was, on the 28th June, 1974 convicted by the Magistrates Court Navua of the offence of Careless Driving. Evidence, which I accept, was given by Napolioni Waqa, a former policeman, who investigated the accident, that the first defendant's conviction arose out of the defendant's driving of a motor vehicle involved in the accident in which the plaintiff received his injuries.

The plaintiff's claim is for damages for the injuries sustained by him which he claims were caused by the first defendant's negligent driving at the time of the accident.

In their Defence the defendants deny any negligence and further allege that "the sole or the contributory cause of the said accident was due to the negligent driving of the said Narsimlu of the said car".

Narsimlu is not a party in this action, a matter I will be referring to later. The defendants did, however, join the New India Insurance Company Limited as a Third Party seeking (inter alia) a declaration that the first defendant was entitled to be indemnified by the Third Party. The defendants Statement of Claim in the Third Party action was later amended to include the name of Mohammed Yunus one of the partners in the second defendant firm as being also entitled to be indemnified by the Third Party.

I will first consider the plaintiff's claim against the defendants and the evidential value of the first defendant's conviction of careless driving. He was not called to give evidence in the instant case although in his Defence he denied any negligence.

To avail himself of this Defence which implies that his conviction was erroneous or was not relevant in the present proceedings the Defence should have been amended after the plaintiff's amendment of his Statement of Claim in compliance with the mandatory provisions of Order 18 rule 7A(2). In view of my finding on the issue of negligence this failure to comply with the rules can be ignored.

In Stupple v. Royal Insurance Co. Ltd. (1970) 3 All E.R. 239 Lord Denning, M.R. and Buckley L.J. took different views as to the weight to be attached to a conviction in the subsequent civil proceedings in which it was proved. Winn L.J. did not express any views or, the matter.

At page 236 of Stupple's case Lord Denning said:

"Take a running-down case where a plaintiff claims damages for negligent driving by the defendant. If the defendant has not been convicted, the legal burden is on the plaintiff throughout. But if the defendant has been convicted of careless driving, the legal burden is shifted. It is on the defendant himself. At the end of the day, if the judge is left in doubt the defendant fails because the defendant has not discharged the legal burden which is on him. The burden is, no doubt, the civil burden. He must show, on the balance of probabilities, that he was not negligent: see Public Prosecutor v. Yuvaraj in the Privy Council quite recently. But he must show it nevertheless. Otherwise he loses by the very force of the conviction."

Buckley L.J. agreed with Lord Denning that on proof of the conviction under subsection 11 of the English Civil Evidence Act 1968 (which is similar to section 7 of the Fiji Evidence Ordinance) the effect was to shift the 'legal' burden of proof from 'A' the claimant, to 'B', the defendant. He was of the view that no weight should be given to the mere fact of the conviction in deciding whether any other evidence adduced is sufficient to discharge the onus resting on 'B' the defendant. He stated at page 239 of the report:

"Although the section has made proof of conviction admissible and has given proof of conviction a particular statutory effect under s.11(2)(a), it remains, I think, as true today as before the Act that mere proof of conviction proves nothing relevant to the plaintiff's claim, and it clearly cannot be intended to shut out or, I think, to mitigate the effect of any evidence tending to show that the convicted person did not commit the offence. In my judgment, proof of conviction under this section gives rise to the statutory presumption laid down in s.11(2)(a), which like any other presumption, will give way to evidence establishing the contrary on the balance of probability, without itself affording any evidential weight to be taken into account in determining whether that onus has been discharged."

What is clear from Stupple's case is that once the first defendant's conviction is proved, and the negligence in respect of which he was convicted identified, the 'legal' burden of negativing negligence rests on him. He must disprove negligence to avoid the presumption of his having committed the act of careless driving which, resulted in the injuries sustained by the plaintiff.

My task is to decide whether the first defendant has successfully shown that, on a balance of probability he was not guilty of the act of careless driving which caused the plaintiff's injuries.

The first defendant, as I have already stated did not give evidence. Ali Mohammed who gave evidence for the Defence was sitting alongside the first defendant at the time the accident occurred. His evidence in examination in chief regarding the accident is very brief. He said:

"There is a bend before Vunaniu Bridge coming from Suva side. After 60ft. from the bridge there is slight bend for 20 yards. First defendant driving at about 30 - 35 m.p.h. When passing bend reduced to 20 m.p.h. When came to stretch before bridge a car coming from opposite. Within a second both vehicles entered bridge. Both drivers applied brakes but could not stop and they bumped."

More details of the accident were obtained from this witness in cross-examination. He denied the first defendant cut the corner or veered to the centre of the road. He also denied the first defendant was on his incorrect side. He did admit that his vehicle was skidding and in motion immediately before the impact with the other vehicle.

This witness said very little about the other vehicle involved in the accident. As a witness to affirmatively establish that Narsimlu was wholly negligent or contributed to the accident his evidence is of very little value. By itself it is insufficient to establish that the first defendant was not negligent so as to rebut the presumption which arises as a result of the first defendant's conviction.

I have however considered all the evidence and I accept as established the following facts:

Before a sharp bend close to the Vunaniu Bridge on the Suva side of it there was at the time of the accident notices warning motorists approaching the bend that it was a "sharp bend" and a "narrow bridge" lay ahead. It behoved a driver negotiating that bend to drive with caution.

The two vehicles collided on the bridge. The first defendant despite application of the brakes of his vehicle was skidding and still in motion when the impact occurred.

I accept the evidence of the plaintiff and his witness Narsimlu that Narsimlu's vehicle had stopped just before the collision and was driven back by the force of the impact. I accept also Narsimlu's evidence that he in self protection placed either one or both of his feet on the car seat before the impact after he stopped his vehicle and that the plaintiff had time to brace himself before the collision. I have not ignored the evidence of the brake marks of Narsimlu's vehicle which throws doubt on the evidence of both the plaintiff and Narsimlu that Narsimlu first saw the other vehicle when they were three-quarters of the way across the bridge. Although the sketch plan is not to scale the measurements clearly indicate Narsimlu's vehicle was more than half way across the bridge at the time of the collision.

What is significant is that Narsimlu had control of his vehicle and, when faced with the sudden appearance of the other vehicle, was able to stop. On the other hand the first defendant, despite adequate warning of the sharp bend and the narrow bridge, did not have proper control of his vehicle to such an extent as to be able to stop his vehicle when presented with an emergency. In fact he ran into a stationary vehicle with sufficient force to push it back a short unascertained distance.

Not only have the defendants failed to satisfy me that the first defendant was not negligent but even ignoring the evidence of his conviction there is ample evidence adduced by the plaintiff to establish the negligence of the first defendant.

On the pleadings the alleged contributory negligence by Narsimlu is not an issue I have to decide. The proper course the defendants should have followed was to join Narsimlu as a defendant and claim contribution from him, either total or partial, depending on whether they could establish that the first defendant was not negligent or that Narsimlu contributed by his negligence to the accident.

Where there are two independent tortfeasors who cause the same damage to the plaintiff, as is alleged in the defendant's allegation of contributory negligence, the law is clear that the plaintiff can sue either or both of the tortfeasors. In this case he sued the first defendant and, subject to any right the first defendant may have to contribution from the other alleged tortfeasor Narsimlu, the first defendant is liable for the whole of the damage even though he may have been responsible merely for just a small part of it. (Longdon-Griffiths v. Small (1951) 1 K.B. 295).

An unsatisfactory feature of the pleadings (it is not the only one as will appear later) is that Narsimlu was not joined as a defendant by the defendants as he should have been. Had he been joined the question of his contributory negligence would have been in issue and, if established, the Court would have apportioned liability.

While my views are not binding on any Court which may have to consider a claim by the defendants against Narsimlu for contribution, in my view on the evidence before me Narsimlu was not negligent.

I hold that the plaintiff has established that the first defendant was negligent and, as the first defendant was the servant of the second defendant and acting in the course of his employment, that firm and the first defendant are liable in damages to the plaintiff. I find as a fact that the plaintiff suffered the personal injuries claimed by him and that such injuries were caused by the first defendant's negligence.

One item of special damages claimed by the plaintiff is $65 for medical and transport expenses. Apart from a bare statement from the plaintiff that he claimed this sum and a reference to the fact that he had to use taxis to visit the hospital the cost being $3 a return trip, I have no evidence as to how this sum is made up. While I appreciate that a person does not usually obtain receipts for small payments the defendants are in no position to challenge such a claim unless some evidence is led to establish the claim. Mr. Kapadia must have been advised of the items which make up this sum. If so, no evidence was led to inform the Court. The defendants could have sought particulars but their failure to do so does not absolve the plaintiff of his obligation to substantiate his claim.

As I have stated apart from a bare statement that he claimed the sum of $65, the plaintiff merely stated he went to hospital once or twice a month and that return journey by taxi was more than $3. How many trips he made by taxi is not known, nor did he state who paid for the taxi. No evidence was led regarding medical expenses and no receipts were produced.

I do not consider that the Court should be called on to assume that the plaintiff (or someone on his behalf) must have incurred expenses for travelling and medical treatment. Nor should the Court have to assess a figure in the absence of satisfactory proof of special damages.

In considering general damages the inconvenience to the plaintiff of having to visit the hospital to receive medical treatment is part of the overall picture and will be taken into account.

I hold that the plaintiff has not established his claim to the sum of $65 general damages.

Mr. Kapadia abandoned the claim for $4 special damages relating to expenditure for medical and police reports being by now well aware of my views that these expenses are not damages arising out of the accident but expenditure incurred in preparing and investigating his client's claim.

There remains one item of special damages claimed - loss of earnings for 12 months at $25 per week amounting to $1,300. On the evidence before me it has not been easy to come to a decision. As with the claim for transport and medical expenses the evidence in support of this claim is far from satisfactory.

The only evidence I can accept is that o£ the plaintiff himself and then not all of it. He did call his brother Jagindra Singh to give evidence in support of his claim. Jagindra Singh stated the plaintiff received $25 a week. This witness carries on business in Ba and was not involved in the operation of the sawmill which is in the Sigatoka or Serua area. He had nothing to do with making any records for the sawmill business. He said that one Khan, who for a time was a partner with the witness's father in the sawmill business, kept the books of account and record of wages. Khan disappeared one day and took all the records with him. Why Khan should take the partnership records is not known. Jagindra Singh's relevant evidence is clearly hearsay and not acceptable.

There is no documentary evidence at all to support the plaintiff's claim that he was gainfully employed at $25 a week nett at the time of the accident. The plaintiff testified that prior to 1973 he was working at home and also at his father's mill. He was paid no wages but received pocket money. Such an arrangement is common in Fiji amongst Indian families. The plaintiff in keeping with such an arrangement had a home and was maintained and received money from his father by way of pocket money. The business was virtually a family partnership.

Some time in 1973 Khan joined the plaintiff's father in partnership and the plaintiff said he was then paid wages. This was 3 or 4 months before he was involved in the accident. Khan was not called as a witness to substantiate that the plaintiff was paid wages. Jagindra Singh did say he had spoken to Khan presumably after he disappeared but it is not known when he did so. Mr. Koya quite rightly pointed out that Fiji National Provident Fund records would have established that the plaintiff was a wage earner. The plaintiff stated he registered with the Fiji National Provident Fund but did not know his number. To Mr. Koya he admitted he had a Fiji National Provident Fund number card which he had not brought with him.

In most cases it is not difficult to establish a claimant was employed and received a wage and it should not have been difficult in this case. What raises a doubt in my mind was the somewhat evasive and vague manner the plaintiff adopted on this issue under cross-examination. But of more moment is the clear evidence that prior to Khan entering the partnership the plaintiff was not paid a wage. If his father continued the family arrangement after Khan joined the firm it would be consistent with such arrangement that the plaintiff placed a value on his son's services and adjusted partnership profits accordingly. Equally the payment of a wage to the plaintiff would be a normal arrangement but if so why was so little effort made to substantiate the claim for loss of earnings or even to establish that he was employed on a wage.

The evidence regarding the quantum claimed is also sketchy. The plaintiff said he was not able to work "for about a year". His brother said his brother was "unable to work in mill for a year or so".

The accident happened on 20th November, 1973. A medical witness stated the plaintiff's knee was operated on and he was discharged on 30th November 1973 and later received out patient treatment.

Dr. Maniklal Vithal whose report was admitted by consent was also called to give evidence. He was not asked his opinion as to how long it would have been after the accident that the plaintiff could have commenced working.

The plaintiff in evidence in chief merely stated he was unable to work for about one year. Under cross-examination he disclosed that he returned home about two months after out patient treatment in Suva, about March 1974. He said that with crutches he could get around three months after leaving hospital and he used crutches for seven or eight months.

There is a difference between being unable to work and not wishing to work. There was no incentive for the plaintiff to work before he decided to do so. His needs were obviously met by living at home. On the facts of the accident the plaintiff was a good witness but on his claims for damages he did not impress me. It is not unnatural to seek to exaggerate damages and the plaintiff left me with a very distinct impression that that was what he was doing.

As I am of the view that payment of wages to the plaintiff by the partners on Khan joining the firm would be a normal arrangement I accept that he was employed and in receipt of wages amounting to $25 a week in November 1973. This is not an unreasonable amount. I do not however accept that the plaintiff was unable to work at all for 12 months. He has not established to my satisfaction that that was the situation.

Dr. Maniklal Vithal's medical certificate indicates the plaintiff after 10 days in hospital was in a hip plaster which was removed after a month. He then attended the out patient department o£ the hospital. He returned home in March 1974 presumably because no further medical treatment was required.

On the evidence before me I am not satisfied that the plaintiff after his return home was unable to work at all. Admittedly he could not drive a truck in bush areas but I see no reason why he could not otherwise have been gainfully employed in his father's business even in a supervisory capacity or be employed on light labour work.

I am satisfied the plaintiff could not have been gainfully employed for a period of 4 months and allow his claim the extent of one-third of the $1,300 claimed that is $433.33. Two English cases I will refer to later where claimants had similar but more extensive injuries indicate that 4 months is a reasonable period.

On the question of damages for loss of amenities pain and suffering it is clear that the plaintiff is permanently and partially incapacitated. His knee cap was injured in the accident. In December 1976 according to Dr. Hemmings' report the knee had stabilised. There was then well marked crepitus of the knee joint indicating arthritis of the joint and the arthritic changes the doctor thought were likely to increase with passage of time, Dr. Maniklal Vithal however, examined the plaintiff on 10th May, 1978. He was not asked about any arthritic changes although in his report of 29th November, 1975 he referred to hearing and seeing crepitus of the knee joint. I can only assume that Dr. Hemmings' fears have not so far materialised and the plaintiff's knee is now stabilised but the possibility of future arthritic changes has to be taken into account.

He is a young man 25 years of age. He is a well built man and apparently now in good health. He does not have a discernable limp. He can no longer engage in the activities of a young man of his age notably football. He suffered pain which would have been relieved when he was hospitalised and there was considerable discomfort and inconvenience for at least four months after the accident.

Dr. Maniklal Vithal was not asked if the plaintiff would continue to suffer pain and discomfort which the plaintiff alleges he still experiences. He did while in the witness box ask leave to sit down because of pain in his leg. I accept that from time to time he will in future suffer some discomfort.

Mr. Kapadia urged that the Court should be consistent in its assessment of damages. He did not complain of or refer to any instance of prior inconsistency by the Court.

He referred to three cases Osea Volu v. Wilson Thomas Mawi C.A. 93 of 1977, Bissunlal v. Rajendra Prasad C.A. 18 of 1972 and John Ishwarlal v. Bachni C.A. 159 of 1973. He dismissed the English cases by stating they were all somewhat old and sought to refer to Australian cases. On being informed that Australian awards were notoriously high and the Court was not interested in them he made no reference to them.

I have perused the judgment in two of the three Fiji cases quoted to me, the report of the third case not being presently available. What they do highlight is that every case should be considered on its merits. In referring to Osea Volu's case Mr. Kapadia mentioned that damages awarded were $27,518. A perusal of the judgment, however, indicates that of this sum $8,116.50 were special damages, $15,408 loss of prospective earnings, and $4,000 for pain and suffering and loss of amenities of life.

That case as to the quantum of general damages can hardly be compared with the instant case. The special damages claimed in this case is only $1,369 of which I have allowed $433.33. The plaintiff in Osea Volu's case suffered very severe injuries long hospitalisation and the learned judge found that the plaintiff was virtually unemployable because of his physical handicap. Loss of prospective earnings makes up the bulk of the damages awarded.

Bissunlal's case is of interest and there is one similarity between that case and the instant case. In Bissunlal's case Williams J. was critical of the evidence tendered on behalf of the plaintiff in support of his claim to damages.

I would quote with approval one passage from William J's. judgment which fits the instant case "Claimants in running down actions are in no different position from plaintiffs in other kinds of civil action when it comes to the task of proving their claims. They are not entitled to be vague and indefinite in the evidence which they adduce. It would not be correct to hope that slight evidence will suffice in such actions because the apparently limitless pockets of some insurance company will be able to pay without apparent difficulty if the Court so orders".

That was a 1972 case and it is curious that Mr. Kapadia should refer to it. There are several English cases in the latest edition of Keg & Kemp on The Quantum of Damages of plaintiffs with similar injuries to those sustained by the plaintiff in the years 1970 to 1972 which Mr. Kapadia dismissed as being too old to be considered.

The only evidence I have of the alleged future loss of earnings is that given by the plaintiff. When sworn he gave his occupation as sawmiller but his evidence disclosed he did labouring work around the mill and at times drove a truck in bush areas, He does not hold a heavy vehicle driving licence which is immaterial if he drives only in the bush areas but, in any event, it is only in bush areas that his knee prevents him driving a truck owing to frequent changing of gears.

He stated that the man who replaced him, Abdul Rauf, who is now the top man, was employed in his place while the plaintiff was off work for a year. Rauf now earns $75 while the plaintiff now earns $54.29. Mr. Kapadia argues that the plaintiff's weekly loss on these figures is $20 and that the multiplyer should be 16. This would amount to $16,640 for loss of future earnings alone.

This is a totally unrealistic sum in view of the plaintiff's injury and his present ability to earn a living. It would exceed the amount awarded to Osea Volu who was treated as unemployable. That is not the situation with the plaintiff.

The only support of the plaintiff's evidence on this issue came from Dr. Maniklal Vithal. He said the plaintiff could not lift heavy objects or drive a truck in hilly areas.

I do not accept that the plaintiff would be earning $75 now if he could drive a truck in hilly areas. Rauf is now the top hand a position the plaintiff was not holding at the time he was injured. The plaintiff now earns $54.29 a week when in 1973 he was earning $25. For a labourer, and that is essentially what he is, he is now earning over $1 an hour, assuming he works 48 hours a week, and this is a high rate in the present labour market.

I am not satisfied on the evidence before me that there will be any future loss of earnings by the plaintiff and accordingly I ignore this aspect in assessing general damages.

Despite Mr. Kapadia's contention that the English cases are somewhat dated considerable guidance can be obtained from studying English cases where claimants have suffered injuries similar to those of the plaintiff. Allowance must be made for the passage of time and the depreciated value of money and any other special factor.

The facts in the case of Moore v. Cook (1972) C.A. 150 mentioned in volume 2 of Kemp v. Kemp Personal Injury Reports 10 - 417 bear some similarity to the facts in the instant case. A police officer then aged 24 sustained a number of injuries in a road accident. He was in plaster for one month and off work for four months. His main injury was to his knee - a fracture of the lateral femoral condyle in the left knee with haemathrosis. Osteo Arthritis was likely to develop. He had to give up rugby football because of pain when running and training. The Court of Appeal increased general damages from £850 to £1250.

There is also the case of Frith v Kent Kraft Mills (1972) reported in Kemp v Kemp report 10 - 463. The plaintiff was aged 26. He had a comminuted fracture of the right patella and a comminuted displaced fracture of left patella. The left patella was removed. He was off work for three months. He found difficulty in running, kneeling or using ladder. Could not walk far. Had to give up swimming and football. There was a possibility of further operative treatment and osteo arthritis in later life. General damages awarded were £1750.

There are features in both these cases quoted which are similar to features in the instant case. Both plaintiffs were young men of similar age to the plaintiff but both had more serious injuries than the plaintiff. Of significance is the fact that both were able to return to work not more than four months after they were injured no doubt because of a desire or need to work for a living.

I assess the general damages for loss of amenities pain and suffering at $3,000 to which must be added the sum of $433.33 special damages for loss of earnings.

There will be judgment for the plaintiff against the defendants in the sum of $3,433.33 and costs to be taxed on the higher scale. My reasons for awarding costs on a higher scale appear later in this judgment.

I turn now to the third party action.

There have been a number of errors and the failures to comply with or take advantage of the rules of the Supreme Court involving all counsel engages in this action which has resulted in a much more lengthy trial than was necessary.

The first apparent error would have been a minor one but it was compounded and was the origin of the chapter of errors that followed.

In paragraph 2 of the Statement of Claim it was alleged that the second defendant was the registered owner of vehicle AB.516. Evidence given in Court established that Mohammed Yunus, a partner in the second defendant firm was in fact the registered owner. Had Mr. Kapadia realised this fact he would no doubt have prepared the Statement of Claim differently and Mohammed Yunus would have been expressly named as a defendant. The Defence may have also been different.

The Defence admitted the second defendant was the registered owner of the vehicle. In the third party Statement of Claim there was confusion over the two defendants to the extent that the driver, the first defendant, was alleged to hold the insurance policy and the firm was driving the vehicle - the parties were reversed. The Court at the trial pointed out the errors and Mr. Koya sought amendments to the Statement of Claim.

It is the Defence to the third party Statement of Claim which comes in for most of the criticism.

The Defence in the third party action is quite the worst pleading I have seen. I do not believe that Mr. Gordon is not aware of Order 18 of the Supreme Court Rules. I do however believe that he prepared a Defence which was deliberately evasive and this was the major factor in unduly lengthening the trial and substantially increasing the costs involved.

It is not possible from the Defence in the third party action to ascertain the nature of the third party's Defence. Virtually the whole of the Defence is a bare denial of allegations in a fairly lengthy Statement of Claim.

I would have thought that every legal practitioner is well aware that a general denial or a general statement of non-admission, of allegation of facts in a Statement of Claim is not a sufficient traverse thereof.

To give one example, in answer to paragraph 3 of the Statement of Claim which contains a number of allegations of fact many of them not in dispute paragraph 3 of the Defence merely states:

"It denies para 3 of the Statement of Claim."

Mr. Gordon was not then prepared to admit the existence of the insurance policy or that his client was [illegible] approved insurance company under the Motor Vehicles (Third Party Insurance) Ordinance.

Mr. Gordon chose to ignore the rules of pleading and in particular the note 18/13/2 to Order 18 -

"Parties ought properly to admit facts as to which there is really no controversy. A defendant ought not to deny plain and acknowledged facts which it is neither to his interest nor in his power to disprove (Malins V.C., in Lee Conservancy Board v. Button [1879] UKLawRpCh 151; 12 Ch. D.383)."

Some inkling of the Defence which Mr. Gordon obviously intended to put forward at some stage was gained from a remark made by him very early in the trial. He made the astounding statement that Royal Transport Company was a legal entity. When told by the Court that that was not correct Mr. Gordon still replied "it is a firm". The Court had then to inform Mr. Gordon that "Royal Transport Company" was merely a business name and the partners registered under that business name were collectively the second defendants in the action.

The parties had put in by consent a copy of the relative third party insurance policy. It was only during the trial that it was appreciated that the policy was not in the name of Royal Transport Company but in the name of Mohammed Yunus one of the partners of the firm. Both Mr. Kapadia and Mr. Koya were taken by surprise.

It then became evident to the Court that Mr. Gordon was proposing to argue that his client was under no legal liability to indemnify the second defendants (a legal entity as he had stated) but only Mohammed Yunus who was not a defendant in Mr. Gordon's opinion. He would not have got very far with this argument had he raised it since he had not raised this matter in the Defence and in any event Mohammed Yunus as a partner of the second defendant, although not named, is one of the defendants.

The third party's other Defence it appears was to have been that sought to be raised in paragraph 7 of the Defence. This is only an inference but Mr. Gordon's conduct of the Defence would indicate that the inference is correct. There is reference in paragraph 7 to the fact that the defendants did not inform the third party of the accident until 5th May, 1975. The accident occurred on the 20th November, 1973.

The greater part of the time taken up in hearing this action, which took two full days, was on the issue as to when the third party was notified about the accident. The Court repeatedly queried the relevance of evidence regarding this issue in view o£ the pleadings.

Finally the Court specifically informed Mr. Gordon since there was no counterclaim raised by the third party, whether the defendants reported the accident or not to the third party was of no relevance. The Court went further and directed Mr. Gordon's attention to the provisions of the Motor Vehicles (Third Party Insurance) Ordinance and particularly section 16 thereof.

Under section 16, if the person insured under the policy or the person who is using the vehicle at the time of the accident fails to promptly notify the Insurance Company of the accident the Insurance Company can recover from the owner pursuant to the provisions of section 16, as a debt, the amount the company has to pay out in respect of the claim and also costs.

It was open to the third party if the proper basis had been laid in the Defence to counterclaim for the amount it has to pay in respect of the plaintiff's claim. There is no such counterclaim.

It was no Defence to the defendant's claim and it was not relevant thereto to seek to raise the issue that the third party was not promptly or properly notified about the accident.

The advice that should have been given to the third party, and was obviously not given by Mr. Cordon, was that on the facts liability under the policy could not be denied but if there was a breach of section 16 of the Ordinance the Company could then seek recovery of the amount paid by it on the claim and costs as a debt.

Had that advice been given, as it should have been, this action may not have come to Court at all or if it did the only issue would be the question of damages and all parties would have been spared an unduly long trial and unnecessary costs.

One further example may be cited of the many that can be cited indicating the deliberate refusal by the third party to admit facts which the third party cannot deny and did not seek to deny at the trial.

Paragraph 5 of the Statement of Claim in the third party action gives particulars of the accident. The answer in paragraph 5 in the Defence was a deliberate falsehood and Mr. Gordon had knowledge it was false when he prepared the Defence.

Paragraph 5 of the Defence states:

"As to para 5 of the Statement of Claim the Third Party has no knowledge and therefore does not admit the same."

Paragraph 7 of the Defence alleges (inter alia) "The defendants until the 5th day of May, 1975 did not inform the third party about the said accident". This is in a Defence dated 26th May, 1977.

I believe the date stated in paragraph 7 should have been 5th day of June 1975. That is the date of a motor claim form issued by the third party which was filled in with regard to the accident. Portion of the form was filled in by a manager of the third party company. This report contains full particulars of the accident.

Mr. Gordon produced this report in Court and after some difficulty had it introduced into evidence.

Almost two years before Mr. Gordon prepared the Defence the insurance company had detailed knowledge of the accident. It was not true that the third party had no knowledge of the accident when the Defence was prepared and since the claim form was one Mr, Gordon was seeking to rely on, and an important one in his view, there is no doubt in my mind that in preparing the Defence he knew paragraph 5 thereof was false.

It is not usual to join an insurance company in a running down action as a third party and in virtually every case is not necessary. Section 11 of the Motor Vehicles (Third Party Insurance) Ordinance throws a duty on the insurance company to satisfy judgments against persons insured in respect of third party risks.

It was apparent from remarks made by Mr. Koya that he was completely disenchanted with the third party and its solicitor and he no doubt considered in view of their attitude the insurance company should be joined as a third party.

It was established by the defendants that the third party issued a third party policy No.14919 in respect of vehicle registered No. AB.156 covering the owner Mohammed Yunus s/o Rajan one of the partners in the second defendant firm which policy expired on 27th July, 1974.

I find as a fact that the policy was current at the time of the accident and covered the owner and the first defendant. Under the terms of the policy it was agreed that the company would insure the owner and authorised driver of the vehicle against all liability incurred by the owner and such driver in respect of any bodily injury to any person arising out of the use of vehicle AB.156 on a road in Fiji during the currency of the policy.

There are certain exemptions from liability none of which have any application.

On the facts established by the defendants I find as a fact and declare that the first defendant the driver of vehicle AB.156 and the said Mohammed Yunus the owner insured under the policy and who was at the relevant time and still is a partner in Royal Transport Company and therefore a defendant in this action are entitled to be indemnified by the third party. I grant the defendant's claim to the alternative declaration sought.

There will be judgment for the first defendant and the said Mohammed Yunus for the like amount of the damages and costs awarded in this action to the plaintiff, or in the event of such amount being varied on appeal from this judgment, for such varied amount, together with costs of the third party action.

There shall be no execution of this judgment in the third party action without leave of the Court which leave will only be granted on the Court being satisfied that the defendants have satisfied the judgment in the main action.

The third party however, is at liberty to satisfy the plaintiff's judgment in which event this judgment in the third party action shall be deemed satisfied in full. This is without prejudice to the plaintiff's right to seek satisfaction of his judgment by recourse to the third party under the provisions of the Motor Vehicles (Third Party Insurance) Ordinance.

Both Mr. Kapadia and Mr. Koya sought solicitor and client costs because of the extra time and costs involved which were the result in the main of the third party Defence. I am not minded to grant that request but I have in the main action ordered that costs be taxed on the higher scale. Both Mr. Kapadia and Mr. Koya must accept some blame for the additional costs involved due to their lack of care in preparation of their respective cases.

I also propose to order that costs in the third party action be taxed on the higher scale but no final order will be made by me until Mr. Gordon has had an opportunity to show cause why he should not be ordered personally to indemnify the third party against costs payable by it to the defendants. To this extent judgment in the third party action is not final.

R.G. Kermode
JUDGE

Suva,
15th June, 1978.