Harak v Prasad [1979] FJSC 87; Action 267 of 1976 (21 November 1979)

IN THE SUPREME COURT OF FIJI)
(WESTERN DIVISION)
AT LAUTOKA

Civil Jurisdiction
Action No. 267 of 1976

BETWEEN:

BIJAY HARAK s/o Ram Harak
Plaintiff

AND

1. PREM PRASAD s/o Ram Audh
2. SANDH WATI HAWAN CHALI
d/o Shiu Sharan Singh
Defendant

Mr. R. Krishna, Counsel for the Plaintiff
Mr. H.C. Sharma, Counsel for the Defendants

JUDGMENT

The plaintiff is now 26 years of age and is now a cane farmer.

His action is for damages arising out of a motor accident which occurred about 12 midnight on 23/5/76.

At that time the plaintiff was employed as cook at the Travelodge Hotel which is situated on the Votualevu Road which is in an area where several large hotels are situated.

He had finished his work as a cook and left the Travelodge Hotel on his motor cycle proceeding along the hotel drive towards Votualevu Road. Ahead of him was a taxi which was preceded by a 'bus and all three vehicles turned right into Votualevu Road and proceeded in the direction of Queen's Road and towards the Mocambo Hotel about 80 yards away.

The Macambo Hotel stands back from Votualevu Road on the plaintiff's lefthand and there is a lengthy drive leading up to it from Votualevu Road.

According to the plaintiff the 'bus proceeded across the junction of Votualevu Road and the Macambo Drive and stopped on the lefthand side of Votualevu Road about 11 yards beyond the junction, beside the Kiwi Taxis garage. The taxi ahead of the plaintiff pulled out to overtake the 'bus and the plaintiff followed suit. He was at that time close to Macambo Drive junction and he says he had seen the lights of a taxi approaching Votualevu road via the Macambo Drive. He recognised it as a taxi because it had an illuminated sign on its roof.

Just as he was entering the junction the plaintiff was involved in a collision with the taxi which he says turned right into Votualevu Road i.e. towards the Travelodge Hotel in the opposite direction to the plaintiff. As a result of the collision the plaintiff's motor cycle was extensively damaged and is accepted as a write off. The plaintiff's left leg was hit by the taxi and the tibia and fibia were broken as a result of which his left leg is shortened by one inch and is somewhat out of alignment.

Following the accident the plaintiff says he was in great pain and it seems that he was removed to Nadi Hospital in a cab of Kiwi Taxis and later was taken to Lautoka Hospital.

His version of the accident is confirmed by P.W.2, Joseva Tui, barman at the Macambo Hotel, who states he was a passenger in the taxi. P.W. 2 Joseva Tui, says that defendant No.1 was the taxi driver, the defendant No.1, Prem Prasad, had collected P.W. 2 at the Macambo Hotel to take him to his home. He says that defendant No. 1 Prem Prasad, drove into Votualevu Road and turned right without stopping and collided with the motor cyclist. The defendant No.1 did not stop to see what had happened but drove on beyond the Travelodge Hotel and dropped P.W. 2, Joseva Tui, at his home. He said the taxi did stop because the engine had stalled but defendant No.1 started off again. Joseva Tui did not know that anyone had been injured.

The 'bus in question is a "pick-up" bus collecting hotel workers in the vicinity and taking them in the direction of Lautoka. It was suggested by the defence that the bus had not stopped beyond the Macambo junction but had turned up the Macambo Drive towards the hotel. P.W. 2 did not agree stating that it had already been to the Macambo Hotel.

It was suggested to Joseva Tui (P.W. 2) that he was never in the taxi, and that he had never witnessed the accident. Certainly the police had not taken a statement from him and in conversation with the plaintiff's wife at some time that he mentioned the accident.

A completely different account is given by Defendant No.1, Prem Prasad, who says that he was en route from the Kiwi Taxi stand (just by the Macambo junction) to Travelodge Hotel to pick up tourists and taken them to the airport. He saw the bus approach Macambo junction and turn left up the drive and the taxi came straight on followed by the plaintiff who was completely on his wrong side. The defendant No.1 was on his correct side and could not avoid a collision. His evidence suggests that the motor cycle had pulled out from the vehicles in front of it into the path of the taxi of defendant No.1.

The latter claimed that he had no passengers in the taxi at the time and that he stopped when the accident occurred. Alighted from his taxi, notified his employers (whose depot was only yards away) saw the plaintiff into another Kiwi taxi for Nadi hospital and notified the police. He says he did not move his taxi until after the police had taken measurements.

The evidence of the driver was confirmed as to events after the accident by his supervisor of that time, D.W. 2, Sushen Chand Verma, who stated that the taxi remained at the scene until the police came and that the plaintiff was moved to Nadi Hospital in a Kiwi taxi. He said that the defendant's detail of picking up air-passengers from the Travelodge Hotel was given to another driver.

Because he was evidence in another Court the constable who measured the scene could not be present and the hearing was adjourned to the following morning. It was then that one of those incidents occurred which are not unknown in trials. The plaintiff asked leave to call a witness of whose existence the plaintiff had been unaware until after the adjournment on the previous day. She lives at Naviti Resort Hotel about 70 miles from Lautoka and P.W. 2 who had then revealed her existence brought her to Lautoka Supreme Court for the hearing at 9.30 a.m. I allowed her to give evidence and at the defendant's option she gave evidence for the plaintiff before the defendant called the policeman.

She recalled the accident in some detail stating that she had been a passenger in the defendant 1's taxi along with Joseva Tui (P.W. 2). At that time she was the receptionist at the Macambo Hotel and revealed that the Kiwi taxi depot is connected to the nearby hotel's intercom. system. She called for a taxi on the intercom. And the defendant No.1, Prem Prasad, appeared with the taxi. She confirmed P.W. 2's account of the accident, identified the defendant No.1 without hesitation. In fact it was not a matter of identification but one of recognition.

She insisted that the "pick-up" bus did not come up the Macambo drive at that time and said that when the defendant 1's taxi reached Votualevu Road the 'bus had passed the junction and was by the Kiwi Taxi depot. At the junction the defendant taxi did not stop at Votualevu Road but into the said road towards Votualevu and the accident then occurred. The defendant No.1 did not stop although P.W. 2 called him to stop. She says the car lights went out and the defendant 1 alighted to attend to that and then took them, (P.W.'s 2 & 3) to their destination.

In cross-examination it was suggested to her that she did not know defendant No. 1 and she replied that he had visited Naviti Resort Hotel with passengers since the accident and that she had mentioned the accident to him.

The policeman, D.W. 3, gave evidence that he arrived at the scene about 1.05 a.m. by which time the plaintiff was already in hospital. He measured the scene.

I have not the slightest hesitation in declaring the Defendant 1 & D.W.2 to be among the most blatant lairs that I have come across in the Fiji courts. Before P.W. 3 was called I had begun to have doubts about the truthfulness of the defence witnesses defendant 1 and D.W.2. The P.W. 1 was a learner driver but obviously very familiar with that road. His evidence had a distinct ring of truth about it and I regarded his evidence that the taxi came down Macambo Hotel drive as the kind of story which was unlikely to be concocted. P.W. 2 Joseva Tui did not appear to be taking part in a deliberately falsified story.

It would, think, be a foolhardy person who would falsely claim not simply to being an eye-witness of the event but being a passenger in one of the vehicles. The ways in which such a palpable untruth could have been exposed are numerous. There may well have been passengers in the taxi at the time of the accident and P.W. 2 would not be aware of their presence if he had never witnessed the accident.

When P.W. 3 gave her evidence I was not at all surprised at the nature of it.

The plaintiff and his witnesses are undoubtedly honest and I accept their version.

With regard to the police sketch plan it is in my view almost worthless except for the impression it conveys of the area. It was about 12 midnight when the accident occurred and the police did not arrive until after 1.00 a.m. The defendant 1's taxi was obviously not where it allegedly stopped after the collision but was where defendant 1 subsequently put it.

In my view defendant 1 did not want witnesses to the accident and for the reason he drove P.W.'s 2 & 3 to their destination(s) and returned to the scene without them to await the arrival of the police. He avoided telling the police he had any passengers at the material time. His behaviour throughout is manifestly consistent with his guilt.

It would be quite possible for the defendant 1 in turning right into Votualevu Road to strike the plaintiff's motor cycle with the front left of his car if the motor cycle were on the crown of the road or over the crown taking up a position to pass a stationary 'bus about 50 yds. Or so ahead. Pieces of broken glass add nothing to the picture nor the alleged final position of the motor cycle. Those positions could have been manipulated before the police arrived.

I find the defendant 1 entirely to blame for the accident.

There is no dispute as to special damages which covers the plaintiff's loss of earnings, motor cycle and medical expenses which amounted to $1406.86.

It remains to consider general damages to cover pain, suffering, the permanent deformity of the left leg and loss of amenities as a result.

There is no evidence of a loss of earning capacity.

He can no longer play soccer and in 1976 he would be 23 years and with 12 years or so ahead of him in which he could take part in that sport. He has difficulty in lifting heavy objects and his mobility is affected as displayed by his difficulty in climbing stairs.

I award $5000 as general damages.

The total is $6,406.86 and I give judgment in that sum as against both defendants. The defendants will pay the plaintiff's costs.

(Sgd.) J.T. Williams,
JUDGE.

LAUTOKA,
21st November, 1979.