Bibi v Lagan [1985] FJSC 2; Civil Appeal 437 of 1980 (1 November 1985)

Fiji Islands - Bibi v Lagan - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

WESTERN DIVISION

AT LAUTOKA

CIVIL JURISDICTION

Civil Action No. 437 of 1980

BETWEEN:

KULSUM BIBI
s/o Andru
MOIDIN
s/o Sheik Mohammed
Plaintiffs

AND:

RAM LAGAN
s/o Birbal
Defendant

Mr V Chand & Mr I Hanif, Counsel for the Plaintiffs
Mr S D Sahu Khan, Counsel for the Deft

JUDGMENT

On the morning of 15^th June, 1969, one Moidin was killed when the bicycle he was riding and a taxi driven by one Ram Lagan came into collision at the intersection of Drasa Avenue and Vomo St. in Lautoka.

This action, instituted no less than 15 years ago, is brought for the benefit of Moidin’s estate under the Law Reform (Miscellaneous Provisions) Act and for the benefit of his dependants under the Compensation to Relatives Act.

It is common ground that the collision caused Moidin’s death. What the plaintiffs, the administratrix and administrator of his estate, must prove on the balance of probabilities, before any question of assessing damages arises, is that the collision was due to Ram Lagan’s negligence.

It is also common ground that the taxi was one of a line of vehicles moving along Drasa Avenue past the intersection and that the collision occurred immediately the bicycle had come out of Vomo St. (on the left side of the taxi) into Drasa Avenue.

Two witnesses to the collision were called, one of them, Mohammed Rafiq, was called by the plaintiffs. The other, Sheg Ram, was called by the defence. Both of them had been passengers sitting in front of the taxi at the time of the collision.

According to Mohammed Rafiq, the taxi was proceeding at moderate speed along Drasa Avenue when the bicycle came out of Vomo Street and turned left in front of the taxi. After the bicycle had gone about 3 yards along the left edge of Drasa Avenue, the left front of the taxi struck it. He could not say what part of the bicycle was struck, whether the taxi hit from behind or struck a glancing blow as it passed. Cross-examined, he said he had not received the impression that the chain of the bicycle had come off.

Even on Mohammed Rafiq’s account of the collision it appears that Moidin failed to give way at an uncontrolled intersection to a vehicle approaching from his right. That was contrary to Regulation 138 of the Traffic Regulations.

The question remains whether Ram Lagan, the taxi driver, was also guilty of negligence. I find, on the balance of probabilities, that he was not.

I was favourably impressed by the evidence of Sheg Ram who appeared to be impartial and frank. According to him, the taxi was travelling slowly past the intersection when the bicycle came out of Vomo St. and ran into the left rear mudguard of the taxi. He swore that he had got out of the taxi and spoken to Moidin who had told him that the chain of the bicycle had “come off” and that he had been unable to stop it. Sheg Ram also swore that he had seen the bicycle lying on the side of the road and observed that the chain had come of the chain wheel.

Even without Sheg Ram’s evidence of what Moidin had told him (which I admitted as part of the res gestae and as a statement made by a deceased person against his interest) I would have come to the conclusion on the balance of probabilities that the bicycle, instead of giving way to the taxi as it should have done, came suddenly out of Vomo St. and ran into the left rear mudguard of the taxi.

On the balance of probabilities, I find that Ram Lagan, the driver of the taxi, was not guilty of negligence at all.

This action is accordingly dismissed with costs to the defendant to be taxed, if not agreed.

R A Kearsley
JUDGE

1 November 1985