Prasad v Vellu [2006] FJSC 12; CBV0004.2005S (19 October 2006)

IN THE SUPREME COURT OF the FIJI ISLANDS
AT SUVA

CIVIL APPEAL NO. CBV0004 OF 2005S
(Fiji Court of Appeal No. ABU0040 of 2004)

BETWEEN:

SHILA WATI PRASAD
Petitioner

AND:

SHAN MUGAM VELLU AND
DIAMOND EXPRESS
Respondents

Coram: The Hon Justice Daniel V Fatiaki, President of the Supreme Court
The Hon Justice Robert French, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court

Hearing: Thursday, 12th October 2006, Suva

Counsel: RSS Devan for the Petitioner
H Nagin for the Respondents

Date of Judgment: Thursday 19th October 2006, Suva

REASONS FOR JUDGMENT OF THE COURT

[1] This petition sought special leave to appeal from the judgment of the Court of Appeal (Ward P, Tompkins, Smellie JJA) of 18 March 2005 which reversed the decision of the High Court (Pathik J) of 30 March 2004 in a motor vehicle collision case. The High Court held that the present respondents, the third and fourth defendants, were negligent and 50% to blame for the collision which caused the death of the petitioner’s husband. The collision occurred between a truck owned by the fourth defendant and driven by the third defendant and a taxi in which the deceased was a passenger being driven in the opposite direction. The Judge entered judgment for the present petitioner for 50% of her damages under the Compensation to Relatives Act to be assessed at a further hearing.

[2] The Court of Appeal reversed this judgment because they found that the truck was on its correct side of the road the time of the collision, and negligence had not been established.

[3] The decision of the Court of Appeal was based on the facts of the case, and did not raise any question which could possibly warrant the grant of special leave by this Court under section 7 (3) of the Supreme Court Act (Penioni Bulu v. The Housing Authority Supreme Court Civil Appeal CBV0011 of 2004).

[4] The Chief Justice fixed the petition for hearing during this Session, at the request of counsel for the petitioner, at the call over last August. Directions were given for the filing of written submissions on behalf of the petitioner but despite extensions of time the submissions were not filed and served.

[5] When the petition was called on for hearing on 12 October, the date originally fixed, counsel for the petitioner, Mrs Devan, sought an adjournment. She conceded that the petition did not disclose a case for special leave, and was not able to suggest any other basis on which a grant of special leave could be supported. In these circumstances the Court concluded that no good purpose would be served by an adjournment and we dismissed the petition with costs assessed at $200. We also directed that the costs payable to the respondents of their appeal to the Court of Appeal assessed by it at $300, together with the costs assessed by this Court, be paid out to the solicitors for the respondents from the security in court, and that the balance be paid out to the solicitors for the petitioner.

[6] Before parting with the case we should comment on the form of the judgment of the High Court. Pathik J found that both drivers were negligent, and, having apportioned responsibility equally, entered judgment for the plaintiff against the third and fourth defendants for 50% of her damages. This was wrong. Those defendants, having being found liable as concurrent tortfeasors, were liable for the whole of the plaintiff’s damages, even though they shared responsibility with others who were equally to blame. At common law a plaintiff was entitled to judgment for the full amount of his damages against each and every concurrent tortfeasor which he could enforce against any one or more of them, provided there was no double satisfaction.

[7] The Law Reform (Contributory Negligence and Tortfeasors) Act section 6(1)(c) by giving joint and concurrent tortfeasors the right to contribution from each other, did not alter the rights of the plaintiff who remains entitled to judgment for the full amount of his or her damages against every concurrent tortfeasor although that tortfeasor may only be partly to blame (George Wimpey & Co Ltd. v British Overseas Airways Corporation [1955] AC 169,177, 189,195; Speirs v Caledonian Collierses Ltd. (1956) 57 SR (NSW) 483, 503, 511 - 2; Salmond & Heuston "The law of Torts" 20th edition 1992 page 435; Clerk and Lindsell on Torts 19th edition 2006 page 235.

Hon Justice Daniel V Fatiaki,

President of the Supreme Court

Hon Justice Robert French

Judge of the Supreme Court

Hon Justice Kenneth Handley

Judge of the Supreme Court

Solicitors:

Neel Shivam Lawyers, Suva for the Petitioner

Sherani and Company, Suva for the Respondents

CBV0004.05S