Fiji Electricity Authority v Balram [1972] FijiLawRp 4; [1972] 18 FLR 20 (3 March 1972)

[1972] 18 FLR 20

SUPREME COURT

Civil Jurisdiction

FIJI ELECTRICITY AUTHORITY

v

BALRAM & OTHERS

Goudie J.

28th February, 3rd March 1972

Practice and procedure — amendment of pleadings — may be ordered at any stage if no injustice occasioned — Rules of the Supreme Court 1968, 0.20 r.5.

Evidence and proof — collision between motor vehicles — ownership of defendant's vehicle proved — no direct evidence that driver servant or agent of owners — presumption arising from ownership in absence of evidence to contrary.

Negligence — collision between vehicles — presumption arising from proof of ownership in absence of rebutting evidence that driver servant or agent of owners.

An amendment to pleadings may be permitted by the court at any stage of the proceedings for the purpose of determining the real question in controversy and, if it can be made without injustice to the other side should be allowed however late, and however negligent or careless may have been the first omission.

Where, in an action for damages arising out of a collision with the defendants' omnibus the plaintiff did not call any direct evidence that the vehicle was, at the material time, being driven by the defendants' E servant or agent, but the defendants themselves called no evidence, the court, following Bernard v Sully (1931) 47 TLR 557, held that proof of ownership was prima facie evidence to that effect.

Other cases referred to:

G. L. Baker Ltd. v Medway Building & Supplies Ltd. [1958] 3 All ER 540; [1958] 1 WLR 1216.

Clarapede v Commercial Union Association (1883) 32 WR 263.

The Duke of Buccleugh [1892] P.201; 67 LT 739.

Action in the Supreme Court for damages arising out of a collision between motor vehicles.

R. G. Kermode for the plaintiff.

D. N. Sahay for the defendants.

The facts sufficiently appear from the judgment.

3rd March 1972

GOUDIE J.:

This is an Action for damages for negligence arising out of a collision between a bus and a van at a road junction at Tacirua, Prince's Road, on the afternoon of October 13th, 1967.

In the Statement of Claim, the plaintiff Authority referred to the bus as "Registered No. 2404." At the commencement of the hearing plaintiffs counsel handed in, by consent, a certified copy of a registration document (Exhibit 1) in respect of a bus owned by "United Transport Company, registered No. 2403" and a certified copy (Exhibit 2) of the registration of the firm of "United Transport Company" showing the defendants as partners in the said firm. It was common ground that the only other partner mentioned in the certificate of registration (Exhibit 2) is dead.