Aberaam v Attorney General [2010] KIHC 63; Civil Case 200 of 2009 (10 June 2010)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 200 of 2009

BETWEEN:

TEBOROU ABERAAM
Plaintiff

AND:

ATTORNEY GENERAL FOR MINISTRY OF HEALTH AND MEDICAL SERVICES
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Mr Monoo Mweretaka

Date of Hearing: 10 June 2010

JUDGMENT
(Ex Tempore)

In the early afternoon of 14 July 2008 the plaintiff, a lady in middle age, got off a bus near the FTC at Bikenibeu. The bus was going in the direction of Buota. It was raining. The plaintiff had no umbrella. She went to cross the road behind the bus. She looked, saw nothing coming and heard nothing. When she was in the middle of the road she was hit by an ambulance driven by Taake Teaotao in the direction of Bairiki.

That is the plaintiff’s evidence. The defendant has called no evidence. In the circumstances I have no difficulty in finding the driver of the ambulance was, on the balance of probabilities, guilty of negligence. The defendant has admitted that Taake was its servant. The defendant is liable for his negligence.

In the absence of any rebutting evidence I am not prepared to find the plaintiff guilty of contributory negligence.

Mr Mweretaka at the beginning of the hearing applied to file an amended defence. Mr Berina objected. I did not allow the amended defence. The Court will not as a rule allow late amendments to pleadings especially, as in this instance, the amendments introduce a quite new defence.

I would say no more about the attempted amendment if it were not for the defence it sought to plead: that Taake had pleaded guilty to, I think, dangerous driving in the Magistrates’ Court and was fined $500.00 which the Single Magistrate directed should be paid to the victim, the plaintiff in these proceedings. Mr Mweretaka sought to plead res judicata, that the plaintiff had already been awarded compensation. First the Single Magistrate had no power to order that the fine be paid to a private person: fines are paid to the Republic. Secondly, a person cannot be deprived of the opportunity to bring civil proceedings by anything done in a criminal court.

Even if I had allowed the amended defence it would have failed.

The plaintiff succeeds on liability.

THE HON ROBIN MILLHOUSE QC
Chief Justice