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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT OF FIJI
CIVIL APPEAL NO.ABU 121 OF 2018
(High Court of Suva Civil Action No. HBC 141 of 2015)
BETWEEN:
PERUSEWAN
Appellant (Plaintiff)
AND :
1. R.C. MANUBHAI AND COMPANY LIMITED
2. SHALENDRA KUMAR
3. KRISHNEEL CHAND
Respondents (Defendants)
Coram : Basnayake JA
Lecamwasam JA
Jameel JA
Counsel: Mr. R. Gordon for the Appellants
Ms. S. Devi for the Respondents
Date of Hearing: 8 February 2022
Date of Judgment: 4 March 2022
JUDGMENT
Basnayake JA
[1] This is an appeal by the Appellant (Plaintiff) to have the judgment of the learned High Court Judge (pgs. 1-36 of the Record of the High Court (RHC)) dated 21 September 2018 set aside. By this judgment the claim of the Plaintiff was dismissed without costs. The grounds of appeal (pgs. 37-40) are as follows:-
Grounds of Appeal
[2] (i). The Learned Trial Judge erred in law and/or in fact by relying on irrelevant facts and/or evidence and/or by not relying on relevant facts and/or evidence;
(ii). The Learned Trial Judge erred in law and/or in fact by not assessing and/or weighing all the relevant and admissible evidence in totality individually and cumulatively;
(iii). The Learned Trial Judge erred in law and/or in fact when he found and/or ruled and/or concluded and/or observed that the oral evidence led for and on behalf of the parties had only a little role to play in the resolution of the core issue in this matter;
(iv). The Learned Trial Judge erred in law and/or in fact when he proceeded to analyse and/or consider only a select and limited and/or subjective selection of the evidence led at trial by both parties;
(v). The Learned Trial Judge erred in law and/or in fact when he delved and/or relied too much on the previous litigations’ and/or the previous litigations’ parties and/or the previous litigations outcomes and/or misconstrued their relevance and/or applicability and/or meaning and/or effect;
(vii). The Learned Trial Judge erred in law and/or in fact when he misconstrued and/or failed to adequately and/or properly identify the issue and/or issues in dispute between the parties;
(viii). The Learned Trial Judge erred in law and/or in fact when he misconstrued and/or failed to adequately and/or properly apply the principle of res ipsa loquitur;
(ix). The Learned Trial Judge erred in law and/or in fact when he misconstrued and/or failed to adequately and/or properly apply the principle enunciated in Ryland v Fletcher;
(x). The Learned Trial Judge erred in law and/or in fact when he incorrectly answered the issues he purportedly and/or incorrectly imposed on the parties;
(xi). The Learned Trial Judge’s judgment and/or reasons for judgment lack any proper and/or adequate analysis of the applicable law and/or fact in issue;
(xii). The Learned Trial Judge’s judgment and/or reasons for judgment lack and/or fail to explain the actual path of reasoning in sufficient detail to enable the Appellant to understand why it was unsuccessful and to enable an appeal court to determine whether the decision involved appellable error;
(xiii). The Learned Trial Judge’s judgment and/or reasons for judgment show that he failed to engage with the Appellant’s case;
(xiv). The Learned Trial Judge erred in law and/or in fact when he ignored procedural law that governs conducting legal proceedings;
(xv). The Learned Trial Judge was not impartial, fair or independent;
(xvi). The Learned Trial Judge failed to interpret the law and/or interpret the law correctly.
[3] The Plaintiff filed this case by way of writ of summons (pgs. 41-47) on 21 August 2015. In that the Plaintiff avers that on 7 May 2014 a truck belonging to the 1st respondent (1st Defendant) was parked on Kings Road, Raviravi, Ba, next to a bus shelter. The 2nd Respondent was the driver (2nd Defendant) and the 3rd respondent (3rd Defendant) was a mechanic. The 2nd and 3rd Defendants have been employees of the 1st Defendant company.
[4] On this day while the 2nd and the 3rd Defendants were doing some work on the engine and/or gear box a large metal piece flew out of the engine compartment and struck the Plaintiff causing him serious injuries. The Plaintiff avers that the said accident and the resultant injuries occurred due to the negligence, carelessness and recklessness of the Defendants. The Plaintiff claims general damages for pain and suffering, loss of amenities of life, loss of earning capacity and costs of future care. By way of special damages the Plaintiff claims a sum of $1080.00 plus AUD$ 360.75.
[5] The Defendants in a statement of defence (pgs. 51-53) admitted paragraphs 1, 2, and 3 of the statement of claim. That is with regard to the ownership of the truck and the employment of the 2nd and the 3rd Defendants. The Defendants also admit to the parking of the truck on 7 May 2014 at the bus shelter on Kings Road. The Defendants deny negligence and liability. The Defendants state that the Plaintiff entered an area marked as hazardous as the vehicle was surrounded by reflector cones. The Plaintiff exposed himself to a hazardous situation. The Defendant’s further state that the engine started on its own due to an electrical malfunction which is attributed to “An Act of God”. The Defendants state that the injuries sustained by the Plaintiff are due to his sole and/ or contributory negligence.
Judgment
[6] The learned Judge has dismissed the Plaintiff’s claim. The learned Judge without any hesitation rejected the evidence of the Plaintiff and the Plaintiff’s witnesses on the basis that the evidence cannot be believed. The evidence of the Plaintiff and the witness Gopal were branded as dishonest and unreliable. I will quote some portions of the judgment verbatim.
(16). “The evidence of the Plaintiff and Baskaran Gopal presents to me an unconvincing picture of the accident. As correctly pointed out by the Defendants, had the Plaintiff been on the road within two or two and half meters of the very back of the truck, he would not have been within the trajectory of the parts which flew from the engine compartment. I do not accept the version as the truth, because it is not a possibility. Because, first, the gearbox and the engine is towards the front of the truck. Secondly, the container would have been an obstruction to the position of the Plaintiff. In the circumstances, the parts cannot fly two or two and half meters towards the back of the truck from the front of the truck near the engine compartment.
(17). I reach the conclusion that the Plaintiff’s and Baskaran Gopal’s account of the accident is inherently and intrinsically improbable. This is sufficient to displace my acceptance of the testimony of the Plaintiff and Baskaran Gopal. I disbelieve the evidence of the Plaintiff and Baskaran Gopal. They are dishonest and unreliable witnesses.
(18). I am not prepared to hold on the balance of probabilities that the parts flew two or two and half meters towards the back of the truck from the front of the truck near the engine compartment. Because it is not a possibility. Anything more shadowy, anything more unsatisfactory, anything more unlikely to produce persuasion or conviction on the mind of the Court, I can scarcely imagine. It is a fact which would eat away the whole foundation of the Plaintiff’s case. This item of evidence raises a very serious doubt on the truth of the Plaintiff’s case.
(19) The exact position of the Plaintiff at the time of the accident is a crucial fact. The Plaintiff’s entitlement to damages depends upon the Courts accepting his version of the events leading to the accident.
(20) What is the exact position of the Plaintiff immediately before and at the time of the accident? The Plaintiff and Baskaran Gopal are not speaking the truth on this highly material substantive factual question (emphasis mine).
(21) I reject the testimony of the Plaintiff and Baskaran Gopal on this highly material substantive factual question on the ground of lack of credit. The testimony of the Plaintiff and Baskaran Gopal could provide no proper basis for any reliable finding of fact on this highly material substantive factual question.
(23) I have arrived at an adverse finding in regard to the testimonial trustworthiness of the Plaintiff and “Baskaran Gopal” on a highly material substantive factual question.
(24) Arriving at determination with regard to credibility and testimonial trustworthiness of a witness is a question of fact and not a question of law.
(25) The Plaintiff and Baskaran Gopal have given false evidence on a highly material substantive factual question of this matter.
(27) In the present case, the falsehood is of such magnitude as to taint the whole testimony of the Plaintiff and Baskaran Gopal. The testimony afforded material for serious challenge to the credibility or reliability of these witnesses on a matter vital for the Plaintiff. In the instant case, there are no circumstances which exclude the application of the maxim.
[7] The learned Judge thereafter discussed the principles of “res ipsa loquitur” as follows:
(33)......The maxim comes into operation (1) on proof of the happening of an unexplained occurrence; (2) when the occurrence is one which would not have happened in the ordinary course of things without negligence on the part of somebody other than the Plaintiff; and (3) the circumstances point to the negligence in question being that of the Defendant rather than that of any other person. The third requirement is usually fulfilled by showing that the instrument causing the damage was in the management and control of the Defendant at the time of the occurrence, but this is not essential. (34) The case of Byrne vdle 2 H. && C.722, 159 ER (Eng. Rep.) 299 (Exch.); is); is regarded as the English tort law case that first applied res ipsa loquitur. In that che Plaintiff (Byrn(Byrne) was struck by a barrel of flalling from a window as he walked past the Defendant’8217;s (Boadle) flour shop and sustained serious personal injuries. A witnestifhat he saw the bahe barrel rrel but had not seen the cause. Byrne did not present any other evidence of negligence by Boadle or his employees. It was held that, “A presumption of negligence can arise from an accident. A party needs not present direct evidence of negligence when the mere manner and facts of the accident show that it could not have happened without negligence on someone’s part. A barrel could not roll out of a warehouse window without negligence. This is an example of a case in which res ipsa loquitur (“the thing speaks for itself”) applies. It is evidence that the barrel was in the custody of the Defendant and its falling is prima facie evidence of negligence. A Plaintiff who is injured in such a fashion should not be required to show that the barrel could not fall without negligence. A rebuttable presumption is created that the Defendant was negligent and he has the burden to prove that he was not. The Defendant had a duty to ensure that those passing by his shop are not injured by objects under his control. In this case there was a scintilla of evidence wespect to negl negligence. The Defendant failed to show he was not negligent and the Plaintiff was entitled to the verdict.”
[8] The ed Juaving considered the principles of “res >res ipsa ipsa loquitur” held that it is only the 3rd element that the Defendants conceded. That is, that the instrument causing the injury was under the control of the Defendants. The remainder of the learned Judge’s reasoning is reproduced: “The evidence of the Mechanic, Krishneel Chand (deposed in cross examination) that the occurrence of the engine suddenly starting on its own and going full throttle, leading to the gearbox exploding and injuring the Plaintiff could be due to an electrical malfunction was not challenged by the Plaintiff. That being so, the first and second of the three necessary conditions for the application of principle of ‘res ipsa loquitur’ are not satisfied, and the principle therefore cannot apply to the present case”.
[9] The learned Judge had dismissed the Plaintiff’s case as the Plaintiff was found near the truck exposing himself to the danger. “The probabilities favored the conclusion that the Plaintiff was standing on the driver’s side next to the cab immediately before and at the relevant time of the accident (exposing himself to the danger of being injured)”.
The evidence
[10] Parusewan (pgs. 159 -198) said that at about 5.30 he was waiting to buy fish at the bus shelter. In front of the shelter a truck belonging to the 1st Defendant was found parked. Two men were working on the truck. Its cab was open. The man who was standing on the side of the road went inside the cab and suddenly the engine of the truck started, very slowly, suddenly then over rammed and he could not understand what happened and he had just turned around. The engine started with a loud sound and there was an explosion like a bomb. I heard something hit me and I flew on to the main road. At that time he said he was 2 or 2 ½ metres away from the truck. He said the engine part that struck him weigh 9 to 10 kg. He said he did not see orange cones kept round the truck. He was injured and hospitalized. He was in the hospital for 12 or 13 days. He testified that he underwent surgery and his spleen was removed, he was given the drip and about four months later he went to Australia for further treatment.
[11] He paid $288.00 as visa fees, $1497.41 for the air ticket. He said before the accident he earned a salary of $12572.00 and after the accident also he got the same pay. He used to play soccer, fished for recreation and did farm work, drove a tractor, all of which he cannot do now. He used to work in the cane farm before, but after the injuries caused by the accident, he was unable to work as before, and is compelled to employ labour. He said he still drives the tractor to carry water and the like. He cannot plough. The farm belongs to him with an extent of 11 ½ acres. He said the family used to visit him in hospital which cost $30.00 per trip. After leaving hospital he had to visit the clinic 6 times, with $30.00 and the total cost of that was $1080.00.
[12] Under cross-examination he said the metal pieces had flown as far as the shop which is on the opposite side (of the road), and people had even collected some metal.
[13] Dr. Arun Murari (pgs. 198-225) produced a medical report prepared by Dr. Aktar Ali and described the injuries caused to the Plaintiff. His 4th, 5th and 6th ribs of the left side were fractured. The ribs were bleeding and a tube was place into drain the blood. The spleen was totally damaged and had to be removed. In addition there were some superficial injuries. The injuries would lead to long term pain. After recovering from surgery, he had to visit the hospital several times for abdominal pain and this was attributed to the surgery. Considering the injuries the patient may have prolonged period of pain. He said on the left hip there is a disfiguring and an irregular scar.
[14] Dr. Ali has rated the permanent impairment of the Plaintiff at 9% for scaring, spleenectomy 3% (removal of the spleen), and total impairment at 15%. Due to the removal of the spleen the Plaintiff’s ability to fight infection was affected and he is susceptible to get infection for life. To prevent diseases the doctor has recommended two vaccines to be administered. Under cross examination Dr. Murari (on 30 January 2019) said the Plaintiff had visited the clinic last on 1.8.2016 (two years and four months ago). He could not say whether the Plaintiff had gone anywhere else for treatment.
[15] Karan Gopal (pgs. 226-246) said he was on the other side of the road when this incident happened. He had seen a truck parked opposite the bus shelter and the Plaintiff was behind the truck coming towards him. Suddenly the truck started and blew. He saw the Plaintiff falling. There was a cloud of smoke. He said the Plaintiff was sent to hospital. He said that time he did not see any cones placed around the truck. Under cross examination he said that he saw a man working on the truck. The cab of the truck was open.
[16] Mani (pgs. 238-247) lived in the vicinity of the place of the incident. He said he saw a truck and when he inquired, the driver of the truck had told him that his truck is broken and he was waiting for the mechanic. After he left the place he said he heard a loud explosion and he climbed on to a tree, to see the black smoke covering the area. About 10 to 15 minutes later he went back to this site and was told that a person was injured and had been taken to hospital. He said that everyone was collecting metal pieces and he too collected a large piece weighing about 9 to 10 kg. Later on, the Plaintiff’s nephew asked for that piece and identified blood and hair. He said he later saw someone placing cones around the truck. However he did not see any hazard lights in the truck. Under cross examination he said he saw many metal pieces at the scene. There was oil spilled from the truck. The Plaintiff lived in the neighbourhood and was known to him from childhood. The Plaintiff’s evidence was concluded with this witness.
[17] Shalendra Kumar (pgs. 247-277) is the 2nd Defendant and the driver of the truck. On 7 May 2014 afternoon he was going to Ba from Lautoka in an Isuzu 10 wheeler truck belonging to the 1st respondent. He said the truck broke three times on the way. The third time he stopped the vehicle on the road, and put orange cones and hazard lights. The truck carried cones as required by the LTA procedure. Behind the bus shelter there is a sugar cane farm and shop in front. Little further away there are houses. Behind the bus stand there is a house. He said when the mechanic came he started working on the truck. While he was there a man got down from a bus and came close to the truck and went to his house. When the mechanic (3rd Defendant) arrived the 3rd Defendant opened the cap and started with his work. The mechanic has arrived at half past five. The mechanic has started the vehicle and got off. Thereafter the mechanic worked on the engine. He could not fix it. He started the engine again. It did not work. Then he called the Boss.
[18] The same man who had gone down from the bus came from the house and stood next to the 2nd Defendant and watched. At that time the 3rd Defendant was checking on the computer box in the truck. When the 3rd Defendant could not fix it the 3rd Defendant called the boss who said to wait for the foreman. The 3rd Defendant was sitting on the tyre, and using the phone. The 2nd Defendant was just standing there. He said the engine started on its own. At that time no one was working on the engine. The engine was at high speed. In 30 seconds it was all smoked. Thereafter the gear box and everything fell down and the 3rd Defendant pulled the battery wires. He said that parts of the gear box were flying and he said he could see the parts everywhere. Some parts were big and some very small.
[19] He said the man standing next to him fell down. Then he stood up and went again in front of the truck. Thereafter a few meters away from him, he could see somebody take the man away. When the foreman arrived the truck was towed to the garage. The parts that were flown were collected. He said now for four years the truck is still in the garage and not repaired. In cross-examination he said that he is not aware of a maintenance sheet to check as to when the vehicle was serviced last.
[20] Krishneel Chand the mechanic of the 1st Respondent Company (pgs. 278-315) spoke to cones and hazard lights. He said when he arrived at the scene, the 2nd Defendant driver was found seated at the bus shelter. Whilst he was cleaning the filter he saw a man coming towards them from the settlement. He stood there and was looking at the engine. He said when the engine started it stopped immediately and he has told the 2nd Defendant (driver) to start again. It did not start. Then he called the Director who said to wait for the foreman. He said they did not invite the Plaintiff to come near the truck. Whilst waiting for about 5 or 10 minutes for the foreman, the engine started and went for full rpm (revolutions per minute). After that the engine parts flew (pg. 284). He said the engine parts are flying. The parts from the engine were flying. The flywheel, the cover, clutch pads, clutch plates and all went off. Those parts are from the gear box.
[21] Then there was black smoke. He said that he heard the parts banging on the chassis. He then took off the battery terminals. After that, the truck shut down. He said having informed the Director, he had collected the parts that had flown. The parts that fell on the road were all busted into small pieces. He could not explain how the truck started on its own. He also said that this vehicle was never repaired before. He said the 2nd and the 3rd Defendants were near the vehicle and were not hit by the flying parts. He said he did not see what happened to the Plaintiff due to the black smoke.
[22] He said the engine may have started due to an electrical malfunction. He could not explain as to how the engine started on its own without anyone starting the engine. To a question from the counsel for the Defendants in examination-in-chief (pgs. 287-288) that, how do you get the truck to go for rpm? The 3rd Defendant answered as follows:
“Press the speed pedals. Without the speed pedals, you can’t because it’s an electronic truck, there’s always the computer box and the...as soon as you press the pedals, the pedal send a signal to the computer box, computer box send the signal to the switches then the truck will take the speed”. Q. Is there any other way to get the truck to go for rpm? A. No. Q. Is there anything you can do from within the engine compartment to get the truck to go for rpm? A. No. Q. So, how did the engine suddenly start on its own? A. I don’t know what happened to the truck.
He said some parts flew 3 or 4 meters away. Some across the road. They flew everywhere across the road, large and small. The large parts fell down near the truck. Some flew into the sugar cane field, including fly wheel parts.
[23] Dr. Taloga (pgs. 315-348) said that he examined the Plaintiff on 21 May 2018 for a permanent impairment assessment. This is done for workers compensation and on patients who have attained maximum medical improvement. The assessment is based on ‘The workers guide for the evaluation of permanent impairment’ and American Medical Association Vol. 5.
[24] For the purpose of assessment he had taken first the history of the patient. The qualifications required of medical personnel is to attend phase 1 and 2 of the training workshops. The doctor said that he has 15 years of experience doing impair assessment. The witness produced the report issued after assessment of the Plaintiff. His evidence is based on this report marked exhibit No. 2. He said he had the opportunity of considering the report made by Dr. Joeli Marika and a summary of the patient’s history taken on admission to hospital.
[25] The Plaintiff has suffered an open fracture of his left side of iliac crest that is the iliam bone. He has sustained a splenic rupture. He has ruptured his spleen and the rib fractures and some small lacerations to the abdomen. The witness said that when the Plaintiff was presented he had complained of chest pain. At the time of examination the Plaintiff was not on regular treatment or attending clinic. On examination he was obese (over weight). He had hypertrophic scars on the left side of his chest wall, iliac crest and over the abdomen. The one in the abdomen is extending from xiphysternum (lower part of the sternum) and straight down to the top of his pelvis. His abdomen is hanging over pendulous meaning hanging down. There was no tenderness or pain in the abdomen. No tenderness means, the fractures have healed. He has done a chest x-ray and a pelvic x-ray to confirm what he has observed. The pelvic fracture had also united and healed. He said according to the rating the permanent impairment is 1%. He said that he has examined Dr. Akhtar Ali’s report which was produced and marked as exhibit 3. According to Dr. Ali, the permanent impairment is 9%. He said on the splenectomy the rating was 0%. The Plaintiff’s blood was normal. The Plaintiff having received vaccination against pneumococcal the risk of getting infection is less and getting infection in the future is also the same. The doctor said that from his examination, the Plaintiff could return back to his normal original work.
Legal analysis
[26] This is a text book case of “res ipsa loquitur”. According to the facts as related to by the witnesses, a truck belonging to the 1st Defendant broke down and is eventually parked in front of a bus shelter, a public place. The vehicle was being repaired by a mechanic (3rd Defendant) an employee of the 1st Defendant. The 2nd Defendant who was the driver, another employee of the 1st Defendant assists the 3rd Defendant in the repair. According to the defence witnesses, they were unable to effect the repair and were awaiting their foreman. Whilst waiting for the foreman, the Defendants state that the engine started on its own and rpm went very high and as a result the gear box exploded. Parts of the gear box, big and small (fly wheel, flywheel cover, clutch pads, plates) flew due to the explosion.
[27] Parts of the gear box were found near the shop which is on the other side of the road opposite the bus shelter. Small pieces were found scattered everywhere. It is evident that parts were collected by the people who gathered there after this explosion. The sound of the explosion was said to be something similar to a bomb which would have alarmed the people living in the vicinity. The Plaintiff was struck by one of those flying parts and was hospitalized. The Defendants attempted to exculpate themselves from liability claiming that this explosion occurred due to an Act of God. Eventually however this defence was abandoned. The blame was put on the Plaintiff. The Defendants alleged that the truck was surrounded by orange colour cones to indicate the danger and not to enter. The Defendants also claim that the truck had its hazard lights on at that time. The Plaintiff therefore entered at his own peril and the Defendants were not liable for the injuries. The Plaintiff denied the existence of cones and warning lights.
[28] The learned Judge denied the Plaintiff’s claim on the ground that the Plaintiff’s and the witness Baskaran Gopal’s evidence could not be believed. Why did the learned Judge not believe the Plaintiff and the witness Baskaran’s evidence. The evidence was condemned by the learned Judge. The Plaintiff and the witness Baskaran were regarded by the learned Judge as dishonest and unreliable witnesses. The learned Judge did not believe that the gear box parts can fly two or two and a half meters towards the back of the truck from the front of the truck when the evidence of both, the Plaintiff and the defence witnesses was that parts big and small flew everywhere. This was after an explosion. It was the gear box that exploded whilst the engine bonnet was opened.
[29] The learned Judge accepted the evidence of the two Defendants who said that the Plaintiff was near the truck and was within the danger zone. The Plaintiff’s and Baskaran’s evidence was that the Plaintiff was behind the truck. The learned counsel for the Plaintiff submitted that the whereabouts of the Plaintiff was not material. According to the learned Judge (para. 19) the exact position of the Plaintiff at the time of the accident is a crucial fact. The Plaintiff’s entitlement to damages depends upon the courts accepting his version of the events leading to the accident. (20) What is the exact position of the Plaintiff immediately before and at the time of the accident? (25) The Plaintiff and Baskaran Gopal had given false evidence on a highly material substantive factual question on this matter. (27) The falsehood is of such magnitude as to taint the whole testimony of the Plaintiff and Baskaran Gopal. Thus the evidence of the Plaintiff and Baskaran Gopal was disbelieved and rejected in toto.
[30] The learned Judge accepted the evidence of the defence witnesses that the Plaintiff stood near the vehicle to the left side of the truck driver. That was the reason why the Plaintiff’s body was covered with black smoke. It is strange for the 2nd Defendant to escape without a scratch while standing so close to the Plaintiff. How is it that only the Plaintiff was covered with black smoke? I think it is appropriate to show that this contradiction has not been detected. It is the defence case that the Defendants were not successful in carrying out the repair and thus waiting for the foreman when the engine started on its own and increasing the rmp very high causing the explosion. The Defendants claim that they did not contribute to the explosion. According to the Plaintiff the explosion occurred while the two Defendants were engaged in the repair.
[31] It is evident that whilst one was in the engine compartment, the other would have been at the wheel. According to the Plaintiff’s case the explosion was due to over accelerating that caused the rpm too high that caused the gear box to burst. The Defendants took up the position that they were not doing anything and the engine started on its own and the rpm increased due to a mechanical defect. Could an engine start by itself and raise the engine until it bursts without anyone being instrumental in starting the engine? The 2nd Defendant giving evidence said that it was the 3rd Defendant who started the engine first. The 3rd Defendant said that it was the 2nd Defendant who was the driver of this vehicle who started the truck. Why didn’t the 2nd Defendant say that it was he who started the engine? Why does he say that the engine was started by the 3rd Defendant unless the 2nd Defendant feared unfavourable consequences for his admission?
[32] The 3rd Defendant states that the rpm cannot increase without pressing the pedals (pgs. 287 and 288). The 3rd Defendant could not explain how the engine started on its own. There is no other evidence other than that of the two Defendants who can speak to this crucial moment. The Plaintiff’s evidence is that the explosion occurred whilst the Defendants were working on the engine. According to the evidence of the 3rd Defendant he arrived at the truck for the repair at 5.30 p.m. How long did he take to find out that he will not be successful in the repair? It appears that the explosion occurred about the time the Defendants were engaged in the work and that was not so long after the arrival of the 3rd Defendant. Is it plausible that the explosion occurred while they were doing the repair? If they said that they would have even run the risk of losing their employment. Is that why they sought the indulgence of God? If the Defendants’ evidence is contradictory with regard to who started the engine first and if the rpm of an engine cannot increase without pressing the pedal, can one believe when they say that they were doing nothing when the explosion occurred? Is it plausible that that the mechanic finished work on the truck so early and so fast as to say that he could do nothing more? I am of the view that the available evidence is sufficient to disbelieve the evidence of the 2nd and the 3rd Defendants that they were waiting for the foreman. There was no other evidence to confirm that it was true. I am of the view that the learned Judge was too hasty in rejecting the evidence of the Plaintiff and Baskaran Gopal. What would have been the position if the Defendants admitted that the explosion occurred whilst they were accelerating the pedals? Would it be better to say that they did nothing and it happened automatically?
[33] The defence witnesses were not able to give an account of the condition of the truck. They were not able to show any records with regard to maintenance or any service record to show that the truck was well maintained and not dangerous to be on the road. In this case there was no dispute that the Plaintiff suffered injuries. The learned Judge however does not give any relief to the Plaintiff due to the reason that the Plaintiff was at fault in exposing himself to danger. The point of impact was not within the areas covered by the cones. So the defense of voluntary assumption of risk is untenable. The learned Judge has failed to consider the gravity of doing a repair in a public place. According to undisputed evidence the gear box was in pieces as a result of the explosion and parts, large and small were scattered everywhere; So many pieces, that the people began to collect metal. There were many small pieces. Metal pieces were found even on the opposite side of the road where there was a shop. If there were other passersby at this place, even outside the enclosed area, the number of casualties would have been more. The cones and the hazard lights would not have saved them. The gear box pieces ejected from the vehicle did not fall within the area covered by cones. The evidence of the 3rd Defendant at page 286 of the RHC is that, “They all busted, small pieces”. The Plaintiff would have had a narrow shave. If the accident became fatal there would have been a police investigation which would have set the criminal law in motion.
[34] The 2nd Defendant has seen the Plaintiff standing closer to him and also falling after the explosion. However he has not done anything to find out whether he was injured. The 3rd Defendant has not seen the Plaintiff while he was being taken to hospital. The explosion caused a big black smoke which covered the whole place. The 3rd Defendant says that the smoke cleared within a minute. However by the time the smoke cleared, the Plaintiff had already been removed to a hospital, and the 3rd Defendant has not even seen the Plaintiff being taken to hospital. It would not have been possible to remove the Plaintiff to hospital within the period imagined by the 3rd Defendant. It was Gopal who had dispatched the Plaintiff to hospital in a vehicle from the neighbourhood. Probably the 3rd Defendant was in shock after experiencing the explosion and witnessing the flying pieces of the gear box. The explosion was of such a magnitude that it was described by the Plaintiff as a bomb.
[35] According to the learned High Court Judge, the Plaintiff’s evidence became highly improbable, highly incredible and worthless because the Plaintiff said that he was behind the truck. Whether the Plaintiff was behind the truck or away from the truck he would not have escaped this shower of metal, big and small scattered all over the place. It is not that the gear box or the pieces fell in the vicinity of the truck; definitely not within the parameters of the so called cones placed around the truck.
[36] In a case where the res ipsa loquitur maxim applies, the 3 essential elements as reproduced by the learned Judge are (para 43 at pg. 34 RHC)
(a) There must be an absence of explanation of the occurrence that caused the injury.
(b) The occurrence must have been of such a kind that it does not ordinarily occur without negligence, and
(c) The instrument or agency that caused the injury must have been under the control of the Defendant (by Gleecon C.J. and
Mcvugh J in their Lordships joint judgment in Schellenberg v Tunnel Holding Pty Ltd”, (2000) HCA
18[2000] HCA 18; , (2000) 200 CLR 121.
[37] In ase under appeal, the vehicle belongs to the 1st Defendant and therefore satisfitisfies the 3rd limb above. There is no explanation as to the explosion which occurred. This satisfies the 1st limb above. As the custodian of the vehicle is the 1st Defendant, it was incumbent upon him to prove that there was no act of negligence. No effort whatsoever was taken by the 1st Defendant to prove that there was no danger attached to the repair and in carrying out the same in a public place. The Defendant did not produce any record to show the maintenance of the vehicle. The witnesses were not aware as to when the vehicle was serviced last.
[38] The maxim res ipsa loquitur (meaning “the thing speaks for itself” or more loosely “the accident tells its own story”) is generally applied when sometimes the circumstances are such that the court will be prepared to draw an inference of negligence against the Defendant without hearing detailed evidence of what he did or did not do. In Barkway v South Wales Transport Co.Ltd. (1950) AC 185 House of Lords held that there is “nothing more in that maxim than a rule of evidence of which the essence is that an event which in the ordinary course of things is more likely than not to have been caused by negligence is by itself evidence of negligence.”
[39] However, it is important to appreciate that this means no more than that in the absence of an explanation from the Defendant the Plaintiff has discharged his burden of proof. The inference of negligence is by no means irrebuttable. In Ng v Lee [1988] UKPC 7; (1988 RTR 298) the Plaintiff’s appeal was dismissed as the Defendant was able to successfully rebut the inference of negligence. It was held “if the Defendant adduces no evidence there is nothing to rebut the inference of negligence and the Plaintiff will have proved his case. But if the Defendant does adduce evidence that evidence must be evaluated to see if it is still reasonable to draw an inference of negligence from the mere fact of the accident).
[40] Conditions for application of the maxim
Winfield elucidates 3 requirements for the application of the maxim:-
- A barrel will not fall from an upstairs window on to a passer-by in the street if those in charge take proper care (Byrne v Boadle) [1863] EngR 1012; 1863 2 H & C 722
- 2 railway trains belonging to the same company will not collide without negligence on the part of the company or its servants (Skinner v LB& SC RY)
- A stone in a bath bun could only have been there through some carelessness in its manufacture (Chaproniere v Mason) 1905 21 TLR 633
- “logic, experience and precedent compel us to reject the argument that airplane crashes ordinarily occur in the absence of default by someone connected with the design, manufacture or operation of the craft” (Higginbotham v Mobil Oil Corpn) [1977] USCA5 438; 1977 545 F 2d 422
[41] In Tort Law Text and Materials by Mark Lunney and Ken Oliphant at p. 200, the policy grounds for preferring the application of the maxim can be simply stated thus. The normal principle that the legal burden of proof rests on the Plaintiff is liable to lead to unjust results in many cases in which the Plaintiff does not know but the Defendant does know the facts relevant to the issue of negligence or not. In particular, where accidents are caused due to sudden vehicle failure on the roads, or to unexplained disasters (such as explosions) in factories, the Plaintiff may be in grave difficulties because he will have no information as to the standards of inspection, maintenance etc which the Defendant has adopted. The Defendant may be able to adduce evidence on these matters but the Plaintiff will frequently be unable to do so.
[42] The learned counsel incorporated grounds of appeal 1 to 6 and 9 to 15 into ground 7. The learned counsel submitted that he would not press on ground 8. Ground 7 revolves around the principle of res ipsa loquitur. The Defendants should have known the danger of repairing this vehicle in a public place and were negligent in not towing it to a garage. The Defendants removed the truck to a garage only after the damage was done. Hence I answer issue No. 7 in favour of the Plaintiff.
[43] I am of the view that the learned Judge has erred in not granting the reliefs prayed for by the Plaintiff. I therefore set aside the judgment of the learned Judge dated 21 September 2018, and enter judgment in favour of the Plaintiff. The Plaintiff is entitled to costs in the High Court. In this court I award costs in a sum of $5000.00.
[44] Although the learned counsel for the Plaintiff Appellant moved this court to consider the assessment of damages, I am of the view that it is more appropriate for it to be done in the proper forum. Therefore the Registrar is directed to forward the necessary records to the proper forum for assessment.
[45] In passing I must state that learned Judges should refrain from making all kinds of remarks against witnesses in their judgments unless absolutely necessary. In this case I did not find a single instance of a witness having been accused of lying in court. No witness had been confronted with regard to any item of evidence. It may be that a particular answer is not palatable. It appears that the evidence of the Plaintiff and the witnesses are more probable than the evidence of the defence.
Lecamwasam JA
[46] I agree with the reasons and conclusions arrived at by Basnayake JA.
Jameel JA
[47] I have read the draft judgment of Basnayake JA, and agree with the reasons and findings and proposed orders.
Orders of court are:
.....................................
Hon. Justice E. Basnayake
JUSTICE OF APPEAL
.......................................
Hon. Justice S. Lecamwasam
JUSTICE OF APPEAL
.............................................
Hon. Justice F. Jameel
JUSTICE OF APPEAL
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