IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. 242 OF 1994

Between:

JAINENDRA PRASAD SINGH
s/o Jack Singh
Plaintiff

and

1. KINIJOJI KATONIVERE
2. THE ATTORNEY GENERAL
Defendants

Mr. R. I. Kapadia for the Plaintiff
Mr. D. Singh for the Defendants

JUDGMENT

In this action the Plaintiff claims damages for personal injuries suffered by him on or about 16 June 1993 at Daku, Labasa arising out of a motor vehicle accident as a result of alleged negligent driving on the part of the first defendant who was driving motor vehicle Registered No. GL245 as the servant of the second defendant.

The issues

The defendants deny negligence on their part and also the particulars of injuries. Hence it is for the court to determine these issues. However, counsel agree that I decide liability first and depending on the outcome to assess damages as a separate exercise.

The facts agreed upon are that on 16 June 1993 at Daku, Labasa there was a collision between motor vehicle No. GL 245 (the "vehicle") driven by the first defendant acting in the course of his employment with the Government of Fiji and an oncoming vehicle (a 'van') driven by the plaintiff.

It is also admitted that the first defendant was prosecuted and convicted at the first class Magistrate's Court, Labasa for the offence of dangerous driving and was fined a sum of $50 in default 50 days imprisonment and that such prosecution and conviction arose out of the said accident.

The Plaintiff's case

The Plaintiff who is 31 years of age is a qualified motor mechanic of 14 years standing and runs his own business. On 16 June 1993 at about 1.30 p.m. he was on his way to attend to a breakdown in the course of his work at Labasa on Wainikoro Road. It was a bright and sunny day. The Wainikoro road is a gravel road. He was driving a small light goods vehicle Datsun Pick Up Registered No. CG141.

The Plaintiff said that "while climbing Daku hill I saw two vehicles coming from front - they following each other very closely. I was on my correct side of the road completely. Road was newly graded at that point and lot of dust. Vehicle in front throwing lot of dust to vehicle behind."

The Plaintiff said that the rear vehicle came on his (Plaintiff's) side of the road "to avoid the dust." The Plaintiff tried to go further to his 'left' but the "rear" vehicle (D1's vehicle a Mitsubishi Pajero) came and collided with his van in the front. At that time the Plaintiff was "completely" on his correct side of the road whereas D1 was driving at 80-90 Kmph "was coming very fast down the hill on his incorrect side".

There was extensive damage to Plaintiff's van which he says was written off. There was a "workshop boy" with the Plaintiff in his van. He received minor injuries.

The injuries received by the Plaintiff included two bones in left arm which were fractured; main bone from thigh broken, pelvis dislocated, crack on left leg hip, cut in stomach and other minor injuries.

The Plaintiff was pulled out of the van and taken to Labasa Hospital. He was unconscious for 2½ days. He was in hospital for 61 days (from 16.6.93 to 16.8.93). In that period he was sent to Lautoka Hospital twice. He had 16 operations at Labasa. When he was discharged he was sent home on a wheel chair. After being six weeks in wheelchair he returned it to the hospital from where he took crutches. He was on crutches for 1½ years. He still attends hospital and is still on pain killers.

The Plaintiff's witness Constable No. 2135 WILLIAM MUDALIAR who was the investigating officer in this case testified that he interviewed the first defendant on 12 October 1993. The defendant gave a statement (exhibit 2) in which he admitted that the accident happened through his fault. The defendant (D1) in his statement said that he "tried to avoid hitting the stones so I moved to the right side of the road and suddenly the van came from the opposite side. Before I could stop I hit it head on".

A sketch plan (exhibit 4) showing the scene of the accident together with measurements was tendered to Court by consent.

The defendants' case

The driver of the government vehicle, the first defendant (D1) testified that when he reached the place where it was 'graded' recently, he slowed down when he saw a lot of dust. He then saw the Plaintiff's car some 18 feet away and was 'surprised' to see it. He said that he then 'swerved' his vehicle when the other car was on its side. He said that his speed at that time was 30 Kmph. He made no attempt to overtake the vehicle in front of him. The defendant said that the front right of Plaintiff's car collided with front right of his car but before collision "I didn't see the other vehicle" because the road was very dusty.

The defendant (DWI) was not injured. The District Officer Mr. Gordon Lee Wai was the only passenger in his car.

The defendants' witness MR. GORDON LEE WAI who was the passenger in the vehicle D1 drove testified that when they approached the hill "following another Government Vehicle notice the road was just graded and there was loose gravel and dust on road. Visibility was very poor. Just then the accident took place". He then said "we followed two tyre marks when descending. Right tyre of our vehicle would be in the centre of the road. Not encroaching other side. Car from opposite side was also in the centre of the road - his right tyre in the centre". The speed of the vehicle he was in would be 60 Kmph before the accident. In cross-examination he said that D1 was in the middle of the road because of loose gravel and the witness could see the vehicle coming in front and in re-examination said that the Plaintiff's van was "slightly on our side of centre line".

Consideration of the issues
Findings

Apart from the facts that are admitted I find as fact on the evidence before me that the portion of the road on which the accident took place, was recently graded which left a lot of "stones" on this portion of the road. This meant that motorists, instead of following their own sides had to move to incorrect side somewhat to avoid these stones. In fact as D1 said there were "tracks" formed through grading for vehicles to follow as a result they had to deviate from their proper path.

In this case this is exactly what happened according to the evidence before me.

I find as fact that D1 who was following a vehicle in front of him, whilst trying to avoid the dust thrown by this vehicle went to his incorrect side to such an extent that thereby he came in the path of the vehicle from the opposite direction. Because he was not keeping a proper lookout and because he was at some speed and also following the 'track' left by the grader collided with the Plaintiff's vehicle. The defendant admitted that he did not see the Plaintiff's vehicle because it was dusty. He said in his statement to police that "I tried to avoid hitting the stones so I moved to the right side of the road and suddenly the van came from the opposite side. Before I could stop I hit it head on."

I therefore find that D1 drove his said vehicle in a manner which was dangerous to the public. He was convicted and sentenced for the offence of dangerous driving. His vehicle was definitely on the wrong side of the road at the time of the accident to a large extent because he was avoiding dust and "stones" and also following the 'track' left by the grader.

On the evidence before me, subject to what I say hereafter on contributory negligence, I am of the view that the accident happened substantially in the manner described by the Plaintiff. I find that the accident happened because of the negligent driving on the part of the first defendant but on the balance of probabilities there was contributory negligence on the part of the Plaintiff. I find that insufficient evasive action was taken by the Plaintiff to avoid the accident despite the fact that he saw the defendant's vehicle coming in front of him some distance away.

Contributory negligence

The learned counsel for the defence in his address to Court did raise the point that there was contributory negligence on the part of the Plaintiff.

"Contributory negligence" is defined as "a technical expression of law used to describe a special defence available to a negligent defendant, namely, failure on the part of the plaintiff to exercise sufficient care for his own safety when such failure cannot be excused under any well-recognised rule of law." (THE LAW AND PRACTICE RELATING TO ACTIONS FOR NEGLIGENCE ON THE HIGHWAY, MAZENCARB 2nd Ed. (1952).

In order to establish the defence of contributory negligence, the defendant must prove, first, that the plaintiff failed to take "ordinary care for himself" or, in other words, such care as a reasonable man would take for his own safety, and secondly, that his failure to take care was a contributory cause of the accident (LEWIS v DENYL 1939 1 K.B. 540). It is in this sense that a plaintiff's negligence (not a defendant's) is correctly described as "contributory negligence". He has been "negligent as regards himself" (SWAN v NORTH BRITISH AUSTRALIAN CO (1863), 2H & C 175).

The test of contributory negligence is as stated by LORD PARMOOR in GRAYSON v ELLERMAN LINES LTD (1920) A.C. 466 at 477:

"I do not think that the question of contributory negligence depends upon any breach of duty as between the plaintiff and a negligent defendant; it depends entirely on the question whether the plaintiff could reasonably have avoided the consequences of the defendant's negligence".

It is for the defendant to prove contributory negligence. I find that there is evidence of it in this case mainly because there were "tracks" left behind by the grader which graded the road leaving behind "tracks" which were ill-defined and encroaching on the respective drivers' section of the road. Drivers were therefore forced to come on each other's path. It behoved the defendant to be a lot more careful than he was and much more so when he could not see the road ahead of him because of clouds of dust.

According to the rough sketch plan (exhibit 4) the point of impact appears to be just off the centre of the road more in the Plaintiff's section of the road.

The case of BAKER v MARKET HARBOROUGH INDUSTRIAL CO-OPERATIVE SOCIETY LD (1953) 1 W.L.R. 1472 dealt with a case of a collision between two motor vehicles proceeding in opposite directions which occurred in the centre of a straight road when both drivers were killed. Bearing in mind the facts of this case and my findings of fact the following statements from the judgment of DENNING L.J. in BAKER (supra) at p.1477 is worth noting:

"Assume that one of the vehicles was over the centre line a few inches, and thus to blame, why did not the other one pull in more to its rear side? The absence of any avoiding action makes that vehicle also to blame."

I therefore find that there was a lack of necessary caution on the part of each driver and that each contributed to the accident. The contributions are to be 90% on the part of the defendant (D1) and 10% on the part of the plaintiff.

Inevitable accident

The defence of "inevitable accident" was also raised by Mr. Singh in his address to Court.

What is required to be proved by the defendant in this regard is as set out in the judgment of LORD JUSTICE FRY in THE MERCHANT PRINCE 1892 p.179 when he said:

"The burden rests on the defendants to show inevitable accident. To sustain that, the defendants must do one of two things. They must either show what was the cause of the accident, and show that the result of that cause was inevitable; or they must show all the possible causes, one or other of which produced the effect, and must further show with regard to everyone of these possible causes that the result could not have been avoided. Unless they do one or other of these two things, it does not appear to me that they have shown inevitable accident."

On the evidence before me I find that he has not shown inevitable accident.

Conclusion:

In the outcome, I find that the accident happened through negligent driving on the part of the first defendant. I further find that there was lack of necessary caution on the part of each driver and that each one contributed to the accident. The Plaintiff in my estimation contributed to the accident to the extent of 10% to make him partly liable for the accident. But the defence of inevitable accident fails.

There will therefore be judgment for the Plaintiff against the defendants in the proportion stated hereabove for damages suffered by the Plaintiff which is to be assessed unless agreed with costs against them to be taxed if not agreed.

D. Pathik
Judge

At Suva
20 March 1997
HBC0242J.94S