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Buakula v Attorney General of Fiji [2002] FJHC 214; HBC0196d.2001s (12 July 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0196 OF 2001

Between:

JOSAIA BUAKULA
Plaintiff

and

THE ATTORNEY GENERAL OF FIJI
Defendant

Mr. V. Maharaj for Plaintiff
Mr. Y. Singh for Defendant

DECISION

This is the plaintiff=s summons filed 10 July 2001 seeking the following Orders:-

1. That the Defence of the Defendant be struck out under Rules of the High Court, Order 18 Rule 19 and under inherent jurisdiction of the court on the grounds:-
   
   • (i) that it discloses no reasonable defence
     
   • (ii) that it is frivolous and vexatious; and
     
   • (iii) that it is an abuse of process of court.
     
2. That the Plaintiff be at liberty to enter judgment against the Defendant with damages to be assessed;
   

Plaintiff=s argument

The plaintiff=s claim is contained in the Statement of Claim filed herein.

Whilst driving motor vehicle Registration No. E8715 from Nausori to Suva the plaintiff suffered severe bodily injuries on 4 August 1999 when his owner=s said vehicle (a taxi) went into the trenches dug by the Public Works Department (PWD) at 4 miles Nasinu on Ratu Mara Road. At that time the PWD was carrying out repair and upgrading work on that stretch of road particularly constructing and widening a bridge.

It is alleged that the injuries caused was as a result of negligence on the part of >PWD its servants and/or agents and/or breach of its common law and/or statutory duty=. The plaintiff says that the PWD owed a >duty of care to all Road users to keep the said Road safe for use at all times=.

In support of his claim in negligence and in establishing liability the plaintiff says that he will rely and adduce in evidence judgment entered against the defendant in Suva Magistrate=s Court Civil Action No. 949 of 1999 being an action instituted by the plaintiff=s employer against the defendant for damages to the said motor vehicle. The plaintiff was not a party to the said action nor was there any mention of any personal injuries suffered by him.

After the trial of the action, liability was apportioned on the basis of 70/30 against the defendant and judgment was entered in the sum of $8960 on 10 October 2000 on that basis. This sum has been paid by the defendant.

The plaintiff says that the defendant has filed a >sham defence= which ought to be struck out and an interlocutory judgment be entered in favour of the plaintiff with damages to be assessed.

The defendant=s argument

The defendant in his Defence states that it was the plaintiff who failed to negotiate >a bend and he drove over the chevron markers and collided with a concrete beam=.

The defendant in reply to the plaintiff=s application states that in the Magistrate=s Court action there is no mention of any injury to the plaintiff (the driver) in the accident. There is no medical report given to the defendant >to consider, any particulars given as to the nature or the degree of injury the plaintiff has suffered=.

The learned counsel for the defendant submits that he has a good defence and he will be prejudiced should the application by the plaintiff be allowed.

Consideration of the issue

I have considered the arguments put forward by counsel for each of the parties.

It cannot be disputed that liability had been established against the defendant in the proportion 70/30 in the Magistrate=s Court, Central Division in Civil Action No. 949/99. The then learned Magistrate Mr. Jiten Singh (now a High Court Judge) gave a comprehensive judgment in this case and damages have been paid to the plaintiff in that action. The plaintiff in that case was the owner of the taxi. The alleged injury suffered by the present plaintiff in that action had not figured at all. In fact there was no mention of it. In this regard therefore the revelation of the said injuries has come as a surprise to the defendant. Mr. Singh for the defendant in the present action said that when the Statement of Defence was filed he was not the solicitor representing the defendant.

Since liability has been established the plaintiff should not be required to prove this again. In the Notes to Or18 r19A in The Rules of the Supreme Court 1989 it is stated:

AIt is an abuse of the process of law for a suitor to litigate again over an identical question which has already been decided against him even though the matter is not strictly res judicata (Stephenson v. Garrett [1898] UKLawRpKQB 22; [1898] 1 Q.B. 677, C.A. and see Spring Grove Services Ltd. v. Deane (1972) 116 S.J. 844.

The following notes to Or 18/19/10B in the Rules of Supreme Court (ibid) ought to be borne in mind as the defendant cannot insist on the same issue being raised anew once liability has been established and not appealed against:

So, if a party seeks to raise anew a question which has already been decided between the same parties by a Court of competent jurisdiction, this fact may be brought before the Court by affidavit, and the statement of claim, though good on the face of it, may be struck out, and the action dismissed; even though a plea of res judicata might not strictly be an answer to the action; it is enough if substantially the same point has been decided in a prior proceeding (MacDougall v. Knight, [1890] UKLawRpKQB 55; 25 Q.B.D. 1; Reichel v. Magrath, 14 App. Cas. 665 at p.667; Humphries v. H, [1910] UKLawRpKQB 117; [1910] 2 K.B. 531, C.A.; Cooke v. Richman [1911] UKLawRpKQB 132; [1911] 2 K.B. 1125; Greenhalgh v. Mallard [1947] 2 All E.R. 255, C.A.; cf. Conquer v Boot [1928] 2 K.B. 336; Green v. Weatherill [1929] 2 Ch. 213).

In this case once liability has been established it should not be relitigated on the same facts and circumstances. In this regard the following passage from Phipson on Evidence 12th Ed. at para 1341 is apt:

It is now settled that when once a given fact has been put in issue and decided between the parties, it will conclude them and their privies from re-litigating such fact in any subsequent proceeding, although brought for a different purpose or object. It has been suggested that though this is true with regard to findings of fact, yet to raise an estoppel on the right determined, the two suits must have been brought for the same purpose and object. However, it is thought that the second situation is one where the doctrine of the merger of a cause of action in a judgment is called in question and that there never can be an Aestoppel@ as to rights determined. Accordingly, when properly viewed, this way of presenting the matter amounts to no more than a truism. The result is that where a second action is brought for the same breaches of contract as an earlier action and the damages are the same, though the evidence is different, the matter is res judicata.

Because at no time before the institution of this action, the plaintiff=s injury was revealed, it is incumbent on the plaintiff to prove his case in accordance with the Rules of Court and on the authorities cited above bearing in mind of course that liability has been established against the defendant as between the plaintiff and the defendant in the said Magistrates Court action. As I see it the plaintiff still has to establish the essential ingredients of the offence as far as he as the driver/plaintiff is concerned in relation to the alleged personal injuries received by him.

He cannot ask for judgment with damages to be assessed in his present application to strike out.

In these circumstances I will require the plaintiff to prove his case and adduce evidence as to damages suffered by him. On the question of liability for negligence the following passage from the judgment in Marc Rich & Co, AG and Others v Bishop Rock Marine Co. Ltd and Others (The Nicholas H), The Times 7.7.95 p.34 H.L. is worth noting:

In order to determine a defendant=s liability for negligence the court had to consider not only foreseeability and proximity but also whether it was fair, just and reasonable to impose a duty of care. Those three requirements were convenient and helpful approaches to the question whether a duty should be imposed in any given case. Whether a duty should be imposed in any particular circumstances depended upon the circumstances.

The action will therefore take its normal course.

For these reasons the summons is dismissed with costs in the cause.

D. Pathik
Judge

At Suva
12 July 2002