IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CIVIL APPEAL NO. HBA 0023 OF 1998L

PATTERSON BROTHERS LTD

V

RAM SAMI

Gates J.

Mr T. Fa for the Appellant
Mr D. Kumar for the Respondent

7 December 1999
8 March 2005

JUDGMENT

Appeal from Magistrates Court; section 18 High Court Act Cap 13 (as amended by Act No. 27 of 1998; section 120(3) Constitution; Rules 36-40 Magistrates Courts Rules Cap 14; High Court Rules Order 55; appellate powers of High Court Ord. 55 r.7; whether plaintiff’s boat had been hired by the defendant shipping company?; direct oral instructions to hire from captain; ostensible authority; contents of a judgment; whether failure to consider defence witnesses; whether findings supported by evidence; identification of issues for determination; need for analysis as well as for reasons; essential ingredient of a fair trial; assessment of damages; consequential loss of use; need for mitigation of loss; replacement boat purchased. 

[1] 	The appellant’s chief grounds are that the trial Magistrate did not assess the defence witnesses properly, did not deal with the issue of hire, and made findings unsupported by the evidence. The appellant was the defendant in the court below, and was found negligent whilst hiring the plaintiff’s small boat, and was ordered to pay damages for the resultant loss of the boat, its outboard motor, and its use.

[2] 	The jurisdiction and powers of the High Court in matters of civil appeals from the decisions of Resident Magistrates are provided for by section 18 of the High Court Act Cap 13 (as amended by Act No. 27 of 1998) and by section 120(3) of the Constitution. Rules 36-40 of the Magistrates Courts Rules Cap 14 and High Court Rules Order 55 also have bearing. The High Court’s powers are set out at Order 55 r.7.

[3] 	In his statement of claim the plaintiff said he had hired out his boat and engine to the defendant upon the order of its employee Captain Sai Osbourne. Osbourne was originally sued as 2nd defendant. By leave of the court at the outset of the trial, the claim against the 2nd defendant was withdrawn. The boat was hired out to the defendant to service its ferry, the MV Jubilee II, riding at anchor in the harbour at Port Ellington. There was a cyclone warning at the time and the plaintiff’s small boat was to be used to transport the crew to and from the ferry from Ellington jetty to where the Jubilee was to ride out the cyclone. The boat was also used to carry supplies to the ferry. 

[4] 	The boat was kept by the defendant a further day. By the carelessness of one of the crew it drifted away from the ferry, when it was not securely tethered. The evidence was that it was discovered later at Wakaya Island and was brought back to Levuka. From Levuka the defendant arranged for it to be brought back to the plaintiff.

[5] 	The plaintiff claimed the defendant had been negligent in not tethering the boat properly to the ferry or to a safe place, and for failing to take adequate precautions in the prevailing weather conditions.

[6] 	The plaintiff sought damages for the loss of the boat and the outboard motor. He also claimed for its loss of use in his fishing business for the year till he was able to secure a replacement.

[7] 	The initial defence filed was a bare denial. During cross-examination counsel for the defence applied for and was granted leave to file an amended defence. The trial resumed 6 months later.

[8] 	In the amended defence it was contended that:

1.	A crew member named Manasa Soqo was the person who had hired the plaintiff’s boat. The defendant had not hired the boat.

2.	There was no need for food and water provisioning on the vessel which was already adequately supplied.

3.	It was Manasa Soqo who was responsible for letting go of the rope to the boat thus allowing it to drift away.

4.	The defendant admitted that the plaintiff’s boat was found at Wakaya Island, that it was towed by a Government vessel to Levuka, and then handed over to the police.

5.	Four members of the crew of the defendant’s vessel, the MV Jubilee II collected it from the Levuka Police and returned it to the plaintiff. They did so by loading it on to the Jubilee II and by bringing it back to Ellington in the Jubilee.

6.	Not only did the crew sail the boat, the defendant asserted that the boat and engine "were sound and returned in good working condition."

7.	The plaintiff then sold the boat to another (who was not named in the defence).

Who hired the boat?

[9] 	The first defence witness Jone Cakacaka DW1, who was the third in command of the Jubilee, said he knew Ram Sami the plaintiff at the time, December 1992. He said it was Manasa who brought the boat to the vessel. He said the boat was not hired to the defendant, Patterson Brothers Ltd. He said (R80):

"Anything hired the captain has to give the authority. The Captain used to sign the order pass it on to the mate and to me and I give the order to crew member."

[10] 	He went on to say that Pattersons had hired the boat from one Ali Hussain. Ali Hussain did not give evidence. Cakacaka related how the boat drifted off and how it was re-discovered. He did not explain why, if the company were not responsible for the hiring, all the arrangements made to locate and to transport back the boat on the company’s vessel the Jubilee appeared to be made by the company’s staff.

[11] 	Jasoni Siga DW2 was a greaser on board the Jubilee. He said he did not know whose boat it was. He saw it drift off from the Jubilee. Later the Chief Mate went to Levuka Police Station to get the boat back and its engine and signed for it. Three other crew were with him. Jasoni said he sailed the boat back to Ellington from Buresala, to which place the Jubilee had reached from Levuka. Manasa was said to have hired the boat on his own initiative, but it was the Chief Mate, who went and informed the owner, the plaintiff, of its return.

[12] 	Angus Hill DW4 was the mate on the Jubilee. He could give no details of who hired and of how the plaintiff’s boat was hired. The boat made at least two trips to the Jubilee from the wharf. Manasa was with the plaintiff he said. Then Manasa kept the boat tied to the Jubilee, until it drifted off. Why one asks would Ram Sami have accompanied Manasa to the Jubilee? Was it to speak directly to the Captain about the hiring arrangements? Why would Manasa spend his own wages on hiring the boat to assist the crew to go back and forth whilst they were on duty on the vessel with a cyclone brewing? 

[13] 	In a letter from the plaintiff’s solicitors to the Managing Director of the defendant company of 25 February 1993, it was said the plaintiff wanted his boat and the engine to be returned to him "in the same running condition as was delivered or hired by your company on 11 December 1992…" This letter was exhibited by the third witness for the plaintiff. There was no evidence of a letter from the defendant denying such a statement that there had been a hiring. Nor was such a question in cross examination or any question put to this witness by the defence.

[14] 	Jaikisun was a taxi driver. He was the second witness for the plaintiff. He told of the crew wanting to hire a boat, and he helped to arrange the plaintiff’s boat. The boat went backwards and forwards from the wharf to the vessel. He took the crew to town in his taxi to do shopping. With the vessel at anchor, how were the crew to get to and from the vessel without a boat? Would such transportation not be an obligation of the ship’s operators? Were not such trips official trips?

[15] 	In his evidence the plaintiff said he knew the Captain of the MV Jubilee. He used to drink grog with him. He said during the hurricane the Captain sent someone to him in Jaikisun’s taxi to say they needed a boat and an engine. At the wharf he met the Captain with the crew. The Captain told him they did not have food. The plaintiff was to go at the Captain’s oral instructions with some of the crew and to get the provisions. He was paid $10 by the Captain for the two initial boat trips and he would receive a further $50 for them to keep the boat overnight. The vessel could not move. This was confirmed also by Jone Cakacaka DW1 who said the anchor was stuck. It would also suggest that the small boat was required for official purposes since the Jubilee could not then approach the wharf.

[16] 	Neither Manasa or Captain Osbourne were called by the defence, for whose absence there was no appropriate explanation. It can be inferred their evidence would not have assisted the defence: Jones v Dunkel [1959] 101 CLR 298; O’Donnell v Reichard [1975] VR 916.

[17] 	There was sufficient evidence therefore which the learned magistrate could properly accept as proving on a balance of probabilities that the plaintiff’s boat had been hired by the defendant through the ostensible authority of the Captain.

[18] 	There was no real challenge to the finding that the damage or loss of the boat and its engine were caused by the negligence of one of the employees of the defendant company. In view of the findings on the hire issue the defendant was liable vicariously, or by itself, for such negligence.

Contents of a judgment

[19] 	Grounds 3 and 4 criticised the failure of the magistrate to give any consideration to the evidence submitted by the defence witnesses "or to say in what aspects they were regarded by the court as not truthful witnesses."

[20] 	In Mohammed Abdul Razak v R [1973] 19 FLR 1 at p.3F Grant J said of a similar complaint:

"I am unable to accept the submission that the trial Magistrate ignored the evidence called by the defence. In his judgment he set out the salient features of the evidence of the appellant and three witnesses called by the defence before making his findings of fact."

[21] 	The judge said that having perused the record he was satisfied "that there was ample evidence, if accepted by the trial magistrate as it was, to fully support these findings of fact."

[22] 	This is to be contrasted with the approach of the magistrate as explained in Post and Telecommunications Ltd v Krishna Brothers (unreported) Labasa Civil App No. 1 of 2003, 27 April 2004 who had merely written in his judgment:

"I have now carefully considered all the evidence presented before me and I am satisfied that the plaintiff has proved its case on the balance of probability."

[23] 	Pathik J concluded (at p.11) that the judgment was "most unsatisfactory as it did not fulfil the contents of a judgment", and ordered its setting aside.

[24] 	In Chandar Pal v R [1974] 20 Fiji LR 1 Grant Ag CJ in a traffic appeal considered the magistrate had neither referred to certain issues nor dealt with the appellant’s contentions. These were whether the taxi driver had given sufficient indication of his turn and whether he had turned suddenly across the appellant’s path. Grant Ag CJ concluded (p.4):

"The trial Magistrate found that the appellant drove in a dangerous manner, but did not analyse the evidence, give his reasons, nor explain in what manner the appellant’s driving was dangerous; and in all the circumstances I have come to the conclusion that the evidence is too unsatisfactory to ground a conviction."

[25] 	In Post and Telecommunications Ltd v Krishna Brothers (supra pp.9-11) Pathik J provides some salient passages from cited cases and contributes his own observations on the need for analysis in addition to reasons. The provision of analysis is part of the process of according a fair trial and of explaining to the losing party the reasons for such a loss. "… Every litigant in a criminal trial (as in a civil trial) is entitled to a fair and due consideration of his or her evidence and arguments." Livai Ratucaca v The State (unreported) Lautoka Crim. App. No. HAA0021.00L, 16 January 2001.

[26] 	In Jan Barkat Ali v R [1972] 18 Fiji LR 129 on the other hand Grant J at p.130E said of the magistrate’s duties in writing a judgment:

"The trial Magistrate records the points for determination in the first paragraph, then sets out the evidence including that on which the prosecution relied to establish the points for determination, gives his decision thereon in the final paragraph specifying (partially by reference to the first paragraph) the offence of which and the law under which the accused is convicted and in the penultimate paragraph gives the reasons for his decision, namely that having reviewed the evidence he accepts that of the prosecution witnesses and rejects that of the accused. No more is necessary. A magistrate is not obliged to give reasons for his acceptance or rejection of the evidence of any particular witness and so long as the evidence to which he has referred and which he accepts is sufficient to establish the ingredients of the offence there has been no failure to comply with the statutory requirements of Section 154 of the Criminal Procedure Code."

[27] 	The magistrate was giving judgment in a drunk and disorderly trial. Grant J concluded:

"Clearly the judgment described in Criminal Appeal No. 23 of 1956 falls far short of this, but in my view the judgment herein complies with the necessary requirements."

[28] 	The modern trend is probably for a court to do a little more than the barest minimum of the Jan Barkat Ali standard. In the instant case the judgment is brief. It does not clearly identify the issues for determination such as those raised in the amended defence. It provides 7 paragraphs of findings without analysis. These are then followed by a paragraph which makes the necessary finding on the hiring issue. But the magistrate also says he was satisfied that the defence witnesses were lying on this issue, and says the return of the boat was carried out because of the hiring obligation.

[29] 	I conclude that though the judgment was thin it was nonetheless within the bounds of sufficiency and therefore compliant; compare the judgment referred to in Mano Datt Sharma v R [1969] 15 Fiji LR 136 which "did not contain any full statement of what the prosecution case was, no mention whatsoever made of the defence case." Judgments in civil cases are not markedly different in approach from criminal cases. Grounds 3 and 4 therefore fail.

The assessment of damages

[30] 	Ground 5 says the magistrate erred in his assessment of the damages and costs. The magistrate admitted to a difficulty in approaching the question. He accepted the plaintiff’s evidence of the value of the 22 ft x 4½ ft boat as being $2,000. There was evidence of its having been driven over rocks at high speed and of being thereafter unable to float. The magistrate awarded $2,000 for the engine which had also been damaged and which was not in running condition. The plaintiff returned the engine to the Captain for repairs.

[31] 	The plaintiff said he was assured by the defendant that he would be paid for the engine and the boat. At first they said they would repair the boat. Six months later he paid for a replacement himself. Up till then he had in effect been strung along with promises of full replacements by the defendant.

[32] 	The plaintiff said he had bought another boat 6 months later. The magistrate was not entitled to award $25 pw for loss of use of the first boat beyond that 6 months period. The appeal succeeds on this ground and the award under this head is reduced to $650.

[33] 	In answer to the court’s question the plaintiff had given a value of $3,000 for a similar boat. The magistrate was entitled to conclude that $2,000 was an appropriate figure on the evidence as damages for the loss of his boat, and that $2,000 was appropriate for the engine, which had been new at the time.

Was the boat sold?

[34] 	Grounds 1 and 2 argue that the magistrate failed to consider the defence allegation that the boat had been sold. The statement of defence had been vague as to which person it was said to have been sold to and when it was sold. The plaintiff in cross-examination said the engine was still with him at home. He denied knowing where the boat was now. He waited for the company, on the Captain’s say-so, to carry out the repairs as promised. They were never done. No details of a sale to Ali Hussain was ever put to any of the plaintiff’s witnesses. The evidence that Ali Hussain’s boat was one and the same as Ram Sami’s was vague and unsatisfactory, and the magistrate was right to reject it. Grounds 1 and 2 fail. Ground 6 which argued that the magistrate’s conclusions were not supported by the evidence also fails.

[35] 	The appeal is accordingly dismissed save on the issue of loss of use for which the sum awarded of $1,300 is reduced to $650. The respondent’s costs of the appeal are therefore a lesser figure than if he had succeeded completely. He is awarded $500 costs. 

A.H.C.T. GATES
JUDGE

Solicitors for the Appellant: Messrs Tevita Fa & Associates, Suva
Solicitors for the Respondent:	Messrs D. Kumar & Co., Rakiraki