IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 236 OF 2000L

NO. 18/2006

BETWEEN

SHAHEED IMROZ ALI
Plaintiff

AND

MUKTAR ALI
1st Defendant

AND

SHARIDA BANU
2nd Defendant

Mr. S. K. Ram for the plaintiff
Mr. T. Tuitoga for the defendants

Date of Hearing: 20 October 2005 and 29 November 2005
Date of Judgment: 17 February 2006

JUDGMENT

[1] The plaintiff by writ of summons filed on the 20th July 2000 claims damages from the defendants for injuries sustained by him due to the negligence of the 1st defendant (driver) and the 2nd defendant (owner).

[2] The statement of claim pleads that the plaintiff on the 3rd May 1998 was walking along Navau Road, Ba when motor vehicle registration E2932 which was loaded with logs drove alongside him and the log which was insecurely kept on the vehicle struck him.

[3] It is not in issue that the 1st defendant was the driver of the vehicle and the 2nd defendant, the owner.

[4] The statement of claim further pleads that the 1st defendant was negligent in the management and control of the vehicle and breached his duty of care to the plaintiff.

[5] The negligence alleged is particularized in 6 paragraphs, 5 of which plead that the logs were insecure, the remaining paragraph pleads a failure to take into consideration the safety of other road users and give the due care and attention required in the circumstances. By virtue of paragraph 1 of the statement of claim this paragraph must also relate to a log which was insecurely kept on the said vehicle.

[6] The statement of claim further pleads that the defendant was charged with carrying an insecure load. The evidence before the Court was that the proceedings which came before the Magistrates Court Ba were dismissed upon the Learned Magistrate's finding and that the load was in fact not insecure. The record of the Magistrates Court was Exhibit D-2 in the proceedings. The learned Magistrate found there was in fact no case for the 1st defendant to answer. The Learned Magistrate said in her ruling:

"I have heard the evidence by prosecutions and defence and the cross-examination of the witnesses brought by the prosecution. According to the complainant himself, he had observed when he caught up to the accused's motor vehicle whilst parked that the wood sticking out of the van above the tailgate was actually secured.

The charge against the accused reads Carrying Insure Load Contrary to Regulation 37 and 125 of the Traffic Regulation 176. On the basis of the complainant's evidence and confirmation that the load was secured and tied with a cloth, i find there is a no case to answer to put the accused to his defence. Therefore, the accused is acquitted pursuant to section 210 Criminal Procedure Code."

[7] The plaintiff in his evidence said that he was walking along the Navau Road and that it was dark. He further says that a carrier came towards him and as the carrier passed him he was struck in the stomach by a log. He grabbed his stomach and moved towards the carrier which stopped. He then gives evidence of having been taken by the driver of the carrier, the 1st defendant, to his home then to the Ba Mission Hospital where he was admitted.

[8] Evidence was also given on behalf the plaintiff on the issue of liability by Shareen Ahmed who was staying at the plaintiff's home as the plaintiff's parents were away in Nadi. The plaintiff was at the time only 16 years of age. He was the uncle of the plaintiff.

[9] Mr. Ahmed did no see the accident but attended the scene when called by the plaintiff immediately after the accident occurred. The accident occurred only about 10 to 11 metres from the plaintiff's home according to Mr. Ahmed. He gave evidence describing a piece of timber being placed across the defendants' vehicle which he says stuck out 3 to 4 feet each side of the vehicle.

[10] It is not in dispute that the defendants' vehicle was a Toyota Hilux carrier with a canopy on the back. It also appears to be undisputed that the carrier was at the time carrying mangrove logs which were between 6 and 8 feet in length.

[11] There was no evidence from either the plaintiff or Mr. Ahmed that any of the logs on the defendants' vehicle came loose or that they were in any way insecure.

[12] The 1st defendant, the driver of the motor vehicle had seated in front of the vehicle with him, his father and a friend, Sarwar Ali. They all give evidence of travelling slowly and that the logs were placed in the vehicle, in the same direction as the vehicle and with the tail gate in its upright position.

[13] They said that they did not see the plaintiff prior to hearing a bang at which time the vehicle was immediately stopped and the plaintiff was seen in the middle of the road holding his stomach.

[14] There is some dispute as to whether or not there was a warning light affixed to the rear of the logs. The 1st defendant said that there was a orange light however it was later said there was an ordinary light globe. The plaintiff says there was in fact no light affixed to the rear of the timber.

[15] The 1st defendant contends that the plaintiff collided with the carrier or with timber at the rear of the carrier after he had run onto the road in the vicinity of tamarind trees and denies that the plaintiff was walking down the road in the opposite direction to the direction of travel of the carrier.

[16] Evidence was given and was not disputed that the tail gate when in its locked position was about 1 metre above the ground and that the vehicle tray length was about 5 feet which would have resulted in about 3 feet maximum hanging over the rear of the vehicle.

[17] The only evidence of a log being placed across the vehicle is that of Shareen Ahmed who says that there was such a long and that it protruded 3 to 4 feet.

[18] There is no evidence of the load being insecure and all evidence describes the plaintiff coming into contact with a log secured to the vehicle at the side or at the rear.

[19] I have had the benefit of written submissions filed on behalf of the plaintiff and on behalf of the defendants. The plaintiff's written submissions in addition to referring to relevant parts of the evidence makes a submission based upon res ipsa loquitor. Res ipsa loquitor is however not pleaded in the statement of claim. Notwithstanding the submission relies upon the English authorities and is based upon Swan v Salisbury Construction Co Ltd [1966] 2 All ER 138 at 142.

[20] The issue of res ipsa loquitor was considered by the High Court in Abhimanu where Finnigan J considered Schellenberg v Tunnel Holdings Pty Ltd [2000] 200 CLR 121.

[21] In Schellenberg, Gleeson CJ and McHugh J said at paragraph 22:

"Although Australian and English Courts have diverged as to the scope and effect of the principle of res ipsa loquitor, in this country its scope and effect have been decisively settled by serious of decisions of this court. Those decisions make it clear that the trial judge correct when he said that the principle is not a distinct, substantive rule of law, but an application of an inferential reasoning process, and that the plaintiff bears the onus of proof of negligence even when the principle is applicable."

[22] Their Honours later said at page 134:

"What flows from the statement of principles is that, while res ipso loquitor may ameliorate the difficulties that arise from a lack evidence as to the specific cause of an accident, the inference to which should give rise is merely a conclusion that is derived by the trier of fact from all the circumstances of the occurrence. When it applies, the trier of fact may conclude that the defendant has been negligent although the plaintiff has not particularized a specific claim in negligence or reduced evidence of the cause of the accident. But it does nothing more."

[23] Even if res ipsa loquitor had been pleaded it would not assist the plaintiff as he would still bear the burden of establishing that the defendant was in fact negligent.

The Pleadings

[24] I detailed at that the outset the nature of the pleadings in this matter. The matter is dearly pleaded on the basis that the 1st defendant failed to properly secure the load and that the insecure load or part thereof struck the plaintiff.

[25] There is absolutely no evidence before the Court of the load having been insecure.

[26] Order 18 Rule 6 of the High Court Rules requires pleadings to contain a statement in summary form of the material facts on which the party pleading relies for his claim.

[27] In Waghorn v George Wimpey & Co Ltd [1969] 1 W.L.R. 1764 Lane J considered the departure of the evidence from the pleadings and at page 1770 cited Burns v Dixon's Iron Works Ltd [1961 S.C. 102, 107 - 108] where Lord Justice Clerk Thomson said:

"The court is often charitable to records and is slow to overturn verdicts on technical grounds. But when a pursuer fails completely to substantiate the only grounds of fault averred, and seeks to justify his verdict on a ground which is not just a variation, modification or development of what is averred but is something which is new, separate and distinct, we are not in the realms of technicality."

[28] Lane J went on at page 1771 to say:

"Let me hasten to add that if matters emerge, particularly matters of technicality which, perhaps, could not be foreseen by those responsible for pleading cases, and those things emerge during a case, then it would be quite wrong to dismiss a plaintiff's claim because his pleadings have not measured up to the technical facts which have emerged."

[29] There would appear that nothing technical about the divergence from the case as pleaded in this matter. It was quite clear to all well prior to the hearing that this was not a case in which the plaintiff could properly prove that the accident occurred due to the defendants' load being insecure.

[30] The Magistrate made her finding on the 23rd March 2005 and as is apparent this matter came on for trial on the 20th October 2005.

Conclusion

[31] Even if the Court ignores the difficulties associated with the pleadings, the plaintiff bears the burden of satisfying the Court on the balance of probabilities that the defendants breached the duty of care that they owed to the plaintiff.

[32] On the evidence that has been placed before the Court, I am satisfied that the logs were loaded as to described by the 1st defendant, his father and Sarwar Ali and I am also satisfied that there was a light be it orange or white affixed to the extremity of those logs.

[33] The evidence also satisfies me that the logs were protruding beyond the rear of the vehicle by about 3 feet or approximately 1 metre.

[34] The evidence is that the logs were resting on the floor of the carrier at the front and on the closed tailgate at the rear. This would have had the affect of having the logs pointing slightly skywards. I also accept that the top of the tailgate was about 1 metre from the ground. It follows therefore that the logs would have been a minimum of 1 metre from the ground and slightly higher at the extremity.

[35] The plaintiff has failed to prove on the balance of probability the case as pleaded and has also failed to prove on the balance of probability that the defendants breached their duty of care to the plaintiff.

Orders of the Court

1. Verdict for the defendants.

2. Plaintiff is to pay the defendants' costs as agreed or taxed.

JOHN CONNORS
JUDGE

At Lautoka
17 February 2006