IN THE HIGH COURT OF FIJI AT LABASA
CIVIL JURISDICTION

CASE NUMBER: HBC 47 of 2007

BETWEEN:

ATTAM SINGH
PLAINTIFF

AND:

MOHAMMED RIYAZ
1ST DEFENDANT

AND:

MOHAMMED SHAHEEM
2ND DEFENDANT

Appearances: Mr. A. Sen for the plaintiff.
Mr. A. Ram for the defendants.
Date/Place of Judgment: Tuesday, 17th January, 2012 at Labasa.
Coram: The Hon. Justice Anjala Wati.

JUDGMENT

Catchwords:

 Tort - Negligence – Motor Vehicle Accident –Liability.

The Cause

1.	The plaintiff's claim is for damages for personal injuries he sustained in a motor vehicle accident, on or about the 21st day of January 2006, at Savusavu.

2.	The plaintiff alleges that the accident occurred due to the negligence of the 1st defendant. The subject motor vehicle CO 038 was owned by the 2nd defendant.

3.	The defendants deny liability on the grounds that the accident occurred solely or partly but substantially due to the negligence of the plaintiff.

The Agreed Facts

4.	The parties have agreed that the 1st defendant is the son of the 2nd defendant and was driving the motor vehicle at the instructions of his father. The vehicle got involved in an accident at Lesiaceva road, Savusavu.

The Issues

5.	The issues for determination require the Court to make a finding on liability and, if necessary, on quantum of damages.

The Evidence on Liability

6.	The question of liability, naturally, must be determined first. To make an analysis on the issue of liability, I will initially concentrate on the parties' evidence pertaining to liability.

7.	If liability is established to any extent, I will summarize the evidence on quantum of damages then.

8.	The first witness for the plaintiff to testify on liability was the plaintiff himself. Through his examination in chief, the plaintiff stated that it was 6pm of the day in question. He was on the main street near a building, in front of a shop, Budget Lodge. In front of the shop is a footpath. The width of the footpath is about 2m. He was on the footpath. Overlooking the footpath is the sea. The road across is wide and tarsealed. There is no footpath on the other side of the road. There is also a wide space between the road opposite and the sea. The space is not driveable. Cars were parked in that space. He was going to cross the road to catch a taxi. He stopped the taxi. The taxi had stopped at the end of the tarseal. He looked to his right hand side, then left, and when he did not see any vehicle, he decided to cross the road. He had taken the first left step, was about to take the second right step, when he got hit by a motor vehicle. 

9.	Where the plaintiff says he got involved in the accident, the road is a 2 way carriage. The road was clear when he crossed the same. There were no cars parked in front of the Budget Lodge shop. The width of the road is about 8m, the tarsealed portion. If a vehicle is parked in front of the Budget Lodge, the road is still available for driving.

10.	He was hit on the right back thigh. He can faintly recall that he fell on the bonnet of the vehicle; it kept moving with him and carried him for about 8-9meters. When the vehicle stopped, he was thrown down. He tried to get up and escape and then he was hit again after which he did not recall anything.

11.	Under cross-examination, the plaintiff testified that he had given evidence under oath in Savusavu traffic case involving him. He stated that he told the truth in Savusavu traffic case. He stated that he has given his version of the accident three times. Once when he was interviewed by the police, secondly when he testified in the traffic case in Savusavu and thirdly for this current case. He agreed that he made a statement to the police to the following effect:-

"I am clearly recalling that on 21/1/06 at about 7pm I was returning from Ranjeet Singh after pounding grog. I was coming alone. When I reached at Budget Lodge Accommodation I saw Mohammed Safiq taxi on the other side of the road and I stopped him. He pulled the taxi towards sea side. Sametime I turn and started to cross the road. I only took two step and as I look at my right by then I could feel something hit me on the right thigh. I also heard the horn when I look to my right. I only checked on left side and not to right side".

12.	The plaintiff said that when he gave his statement to the police, he was in great pain. He was not in good health to recall everything. He told the police what he remembered. He only recalls saying something to the police, not the actual content of the same. He said he could not recall telling the police that he was hit on the right thigh and that he heard the horn when he looked to his right or that he only checked his left hand side and not the right hand side. He agreed that his description of injuries were consistent to what he told the police. He had lots of pain and so he does not know what he told the police. He may have just said something to the police. He again stated that he told the police what he recalled. He cannot recall the statement being read back to him by the police or that he signed the statement but after looking at the same he confirmed that he signed the interview statement at 4 different places.

13.	The plaintiff further stated under cross examination that he looked right then left, he did not see any vehicle so he started to cross the road. He said that the footpath is higher from the road so he had to get down, he put his left leg, was about to put his second right leg, when he was hit. After he started crossing, he got hit within a very short time. He had not gone far from the road. He said, he would have taken about 2 seconds to look to his right and left side. The vehicle came very fast and hit him. He did not tell the police about the vehicle coming fast and hitting him. He only recalled this when his mind settled. The road was wide and it was a straight road. He remembers a bit that he was hit twice by the vehicle. After the accident he was told by one Mr. Ropate Rabulewa that he was hit twice by the same vehicle. Mr. Ropate works in a shop. Mr. Ropate came to see him after one or 2 months of the accident. 

14.	In Savusavu Court, he did not tell the Court about being hit for the 2nd time because he was not asked. After 2 or 3 months of the accident, he recalled the full version of the accident. He also said that he went to the Court for the first time and was very scared so he did not know what to tell the Court.

15.	Mr. Ram put to this witness that when he cross examined the plaintiff in Savusavu traffic case, he had admitted that he did not look right, and to that, the plaintiff said that he did say he looked right but Mr. Ram kept saying that he was lying so he just admitted that he did not look right. He got scared.

16.	The 2nd witness for the plaintiff in respect of liability was one Mr. Rajnesh Prasad. He testified in chief that he was present when the accident happened. It was light at 6pm. He had parked his taxi 10m away from the sea. He was facing Savusavu town. The accident took place in front of a shop. The road was tarsealed with width of about 20 feet. The plaintiff came out of the shop. He took a left step, was about to take a right step when the vehicle came suddenly and hit the plaintiff. The plaintiff got on the bonnet and flew down after being carried for few meters. The driver was driving more than 60 km. The plaintiff was dragged for few meters before he fell down. He pulled the plaintiff out and took him to the hospital. He told the driver not to move but he did. The driver did not help the plaintiff. The driver could have stopped because the road was wide and he could have swung to the right to avoid the accident. The driver was looking towards the sea, at the yacht maybe, when he hit the plaintiff.

17.	Under cross examination Mr. Rajnesh Prasad said that although his police statement says that the plaintiff came to the centerline while, he had told the police that the plaintiff fell at the centerline. He did not tell the police in his interview that the driver was looking at the sea because he was not asked. He gave only a short story to the police. The police has recorded his evidence wrongly. He said that he had told the police that he was driving a taxi, not that he was parked because it was not necessary to say that. The vehicle which hit the plaintiff came at a speed of more than 60 km. He was able to assess the speed because he too is a driver.

18.	The final witness for the plaintiff to testify on the aspect of liability was one Mr. Ropate Rabulewa. He stated in chief that in the year 2006, he was working for Savusavu Budget Lodge. On the 21st day of January, 2006, he was a private security officer for Budget Lodge. He stated that it was about 6.00pm but light, he was standing in front of the door of the Budget Lodge. He could see both sides of the road clearly. He saw the plaintiff about to cross the road. The plaintiff had taken a left step and was about to take the right step when he was hit by a vehicle, the driver of the vehicle was looking on the other side. The vehicle was moving very fast. The plaintiff got thrown to the centre of the road. The vehicle wanted to stop but it did not stop. The plaintiff tried to stand and run away but the vehicle hit him for the second time. After the first hit, the plaintiff got carried by the vehicle because the plaintiff was stuck to the front of the vehicle. The vehicle had tried to stop, when it braked, the plaintiff fell on the right hand side, middle of the road. The vehicle had gone on top of the plaintiff. He was at the scene of the accident. The Police Officer, Mr. Rakesh Prasad talked to him and said he would come back for his statement but he never did. No other police officer came to take his statement.

19.	Under cross examination, the witness said that he did not see the police when they failed to take his statement because he is full time occupied at work. He said that he did not hear any horn from the vehicle. He only saw the vehicle when it came beside the footpath. He first saw the vehicle when the plaintiff was crossing the road. It took one second approximately for the vehicle to come and hit the plaintiff. The vehicle came all of a sudden. After falling for the first time, the plaintiff tried to run and he was hit again.

20.	The first witness for the defendants in respect of liability was that of the police officer who investigated the accident scene, Mr. Rakesh Prasad PC 2790. He said that he was a traffic investigator in the case involving the plaintiff. When he came to the accident scene, he was briefed that the plaintiff had been taken to Savusavu hospital. The 1st defendant had come to the police station and the vehicle was parked at the station too. He then went to the hospital to see the victim. He came back from the hospital to the accident scene and the 1st defendant showed him the exact place of the accident. He drew the first sketch plan based on what the 1st defendant told him. After he drew the map, he visited the victim in hospital again. He took a statement from the victim as well. He had visited the plaintiff 3 times before taking the statement. The plaintiff agreed to give the statement. He appeared to understand the situation and was willing to give the statement. After writing, he translated to the plaintiff what he wrote. He wrote only what was told to him. In the statement the plaintiff said that he only looked left not right. The plaintiff did not tell him that after the first hit, the plaintiff tried to run away and got hit by the vehicle for the second time. If that was told to him, he would have written it down. From the road, the point of impact is 0.5m. Mr. Ropate Rabulewa never told him that he knew anything about the accident or that he had witnessed the accident. He took statements, however from Mr. Shiu Lal, Mr. Rajnesh Prasad and Mr. Mohammed Safiq. He did not force, influence or threaten Mr. Rajnesh Prasad at any time. He wrote everything in Rajnesh's statement as it was told to him. Mr. Rajnesh did not tell him that he was parked behind Mr. Mohammed Safiq's vehicle. Mr. Rajnesh told him that the plaintiff had reached the centerline when he was hit. Mr. Rajnesh did not tell him that the plaintiff had fallen at the centerline. The accident was not at the centerline. Mr. Rajnesh also did not tell him that the driver was looking towards the sea. The second hit as Rajnesh deposed in Court was never told to him. The 1st defendant was charged for dangerous driving and after a trial was acquitted. The 1st defendant should not have been charged in the first place.

21.	Under cross-examination, the police officer testified that he had charged the 1st defendant because he was instructed by his supervisor to do so. The 1st defendant was not supposed to move the vehicle but he brought the same to the police station. It is an offence to move the vehicle from the accident scene. The 1st defendant told him that he was told by the people to take the vehicle to the police station. He did not recommend the 1st defendant to be charged for moving the vehicle from the accident scene. It was not his duty to recommend charges. He only compiled evidence and gave it to his senior. Only the 1st defendant verified the scene of accident. There are no brake marks. The road is 8.7m wide and tarsealed. Parking is allowed in front of Budget Lodge shop. When he visited the plaintiff in hospital he was lying down. He saw the injuries on his forehead, leg, left eye bleeding, there being no POP cast that time on the leg, there was an open wound on the right leg. He did not know the extent of the injuries. He had approached the nurse but did not ask the doctor whether the plaintiff was fit to give evidence. He would not know why Mr. Rajnesh would not give him certain information like the driver looking towards the sea but he recorded what was told to him. At the time of the accident, Mr. Rajnesh's vehicle was coming from the opposite direction. There are no brake marks because the 1st defendant was driving normally and slowly applied the brakes. There are no brake marks at all. Mr. Ropate Rabulewa was not at the accident scene.

22.	The 2nd witness for the defendants was the 1st defendant himself. In his examination in chief, he said that he was driving towards Daku Resort on the day in question. In front of Budget Lodge, he saw the plaintiff trying to stop a taxi. The plaintiff was on the footpath. The taxi was also close to him. The taxi was coming from the opposite side. The plaintiff suddenly ran on the road, without looking anywhere, to board the taxi. He applied his brake and tooted the horn. The plaintiff was very close to the van and so the vehicle hit the plaintiff. The plaintiff came onto the bonnet. As soon as the vehicle stopped, the plaintiff fell in front of him. From Budget Lodge, the road is straight and vision is clear for about 100m. It was Mohammed Shafiq's taxi which was being stopped. Behind Mr. Shafiq's taxi was Mr. Rajnesh's taxi. Mr. Rajnesh came from the other side and stopped right beside him. Mr. Rajnesh only parked the vehicle after the accident happened. The witness said that he was travelling below 50km/hour. The plaintiff did not attempt to run away from the vehicle after he was hit initially. He did not hit the plaintiff twice. The plaintiff never went under the vehicle. He was always in front. After the plaintiff fell, he was on the left hand side of the road. His vehicle was also on the left hand side and not on the centre line. People told him to go and report the accident so he went. He was charged for dangerous driving but acquitted on the charges.

23.	Under cross examination, the 1st defendant stated that he was a provisional license holder in 2006. He had obtained his driving license in the year 2005. The plaintiff was in a rush. He did not know what the plaintiff intended to do. There is no centre line so he kept close to his side, to the footpath. He has no animosity with anyone. He had helped Mr. Rajnesh Prasad in loading the plaintiff to be taken to the hospital. The plaintiff was very close to the vehicle, about 1-2m, and he could not swing the vehicle to avoid the accident. He was watching the road and not the sea when the accident happened.

24.	The third witness produced by the defendants was one Mr. Shiu Lal. He was in the subject vehicle on the day of the accident. Mr. Lal stated that the plaintiff had flagged his hand to stop a taxi. He had taken two steps down. When the vehicle was about 2-3m, the plaintiff was on the footpath and suddenly came down without looking to the right and so he was hit. The plaintiff came on the bonnet. When the driver applied the brake, the plaintiff fell down. The vehicle then did not move forward. The plaintiff did not try and get up or run. The vehicle did not hit him for the second time. He saw the plaintiff first from 6m. He was looking at him all the time. He was stopping a taxi. He knew the plaintiff would cross the road. The plaintiff never looked towards their side that is how the accident happened.

25.	Under cross examination, this witness stated that he was not having a conversation with the 1st defendant when he was driving and neither was the 1st defendant driving at high speed. The plaintiff was not carried any distance but dropped from the bonnet when the brake was applied. It is not correct that the plaintiff was dragged 6-7m before the vehicle stopped or that the vehicle went over the plaintiff.

26.	The defendant also called Mr. Jagjit Kumar. He was subpoenaed by the defendants counsel to bring Court record of Traffic Case No. 408 of 2006 - State v. Mohammed Riyaz which was tendered and marked as evidence.

27.	Under cross examination Mr. Kumar stated on 18th April, 2009 he gave a court record to Maqbool & Company. That record contained a ruling as well. Mr. Kumar stated that the final result of the case was an acquittal.

The Analysis on Liability

28.	I will first of all comment on the demeanor and deportment of the plaintiff before analyzing his evidence. He appeared to me to be a dishonest witness who tried to hide his inconsistencies by saying that he was in pain and so did not have a clear memory or that be made a statement because he was scared of the Court system. He had couched his evidence in Court in a different version altogether for obvious reasons. Under cross examination, he was apparently frustrated and evasive, unlike when he was asked questions during examination in chief.

29.	Apart from his demeanour and deportment, his evidence cannot be accepted and relied upon for very many reasons:-

(a)	He said in his evidence that before crossing, he looked to his right then his left and had taken a left step, about to take the right when he was hit by the vehicle. The road was a straight road. He said that the vehicle came suddenly. 

If the road is straight, and he looked to his right, he would have definitely noticed the vehicle. It is not that this vehicle was in an obscure position. This vehicle could not have flown into the scene from nowhere as suggested by the evidence of the plaintiff. This vehicle was not even parked in front of the Budget Lodge shop to move all of a sudden. What the plaintiff fails to explain is how the vehicle ended up there. His explanation is totally inconceivable and unsustainable. On the plaintiff's evidence that he looked right, I find a lot of difficulty in accepting this. He did not look to his right at all. If he did, he would have seen a vehicle present and having seen that he should not have thought about crossing the road. He did without looking to his right and he correctly related his story to the police officer when he gave the statement immediately after the accident and in Court in his traffic case.

(b)	The plaintiff stated that he was in pain and so he did not relate the full story to the police. People do omit telling a piece of information but in pain one would not give an inconsistent version on an important aspect like whether he looked to his right before crossing the road. He told the police that he did not look to his right because, I find that, the statement he gave at the time was correct and honest. Later the plaintiff has decided to change his version for reasons best known to him.

(c)	Even in his testimony in the traffic case in Court, the plaintiff gave inconsistent evidence. He had finally agreed that he had not looked to his right. I find that his version has changed in Court for the current case, for an ulterior motive and that he is not an honest independent witness whose evidence can at all or safely be relied upon.

(d)	The plaintiff's evidence was also that he was hit twice, first hit was on the right back thigh, he fell on the vehicle's bonnet which kept moving and dragged him for 8-9m when he got thrown down by the vehicle, he tried to get up and run and then he was hit again. 
A person with a heavy impact on the right back thigh will not be able to get up for a while and I do not believe the plaintiff tried to run away and was hit for the second time. This story about being hit for the second time, is undoubtedly concocted and a recent invention. If that was the true state of affairs, the plaintiff would have not forgotten this material part when giving his statement to the police. Even if I take it that he had forgotten, he would not have told the police that he was unconscious after the 1st hit and therefore does not know what happened thereafter.

(e)	The plaintiff also never mentioned about this second hit when he testified in the traffic case. In the current case, the plaintiff stated that he remembered a bit of being hit twice and further that he was related about the second hit by one Mr. Ropate Rabulewa. This in itself shows why and how the plaintiff started the drama of being hit twice. He is under influence by the witness Mr. Ropate Rabulewa or vice versa. Mr. Ropate's evidence is totally unreliable. I will comment on this later. 

(f)	The plaintiff always had maintained, that is, to the police and the traffic Court, that the 1st defendant had tooted the horn. He changed that version in trial before me and I find this to be false to implicate liability on the 1st defendant.

(g)	The sketch plan which I accept to be undisputed and proper, shows no brake marks of the subject vehicle. This shows that the driver was neither speeding nor did he ever imagine the plaintiff jumping in front of his vehicle to catch a taxi.

30.	The second witness for the plaintiff, Mr. Rajnesh Prasad, too, is an incredible witness. He too avoided cross examination and covered up his inconsistencies by saying that he told police what he was asked or did not tell a piece of evidence because he considered it not necessary:-

(a)	Mr. Rajnesh Prasad said that he was parked when the accident happened. If he was, what was the need for the plaintiff to flag a running taxi without getting inside his parked taxi? 
I am of the judgment that he never was parked. He was always in a motion from the opposite side behind Mohammed Shafiq's taxi, which was flagged down by the plaintiff.

(b)	Mr. Rajnesh Prasad always told the police that he was driving and not parked. He said that he did not consider it necessary to tell the police that he was parked. It is very difficult for me to believe a witness who has given a totally different version to the police and then is changing the same in Court, not for reasons of fairness but out of malice.

(c)	This witness also said in this Court that the driver was looking at the sea side. This could not be possible as this witness, I accept, was driving and not watching the driver of the subject vehicle. He was following another vehicle which also obstructed his view of seeing the 1st defendant. Why did this witness fail to mention such a material piece of evidence to the police? He said that he did not, because he was not asked. The fact is that the police was not asking him questions. He was asked to narrate an incident so there is no question of police asking him something which they did not have knowledge of.
(d)	He also told the Court that the 1st defendant was driving at more than 60 km/hour. If he was, there would have been evidence of brake marks on the road.

31.	The third witness for the defendants was Mr. Ropate Rabulewa. In my judgment this witness was never at the scene of the accident nor did he witness the accident. He was either hunted for, after the accident because of his capabilities of being able to lie in Court or that he found the plaintiff as some source to make money from. I do not accept this frustrated and evasive witness's evidence that he was there at the accident scene. Mr. Ropate said that the police officer Mr. Rakesh Prasad spoke to him and never returned to take his statement. I believe Mr. Rakesh Prasad over this witness that he never existed as a witness in the first place. Further, His evidence that the plaintiff was thrown to the centre of the road does not co-relate with the sketch plan or the evidence of any other witness.

32.	The plaintiff and his witness's version of the accident are totally unsustainable. It is apparent from their nice little stories that they have really sat together to make a consistent story but the truth at the end of the day is far from what I have heard from them. Their testimony is not only appalling but worthy of mentioning that they lack any respect for what is and should be true evidence under oath.

33.	I accept the 1st defendant and his witnesses' version that the driver was already so near to the plaintiff when he suddenly crossed the road, which left the driver with no choice but to hit the plaintiff. There was no time to avoid this accident. The 1st defendant's driving was proper and prudent in all the circumstances and as such I find that the plaintiff was wholly negligent in jumping in front of a moving vehicle so close to him.

34.	This finding is independent of the finding in the traffic case where the 1st defendant was acquitted of dangerous driving.

Final Orders

35.	The plaintiffs claim is dismissed with costs to the defendants in the sum of $3,000.

36.	Orders accordingly.

Anjala Wati
Judge
17.01.2012

To:

1.	Mr. A. Sen, counsel for the plaintiff.
2.	 Mr. A. Ram, counsel for the defendants.
3.	 File: HBC 47 of 2007.