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Deo v Prasad [2022] FJHC 30; HBA01.2021 (31 January 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Action No. HBA 01 of 2021

BETWEEN: AVINESH RIKASH DEO

APPELLANT/ORIGINAL PLAINTIFF

AND ANDHIT MATA PRASAD

RESPONDENT/ORIGINAL DEFENDANT


Counsel : Appellant: Mr. Kumar D
: Respondent: Mr. Kumar P
Date of Hearing : 29.11.2021
Date of Judgment : 31.01.2022


JUDGMENT

INTRODUCTION

  1. Plaintiff- Appellant (Plaintiff) filed this action in court below seeking damages from an accident, for vehicle bearing registration no LT 7572. At the hearing Plaintiff could not produce evidence to prove his ownership to vehicle LT 7572, as these documents were not disclosed to Defendant. Plaintiff also could not produce evidence to prove damage to his vehicle as neither witnesses nor documents to prove damage to vehicle from vehicle LT 7572 was produced. Hence Plaintiff could not prove his claim and it was dismissed for want of proof of claim. Plaintiff appealed against said decision of Resident Magistrate (RM) dated 4.11.2020. There was only one ground of appeal and that was the manner in which Plaintiff’s documents were rejected. Plaintiff had ample time to produce its list of documents but had failed to do so. Plaintiff was claiming extensive damages and this required proof. Plaintiff cannot produce any document to support his claim, without notice to Defendant at hearing. Magistrates’ Court Rules 1945 Order 3 rule 8 applies to such situation. Accordingly Order 24 of High Court Rules 1988 is applied with mutatis mutandis. The discretion was with the RM to allow or reject such a document not discovered at the discovery stage. In this instance learned RM had applied his discretion properly[1]. Appeal is dismissed and decision of learned RM is affirmed.

FACTS

  1. This is an appeal against decision of RM delivered on 4.11.2020 dismissing the claim of Plaintiff. Defendant’s counterclaim was also dismissed as no evidence was led by Defendant.
  2. Plaintiff and driver of the vehicle registered No LT7572 gave evidence for Plaintiff. Plaintiff’s claim was for damages to Plaintiff’s vehicle and also loss due to the damage.
  3. Special damages needs to be pleads specifically and also proved through evidence in order to calculate value of special damages.
  4. Plaintiff had claimed $26000 as damage to his taxi and loss of income as general damages.
  5. Plaintiff had not filed their affidavit verifying list of documents at the discovery stage. Plaintiff cannot produce documentation relating to its damage without giving an opportunity for the Defendant to accept or deny them with necessary evidence to rebut.
  6. Since Plaintiff had not filed affidavit verifying list of documents at the hearing he will be restricted to oral evidence unless learned RM exercise the discretion to allow documentary evidence.
  7. The discretion of RM is exercised in the circumstances of the case depending on the conduct of the Plaintiff.
  8. Defendant objected to Plaintiff marking third party insurance documents and also documentary evidence relating to quotation of damages of the vehicle at the hearing.
  9. Learned RM did not allow such documents to be produced at the hearing as evidence for obvious reasons.
  10. Plaintiff and the counsel had these documents with them an no reason given for not disclosing the same before hearing. Defendant cannot be taken by surprise at the hearing through these documents.
  11. Plaintiff’s counsel knew about their failure to file these documents and had not sought leave of the court to submit them before hearing. There was no evidence that such leave was sought even at the hearing.
  12. Defendant did not call any evidence as Plaintiff had failed to prove its case on balance of probability. Defendant had counter claimed but with this that was abandoned.
  13. Learned RM dismissed the claim of Plaintiff and counterclaim of Defendant for want of proof of claim.
  14. Being aggrieved Plaintiff appealed against the order of RM. Appeal grounds are as follow

“Learned RM erred in law and in fact in the manner

  1. By disallowing the third party insurance documents to be tendered tin as evidence.
  2. By disallowing the appellant’s documents to be tendered in as evidence.
  1. Such other grounds ....”
  1. At the hearing of the appeal both parties relied on written submissions and both parties had filed written submissions.

ANALYSIS

  1. In the absence of specific provision regarding production of documents in Magistrates’ Court Rules 1945 Order 24 of High Court Rules 1988 applies in terms of Order 3 rule 8 of Magistrates’ Court Rules 1945.
  2. It is trite law that special damages needs to be pleaded separately and also proved in order for the court to award a claim based on special damages.
  3. Plaintiff is claiming damage to a vehicle amounting to $26,000 as general damages. According to pleading it consist of physical damage to vehicle and loss of income from it as taxi.
  4. In my mind Plaintiff had not classified two types of damages properly.
  5. Halsbury’s Laws of England (2019) Vol 29 under Types of Damages 317 General and Special Damages stated,

“The distinction between the two terms is also drawn in connection with different types of loss. Here, general damages are those losses, usually but not exclusively non-pecuniary4, which are not capable of precise quantification in monetary terms; whereas special damages, in this context, are those losses which can be calculated in financial terms5. Thus, although future loss is conventionally considered to be a matter of 'general damages', because of the inherent uncertainties of what loss (even if financial and readily computable) will be incurred, in personal injury cases it is common for parties to use 'general damages' to refer only to the assessment of damages for pain and suffering and loss of amenity.”( foot notes deleted).............

“Again, if the owner of a damaged car claims hypothetical repair costs as a measure of the diminution in value of the vehicle he need not prove that he has actually paid or incurred them; but if he claims them as expenses incurred as a result of the damage, then he must do so (Coles v Hetherton [2013] EWCA Civ 1704 at [28] 0; [2014] 3 All ER 377 per Aikens Le also 0;Dimond v Lovel [2002] 1 AC 384, ef="h//advlexis.com/documencument/?pdmfid=1230042&crid&crid=5197580e-e355-476c-86da-c8e3a38cca40cca40&pddocfullpath=%2Fshared%2Fdocument%2ytical-materials-uk%2Furn%3AcontentItem%3A8V0K-5P72-D6MY-P090-00000-00&pdcontentcomponentidentid=127845&pddoctitle=317.+General+and+special+damages.&pdteaserkey=sr0&pdicsfeatureid=1517131&pditab=allpods&ecomp=xdrsk&earg=sr0&prid=156b32f7-ff13-46f4-b3a7-7511686d1432" title="All England Law Reports">[2000] 2 All ER 897, HL, per Lord Hobhouse; [2003] UKHL 64 at [77], [2004] 1 AC, [2003] EWCA Civ 927; [2004] 1 All ER 277 per Lord Scott;&#1>Bee vBee v Jenson [2007] EWCA Civ 923 at [15], [2007] EWCA Civ 923; [2007] 4 All ER 791 per Lre LJ. Such damages ares are to be contrasted with claims for the cost of hiring a replacement vehicle, which involve special&#1mages where here loss must be poeitively proved: see&#i>Dimond v Lovell [2002] 1 AC a>,&#a href="https://as://advance.lexis.com/document/?pdmfid=123d=1230042&crid=5197580e-e355-476c-86da-c8e3a38cca40&pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials-uk%2Furn%3AcontentItem%3A8V0K-5P72-D6MY-P090-00000-00&pdcontentcomponentid=127845&pddoctitle=317.+General+and+special+damages.&pdteaserkey=sr0&pdicsfeatureid=1517131&pditab=allpods&ecomp=xdrsk&earg=sr0&prid=156b32f7-ff13-46f4-b3a7-7511686d1432" title="All England Law Reports">[2000] 2)”

  1. In the court below Plaintiff in his evidence was claiming damages to the vehicle as full cost of vehicle. This not ‘hypothetical repair cost or diminution of value’.
  2. This is a fact needed to prove that vehicle got damages beyond repair. There was no evidence of such a serious accident that would make a vehicle condemned. The accident happened in a junction and there was no evidence of serious incident to have severe damages to vehicles.
  3. As any accident will not result in the vehicle being condemned this fact needs to be proved through a technical report or any other documentary evidence or oral evidence of an expert. This was not done.
  4. Plaintiff had not listed any technical report or evidence of even a quotation for the repairs to lead evidence regarding extensive damage Plaintiff was claiming. This was a requirement for Defendant to prepare for the cross examination and also to produce sufficient evidence to rebut the claim of Plaintiff.
  5. Order 24 rule 2 of High Court Rules 1988 which is applicable in terms of Order 3 rule 8 of Magistrates’ Court Rules 1945 required parties to file their respective lists of documents and exchange the same.
  6. Failure to follow Order 24 rule 2 of High Court Rules 1988 is contained in Order 24 rule 16 of High Court Rules 1988 which states,

“Failure to comply with requirement for discovery, etc. (O.24, r.16)

16.-(1) If any party who is required by any of the foregoing rules, or by any order made thereunder, to make discovery of documents or to produce any documents for the purpose of inspection or any other purpose, fails to comply with any provision of that rule or with that order, as the case may be, then, without prejudice, in the case of a failure to comply with any such provision, to rules 3(2) and 11(1),-

(a) that party shall not be entitled subsequently to produce a document in respect of which default was made without the leave of the Court, and

(b) the Court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly.” (emphasis added)”

  1. Using discretion in allowing documents at hearing should be just to both parties. In this instance Plaintiff had not filed any list hence could not proceed with hearing without seeking leave of the court to admit a list of docuemnts that Plaintiff intended to produce at trial. This was not done either prior or even at the commencement of hearing or during the hearing.
  2. High Court decision of Arun Singh v Prem Singh & Basant Kumari as executors and trustees of estate of Ranjit Singh [2014] HBC 457/02S (decided on 6.8.2014) did not allow fresh evidence of some receipts and invoices which were not discovered by parties, to be adduced after commencement of hearing. Those documents were in possession of the party who sought to adduce them. So it is the sitting judge’s discretion and generally appellate court will not interfere unless it was grossly unjust. Conduct of hearing and smooth management of hearing before a court depend on many factors. Hence the discretion of such fresh evidence cannot be justified in the circumstances of this case considering the claim of Plaintiff and conduct of Plaintiff and his counsel.
  3. Plaintiff should be aware that he was making an excessive claim and that needs to be proved in court. Plaintiff has proceeded to hearing even without proof of ownership of vehicle.
  4. Apart from that, there was no proof of extensive damage to make that vehicle unusable. There was no evidence of what happened to it and who assessed the vehicle as unusable. In the circumstances, I cannot see any reason to interfere with RM’s discretion.
  5. Learned RM had considered the circumstances of the case and upheld the objection of Defendant regarding documents relating to third party insurance and also quotation for damages. I cannot see that RM had acted against law in terms of above provision.
  6. So there was no merits in the appeal grounds submitted by Plaintiff. The appeal is dismissed and the decision of RM affirmed. Considering circumstances of the case no costs awarded.

hFINAL ORDERS

  1. Appeal dismissed and decision of court below affirmed.
  2. No order as to cost.

Dated at Suva this 31st day of January, 2022.


.....................................

Justice Deepthi Amaratunga

High Court, Suva


[1] High Court decision of Arun Singh v Prem Singh & Basant Kumari as executors and trustees of estate of Ranjit Singh [2014] HBC 457/02S Invoices as evidence of purchase of materials sought to be adduced mid-trial, which were in plaintiff’s counsel’s possession, this application was refused

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