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Administrator, Nausori Town Council v Sharma [2013] FJMC 28; Civil Appeal 48.2010 (21 January 2013)

IN THE MAGISTRATES COURT AT SUVA
APPELLANT JURISDICTION
Appeal No. 48 of 2010
(SCT No. 1029 of 2010)

BETWEEN:

The Administrator, NAUSORI TOWN COUNCIL
APPELLANT

AND:

VIJAY NARAYAN SHARMA
RESPONDENT

For the Claimant: Ms. Pretika (Instruction of Lagendra Law)
For the Respondent: Mr. Nand

RULING

1. This is an Appeal preferred by "The Administrator, Nausori Town Council" (hereinafter referred as 'the Appellant') against an order made by the learned Referee of the Small Claims Tribunal, Suva, in favour of Mr. Vijay Narayan Sharma, (hereinafter referred as 'the Respondent').
   
2. The original claim of the Respondent at the SCT against the Appellant in this court was that the Appellant should pay him $1,032 as damages that the Respondent had to incur to fix the damages caused to his vehicle (CW691) in the cause of it being towed by the Appellant or his agents when it was parked in a "NO PARKING" area on 15th of February 2010. The Respondent claims that the bumper, power steering belt and the rear belt of the car got damaged due to the towing. He does not dispute the right of the council to tow the illegally parked vehicle, but says that the council has no right to damage his vehicle.
   
3. The Appellant is relying on two grounds of Appeal;
   
   • (i) The Appellant was not given an opportunity to present its submissions (either orally or in writing) to justify its argument pertaining to Section 73(7) of the Land Transport Act. 1998.
     
   • (ii) The Appellant was not given an opportunity to challenge the quantum of damages sought by the Respondent.
     
4. Before the Hearing was taken-up, both parties were invited to submit written submissions and both parties readily did so. In oral submissions, both counsel elaborated their arguments further.
   
5. The contention of the learned Counsel for the Appellant was that Section 73(7) of the LTA should interpret in a broader sense. Section 73(7) of the LTA is as follows;
   

Section 73(7) – A Police Officer or authorized office shall not be held liable for any damage to or loss of any item from a motor vehicle during its seizure and removal to a place of safety in accordance with paragraph (c) of subsection 1.

6. The learned Referee, having been satisfied that the vehicle was parked in a "no parking zone" had interpreted Section 73(7) to give effect that it refers to "damage" or "loss of any items from a motor vehicle" and the section is silent where the "damages to the vehicle" are concerned. Thus he had concluded that the damage in issue had caused to the vehicle "during the process of towing" and the Appellant "is liable to compensate for the damages" as authorized officers were acting on behalf of Nausori Town Council.
   
7. The learned Counsel for the Appellant, while citing page 1022 of Nokes v Doncaster Amalgated Collieries Limited [1940] AC, 1014, a decision of House of Lords submits that the section should be interpreted in such a way "to give meaning and effect to the said section and thereby giving life to the Act and hence achieving an effective result to meet the overall purpose of the Act". Hence, he suggests the subsection should be interpreted to say that a Police Officer or Authorised Officer is not liable for 'any damage to a motor vehicle' or 'loss of any item from a motor vehicle'.
   
8. I do agree with the learned Counsel for the Appellant that the section should be viewed by keeping in mind that the intention of the legislature was to ensure that the road users would comply with the Traffic laws and at the same time provide necessary statutory protection to Police Officers and Authorised Officers to take firm and diligent action against those who break such laws with a comparatively free hand without been subject to any liability.
   
9. Hence, this court is of the view that Section 73(7) should be interpreted in such a way that a Police Officer or Authorised Officer shall not be held liable for 'any damage to a motor vehicle' or 'loss of any item from motor vehicle' during its seizure and removal to a place of safety. In the light of the above, the learned Referee has erred in his interpretation.
   
10. The matter doesn't end there. The learned Counsel for the Appellant argues that the section is very specific with its terminology of "A Police Officer or Athorised Officer shall not be liable for any damage. . . . . . "and "the purpose and intent of the Act is to give powers to officers concerned to carry out their duties diligently and without any fear of being liable for damages for performing their statutory obligation". In other words, what the learned Counsel says is that the section provides a "blanket cover" for the officers involved in seizure and removal of vehicles with the phrase "shall not be held liable".
    
11. I now turn to see the existing legal framework in the Common Law. I found Section 76A of the Road Transport (safety and Traffic Management) Act. 1999 of New South Wales is exactly focused to the point.
    

76A Removal of vehicles – incidental provisions relating to towing

(i) If a motor vehicle or trailer is removed in accordance with Section 75 or 76 by a tow truck, the person operating or driving the tow truck may take such action as is reasonable or necessary to facilitate the towing of the vehicle or trailer in a manner that does the least damage to the vehicle or trailer. In taking any such action, the person is not liable for any damage to the vehicle or trailer that the person causes.

Note: For example, a tow truck driver may need to break into an unattended motor vehicle that is causing an obstruction in order to release the hand break and avoid doing serious damage to the vehicle's transmission.

(ii) If a motor vehicle or trailer is removed in accordance with Section 75 or 76 by a tow truck, the person or body that authorized or caused the removal is not vicariously liable for any damage caused to the vehicle or trailer by the person operating or driving the tow truck.

12. The statutory Instrument number 183 of 1986 of England under "ROAD TRAFFIC" is in respect of The Removal and Disposal of Vehicles Regulations. Section 6 of the said Regulation is as follows;
    

"Any person removing or moving a vehicle under the last two preceding regulations may do so by towing or driving the vehicle or in such other manner as he may think necessary and may take such measures in relation to the vehicle as he may think necessary to enable him to remove or move it as aforesaid".

(Any person referred to in Regulation 4 and 5 are Police Constables and Local Authority Officers).

13. The above cited statutory provisions of other common law jurisdictions clearly indicate that there is no such "blanket cover" provided to the tow truck operators in performing their duties. But, when it comes to the Land Transport Act of Fiji Islands, the situation is not the same.
    
14. I would like to cite several portions from the judgments tendered to court by the learned Counsel for the Appellant.
    

Lord Atkin in Nokes case stated as follows; (pages 1031 and 1032)

"But it has been the duty of the court on countless occasions to construe general words cutting down the generality to the obvious intention of the legislature. The words on the learned author of Maxwell on Statutes, 8th ed., p. 73, appear to me to afford a true canon of construction. After saying that there are certain objects which the Legislature is presumed not to intend, and that a construction which would lead to any of them is therefore to be avoided, he continues: "one of these presumptions is that the Legislature does not intend to make any substantial alteration in the law beyond what it explicitly declares, either in express terms or by clear implication, or, in other words, beyond the immediate scope and object of the statute. In all general matters outside those limits the law remains undisturbed. It is in the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness, and to give any such effect to general words, simply because they have a meaning that would lead thereto when used in either their widest, their usual or their natural sense, would be to give them a meaning other than that which was actually intended. General words and phrases, therefore, however wide and comprehensive they may be in their literal sense must, usually, be construed as being limited to the actual objects of the Act. The general words of the Act are not to be so construed as to alter the previous policy of the law". The learned author proceeds to illustrate this principle by instances which occupy several of the succeeding pages. I will only cite one application, Leach v. Rex (I). The Criminal Evidence Act 1898 had made the wife of an accused person a competent witness for or against him on charges of certain scheduled offences. The question arose on appeal that as . . . . House whether she was thereby made a compellable witness. The House, reversing the Court of Criminal Appeal, said no. Lord Haslsbry said (2): "You must consider when you are dealing with Acts of Parliament, and examining what the effect of your proposed construction is, whether or not you are dealing with something that it is possible the Legislature might either have passed by definite and specific enactment or have allowed to pass by some ambiguous inference .... If you want to alter the law which has lasted for centuries and which is almost ingrain in the English Constitution, in the sense that everybody would say 'To call a wife against her husband is a thing that cannot be heard of' –to suggest that that is to be dealt with by inference, and that you should introduce a new system of law without any specific enactment of it, seems to me to be perfectly monstrous".

Further, Viscount Simon L.C. in page 1022 stated that;

"The principles of construction which apply in interpreting such a section are well established; the difficulty is to adapt well established principles to a particular case of difficulty. The golden rule is that the words of a statute must prima facie to be given their ordinary meaning. We must not shrink from an interpretation which will reverse the previous law, for the purpose of a large part of our statute law is to make lawful that which would not be lawful without the statute, or, conversely, to prohibit results which would otherwise follow. Judges are not called upon to apply their options of sound policy so as to modify the plain meaning of statutory words, but where, in the construing general words the meaning of which is not entirely plain there are adequate reasons for doubting whether the Legislature could have been intending so with an interpretation as would disregard fundamental principles, then we may be satisfied in adopting in proper construction".

15. Having carefully considered the above decisions, I wish to re-iterate that "Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of statutory words". Therefore, when Section 73(7) in issue stipulates that "a Police Officer or Authorised Officer shall not be liable for any damage .......", that has to be accepted as the definite intention of the Law makers. There is no ambiguity in its terminology. There are no exceptions or provisos or limitations stated in the Act to be considered in the application of the said section. Thus, the section and its underlining logic are very clear.
    
16. The legal background when an appeal is brought forward is elaborated in the case of Sheet Metal Plumbing –v- Deo by Justice Fatiaki, while quoting from the New Zealand case of NZI Insurance –v- Auckland District Court.
    

'I am fortified in my narrow view of the appellant's right of appeal, by the observations of Thorp J. in N.Z.I. Insurance N.Z. Ltd –v- Auckland District Court [1993] 3 N.Z.L.R. 453 when he said of a similar right granted in the Disputes Tribunals Act 1988 (New Zealand, in identical terms of our ground (a), above at p. 458:

'The essential matter (in the words used) ...is its specification of the basis of appeal against a referee's determination as being the conduct of proceedings in a manner that was unfair to the appellant and prejudicially affected the result of the proceedings. This formulation is both specific and unusual. On its ordinary grammatical construction it provides only a limited right of appeal, and requires any intending appellant to direct the (Court) to some unfairness in the form, and not simply the result, of the tribunal's hearing'.

17. It is apparent that this court, as the appellate forum has to decide whether the learned Referee of the Tribunal acted in such a manner or conducted proceedings in such a way that was unfair to the Appellant and prejudicially affected the result of the proceedings. In this instance, there is no issue of exceeding the jurisdiction of the tribunal. Now this court proceeds to see whether "some unfairness in the form, and not simply the result of the tribunal hearing" caused to the Appellant in the process of the tribunal proceedings.
    
18. According to the above discussed facts, it is obvious that the learned Referee had got misdirected himself in interpreting Section 73(7) of the Land Transport Act. Thus, his order was based on a wrong footing; such a situation would no doubt have a prejudicial effect to the outcome of the final result of the case. Therefore, I act in terms of Section 35 of the Small Claims Tribunal Decree and quash the order of the learned Referee of the SCT.

Appeal is allowed.

Janaka Bandara
Resident Magistrate

Dated: 21st January 2013