Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Honiara City Council v Golden Springs International (SI) Co Ltd [2000] SBHC 78; HCSI-CC 113 of 1996 (24 February 2000)

CC 113, 96 HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 113 of 1996

HONIARA CITY COUNCIL

V

GOLDEN SPRINGS INTERNATIONAL (SI) CO. LTD

High court of Solomon Islands
(Palmer J.)

Civil Case number 113 of 1996

Hearing: 7th February 2000
Judgment: 24th February 2000

S. Manetoali for the plaintiff
P. Tegavota for the defendant

PALMER J.: An accident occurred on 7th June 1995 at about 3.00 p.m. opposite the Lawson Tama junction leading into China Town, between the Plaintiff’s vehicle, (a Compactor truck used for rubbish collection, registration number A0466) and the Defendant’s vehicle (registration number A3456 - a Feroza Daihatsu vehicle), resulting in some damage caused to both vehicles. The Plaintiff quantifies damage caused to its vehicle at $24,925-00. It now comes to Court seeking to recover the costs of that damage, claiming the accident was caused by the negligence of the Defendant’s driver. These included, failing to keep any or any proper lookout; failing to see and/or to heed the Plaintiff on the road; failing to stop, to slow down, to swerve or in any other way so to control the said vehicle as to avoid colliding with the Plaintiff; and driving at an excessive speed in all the circumstances.

Plaintiff called two witnesses in support of its case; the driver of the Compactor truck (John Haokauru), and a passenger in the said vehicle (Francis Talofurai). It also tendered in support of its case, a notice of conviction in the Magistrates Court against the driver of the Defendant’s vehicle (Jackson Koria). The Defendant on the other hand, not only denies liability but counter-claims, alleging to the contrary that the accident was caused by the negligence of the Plaintiff’s driver by driving at excessive speed, failing to keep any or proper look out, failing to slow down as he approached the junction, and failing to have proper control of said vehicle so as to avoid the collision. Defendant also counter-claims for damages incurred by its vehicle in the accident. It is not in dispute between the parties that whoever proves negligence will be entitled to an order for damages.

THE EVIDENCE

John Haokauru was the driver of the Compactor truck. He claims the accident was caused by the negligent driving of Koria when he pulled out suddenly in front of him and so giving him little chance to avoid the accident. In chief he stated he was driving along the inside lane as he approached the junction. Under cross-examination, he reiterated he was driving along the inside lane as he approached the junction, even when it was put to him that he might have been travelling on the outside lane first and then changed to the inside lane as he approached the junction. It was only when it was put to him that this might be inconsistent with what he seemed to have stated in his statement to Police on 7th June 1995, that he retracted and agreed he was actually travelling on the outside lane until opposite the old outpatients hospital when he changed to the inside lane. Reason given for changing lanes was because the vehicle in front of him at that time was travelling a bit slow. The second witness, Francis Talofurai on the other hand stated they were travelling in the inner lane all the way through until the accident happened. He maintained this view under cross-examination. He also claimed it was the vehicle of the Defendant which had pulled out suddenly in front of them and so giving them no chance to stop or avoid the accident.

The version of events given by the Defendant’s witnesses (Jackson Koria - driver and Ma Luningning Gabrino - passenger) is quite different. Both witnesses admit seeing the Plaintiff’s vehicle approaching on the highway but were of the view that it was sufficiently far enough for them to be able to cross the road safely onto the other side of the highway. They estimated it to be opposite Saint Barnabas Cathedral, which is quite a long way off. Koria states as he crossed the highway to enter the waiting bay he realised there was a vehicle coming from the opposite direction and so slowed down to allow that oncoming vehicle to go past. Both witnesses were very firm and sure of themselves on oath that they had actually turned to enter the waiting bay when they were hit at the rear of their vehicle by the Compactor truck. Both said they were so surprised that they could be hit by the Compactor truck. They expressed the view the Compactor truck might have been travelling at excessive speed to be able to hit them as they were turning into the opposite lane.

A sketch plan of the scene of accident drawn by a Police Traffic Officer (Billy Abae) who attended the scene had also been submitted as evidence before this Court. According to that sketch plan, the version of events described by Defendant’s witnesses is more consistent; that the accident occurred towards the isle in the middle of the highway, towards the waiting bay. The position of the skid marks and debris on the road showed the point of impact would have been more towards the area of the waiting bay or just before one crosses over to the opposite lane.

ANALYSIS OF EVIDENCE

The location of the point of impact is an important piece of evidence which would assist in determining whose version is more reliable. Haokauru placed the point of impact at position “C” marked on the sketch plan. In my respectful view, he had marked this position to make it more consistent with his version that the accident occurred as a result of the Defendant’s vehicle driving out suddenly in front of him. Unfortunately, that couldn’t be correct. If that was the point of impact, debris would have been strewn around that area. There is no evidence of this whatsoever. Also if that had been the spot of impact, the Feroza Daihatsu of the Defendant would have been hit square in the middle and much more serious injuries to the driver and the passenger and damage to that vehicle would have been caused. It has not been disputed in evidence before this Court that the Feroza Daihatsu was hit towards the rear part behind where the refuelling tank was located. The point of impact therefore marked by Haokauru is simply not feasible.

The Defendant’s witnesses on the other hand mark the point of impact at a spot beyond the isle on the road. Again with respect, that couldn’t be possible. The skid marks basically showed the position and travel of the Compactor truck. Those skid marks did not go any where near the spots marked by the Defendant’s witnesses. If those spots had been the points of impact, the skid marks would have originated around those spots. They did not. According to the evidence of Plaintiff’s witnesses, the brakes were applied at more or less the same time as when the impact occurred. Plain common sense and simple logic must be applied in this instance. In my respectful view the point of impact would have been somewhere near, or at the spot where the right hand skid mark commenced. This would be about half way between the point marked “C” and the spot marked by Defendant’s witnesses. That is consistent with the location of the debris strewn around at that spot.

I find the account given by Defendant’s witnesses to be more consistent with the evidence as depicted on the sketch plan. Their evidence has been consistent all the way through. An inconsistency however can be noted in the evidence of Plaintiff’s witnesses. This pertains to the evidence that whilst the second witness Francis Talofurai says that they were travelling on the inside lane, the driver Haokauru concedes they travelled in the outside lane and only changed to the inner lane as they approached the junction. The significance of this inconsistency tends to throw doubt on the credibility of their account. If there are two different versions as to how they approached the junction then their account of the accident may not be very reliable. If what Haokauru states is true, then it is quite consistent with the claim of the Defendant that the accident was caused as a result of the Plaintiff’s driver, when he changed lanes, driving too fast and not keeping a proper look out; hence failing to take such action so as to avoid colliding with the Defendant’s vehicle. The length of the skid marks and the line of travel of the Plaintiff’s vehicle eventually ditching on the opposite drain would seem to be consistent with this submission.

It is clear without doubt it was the Compactor truck which collided with the back part of the Defendant’s vehicle. Both witnesses for the Defendant described the impact as occurring right behind the refuelling tank of the Daihatsu Feroza. That is well to the rear of the said vehicle. Further, the impact was so hard it caused the Feroza to burst into flames but without overturning it. The impact merely pushed the vehicle to turn on its side. That is consistent with the version of the Defendant’s witnesses that they had crossed the road safely and were about to enter the waiting zone to let an oncoming vehicle go past when they were hit at the rear.

I have taken time to carefully consider the evidence of the Plaintiff’s witnesses but with respect unable to come to the conclusion that I can rely on their evidence. On the other hand I find the evidence of the Defendant’s witnesses to be more consistent and reliable. I accept their version of events. In my respectful view, what actually occurred was that Defendant’s vehicle had actually crossed the road and entered waiting bay, when Plaintiff’s vehicle collided with it.

Was Jackson Koria negligent when he drove out from the junction? Did he fail to keep any proper look out, or fail to see and/or heed the Plaintiff on the road? With respect I must answer these questions in favour of the Defendant. I accept the evidence of Koria and Ms Gabrino that they did keep a proper look out. Both acknowledged sighting the Plaintiff’s vehicle but were of the view it was at a safe distance away. This evidence has not been sufficiently discredited. Their evidence that they had crossed the road far enough to allow oncoming vehicles to go past them had also not been discredited. The location of the point of impact is consistent with their version of events; that it occurred just as they were entering and turning into the waiting bay. Based on that evidence, if the Plaintiff’s driver had been keeping a proper look out and not overspeeding, there would have been ample time for him not only to see the Defendant’s vehicle but also to take such action as to avoid colliding with it. He may have been able to slow down and avoid hitting the vehicle, or to swerve and avoid the collision. In my respectful view the accident occurred as a result of a combination of those factors.

The fact one has right of way on the highway does not mean they can travel at excessive speed without keeping a proper look out. There are other road users that we all need to watch out for. These include people crossing the roads, including children, and other vehicles using the road. Keeping a proper look out includes being able to avoid accidents which are avoidable. I accept I would have held Koria responsible for the accident if I had accepted what Plaintiff’s witnesses had said; that he had darted out of the junction onto their path. That would have been consistent with not keeping a proper look out and not giving way. But that is not the case here as I find on the evidence before me. Accordingly I must find that it had not been proven on the balance of probabilities, that the Defendant was negligent in not keeping a proper look out or failing to see and/ or to heed the Plaintiff on the road.

The third and final issue for determination is that the Defendant’s driver failed to swerve or in any other way so to control his vehicle as to avoid colliding with the Plaintiff, and driving at an excessive speed. First, was Koria negligent in not swerving or so controlling his vehicle as to avoid the collision? In his evidence before this Court, Koria explained that as he approached the opposite lane, he realised there was an oncoming vehicle on the opposite lane and so slowed down to allow it to go past him. Was he negligent in taking this course of action? It is for the Plaintiff to show that this action was inappropriate in the circumstances. That with respect had not been done by the Plaintiff. Rather the evidence shows to the contrary that it was the Plaintiff’s driver that had failed inter alia, to take appropriate action so as to avoid colliding with the Defendant’s vehicle.

The final issue on excessive speed simply must also fail in the light of the evidence accepted by this Court. Both Defendant’s witnesses described driving out normally from the junction and then slowing down to allow an oncoming vehicle go past them. I do not accept the evidence of Plaintiff’s witnesses that Defendant’s vehicle had darted out in front of them.

PREVIOUS CONVICTION IN A CRIMINAL CHARGE.

One of the documents relied on and submitted in support of the Plaintiff’s case was the notice of conviction entered against Koria in respect of this accident. Koria had been charged for careless driving contrary to section 39(1) of the Traffic Act. He pleaded guilty to the charge on 20th June 1995, was convicted and fined $100-00. In his explanations on oath to this Court, he stated he was told he had no defence to the charge and so decided to plead guilty in any event. The status of such conviction as evidence before this Court is that it merely raises a presumption of the correctness of such conviction which operates until it is rebutted by being disproved on the balance of probabilities [see Wauchope v. Mordecai [1970] 1 All E.R 417 (CA.); and Stupple v. Royal Insurance Co. Ltd [1970] 1 Q.B. 50 (C.A.)]. I have had the opportunity to hear evidence in respect of this case and determine whether the presumption raised is correct or not. In my respectful view, the presumption had been satisfactorily rebutted by the Defendant’s witnesses.

COUNTER-CLAIM.

The counter-claim of the Defendant raises the following grounds of negligence:

(a) that the Plaintiff’s driver drove at an excessive speed in all the circumstances;

(b) he failed to keep any or proper look out;

(c) he failed to slow down as he approached the junction opposite Lawson Tama;

(d) he failed to have proper control of the said vehicle so as to avoid the collision.

I have already dealt with the evidence adduced before this Court and made my findings. I am satisfied the counter-claim of the Defendant must be allowed. I am satisfied the evidence before this Court is consistent with the Plaintiff’s driver driving at excessive speed. Despite braking and skidding for some fifty one (51) feet (approximately 16 metres) the Compactor truck could not come to a stop and went all the way into the drain on the opposite side of the road. Whilst I accept it is a much heavier vehicle, if it had been travelling at reasonable speed in the circumstances it would have been able to come to a stop after skidding for that distance (note the road was dry at that time). I am also satisfied on the evidence before me Haokauru failed to keep any or proper look out, failed to slow down as he approached the junction, and failed to take proper control of his vehicle so as to avoid the collision. It should be noted the brakes were applied at the point of impact and not before that. That is consistent with the evidence that the Plaintiff’s driver was overspeeding and not keeping a proper look out, hence failing to have proper control of his vehicle so as to avoid the collision.

I am satisfied judgment should be entered against the Plaintiff on the counter-claim for negligence and that the Defendant would be entitled to a claim for damages incurred as a result of the accident to be assessed in chambers, if not agreed.

ORDERS OF THE COURT:

1. DISMISS CLAIM OF THE PLAINTIFF.

2. ENTER JUDGMENT AGAINST THE PLAINTIFF ON THE COUNTER-CLAIM OF THE DEFENDANT.

3. AWARD DAMAGES IN FAVOUR OF THE DEFENDANT TO BE ASSESSED IN CHAMBERS IF NOT AGREED.

4. COSTS OF THE DEFENDANT TO BE BORNE BY THE PLAINTIFF.

THE COURT