IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0012 OF 2003

Between:

ASESELA RAVUVU
Plaintiff

and

MINISTRY OF HOME AFFAIRS AND IMMIGRATION
ATTORNEY GENERAL OF FIJI
Defendants

Mr. Ram Chand for the Plaintiff
Mr. L. Daunivalu for the Defendants

Date of judgment: 15 July 2005

JUDGMENT

By writ of summons issued on 7 April 2003 the plaintiff claims against the defendants the sum of $16,640.95 being for general repairing (labour charges and parts); $1260.00 being costs for hiring of alternative mode of transportation for 36 days and damages for shock, pain, suffering, restlessness, humiliation and embarrassment in the sum of $15,000.00 together with interest and costs.

Background facts

This claim arises out of a motor vehicle accident in the circumstances stated hereunder.

The plaintiff was the owner of the Ford Twin Cab vehicle registered number DA 277 (the ‘vehicle’) which was involved in an accident on Ratu Dovi Road with a truck registered number GM 770 (the ‘truck) belonging to the 1st Defendant (the ‘D1). The accident occurred at night on 25 October 2000. At the time of the accident the driver of the 1st Defendant’s vehicle a police officer SC 921 Ilaitia Rocobitu was reversing the truck across Ratu Dovi Road from one side onto the opposite side in order to get into a feeder road to unload police musical instruments. That at the time of the accident the police vehicle was directly across the path of the Plaintiff’s vehicle. 

The Plaintiff was charged for careless driving in the Suva Magistrate’s Court in Traffic Case No. 11782 of 2001 of which he was acquitted. 

The plaintiff alleges negligence on the part of the driver of the first defendant the Ministry of Home Affairs and Immigration (the first defendant – D1) and hence the present claim.

The defendants deny negligence on their part. They also deny the plaintiff’s claim for damages.

Both the plaintiff and defendants adduced evidence to testify on their behalf.

Plaintiff’s evidence

The plaintiff testified as to how the accident happened on 25 October 2000 at about 7.30 p.m.

At the time of the accident it was raining and the road was wet; the night was dark and there were no street lights.

The plaintiff was driving his car along Ratu Dovi Road from Nausori side. He said that he was driving slowly at about 50 kmph and he did not see any light from the police vehicle. When he was about 30 feet away from the defendant’s (D1’s) vehicle he saw ‘a black thing’ (which happened to be the D1’s truck) right in front of him moving across the road on his path. He applied the brakes but it was too late.

The plaintiff further testified as follows as contained in the plaintiff’s counsel’s written submission.

“The front part of his vehicle went under the middle portion of the truck. His car was fairly new and it had a bull bar. He said if he was driving fast he would have been dead. He did all that he could at that time to save the accident. He said two police officers came to him after the accident had occurred. They sniffed his face and mouth to see if he was drunk. They growled at him saying he was too old to drive. The officers did not care for his welfare. They did not ask him how he felt or whether he had any injuries. They were trying to blame him for the accident. He said he was allowed to tow his vehicle home that night as it could not be driven because of the damage. He went to the Valelevu Police Station that night with his wife where a police officer told him that he would not be charged if he gave her $50.00 cash. He gave a statement to the police. He said he was very annoyed about this, refused to pay the money and said that he opts to go to Court.

He said his vehicle was stuck underneath the truck and the police officers had to use crow bar to pull it out whilst he sat in the car. He said he did not see any police officer on the road directing traffic or wearing any reflector jacket. No-one had any light. The front part of his vehicle was badly damaged which had to be repaired.

He stated that he was not careless or negligent and the accident occurred because of the negligent act on the part of the police driver that night. He should not have been reversing the vehicle from one side to another in the manner he did without any proper signalling or warning or light showing. That he was reversing the vehicle in a dangerous manner.

He said his spectacles do not impose any impediment to his driving at night and that he still drives today.”

The plaintiff’s wife Makitalena Cakauserevaki Ravuvu testified that she went to the scene of the accident with her daughter. She said that her husband was sitting in the car and appeared to be in a state of shock. The vehicle was towed away to her home. She looked after her husband at home, as she was a qualified nursing sister herself. He was in a stressful condition and showed signs of body pain. She did not take him to hospital but gave him some tablets and also took advice from a doctor friend. She said that her husband was restless at night and very disturbed.

She confirmed that expenditure was involved in repairing the vehicle and in this regard she looked after the finances. She also confirmed that $1260 was paid to a Jagdish Chand for hiring his vehicle to go to their farm on 36 occasions.

Repairs to the plaintiff’s vehicle was done at Shreedhar Motors by its mechanic Maheshwar Prasad. He told the Court that the work he did on the vehicle is as shown in the Invoice tendered to Court. He said that the damage was quite extensive. The vehicle was brought to the garage on 4 November 2000 and delivery was given after repairs on 3 January 2001, that is, in two months.

Defendants’ evidence

In its defence the defendant (D1) denies that the accident was caused through the negligence of its driver; but it says that the plaintiff’s vehicle ‘drove into and bumped the left side of the Police Vehicle’.

The defendant admits that its truck was diagonally across the road at the time of the accident and was directly in the path of the plaintiff’s motor vehicle.

The defendant called four police officers, namely SC 921 Ilatia Rocobitu (DW1) – driver of police truck GM 770, Ifereimi Tale (DW2), police officer who was directing traffic on the Nepani side of Ratu Dovi road where the plaintiff’s vehicle was coming from; WPC 2470 Pearl St. John (DW3) – the investigating officer in the said accident and Inspector Salacieli Naiviliwasa (DW4) – the Station Officer at Valelevu Police Station during the material time and who accompanied the I.O. to the scene of the accident.

The driver of the police two ton truck said that there were 20 police officers in the truck. He told 2 police officers to direct traffic – one directing traffic going from Nepani side to Laqere and the other directing traffic coming from Laqere side towards Nepani. The witness agreed that the act of reversing the truck was dangerous on that night.

The police officer Ifereimi Tale testified, inter alia, that while directing traffic he first saw the plaintiff’s vehicle when it was about 1 chain away and tried to stop it but it came and bumped the police vehicle. In his statement this witness said, inter alia, as follows:

“The torch was on the side (left) on my belt and it was switched off. There was no torch light at the time of the accident. The accused had his vehicle lights dim, he could not see very far. I was the best person who saw the accident. Accused’s vehicle went underneath our police truck. It had severe damages”.

And then further in re-examination in the Magistrate’s Court he said:

“when the vehicle was 15 yards away I shown my torch to accused, when he was about 10-12 yards away, I switched off my torch, put it on my left on the waist belt, used my hand signal, before I raised both hands and jumped”.

The defendant says that there was contributory negligence on the part of the plaintiff while the truck was being reversed.

The DW2 was directing traffic when the truck was being reversed.

The defendant says that the plaintiff was negligent in his driving and was not paying attention to the road and other traffic.

It says that Police Officers did all that was reasonably necessary in the circumstances to avoid any accident.

As for damage to the vehicle the defendant says that the plaintiff’s claim for repair works and labour costs to his vehicle is an exaggerated figure and totally disproportionate to the nature of the accident. It says that the plaintiff is responsible for his own negligent driving and should therefore meet his own costs of repair.

The issues

The issues for Court’s determination are as follows as stated in the Minutes of the Pre-trial Conference.

“Whether the Defendant is liable and negligent at all;

Whether the Plaintiff is entitled for loss for the general repairing and labour charges and parts in the sum of $16,640.95 to the Plaintiff’s vehicle;

Whether the Plaintiff is entitled to loss and damages for the hiring of alternative vehicle and costs of transportation in the sum of $1,260.00;

Whether the Plaintiff is entitled to damages for shock, pain, suffering and restlessness in the sum of $5,000.00 (statement of claim states $15,000.00) if not more;

Whether the Defendants should pay Interest at the rate 13.5% to the Plaintiff?

Whether the Plaintiff is entitled to any costs.”

Determination of the issues

On the evidence before me I find that the driver of the police vehicle was negligent in the manner of his driving in all the circumstances of this case on a rainy day and there were no street lights in the area where the accident happened.

I find as fact that ample warning was not given to the traffic on the road as I have already stated. The plaintiff could not possibly have avoided the accident subject to what I say hereafter on the issue of contributory negligence.

Although the plaintiff was charged with careless driving he was acquitted of it.

Contributory negligence

Looking at the whole of the evidence and the facts of the case prior to the accident, I find that there was a certain degree of contributory negligence on the part of the plaintiff.

The following statement fits the situation that existed in this case:

“Contributory negligence is a plaintiff’s failure to meet the standard of care to which he is required to conform for his own protection and which is a legally contributing cause together with the defendant’s default, in bringing about his injury” (The Law of Torts by John G. Fleming 9th Ed. 1998).

It is for the defendant to prove that the plaintiff failed to take “ordinary care for himself, namely, such a care as a reasonable man would take for his own safety, and that his failure to take care was a contributory cause of the accident (Lewis & Denye [1939] 1 K.B. 549).

How does one arrive at apportionment of blame in contributory negligence has been well stated by Kenneth Jones J. in Gregory v Kelly (QBD [1978] RTR 426 at 431) as follows which I adopt in this case:

“…that this matter cannot be solved by taking percentages attributable to one aspect of the negligence or contributory negligence and then taking a percentage attributable to another aspect and adding the percentages together, and so purporting to carry out some sort of mathematical computation. What I must do is to look at the matter generally and do the best I can in justice to share out the blame between these two young men.”

There is no doubt and I find as a fact that the defendant’s driver was executing a dangerous manoeuvre when he was reversing the truck in the way outlined above. He came right in the path of the plaintiff all of a sudden on a dark and rainy day when there were no lights. There was no proper direction of traffic, if any, at the scene. Consequently, the plaintiff could not pull up in time to avoid the accident. That being the situation the plaintiff was placed in did not mean that he as a driver should not have been more careful to allow himself time to take evasive action.

There was therefore in my finding a small degree of contributory negligence on the part of the plaintiff.

The defendant’s driver’s negligence was of a high order for which the defendant is vicariously liable. Special care was required of him while driving and to make sure that there was proper direction of traffic in the circumstances. He did not display that care in his driving resulting in the accident being inevitable. 

In the circumstances of this case, doing the best I can, I apportion blame as to ninety percent on the defendant and ten percent on the plaintiff.

Damages claim

The plaintiff claims damages in the sum of $16,640.95 (which includes VAT of $1512.81) being expenses incurred in getting the vehicle repaired by Shreedhar Motors Limited. The full details of labour and parts are contained in the Statement of Claim.

The plaintiff also claims the sum of $1260.00 for loss of use of vehicle as he had to use the services of another source of transport for 36 days at $35.00 per day.

He further claims the sum of $15,000.00 being damages for shock, pain, suffering, restlessness, humiliation and embarrassment.

The defendant says that the plaintiff’s claim for damage for repair costs to his vehicle is ‘highly questionable and unsustainable’ bearing in mind how the accident happened. Such severe damages could not have been suffered in the circumstances.

The defendant says that the plaintiff’s vehicle was not so badly damaged as it has been made out to be by the repair works allegedly carried out as a result of the accident.

It says that the cost of repair should be borne out by the plaintiff himself since it alleges that the accident happened through his own negligence.

The plaintiff on the other hand says that his vehicle’s front portion was damaged. It could not be driven so it was towed away.

On the claim for shock etc he says that he is entitled to damages for aches, headaches, weakness and sleeplessness at night and has suffered shock from the accident.

As far as the actual damage to the vehicle is concerned, the police witnesses were unable to say what the extent of damage to the vehicle was. Hence one has to fall back on other evidence like the invoices and receipts produced by the plaintiff and his own evidence on oath.

In regard to repair Bill, the Court can only go by evidence before it. The defendant has not produced any evidence to contradict the plaintiff’s evidence. 

I accept the plaintiff’s evidence on this item of the claim.

I therefore allow the claim for damages in the said sum of $16,640.95 but after allowing for 10% contributory negligence the amount is reduced to $14976.85.

Claim for loss of use

There is no doubt that because damage has been caused to the plaintiff’s vehicle, he has been put to the expense of repairing it, and was thereby deprived of its use during the period of repair, he is therefore entitled to recover for this loss of use.

On this aspect the defendant denies that it is responsible, for ‘hiring alternative transportation’ by the plaintiff while the vehicle was being repaired. 

The defendant says that no receipt was tendered for this expenditure. The only evidence that there is, is the evidence of the plaintiff’s wife who visited the plaintiff’s farm for 36 days and spent $35.00 taxi fare each day. The plaintiff himself was staying in Suva and did not go to the farm after the accident.

The plaintiff said that he has a farm 36 km from home and he used his vehicle to go there.

In the circumstances of this case the plaintiff who is a Senator, has to attend meetings in Suva, did incur expenses in hiring alternative transport because of the accident resulting in damage to his vehicle which he could not use for 36 days. Because of this wrong he did not have the use of his vehicle.

I allow the sum of $1260.00 for loss of use of his vehicle. After deducting 10% for contributory negligence the claim is reduced to $1134.00.

Claim for damages for shock, pain suffering and restlessness

The evidence is that the plaintiff was not injured, he did not go to hospital for medical check at all or obtain a medical report. He was content with whatever treatment his wife who is a retired hospital Sister gave him.

It is stated that: “for mental suffering alone, unaccompanied by physical injury, no award can be made”. [per Lord Wensleydale in Lynch v Knight, 116 E.R. 854, (1861) 9 H.L.C. at p. 598; per Kennedy J in Dulieu v White (1901) 2 KB at 673]. Where, however, damages are due for physical injury the sum awarded may include something by way of compensation for mental suffering also (per Coleridge J in Blake v Midland Ry (1852) 18 Q.B. at 111).

The headnote to Dulieu v White (supra) states:

“Damages which result from a nervous shock occasioned by fright unaccompanied by any actual impact may be recoverable in an action for negligence if physical injury has been caused to the plaintiff.” (emphasis mine)

It is my view on the evidence that the plaintiff is not entitled to claim anything under this item.

This item of the claim is therefore disallowed in toto.

Conclusion

In the outcome, the plaintiff succeeds in his claim for damages and loss of use of his vehicle. The claim for shock, pain and suffering etc is disallowed.

It is therefore ordered that the defendants pay damages to the plaintiff in the sum of $14976.85 for repair expenses and the sum of $1134.00 for loss of use of his vehicle totalling $16,110.85 together with interest thereon from the time the vehicle was delivered to the plaintiff on 3 January 2001 at the rate of 5% per annum and costs in the sum of $700.00. There will therefore be judgment for the plaintiff against the HAA0077.2005S defendants accordingly.

D. Pathik
Judge

At Suva
15 July 2005