IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO.: 33 OF 2003

BETWEEN:

DALIP CHAND
PLAINTIFF

AND:

VIJAY KUMAR
FIRST DEFENDANT

FIJI SUGAR CORPORATION LIMITED
SECOND DEFENDANT

Mr. A. Sen for the Plaintiff
Mr. S. Krishna for the Defendants

Dates of Hearing: 21st - 24th February 2005
6th – 7th June 2005

Date of Judgment: 26th July 2005

JUDGMENT

BACKGROUND:

This is a claim for personal injuries arising out of a locomotive accident on 31st August 2000 and in the alternative for compensation under the Workmen’s Compensation Act Cap 94.

The plaintiff and the defendant were both employees of the second defendant. The plaintiff at the material time was a pointsman on a locomotive. A pointsman’s duty is to assist the driver. The first defendant was a locomotive driver. The plaintiff alleges that on 31st August 2000 while in the course of employment he was injured as a result of first defendant’s negligence particulars of which are given in paragraph 7 of the statement of claim as follows:

i)	Moving the locomotive at a speed that was too fast in the circumstances.
ii)	Failing to keep proper lookout
iii)	Failing to keep proper concentration
iv)	Causing or permitting the said rail truck to swing around
v)	Failing to allow the plaintiff to properly board the locomotive
vi)	Failing to take any or any special care when moving the locomotive
vii)	Failing to get proper directions or indications from the plaintiff before moving the locomotive.

The defendants in their defence say in paragraph 8 that it was plaintiff’s negligence or contributory negligence which resulted in the accident. The particulars of negligence alleged on part of the plaintiff are:

(a)	That the Plaintiff was negligent, careless as to the consequences of boarding a moving locomotive;

(b)	Failing to take adequate precautions or care before attempting to board the said locomotive;

(c)	Failing to wait till the said locomotive came to a stop to board it.

A further ground was added by amendment during trial which was that the plaintiff given all the circumstances was negligent and/or contributory negligent in that when the locomotive was moving the plaintiff from the side step of the locomotive stepped onto the front plate of the locomotive when he knew or ought to have known it was dangerous to do so.

LIABILITY – NEGLIGENCE:

The first issue is of negligence – whether the accident occurred as a result of plaintiff’s negligence or did the plaintiff contribute towards the accident or was the first defendant negligent.

It is agreed that the first defendant was driving locomotive number 12. He had with him his own pointsman one Rajesh Kumar. There were derailed empty cane trucks on the railway line at Nagigi, Labasa so the plaintiff on instructions from his own locomotive driver went to assist the other pointsman named Rajesh to put derailed trucks back on railway tracks. According to plaintiff, Rajesh and he managed to re-rail the first truck. Rajesh hooked the empty truck to the locomotive. The plaintiff was waiting to go onto the locomotive. According to him he was going to put his foot on front plate of the train and go up. Before he could go up, the train moved, hit the freshly re-railed truck which derailed and hit his leg. In cross-examination it was put to him that he was told to move but he told Rajesh and first defendant not to worry. He denied this.

The version of events given by the first defendant varies markedly from that of the plaintiff. The first defendant admits that a derailed truck was hooked to the locomotive. He says he was also on the ground. He then went into the locomotive while the plaintiff stood on the side step of the locomotive. As soon as he moved the train, the plaintiff jumped from the side step to the front plate and the truck got derailed, twisted and hit the plaintiff’s leg. The lights of the locomotive were on. He said that he had told the plaintiff to move for his own safety. In cross-examination he said it was never his defence that Dalip tried to board a moving train. He said it was not necessary for a pointsman to be inside the train before train is moved. Sometimes they stand on the steps which is not dangerous.

However he told the plaintiff not to stand there as one could fall. He said pointsmen are supposed to follow instructions but he did not report plaintiff’s disobedience to the sirdar. He said they are not supposed to move the locomotive if someone is in an unsafe position but he moved the locomotive even though the plaintiff was moving up the steps. He saw no reason why the plaintiff should go onto the front plate. He admitted he realised that the plaintiff was moving onto a very dangerous place but he kept moving the locomotive.

The defendants also called the other pointsman Rajeshwar Prasad (DW4) to testify. He had assisted the plaintiff to put the derailed truck back on the rails. He was the one who had connected the truck to the locomotive. He too told the court that he warned the plaintiff not to stand on the front steps but the plaintiff responded by stating not to worry. He said that he warned the plaintiff because if the locomotive pushes a truck, it can derail. His explanation is that the plaintiff got injured because he moved from the side steps to the front plate which resulted in his injury.

It is common ground that the two pointsmen had put on tracks the derailed truck. It is also agreed that for someone to stand on the front plate of a moving locomotive is inviting danger. The plaintiff’s case in a nutshell is that the driver moved the train before he could move from the front plate whilst the defendants version is that the plaintiff had, after putting the truck on the rails, climbed up the steps but later moved back onto the front steps.

FINDINGS ON LIABILITY:

I am of the view that the plaintiff’s version of events is more tenable on the balance of probability. If the defendants are to be believed then it would suggest that the plaintiff moved from an area of relative safety to a high risk area on the front plate a sort of impulsive moment of madness on part of plaintiff. According to DW4 Rajeshwar Prasad no one in his right frame of mind would do that. The plaintiff too was aware of dangers of remaining on front plate on a moving train. I do not believe that the plaintiff had any reason to take such a risk.

According to the driver DW1 Vijay Chand, he had only moved the locomotive two and half meters when the truck got derailed. Before he had moved the plaintiff was on side steps. During the course of trial the court had been to the scene with counsels and parties and also seen a locomotive albeit not loco 12, to come to better understanding of facts. Given the short distance the train had moved, it appears highly unlikely that the plaintiff could have moved from the side steps to the front plate in such a short space of time.

I was also not impressed with first defendant’s evidence. He considered it not safe to stand on steps of moving locomotive but in next breath thought it was not dangerous. He also said in cross-examination that the plaintiff was moving up the steps when he moved the locomotive. Obviously if the first defendant is to be believed the plaintiff had disobeyed his orders not to stand on the plate but he did not report the plaintiff to his supervisor as he should have done. In re-examination he said that he did not report because he did not know the plaintiff would get hurt. The plaintiff had been hurt so this explanation is quite illogical and incredible.

Equally incredible is the evidence of Rajeshwar Prasad DW4 when he testified that he went around the truck after connecting it to see if the plaintiff was on the plate. There would be no need to do this as the two could easily see each other only a meter or so away from each other. I also find that neither the first defendant or DW4 Rajeshwar Prasad warned the plaintiff not to stand on the plate and he answered “not to worry”.

I find that the plaintiff’s leg got injured because the first defendant moved the train when the plaintiff was still at the front plate. He should not have moved even if the plaintiff was on the side steps as the steps are meant to get on and get off the train and not for one to linger on if the train is in motion or about to be moved. It was the obvious duty of the train driver to ensure that the plaintiff was safely on board before he moved the train. He failed to do this. Accordingly I hold the first defendant liable and the second defendant vicariously liable for the acts of its employee the first defendant.

SAFE SYSTEM OF WORK:

The plaintiff also alleged that the second defendant failed to provide a safe system of work. The allegation is contained in paragraph 9. The allegations are broad and too general. The locomotive I find was in good condition, its lights were working. I believe the defendants when they say the plaintiff was given a torch; he may have left it behind on his own locomotive. He was required to wear boots. Simply because an accident occurred does not mean the system of work put in place by the second defendant was defective.

MEDICAL EVIDENCE:

The fact that the plaintiff received some injuries is not in doubt. In the statement of claim his injury is described as “crushing of left lower limb with a penetrating wound on the medial side of the lower thigh entering the popliteal frosa. A large haematoma of the popliteal forsa and lower third thigh, evidently the result of complete disruption of the popliteal artery and vein”.

The medical report dated 18th January 2001 bears this out. PW2 Doctor Jaoji Ulubeu who attended to the plaintiff told the court that the injury was bleeding and there had to be transfusion of three pints of blood before the operation. The artery and vein were completely severed and for one centimetre were crushed and not viable. A by-pass graft had to be done to bridge the two ends of damaged artery. Altogether the plaintiff had to undergo five operations.

He was in hospital from 30th August 2000 to 3rd November 2000.

The injuries are not in dispute. The dispute between the parties is as to the percentage disability. Doctor Rowland in his report dated 12th April 2002 assessed his disability at 45% being loss of function below the knee. This is on basis of Workmen’s Compensation Act – Defence Exhibit 6.

Doctor E.D. Taloga in his report dated 2nd September 2004 calculated his permanent partial incapacity at 10%. He said his percentage is based upon American Medical Association Evaluation. Doctor Taloga had not treated the plaintiff and had only examined him once to make the report. He did not have the hospital folder before him either.

Doctor Rowland’s conclusions are difficult to understand. His report dated 18th January 2001 says “It is too early as yet to assess final disability, but it is expected that he will end with a functional left lower limb”.

In his notation on Defence Exhibit 3 on 11th October 2001 he says patient has “almost full recovery and needs return to light duty … if deemed unfit by company [medical officer] permanent disability to extent of loss of lower limb will apply”.

In short Dr Rowland considered him fit for light duty on 31st October 2001. He wanted the plaintiff to return to some form of productive employment only to be denied by the second defendant who would not have the plaintiff back. Dr Rowland gave him 45% disability because Fiji Sugar Corporation would not take him back. Doctor Bhusan Ogale (DW2) had not examined the plaintiff but testified on basis of entries in the medical folder. He referred to entries in the hospital folder by Dr Rowland himself which state that the plaintiff “walks well”. He stated that the conclusion of 45% disability did not gel well with clinical note “walks well”. Dr Ogale however said that given the nature of injuries the plaintiff was likely to limp for the rest of the life, a fact also borne out by the observations of Dr Taloga in his report prepared on 2nd September 2004 after examining the plaintiff the same day.

There is limitation to the movement at the ankle joint. Dr Ogale had testified that hospital folder records show contradictory notes as in some places it is noted that ankle joint is still and in others it states there is some movement. He explained the contradiction on the basis that ankle point can go into stiffness at times.

Dr Ogale also explained that the proper way to give percentage disabilities is to give percentage loss of part of body concerned and also of whole person. Dr Taloga had done both. He gave a loss of 25% of the function of the lower limb equivalent to 10% permanent partial incapacity.

FINDINGS ON MEDICAL EVIDENCE:

I find that the plaintiff suffered a crushing injury below the knee and which bled profusely. The artery and the vein were completely severed and a one centimeter by pass graft had to be done to allow blood to flow to lower part of the leg. He went through four further operations to remove dead muscles. The long term effect of this injury is that his leg below the knee can never be normal. He would walk with a limp for the rest of his life and he could have difficulty doing heavy work again. He can walk as seen during the court sessions and also during site visit but with a limp.

I do not agree with Dr Rowland’s conclusions of 45% disability as his assessment was made soon after the injury and also in light of his own clinical findings of “walks well” and “fit for light duty”. I find Dr Taloga’s conclusions as per his report of 2nd September 2004 more in harmony with clinical findings. He noted that the plaintiff had limited movements of ankle joint, loss of sensation to the medial and lateral side of leg. He backed his findings by noting the degrees of movements. I also accept that currently the plaintiff suffers from 25% of the functions of the lower extremity.

With these findings and comments, I shall now assess the damages.

SPECIAL DAMAGES:

(a)	transport $385.00
(b)	loss of wages at the rate of $154.77 per week from the date of injury
(c)	loss of FNPF

The transport charges are reasonable. First he was in hospital. His family would need to visit him to see him. Further he also made visits to hospital after discharge.

LOSS OF WAGES:

The defendant is a pointsman on a locomotive. The court was not told whether this man worked all year round for FSC. My inference is that he only worked on locomotives during cane crushing season which normally lasts six months per annum. The rest of the time he worked I believe as a taxi driver for his father in law. Surely he would not be driving on days he worked as pointsman.

Plaintiff exhibit 2 shows he earned gross pay of $189.74 and nett of $154.77. Hence his weekly loss would be $154.77. However, some deduction ought to be made for his transport to work so I round his nett weekly loss to $140.00. He got injured on 31st August 2000. He was on crutches for whole year. In October 2001 Dr Rowland considered him fit for light duty but the FSC did not take him on.

Given Dr. Rowland’s report, I would expect the plaintiff to do some form of light work from 2002. It would not be heavy work as the injury to his leg effectively ruled him out of that. His loss of wages as pointsman could therefore be for four months in the year 2000 say to end of December and six months in 2001 that is a total of ten months or roughly 43 weeks wage. His loss would therefore be 43 x $140 which is $6,020.00. During the non crushing season of six months I accept he drove a taxi and earned $80.00 per week. So his loss from taxi driving for six months from January to June of 2001 would be 26 weeks times $80.00 or $2,080.00.

As I have said given Dr Rowland’s report, I would have expected the plaintiff to commence light duty work in 2002. There is evidence before me that the plaintiff has been seen working at Hare Rama Restaurant in Labasa. Despite his injury I find he is quite capable of doing such work. His left leg is injured and there is nothing to stop him driving an automatic car as well where only the right foot is significantly involved. Hence from 2002 I will not give him any loss from taxi driving as he could, if he wanted, find a substitute work but only give the plaintiff diminution in earnings of say $60.00 per week in respect of his pointsman job for six months per annum. For the years 2002 to 2004 inclusive his loss because he could not do pointsman duty would be 78 weeks x 60 or $4,680.00.

Therefore his total loss of wages to time of trial in June 2005 is $12,780.00. From this I have to deduct a sum of $7,874.43 paid by the second defendant to him leaving a balance of $4,905.57.

His FNPF deductions were $15.12 per week. Over a period of ten months that is 43 weeks he would lose a total of 43 x $15.12 which is $650.16.

GENERAL DAMAGES:

The plaintiff in his statement of claim sought general damages for pain and suffering, loss of amenities of life and loss of earning capacity.

PAIN & SUFFERING AND LOSS OF AMENITIES:

Mr. Sen asked for $80,000.00 for pain and suffering. Counsels did not draw my attention to say cases with comparable injuries. Past awards are referred to for purposes of fairness and consistency generally and for guidance to those engaged in personal injury litigation. Inflation is normally taken into account to adjust awards used for compensation.

However the Court of Appeal in Jovesa Rokobutabutaki & Attorney-General of Fiji v. Lusiana Rokodovu – FCA 88 of 1988 at page 5 cautioned as follows:

“Each case must depend on its own circumstances, but pain and suffering and loss of amenities of life are not susceptible of measurement in terms of money and a conventional figure derived from experience and awards in comparable cases must be assessed.”

Somewhat more recently in Plantation Village Limited & Others v. Guy Anderson – FCA 7 of 2003 the court expressed broad agreement with comments of the High Court of Australia in Planets Fisheries Pty Ltd. v. La Rosa (1968) 119 CLR 118 where it is stated:

“….. It is the relationship of the award to the injury and its consequences as established in the evidence in the case in question which is to be proportionate. ….. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases. ….. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions even if some similarity between their situations may be supposed to be seen."

The figure Mr. Sen suggested is generally for very severe or horrific injuries. It is in the upper limits of awards for pain and suffering in Fiji. For example in Selaitoga v. Anderson – Civil Appeal 26 of 1998 the Court of Appeal awarded $85,000.00 for injuries which the orthopaedic surgeon described as the most horrific he had seen.

In Rajesh Prakash v. Kamlesh Ramesh Parmar & Another – HBC0390 of 1996 (judgment November 1999) Justice Pathik awarded a sum of $45,000.00 to a technician aged 32. He had suffered a fractured left ankle, and walked with a marked limp, a shortened leg; he had difficulty in climbing stairs and suffered arthritis. His disability was assessed at 20%

The plaintiff is aged 39 years. He suffered serious injuries as I have found earlier. He was hospitalised for 63 days at Labasa Hospital. He went through five operations and considerable loss of blood. There is no likelihood of his left leg becoming normal again. It is a life long disability. There was some mention of him suffering sexually but I remain totally unpersuaded that such is the case removed as that injury is from the region of the genitalia. The plaintiff I note played soccer and volleyball. He cannot do that now given his injury. I suppose he may have some restrictions in dancing with the Hare Krishna movement. Under this heading I allow him $35,000.00 being $25,000.00 for past pain and suffering and $10,000.00 for future.

LOSS OF FUTURE EARNINGS:

Mr. Sen submitted that loss of earning capacity and loss of future earnings are one and same thing. He considered that loss of earning capacity was same as loss of income both past and future. With all due respect to this submission, courts generally treat loss of income and loss of earning capacity as two “distinct heads of damage” – Peter Douglas Elsworth v. Yanuca Island Limited – Supreme Court CBU0008 of 2002 at page 6.

Mr. Krishna suggested, no loss of future earnings should be allowed as they were not pleaded and the plaintiff had defined what he meant by general damages. However I do not consider that the defendants were prejudiced in any way seeing that the plaintiff was using the terms to mean capacity to earn money. I had put to Mr. Krishna about the multiplier to be used and issue of loss of future earnings.

Mr. Krishna suggested a nil multiplier as he said his case is that the defendants are not at fault. The calculation of future loss of earnings is not without difficulties because of the elements of uncertainty which necessarily enter into such a calculation like the period during which the plaintiff would remain employed, prospects of advancement or loss of job through redundancy or illness and normal hazards of life. No one can say how long would the plaintiff live and what his future wages would be. However the court awards damages only once and cannot revisit if circumstances change. An injured plaintiff should recover full compensation.

I commence with his base wages loss of $60.00 per week as stated earlier. He was a healthy man. He probably would have worked to the age of 55 which is the usual retiring age. However he gets the money now in advance so it can be invested. The multiplier I choose is not equivalent to the rest of his working life. Given all the imponderables I choose a multiplier of ten. As I have stated earlier his loss is $60.00 per week for only six months a year which is $1,560.00 per annum or $15,600.00 for entire ten years.

The plaintiff has claimed interest. Interest is generally allowed on special damages and for past pain and suffering. The period for which I allow the interest is from date of the filing of writ which is 26/8/2002 to present. The rate I allow is 6% per annum for past pain and suffering and on special damages.

CONCLUSION:

Accordingly I allow the plaintiff damages as follows:

(a)	Travel				…	…	…	…	 $ 385.00
(b)	Past loss of Wages			…	…	…	  4,905.57
(c)	Future loss of Wages		…	…	…	…	15,600.00
(d)	Loss of FNPF			…..	…	…	…	     650.16
(e)	Pain and Suffering: (i) Past	…	…	…	… 	25,000.00
				(ii) Future	…	…	…	10,000.00
Interest at 6% on (a), (b) & (e) (i)	…	…	…	…	  5,300.00
-----------------------------------------------------------------------------------------------
									 $61,840.73
=========================================================

COSTS:

This action had been partly heard in Labasa and partly in Suva. The plaintiff and his counsel had to travel to Suva and stay overnight in Suva. Accordingly I allow costs which I summarily fix in the sum of $4,000.00.

FINAL ORDERS:

I enter judgment for the plaintiff against the defendants in the sum of $61,840.73 together with costs in the sum of $4,000.00.

Future Guide:

This is a case where three doctors were called to testify – two from Labasa Divisional Hospital and one from CWM Hospital, Suva. A lot of time was taken in going over their qualifications and technical medical terms. This can be avoided if the following three steps are taken to save time and for greater clarity in presentation of a case:

1)	A record of qualification and experience of expert witnesses is prepared in advance, exchanged by parties and handed to court.

2)	A glossary of difficult medical terms is provided with the reports.

3)	An anatomical diagram of the injured area is brought to court and used to explain injuries. This can then be tendered as an exhibit.

[ Jiten Singh ]
JUDGE

At Labasa
26th July 2005