IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 486 OF 2003

Between:

BIMLA SHANKAR
f/n Ghirau
Plaintiff

and

FORTECH CONSTRUCTION LIMITED
KISHORE KUMAR
f/n Ram Prasad
Defendants

Mr. V. Maharaj with Ms. B. Devi for the Plaintiff
Mr. A. Tikaram for the Defendant

Date of Judgment: 24.8.05

JUDGMENT

By writ of summons dated 24 November 2003 the plaintiff claims against the defendants general damages, special damages, interest and costs.

The plaintiff alleges that as the result of negligent driving on the part of Kishore Kumar (the Second Defendant – D2) she suffered bodily injuries while crossing at a ‘pedestrian crossing’ near Lakeba Street, Samabula on Ratu Mara Road.

Background facts

It was on 1 June 2001 when the plaintiff was lawfully crossing a public road at the Pedestrian Crossing aforesaid when D2 driving motor vehicle registration No. E3949 bumped the plaintiff consequently causing her certain bodily injuries allegedly due to negligent driving on the part of D2.

The D2 was subsequently charged and convicted of the offence of dangerous driving in the Magistrate’s Court at Suva and sentenced to a fine of $250.00 in default 50 days imprisonment in respect of the said accident.

This action was assigned to me for hearing as Justice Singh was temporarily transferred to Lautoka.

The last of the submissions was filed on 13 December 2004 on the eve of Legal Vacation and I was on leave and did not resume work until March 2005.

The issues

The defendants deny liability for the accident. If the defendants are found liable then damages are to be assessed.

The issues are set out in the Minutes of the Pre-trial Conference as follows:

“5.	Did the Plaintiff suffer any injuries as a result of the said accident?

6.	Did the accident happen as a result of the negligence on the part of the Second Defendant?

7.	Is the Plaintiff guilty of any contributory negligence?

8.	if the answer to question 6 is found to be in the affirmative then what is the appropriate damages that ought to be paid by the Defendants to the Plaintiff?

9.	Is the Defendant liable to pay costs, if so should the costs be paid on indemnity basis, notice of which has already been given by the Plaintiff to the Defendants?

Consideration of the issues

As ordered both counsel made written submissions for Court’s consideration.

The evidence

On the issue of liability what is the evidence before the court?

The sum total of the plaintiff’s own evidence is that the vehicle coming from Nausori side towards Suva bumped her on the right side of her body and knocked her down and she was thrown some distance away from the point of impact from the Pedestrian Crossing. She testified that her right shoulder and hand was broken, her toe nails were broken, flesh from her right leg was torn and her chest on the right side was also injured.

The plaintiff’s witness Babu Lal testified that he saw the victim walking behind a boy who was with a bicycle on the Crossing. The victim was going in the direction of Lakeba Street. He said the speed of the van which bumped her would have been about 80-90 Kmph. He further said that the vehicle crossed the traffic light when it was red and the plaintiff was hit by the vehicle and she was thrown 2-3 metres in front of the said vehicle.

This witness corroborated the testimony of the plaintiff in all material respects.

The plaintiff’s witness P.C. Vijay Naidu attended the scene of the accident and he charged the D2 for the offence of dangerous driving. The D2 was convicted after a full trial.

This witness also corroborated the testimony of the plaintiff. 

The first defendant (who is the owner of the vehicle) was with the 2nd Defendant (driver) at the relevant time. He admitted in evidence that the two of them were engaged in conversation and talking generally about the ‘job’. He said in cross-examination that he did not see a boy with a bicycle on the Crossing.

Although D2 said that he applied the brakes, there were no brake marks on the road as can be seen from the Sketch Plan. He admitted he was some distance from the traffic light on the Suva side after he stopped.

The D2 said that he did not come out of the vehicle after the accident as people wanted to punch him.

Determination of liability

Upon a careful consideration of the whole of the evidence I accept the evidence of the plaintiff and her witnesses as to how the accident happened and reject the testimony of the defendant.

The D2 was convicted of dangerous driving in the Magistrate’s Court at Suva and sentenced. That was sufficient to establish negligence on the part of D2 after trial. He was liable for the accident and D1 thereby becomes vicariously liable. The D2 was driving the vehicle for the company at the time of the accident. The law as to vicarious liability is clearly stated by Offei S (1997) the author of the book “Law of Torts in the South Pacific” thus:

“A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (i) a wrongful act authorized by the master; or (ii) a wrongful and unauthorized mode of doing some act authorised by the master… On the other hand, if the unauthorized and wrongful act of the servant is not so connected with the authorized act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment, but has gone outside of it.”

It is clear from the evidence that D2 was in the course of his employment at the time of the accident with D1 (the owner) sitting beside him engrossed in deep conversation and not paying proper attention to the road.

In these circumstances the D1 as owner is vicariously liable for D2’s actions in causing the accident.

On the evidence before me there was no evidence of contributory negligence.

I find as fact on a civil standard that D2 drove his vehicle so negligently that he bumped into the plaintiff who was lawfully on the Pedestrian Crossing walking towards Lakeba Street side at Samabula on Ratu Mara Road. The accident happened on 1 June 2001.

I further find as fact that as a result of the negligent driving the plaintiff suffered certain bodily injuries as stated in the Medical Report of Mr. McCaig, an orthopaedic surgeon at Suva Private Hospital.

I therefore find the defendants liable for the accident.

Assessment of damages

The plaintiff claims damages to which she is entitled against the defendants for injuries received as a result of the accident. She also claims interest and costs of this action.

Medical Reports on plaintiff

There are three Medical Reports on the plaintiff. They are from Dr. William Brabant dated 9 October 2003, Dr. Sitiveni Traill dated 16 February 2004 and Mr. Eddie McCaig dated 16 June 2004.

To get a clear picture of the injuries she received and her present condition I ought to set out these reports in full which are as follows:

Dr. William Brabant’s Report

“This woman was seen on 30th September 2003 in the Orthopaedic Clinic – Suva Private Hospital with a history of previous injuries in a motor vehicle accident in June 2001 when essentially she sustained a fracture of her right humerus. She was admitted to CWM Hospital with concussion for approximately two hours, multiple abrasions, a missing big right toe nail and a fracture of a mid shaft right humerus. Mrs. Shankar was treated with a plaster slap from her humerus for six weeks, x-rays subsequently demonstrating bony union. It was not until April 2002 that she had physiotherapy because of on going stiffness and shoulder problems.

Seen on the 30th September 2003 and her current problems remains that of a painful right arm and difficulty with shoulder movement. She was only able to activate her right shoulder in the abducted position with help because of pain around the shoulder.

Clinical examination on the 30th September 2003 demonstrated a united fracture of the humerus, but all shoulder movements created pain and were restricted. Subsequently X-rays confirmed the humerous to be united but views of the shoulder showed that there was marked impingement of her rotator cuff at about 30º of abduction.

There was a strong suggestion that she has ruptured her right rotator cuff. At this stage she probably requires the undergo an assess followed by repair and decompression of the angle.”

Dr. Sitiveni Traill’s Report

“Date admitted: 5.6.01
Date discharged: 8.6.01

History

The above is a 60 year old right hand dominant lady who was hit by a vehicle while attempting to cross the road on 1.6.01.

Injuries

.	Closed midshaft fracture of right Humerus
.	Multiple superficial abrasions
.	Avulsion right big toe nail

Treatment

.	Initially seen at CWM hospital A & E department
.	“U” slab
.	Analgesia
.	Subsequently admitted on 5.6.01 for general survey
.	Physiotherapy

Follow Up

-	reviewed in clinic on 8 occasions (19.7.01, 28.7.01, 16.8.01, 6.9.01, 4.10.01, 8.1.02, 2.4.02, 11.7.02)

-	Fracture and united radiologically but noted to have stiffness and pain of right shoulder. Pain aggravated with overhead arm movements

-	Requires regular analgesic e.g. panadeine for pain relief

-	Unable to do own housework at home and requires some assistance with grooming

-	Right shoulder:	no muscle wasting
0-60º flexion
0-10º extension
0-80º abduction
0-10º adduction
0-10º internal rotation
0-40º external rotation

Prognosis

Mrs. Bimla Shankar has suffered a very significant injury since the normal shoulder represents 60% of upper extremity function and her injury is on her dominant hand. She does require fair bit of assistance with her personal grooming and housework. Using the American Guide for Evaluation of Permanent Impairment, 5th edition Mrs Shankar has suffered a 22% of upper extremity impairment which is equivalent to a 13% whole person impairment.”

Mr. Eddie McCaig’s Report

“Bimla was seen in my clinic on 9/6/04 for the purpose of this report. Made available to me was the report of Dr. Brabant dated 9/10/03.

Bimla tells me that as a pedestrian she was knocked over by a passing car on June 2001. She was treated at the C.W.M. Hospital for:

1.	Concussion.
2.	Multiple bruises and abrasions
3.	Fracture to the right humerus (arm bone)

She was treated in a Plaster of Paris casts for a period of about six weeks.

Today she lists her problems as being:

(1)	Right shoulder pain.
(2)	Inability to “do anything with his right shoulder”.
(3)	Finger swelling.

Examination sees a small well-dressed lady. Her involved right upper limb is held by the side. The obviously deformed arm is noted she has an angulatory deformity of the mid arm. The has no notable muscle wasting. All movement of the shoulder is restricted because of pain, but with encouragement she has combined abduction to about 110 degrees. She internally rotated the upper limb to take her hand to the lumber region.

Radiographs show lateral angulations of a healed fractured numeral diaphysis of 20 degrees.

In the incident of June 2001, Bimla sustained a fractured humerus that has malunited i.e. the fracture has healed but she has not angulatory deformity of 20 degrees. Today she has signs and symptom to suggest rotator cuff pathology to the right shoulder. This is seen with the limited painful shoulder motion.

It is advised that she would benefit in the first instance from repeated steroid injections with a view to surgical exploration and repair of her symptoms persist.

I feel that she has lost about ten percent of shoulder function. This equivalent to a nine percentage incapacity (reference is made to the schedule of the Labour Department).”

Plaintiff’s condition

The plaintiff was 58 years old at the time of the accident and was 61 (approximately) at the date of trial (born on 22 July 1943). She was a healthy woman. But for the accident she would have carried on sewing for quite some years.

Because of her medical condition she is unable to do sewing to enable her to earn a living. Dr. Sitiveni Traill who examined her stated in his Report that there are certain degrees of restricted movement of her right shoulder. Dr. William Brabant in his Report stated that there is a strong suggestion that she has ruptured her right rotator cuff. Both Dr. Traill and Professor McCaig agree with this diagnosis. Dr. McCaig has suggested repeated steroid injections with a view to surgical exploration and repair of her symptoms if pain persists. Dr. Traill said that before any surgery is undertaken, there is a need to do an MR1, which unfortunately is not available in Fiji.

It appears that the plaintiff would need overseas treatment but in the meantime she has to continue receiving steroid injections as suggested by Dr. McCaig.

She would no doubt be put to further expense while the pain and suffering subsists.

The claims are under the heads of (a) special damages, (b) general damages (pain and suffering, loss of earnings and cost of future care), (c) interest and (d) costs.

I shall now deal with these claims. The written submissions of counsel have been very useful.

Special damages

The sum of $1300.00 as special damages have been agreed upon by the parties. Details of how it is made up is contained in the letter of 25 August 2004 from the defendants’ solicitors to the plaintiff’s solicitors.

General damages

The plaintiff is entitled to recover damages for the income that she has lost as a result of the accident.

She was 58 years old and in good health at the time of the accident. She had been a tailoress since 1959 and she sewed uniforms for school children and other people from nearby village in Viti Vanua in Tavua. On an average she earned $120.00 per week.

Because of her injuries she is unable to move her right arm any more and will endure more pain lifting her hand.

Dr. Sitivent Traill’s Report dated 16 February 2004 states that she requires quite a bit of assistance with her personal grooming and housework.

Dr. Traill told the Court that the plaintiff is incapacitated to work and in regard to her sewing she would not be able to take measurements of the people in order to sew clothes for them. It would be painful for the plaintiff to work 7-8 hours per day and do commercial sewing, which she cannot do anymore; prolonged period of work would affect her.

The plaintiff’s total loss of income from date of accident is as follows:

Date of Accident 1.6.2001 – 28.9.04
being the date of completion of trial
70 weeks x $120 per week			=	$20,400.00

Interest at the rate at 6% p.a.			=	   3,973.00

$24,373.00
_________

She is therefore entitled to recover the said sum with interest.

Loss of future earnings

I have already stated hereabove the medical condition of the plaintiff.

At present she is about 62 years old but at the time of the accident she was 58 years of age.

In her case in order to calculate her future loss and bearing in mind contingencies likely to arise, I agree with Mr. Maharaj that a multiplier of 6 would be appropriate in the circumstances of this case.

I have already assessed the plaintiff’s loss of earning up to the year 2004 i.e. up to age 62 years. She would not have earned the same amount of $120 per week because of her age. Therefore using the multiplier of 6, I assess her earnings at $60 per week which comes to $18720.00 ($60 x 52 weeks x 6 years).

Pain and suffering

In this case the plaintiff is entitled to damages for pain and suffering.

On this aspect Kemp & Kemp (Vol. 1 p.200 2-010) states:

“…the Court must take into account, in making its assessments in the case of any particular plaintiff, the pain which he actually suffered and will suffer and the suffering which he had undergone by any and will undergo. Pain and suffering are not measurable by any absolute standard and it is not easy, if indeed possible other than in the most general way to compare the degree of pain and suffering experienced by different people, however, the individual circumstances of particular Plaintiffs clearly have a significant effect upon the assessment of damages.”

Further in Renuka Shankar v Chandar Gopalan Naidu (C.A. ABU0003.2001) it is stated:

“a comparison therefore between the sums awarded in individual cases in only of value if it takes into account the consequences both present and future, physical and emotional in terms of the individual whose condition and future prospects are under consideration.” 

In his submission Mr. Maharaj sets out at some length the pain and suffering of the plaintiff suffered after the accident and still suffers particularly in cold weather. There is also the possibility of arthritis developing in the plaintiff. The cumulative effect of this condition would make her future look bleak.

Both counsel referred to cases in considering an appropriate award. In Subhas Chand v A.G. & Anor. FCA 212/84 $27,000.00 was awarded for pain and suffering which included, inter alia, shortening of right leg and confinement to wheel chair. It was an old case.

Again in the case of Attorney-General v Aliana Kotoiwasawasa & Others (FCA 0004.2003S) the sum of $30,000 was awarded. This was a more serious case in my view as I was the primary Judge.

In all the circumstances of this case I award the sum of $25,000.00 for pain and suffering.

Interest

The plaintiff is entitled to interest on damages awarded.

Section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act, Cap. 27 gives the court discretion “if it thinks fit, to order that these shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages.”

Interest on general damages is awarded to compensate the plaintiff for being kept out of the capital sum (Pickett v British Rail Engineering Ltd (H.L.) [1980] AC 136).

In Rothmans Pall Mall (Fiji) Limited v Edward Narayan Civil Appeal No. 65/95 FCA the trial judge awarded interest from the date of injury which was upheld by the Court of Appeal.

In all the circumstances of this case particularly as the defendants did not admit liability the hearing had been prolonged unduly; she is claiming interest at 6% p.a. on both special and general damages with which I agree and I therefore award same.

Costs

The plaintiff claims costs of this action the sum of $6293.25. Counsel has given details of how it is made up in his written submission.

The plaintiff is entitled to costs no doubt, but it would be preferable that costs be taxed if not agreed. I order accordingly.

Summary of award

To conclude, the award is summarised as follows:-

$

Special damages (agreed)				 1300.00

Interest thereon at 3% from 5.6.01 to
date of judgment (to be calculated)

Pre-trial loss of income (1.6.01 to 28.9.04)		 20400.00

Interest thereon from 1.6.2001 (date of accident to
28.9.04 (date of completion of trial) at 6% p.a.	 3973.00

Future loss of income ($60 per week x 52 weeks
x 6 years)		 				 18720.00

Pain and suffering				 	 25000.00

Interest thereon from date of accident to date of
judgment at 6% per annum (to be calculated)
 ________
$ 69393.00
________

There will therefore be judgment for the plaintiff against the defendants in the abovementioned total sum of $69393.00 in general and special damages with interest to be calculated by counsel at the rate stated hereabove with costs to be taxed if not agreed.

D. Pathik
Judge

At Suva
24 August 2005