IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0196 OF 2001

Between:

JOSAIA BUAKULA
Plaintiff

and

THE ATTORNEY-GENERAL OF FIJI
Defendant

Mr. V. Maharaj for the Plaintiff
Ms. S. Tabaiwalu for the Defendant

Date of Judgment: 24.8.05

JUDGMENT

The plaintiff issued writ of summons on 9 May 2001 against the defendant claiming damages for personal injuries suffered by him in the early hours of 4 August 1999 when the taxi he was driving fell into a trench.

The plaintiff alleges that there was a breach of duty on the part of the Public Works Department which was upgrading Ratu Mara Road at the four miles bridge at Nasinu.

The Attorney-General of Fiji (the defendant) denies liability for the injuries received by the plaintiff.

Background facts

The salient facts of the case have been well stated by Mr. Maharaj in his written submission as follows:

The Plaintiff at all material time was a Taxi Driver and was employed by one Ching Plung. Ching Plung owned a Taxi Registration No. E8715 but the vehicle was managed by one Ali Hassan t/as Sanyo Cabs.

On 4th August 1999 at about 3 am the Plaintiff was driving the above mentioned taxi along Ratu Mara Road heading towards Suva.

The Defendant, in the year 1999 was carrying out upgrading works at Ratu Mara Road, which also included construction of a new bridge at 4 Miles, Nasinu. In the course of construction PWD (Defendant) had dug deep trenches and had created diversion whereby vehicles coming from Nausori heading towards Suva had to swerve right and pass through single lane. Plaintiff says, he did not see any Road Signs warning him about the trenches and as a result accidentally drove into the trench consequently he sustained severe bodily injuries and substantial damage to the vehicle that he was driving.

The Plaintiff’s claim

The Plaintiff claims that the accident was caused due to the negligence of the Defendant; the particulars of negligence have been pleaded (see para 6 of the Statement of Claim). The Defendant has denied liability despite the fact that liability against the Defendant had already been determined by the Suva Magistrate Court in a related case in Action No. 949 of 1999 which was a claim confined to damage to the said Taxi only instituted by the owner of the vehicle. The Defendant has already paid the sum awarded against the owner of the vehicle.

The Plaintiff claims general damages, special damages, interest and costs.

The issue for determination

In the Minutes of the Pre-trial Conference it is admitted that the taxi Registration No. E8715 was driven by the plaintiff; that the Public Works Department (PWD) was carrying out the upgrading of Ratu Mara Road including the construction of a new bridge; that the plaintiff was injured on 4 August 1999.

The plaintiff maintains that the defendant has no defence in the light of the findings made by Suva Magistrate’s Court in Civil Action No. 949/99 arising out of the same accident.

The defendant denies liability and if liability is established then the Court is to consider quantum of damages payable by the defendant to the plaintiff.

Determination of issue of liability

Apart from calling witnesses, the plaintiff relied upon the evidence adduced in the Magistrate’s Court in the said Civil Action No. 949/99 in order to establish liability against the defendant. Counsel says that liability has already been established by a Court of competent jurisdiction in the said action arising out of the same set of facts.

However, evidence was adduced through witnesses in this action to prove the plaintiff’s case.

The witness P.C 1391 Suresh Chand who attended to the Report of the accident on 4th August testified, inter alia, that there was lack of ‘flicker lights’ or ‘reflectors’ to warn the motorists. This lack was extremely dangerous for motorists. He said that he knows of three accidents resulting from the lack of these devices. There was no PWD watchman when he arrived at the scene of the accident.

The witness P.C. 1013 Mohammed Taiyub corroborated the testimony of PC 1391. He said that he told the watchman to place the signs at the construction site.

The plaintiff also gave sworn evidence in which he stated that when he was coming back from Nakasi on the night in question after dropping off passengers at Nakasi, he hit the trench as there was no sign at the work site to warn of any danger. It was raining that night. He found himself unconscious at the CWM Hospital.

For the defendant, Inia Sova testified that he was the night watchman for PWD on the night of the accident and was stationed at the junction going into Wainivula Road. The witness said that he was sitting at the shed and when he heard the sound of speeding and a loud bang he went out and saw the taxi in the trench with the driver in it. Police came and lifted the driver out of the taxi. The taxi was towed away.

The witness testified that there were signs at the site and also a big sign right after the Centre Point Police Post indicating about the changing of lanes at the bridge under construction.

The second witness for the defendant was Kiniviliame Tavaraki, a Senior Technical Officer at the PWD, Lautoka. He was the supervisor of the bridge under construction. He testified that ‘signs’ were put at the site. He said that there was a sign after the Police Post which was nailed to the post past the traffic lights advising motorists to merge right. He also said that there were two accidents at night at the same site; in one accident a bus was involved and in the other a car but the driver was drunk.

Findings of fact

The issues raised in this case are whether the defendant owed a duty of care to the plaintiff and whether the defendant failed to discharge that duty of care and whether the suggested breach of duty caused that accident resulting in injuries to the plaintiff.

The defendant admits that there is a duty of care owed to the plaintiff by reason of the defendant’s control and management of the stretch of road on which the construction of the bridge was carried out. But the defendant denies that there was a breach of that duty of care.

As far as liability is concerned, I find as fact on the evidence before me that it has been established that there were no proper and adequate signs on the road in question when motorists approached the work site coming from the direction of Nausori to Suva.

I accept the testimony of the plaintiff’s witnesses in regard to the inadequacy of road signs and lights and reject the testimony of the construction supervisor Tavaraki. As counsel pointed there were glaring inconsistencies when one compares witness Tavaraki’s evidence at this trial to that adduced from this witness in the Court below. As far as ‘lights’ are concerned, in the Court below he said they used ‘flicker lights’ only when they work at night whereas in this Court he said that ‘flicker lights’ are used all the time at night.

I further find as fact that there were no flicker lights or any barrier or signs warning motorists of danger that lay ahead.

For these reasons I find liability established against the defendant. The defendant is substantially to be blamed for the accident.

However, it was also incumbent on the plaintiff, who was driving the taxi to have kept a proper lookout on this rainy day and be able to pull up within a short distance of any danger, if any, ahead of him. He cannot just turn a blind eye. He said that he was concentrating on his driving and did not notice if there were any warning signs.

I therefore find that there was contributory negligence on his part to the extent of 30%. The Magistrate also found to this effect when he said that he finds the ‘plaintiff driver’s fault at 30%’.

Damages

Having found liability established I shall now consider the quantum of damages which ought to be assessed as the plaintiff is entitled to it for the injuries he received as a consequence of the accident.

The heads under which damages claimed are: (a) general damages, (b) special damages, (c) loss of wages, (d) interest and (e) costs. I shall now consider the assessment of the appropriate damage and in doing so I have considered both counsels’ submissions in writing.

Injuries to plaintiff

According to the Medical Report of Dr. Traill, at the time of the accident  the plaintiff had the following injuries:

1.	2 cm x 3 cm laceration on forehead
2.	bruises to chest
3.	brain concussion for 20 minutes
4.	closed “T” condylar fracture left distal femur

The treatment that was accorded to the plaintiff was as follows:

1.	pain relief
2.	forehead laceration sutured
3.	kept under neuro-observation
4.	underwent CT scan head and ultrasound of abdomen - both had normal findings
5.	open reduction and internal fixation of fracture on 10/8/99
6.	physiotherapy and mobilised on crutches non-weight bearing

When the plaintiff was reviewed on 26/8/99, 13/9/99, 20/1/00), the following was recorded:

1.	wounds healed
2.	fracture healed uneventually
3.	gait normal
4.	occasional pain and clicking sensation of left thigh in cold weather and on prolonged sitting
5.	range of motion left knee: flexion-extension: 0-140

Permanent disability of 4%

In his testimony, the plaintiff testified that he was in the hospital for a week. He still uses crutches but only for assistance in climbing up the stairs.

Dr. Taloga in his evidence stated that the plaintiff can still lift heavy weights with no problems to his thigh.

Plaintiff’s condition

The plaintiff’s condition after the accident is fully set out in Mr. V. Maharaj’s written submission as stated hereunder:

The Plaintiff said in his evidence “that only thing I realized I was down the ditch crashing against the slab.”

He said he could feel someone lifting him out of his vehicle but by the time he was conveyed to C.W.M Hospital he was unconscious. He said he felt a lot of pain. He went on to say that he endured a lot of pain. He said he could not stretch his leg. He also received cut on his forehead which was stitched up. He said he was in the Hospital for one week and could not get up. The nurses used to pick him up from bed. He was given injection and pain killers and had a metal rod inserted in his injured thigh. He said he could only walk with the help of crutches. He still uses crutches sometimes. He experiences a lot of pain during cold weather. He underwent physiotherapy. After he was discharged he used to visit Hospital at least 3 times a week. He said he was unable to fold his legs and therefore could not partake in Fijian Ceremonial function. He is unable to jog which he used to do before the accident, unable to lift anything heavy or do any gardening. He said he could not drive Taxi for approximately 18 months. He is unable to drive taxi for full 8 hours per day because of his continuing pain and discomfort.

General Damages

Assessing general damages is fraught with difficulties.

This problem has been stated by Earl of Halsbury LC in The Mediana (1900) AC at 116 thus:

“You very often cannot even lay down any principle upon which you can give damages….. Take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by an arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident….. But nevertheless the law recognises that as a topic upon which damages may be given.”

The injured person is entitled to compensation and the Court does its best and this process is described by Megaw LJ in Fuhri v Jones (1979 C.A.-unreported) in the manner following:

“It will be appreciated, of course, though it is not always fully understood by persons who are not directly concerned with the law, that the law cannot attempt to attribute any particular figure of damages to any particular physical injury, serious or trivial. There is no way in which it can be said that such-and-such an injury is worth so much in terms of money. Indeed, in most cases for most injuries, anybody would say ‘I would rather have avoided this injury than have any amount of money whatever in compensation.’ But the court has to do the best it can by way of what are really conventional figures in relation to injuries, the court assessing, of course, on the individual facts of the case, what is sometimes called the tariff, making adjustments for particular facts of the particular case.”

In making awards which are fair and reasonable the Court does fall back on previous amounts so that the figure arrived all are in proportion to amounts in other cases of those who have suffered injuries of comparable severity.

Pain and suffering

In this case the plaintiffs are entitled to damages for pain and suffering as stated in Kemp & Kemp (Vol. 1 p.200) 2-010):

“…the court must take into account, in making its assessment in the case of any particular plaintiff, the pain which he actually suffered and will suffer and the suffering which he has undergone 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.”

As for loss of amenities, damages under this head will compensate the plaintiff for loss of employment resulting from the accident, namely, when the plaintiff can no longer do the things that he was accustomed to doing.

I have considered the awards that should be made bearing in mind the nature of the injuries, as already stated hereabove resulting from the accident and have taken into account the pain and suffering that the plaintiff has gone through.

Both counsel have referred the Court to a number of decided cases and awards made on them for various types of injuries.

I have closely analysed each of these cases and have borne in mind the observations made by counsel on them. Previous awards can be used as a guide but facts of each case have to be considered. Also the principles and authorities on the subject of assessment of damages have to be borne in mind.

In the case of the plaintiff there is 4% disability. Except for that the plaintiff suffered laceration which was sutured and healed according to the Doctor’s Report.

The plaintiff’s left thigh was operated on to instil a metal rod which according to the medical report has healed except the plaintiff’s complaint of a ‘clicking sensation’ and occasional pain during cold weather and from prolonged sitting.

I assess general damages in this case in the sum of $50,000.00 (fifty thousand dollars).

Special damages

Special damages are accrued and ascertained financial loss (per Edmund Davies L.J. in Cutler v Vauxhall Motors 1971 1 Q.B. 418 at 426) which the Plaintiff has incurred. Subject to what I say hereafter unless agreed by the parties special damages should be expressly pleaded. They must be claimed specially and proved strictly.

The absence of receipts and other acceptable evidence have variously been dealt with by the Courts. Where there have been agreements there is no problem. 
However, it is proper to make a calculation based on sufficient evidence.

On this aspect I note the following statement of Palmer J in Narendra Kumar f/n Shiu Kumar and Sairusi Drawe (Action No. 60/89 at p.12):

“Notwithstanding that not a single receipt has been produced in evidence I am satisfied from the Plaintiff’s evidence that he paid those amounts and I propose to allow the sum of $255 accordingly.”

Some Courts have taken a very hard line like in Mahendra Naidu s/o Adiappa and Ravindra Patel s/o Motibhai Patel C.A. No. 105/99 (West Div) where Williams J said:

“No receipt or evidence has been tendered to show that hospital fees amounted to $50.00 and I do not accept that figure. I am unable to guess what it would be and I do not allow it. As Lord Goddard and the F.C.A. have pointed out claimants are expected to call evidence supporting their claims and not simply to say this is what I have paid or suffered in losses expect to be awarded those sums.”

The Fiji Court of Appeal in Tacirua Transport Company Limited v Virend Chand f/n Ragho Prasad (Civ. App. No. 33/94) went to the extent of commenting on the desirability of strict proof when it said at p.3 that:

“While we realise that the Judge was endeavouring to give some recognition of the fact that the Respondent must have been put to some expense, we are unable to see how there was any basis for him to make the award that he did.”

Bearing in mind the above observations I award ‘special damages’ to the plaintiff the sum of $250.00 (two hundred fifty dollars) as claimed despite the absence of receipts. It is not usual to obtain receipts for taxi and bus fare. The plaintiff attended hospital for 4 months. I consider that the sum claimed for travelling expenses is reasonable in the circumstances.

Loss of future earnings

The evidence relating to the plaintiff’s income both before and after the accident are as follows (as stated by Mr. Maharaj):

Plaintiff testified that prior to the accident, he had an agreement with Sanyo Cabs under which he gave $58.50 to his employer and anything above that figure was his own income. He said, after deduction of $58.50 paid to the employer his average weekly income would be $150.00. This evidence was corroborated by Ali Hassan in his evidence who also produced in Court income Book and the entries in the Book (see Exhibit 3) clearly showed that $58.50 was paid by the Plaintiff each day to his employer. Plaintiff further stated that since the accident he was unable to earn as much as before and his income has been reduced to between $50 - $60 per day. In answer to question in cross-examination he said his take home pay now is only $60.00 on average. A shortfall of $90.00 per week as a result of the accident. Plaintiff’s loss of wages are as follows:-

Post Accident Loss

$150 x (18 months) or 72 weeks		=	$10,800.00
$90 x 52 weeks x 12 (proposed multiplier)	=	$56,160.00 

In assessing loss of earnings in the case of the plaintiff it is important to keep in the forefront what his bodily condition is. In this regard the following Report from Dr. Taloga, Orthopaedic Surgeon is pertinent:

Examination did not reveal any abnormality of the gait pattern. There was a healed longitudinal surgical scar on the lateral side of the lower left thigh. Active range of motion to the knee was 0 --95º with no sign of instability. X ray showed a healed fracture with fixation device in place. There is no X ray changes suggestive of osteoarthritis.

The plaintiff was admitted to hospital on 5.8.99 with fracture to the distal left femur following the accident herein.

Internal fixation of fracture was done on 10.8.99 and he was discharged on 13.8.99.

There was a review on 31.3.03 at the fracture clinic. According to the said Doctor the patient’s ‘only complaint was “clicking” sensation when flexing the knee with occasional pain in “cold” weather.’

What is the plaintiff’s actual loss of earnings?

The evidence is that after the accident on 5.8.99 he could not drive a taxi for about 18 months. He could not drive for full 8 hours a day because of continuing pain and discomfort.

He therefore claims $150 x 18 months or 72 weeks which comes to $10,800.00.

The question is whether this is allowable in full as claimed or in part.

The evidence is that the plaintiff paid $58.50 per day for 7 days a week to the owner of the taxi from his income. This is not disputed by the defendant. He said that his average weekly income would be $150 per week after deduction of $58.50. He is claiming $150 per week loss from the defendant. The defendant agrees to $100 as a more reasonable figure.

According to Magistrate’s court record the taxi was out of use for 2 months and the loss of use claim was awarded to the owner by the Magistrate for that period.

The plaintiff did not drive the taxi for 18 months as the accident was on 5.8.99 and removal of metal was on 20.6.01.

Apart from the plaintiff’s own evidence that he earned $150.00 per week clear there is no other evidence. I find it difficult to accept that in the absence of any proper record having been kept in regard to this claim as special damages.

I would assess his income as $150.00 per week and out of that he would pay the owner $58.50 which gives him $91.50 clear to take home.

So for the 18 months he did not work he would be entitled to $92.00 (in round figures) per week x 72 weeks = $6624.00 and this I allow.

He resumed work with the owner after the said 18 months and his take home weekly pay is $60.00 on an average. There is no written evidence of this but it is clear that he is no longer on contract.

The plaintiff has 4% disability and other limitations although not serious by any means except that he cannot drive long hours as he used to do.

The plaintiff was at the time of the accident 31 years old and in July 2003 at the time of the hearing of this action he was 35 years old. He is married with three children.

Allowing for all this I will work on the agreed multiplier of 10 and would award him post accident loss on the basis of $32 per week (arrived at by taking account of $60 he earns a week at present and $32 difference from his normal previous earning which I assessed). This gives him the sum of $16,640 (worked out thus: $32 per week x 52 weeks x 10 years).

Interest

There is a claim for interest and this has been pleaded as required (vide Usha Kiran v Attorney-General of Fiji F.C.A. 25/89 and Attorney-General of Fiji v Waisale Naicegulevu FCA 22/89).

The plaintiffs are therefore entitled to interest on general and special damages.

It was held in Pickett and British Rail Engineering Ltd (1980) H.L. 136 at 137, which was a case of personal injuries, that “interest on general damages was awarded for the purpose of compensating a plaintiff for being kept out of the capital sum between the date of service of the writ and judgment …” As for interest on special damages it was held in Jefford and Another v Gee 1970 2 WLR 702 at 703 that “in general interest should be allowed on special damages from the date of accident to the date of trial at half the appropriate rate”.

In Rothmans Pall Mall (Fiji) Limited v Edward Narayan (Civ. App. No. 65/95S) there was some discussion on the date the interest at 4% should start. It went as follows:

“His Lordship awarded it from the date of the accident but Mr. Sweetman informed us that Fiji practice is to take the date the proceedings were issued as the starting date, and we did not understand Mr. Shah to disagree, although he said there were cases when by agreement it ran from the accident date. Mr. Sweetman referred us to the decision of the House of Lords in Wright v British Railway Board [1932] 2 All ER 698, in which the date of commencement of the proceedings was taken. There are arguments for selecting either date. Counsel did not dispute that interest was a matter in the discretion of the trial judge and we are not disposed to interfere with his decision that it should run from the date of injury to the date of trial.”

Under section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27 there is discretion in the Court to fix rate of interest which should be paid. The section provides (inter alia):

“3.	In any proceedings tried in the High Court for the recovery of any debt or damages the court may, if it thinks fit, order that there 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 for the whole or any part of the period between the date when the cause of action arose and the date of the judgment:

Provided ………..”

There will be interest on general damages at 4% from the date of writ (9 May 2001) to date of judgment [AG & Anor v. Jainendra Prasad Singh Civ. Appeal FCA ABU0001.1998A; 21.5.99]. Also interest is awarded on special damages from the date of issue of writ to date of judgment at 2% [Jeff v Gee] supra, cited with approval in A.G. v Charles Valentine (Civ. App. ABU0019.1998S FCA, 28.8.98).

Order

I summarize the awards as follows:

(a)	General damages				$50,000.00

(b)	Special damages (made up of $250,		$23,514.00
$6624.00 and $16640.00)

(c)	Interest on General Damages at 4%
From 9 May 2001 (date of writ) to
24.8.05 (date of judgment) to be
calculated

(d)	Interest on Special Damages at 2%
from 9.5.01 (date of writ) to 24.8.05
(date of judgment) to be calculated

(e)	Costs to be taxed unless agreed.

There will therefore be judgment for the plaintiff against the defendant in the abovementioned sum of $73,514.00 on general and special damages with interest to be calculated by counsel at the rates stated hereabove AND from the total amount arrived at after calculation of interest (as required above), 30% is to be deducted for contributory negligence on the part of the plaintiff to arrive at the amount of damages and interest payable by the defendant to the plaintiff.

The costs are to be taxed unless agreed.

D. Pathik
Judge
At Suva
24 August 2005