IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0295 OF 1999

BETWEEN:

HABIB IRSHAD ALI
PLAINTIFF

AND:

LAUTOKA GENERAL TRANSPORT CO. LTD.
FIRST DEFENDANT

SANJAY SINGH
SECOND DEFENDANT

Mr. R. Chaudhary for the Plaintiff
Mr. V. Mishra & Mr. R. Gordon for the Defendants

Date of Hearing: 13 May 2005
Date of Judgment: 15 July 2005

JUDGMENT OF FINNIGAN J.

This is a claim for personal injury arising out of a motor accident. It has some unusual features but the facts are not complex. The Plaintiff was a passenger in a passenger vehicle which collided with a stationary vehicle at night time.

Both the Plaintiff who was the passenger and the Second Defendant who was the driver gave evidence. There are some sharp differences between them as to some details but the essential thread of the story emerges clearly. From their evidence I find that the Second Defendant was driving his employer’s passenger vehicle on 27 August 1997 at about 9.30p.m. He had delivered a load of passengers on charter and was on his way back to base. In Lautoka Town he slowed at an intersection. The Plaintiff had seen him coming and had waved him down, thinking that the bus was slowing down to pick him up. The door was open, he climbed aboard and a conversation took place. The Second Defendant told him that the bus was not picking up passengers, but at the same time drove on. The Plaintiff did not get off, the brief conversation came to an end and the Second Defendant accepted that his unwelcome passenger would remain. Shortly after this the Second Defendant took a right hand turn while travelling too fast and collided with the rear of a stationary truck as he completed the turn. The Plaintiff was propelled forward and was injured.

There was evidence that there were some concrete drain covers in the middle of the road and that one of them was out of place opposite the truck, which narrowed the space available to the Second Defendant. That does not help him. Assuming it were so, it does not alter the onus on him as driver to adapt his driving to the conditions and I am certain he was travelling too fast in the conditions. As it happens, a scene drawing was done by a constable who attended and the sketch shows not drain covers but a road divider in the centre of the roadway from which the constable took precise measurements to the two collided vehicles and I do not accept that the presence of any concrete obstruction of whatever kind in the middle of the road amounts to much. There was still plenty of room. The bus swung too far to the left as it made a right turn. The truck was parked not hard against the kerb, but still left 3.7 metres between itself and the road divider, which was ample space for the Second Defendant and his bus. The collision was with the parked truck, not something near the centre.

I therefore hold that the liability for the collision lies with the Second Defendant. I do this on the facts alone. As it happens he pleaded guilty to a charge of careless use of the vehicle. He wishes now that he had not pleaded guilty, but on the facts he was. However it is not necessary to take his criminal conviction into account in reaching the decision in civil liability. I hold that the First Defendant shares this liability, because the bus was being driven to base after a charter, the Second Defendant at the time was carrying out his employment duties.

The Pleadings and Submissions

I have had the benefit of full submissions from Counsel of both parties. There is an issue about whether there was contributory negligence by the person who parked the truck and/or by the Public Works Department. That issue did not arise upon, or else was clearly resolved by, the evidence and my findings. There was no contribution in negligence by any other party. I find that all six particulars of negligence pleaded in the statement of claim have been proved.

Damages

The Plaintiff is required to plead and prove any special damages. He pleaded $40.00 transport expenses and $50.00 medical expenses but had no proof of his claims. Counsel has submitted that they are very reasonable claims and ought to be allowed with 6% interest from the date of injury to judgment. I disagree. There are not proved, they are only claims.

He has further pleaded as special damages $5,150.00 as lost wages, i.e. $50.00 per week for 103 weeks. It seems from his evidence he was employed as a casual kitchen hand and cook. He says he was earning $50.00 per week from this before the accident. I accept that he had work and was paid but find his evidence insufficient for proof of his claim for special damages. I decline an award under this head. Instead, I shall take account of this evidence when assessing general damages.

In respect of general damages he claims for pain and suffering, loss of amenity of life and loss of earning capacity.

On this topic Plaintiff’s Counsel is admirably brief in submissions, perhaps too brief since he cites no authority for the submission that $60,000.00 would be appropriate for the Plaintiff’s injuries and ongoing pain. He notes that the Plaintiff was 18 at the time of the accident and is now 26. He points to the evidence that the injuries he suffered are permanent with his broken fibula badly joined, both tibia and fibula being fractured. His hip was dislocated. He relies on the right ankle pain and the onset of osteoarthritis which will cause continuing pain in future years. He relies on the evidence of the Medical Specialist and his two written reports in evidence dated 15 June 1999 and 12 May 2005.

Separately for loss of earning capacity he submits a global award of $35,000.00 would appropriate. For the questions to be asked rather then the quantum to be awarded he relies on Naidu –v- Bechni and Another, Civil Appeal. No 43 of 1994 [Court of Appeal].

Defendant’s Counsel in response submits that for pain and suffering both past and future an appropriate award would be $20,000.00. He submitted that the misjoined fracture was acknowledged by the doctor in evidence as only minor. Essentially the Plaintiff did have a dislocated hip and was in hospital for a month, thereafter on crutches, but his walk appeared normal when he came to give evidence. 

On damages for loss of earning capacity Counsel submitted that the $35,000.00 claimed ($50.00 per week for 15 years) is excessive. He submits (correctly) that the $50.00 per week was no more then a claim made in evidence, with no wage slip no FNPF statement or even an FNPF Number. The Plaintiff had nominated two employers but no evidence from them was before the Court. Counsel submits the Court is entitled to find that the Plaintiff was not in regular employment at the time and that although he has suffered some injury his employment situation has not changed. He still is an intermittent worker. Actually, his evidence was that he had worked for three weeks since the accident, and now does not work at all. Counsel’s submission is that any loss of employment opportunity should be assessed at $1,000.00 per year and accepts the multiplier 16 while submitting that it may not be appropriate, i.e. $16,000. 

Defendants’ Counsel referred me to Punja & Sons Limited and Another –v- Malani and Others Civil Appeal. No ABU0083 of 1998S [Court of Appeal]. By comparison with that [not entirely similar] case Counsel submitted that two years’ earnings would be a high compensation for an intermittent worker and suggested one year’s salary at $50.00 per week i.e. $2,600.00. In the cited case the Plaintiff had severe backache and more substantial disability then the Plaintiff and he had fewer skills. The Plaintiff had been training as a hairdresser and as a waiter and had been working as a cook. 

Defendant’s Counsel also addressed the claim for future medical expenses and submits that for $4,000.00 would be more appropriate than the $18,720.00 [$20 by 52 weeks by 18] sought by Counsel for the Plaintiff. I agree with Defendant’s Counsel that although special damages were not proved, a case has been made out for an award and I agree that the claim of Counsel for the Plaintiff [which he said “can be rounded off to $20,000.00”] is rather too high.

After considering the submissions and weighing the evidence I must in the end make my own subjective assessment of what appears to be just compensation. For pain suffering and loss of amenities of life I award $20,000.00 for the past and for the future another $20,000.00. On the damages for past injury I award interest as submitted by Plaintiff’s Counsel at 6% from the date of the accident until the date of this judgment.

For loss of earning capacity I accept the Plaintiff’s evidence of $50.00 per week, but not because I believe that was what he was earning. I have to make an artificial calculation anyway and take that merely as the starting point. I am sure he is employable. Assuming his capacity to earn has however been reduced I fix his weekly earning capacity at $30.00, a loss of $20 per week. As an intermittent worker I fix his yearly weeks of work at 40. This is a notional annual income loss of $800.00. Projecting that forward for 16 years [another arbitrary assessment, but one common to both Counsel] yields a total of $12,800.00. Taking it back to the date of the accident (27 August 1997) a period of 7 years 11 months, ($20 by 40 by 8 minus $80) yields a further $6,320.00. I deduct $150 for the 3 weeks he has worked, so the total is $6,170.00. On that past award there should be interest for the period which I fix at 3.5%, over the whole period of 7 years 11 months. That is $1,709.00.

Like Counsel for the Defendants I accept that there will be future medical expenses. The Plaintiff claimed but did not prove that they will be $20.00 per week and I do not accept that. This claim is for pain killers and I arbitrarily assess the cost at $5.00 per week. Even that amount of pain killing drug injection on a regular permanent basis seems unhealthy, but at least the expense estimate is more realistic. Projecting that forward for 16 years yields a total of $3,900.00.

In summary therefore I have awarded damages as follows:

Pain suffering and loss of amenities			-	$20,000.00 [past]
								$20.000.00[future]
Interest at 6% on $20,000.00 from 27 August 1997
Until 15 July 2005 (7 years 11 months)		-	$ 9,500.00
Loss of future earning capacity			-	$12,800.00
Loss of past earnings					-	$ 6,170.00
Interest at 3.5% for 7 years 11 months		-	$ 1,709.00
Future medical expenses				-	$ 3,900.00
								$74,079.00

Costs are allowed to the Plaintiff in the sum of $1,000.00.

D.D. Finnigan
JUDGE

At Lautoka
15 July 2005