IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No : HBC 154 of 2006

BETWEEN:

NAVIN PRASAD
First Plaintiff

SAMUEL NILESH PRASAD
Second Plaintiff

AND:

KRISPA FOODS (FIJI) LIMITED
Defendant

Counsels: Mr. R.P. Chaudhary for Plaintiffs
Mr. A. Patel for Defendant

Date of Hearing: 15th November 2007
Date of Judgment: 19th December 2007

JUDGMENT

BACKGROUND:

[1]	Krispa Foods (Fiji) Limited trades in potatoes, onions, garlic and spices. It sells these items to shops in the Western Division of Viti Levu. It transports these goods to various shops after it receives orders. Its workers transport these goods and also collect money for the goods sold. On 21st October 2003 when Krispa’s truck was returning from sales in Sigatoka, it was involved in a head on collision with another vehicle resulting in death of drivers of both vehicles. Two other persons who were in Krispa’s vehicle got injured. They were Navin Prasad and Samuel Nilesh Prasad, the two plaintiffs. The plaintiffs say that they were passengers in Krispa’s truck in the course of their employment.

[2]	Krispa’s defence is that the first plaintiff Navin Prasad was employed by it as Salesman/Driver. He was instructed to drive the truck that day and no one else was to drive the truck. It says that contrary to its instructions he permitted or allowed Ravindra Singh another employee to drive the truck and then failed to adequately supervise Ravindra Singh. Therefore it says the first plaintiff caused in whole or contributed towards the accident. As far as the second defendant was concerned, Krispa says he was not its employee and contrary to its instructions, the first plaintiff had given the second plaintiff a ride in the truck and the second plaintiff by taking a lift in Krispa’s vehicle had consented to running the risk.

[3]	The negligence of the driver of the truck is not in issue. The plaintiffs were not cross-examined on it. I find that the accident occurred because the driver of defendant’s truck overtook in the face of oncoming vehicle resulting in a head on collision. 

The first issue is: Was Ravindra Singh the authorized driver on 21st October 2003?

[4]	Navin Prasad testified that he had done sales on 20th, the day earlier and Ravindra Singh was the driver. After returning from sales on 20th, they loaded the truck as they had to go as far as Sigatoka the next day and did not wish to get delayed. According to him on 21st October it was Ravindra Singh who drove the vehicle from the factory and also on the way back. He stated that he had only a provisional licence and no experience in driving the truck. He had once worked for Krispa but had left the job in June or July 2002 and returned to work again on 20th October 2002. He had seen Ravindra Singh driving the Krispa truck during the intervening period when he did not work for Krispa. Ravindra according to him was not too well educated and could not prepare sales dockets and invoices. Salendra Singh who is the brother of deceased Ravindra Singh confirmed that his brother used to drive truck for Krispa prior to his death on 21st October. He in fact went on to say that on occasions he brought the truck home loaded with goods so he could go early in the morning for distant deliveries. Salendra Singh has nothing to gain from this trial. There is no suggestion that he had any hostility towards Krispa, nor would he, seeing that the company provided his brother employment for seven or eight years. Thirdly Samuel Nilesh Prasad who also traveled in the vehicle stated that he sat in the middle between Ravindra Singh the driver and Navin Prasad. According to him Shiu Narayan the director of the company saw them leave the yard and at the time Ravindra was the driver.

[5]	According to Shiu Narayan he loaded the truck on 21st October and it was Navin Prasad who signed the bulk order form and drove out the truck. He stated that Navin Prasad was Salesman/Driver and he was responsible for the truck. It was he who was to drive the truck and he was not to give anyone a lift. Ravindra Singh according to him was never his driver.

[6]	I remind myself that the parties here have a lot at stake. If I find for the plaintiff they would receive substantial damages and if I find in favour of the defendant, it avoids paying substantial damages. Shiu Narayan considered himself a very careful and particular person. Part of his testimony was that the defendant company wrote to the first plaintiff asking him to commence work on 20th October 2003. In that letter he had asked Navin to produce his driving licence without fail on 20th. Yet he stated that his licence was not produced nor a photocopy of licence taken. In that letter he also stated that the company policy is not to allow provisional drivers to drive. If Shiu Narayan is to be believed, then having written the letter, this meticulous man forgot about his company policy six days later and without looking at Navin’s driver’s licence, gave him the truck to drive. I would have been much more impressed with his testimony if his actions had matched his words. I am of the view that this letter is later concoction. Navin Prasad too said he never received this letter. I believe this letter was written after the accident to save the company from financial claims. Surely as a businessman he would have got the plaintiff to sign acceptance of those terms.

[7]	To police Navin Prasad described himself as driver. He also stated that usually the salesman is also the driver. But against this is the fact that Ravindra Singh was not educated enough to raise dockets so he would need assistance from someone to prepare sales dockets.

[8]	Further, the estate of the other driver who was killed in the accident had filed an action against Krispa Foods being Civil Action 196 of 2004 at Lautoka. In that action the estate of Ashwin Prasad in paragraph 5 had pleaded that Ravindra Singh was the driver of the said truck and drove the truck as servant and agent of Krispa Foods. In its defence Krispa Foods admitted this fact. Mr. Narayan when confronted with this explained that he had given the writ of summons with statement of claim to Sun Insurance. The insurers got Mishra & Company solicitors to file a defence and that he gave no report to Sun Insurance or to Mishra & Company. In short Mishra & Company filed the defence without his statement or without consulting him. This is a difficult proposition to believe in that a defence was filed on his behalf without any facts being ascertained from him.

[9]	There is overwhelming convincing evidence that Ravindra Singh was the authorized driver on 21st October 2003 and he drove it as servant or agent of Krispa Foods and I so find.

Issue 2 –	Was Samuel Nilesh Prasad an employee of Krispa Foods or whether he took a ride on the truck without Shiu Narayan’s knowledge?

[10]	On this issue, Shiu Narayan testified that the first time he had seen Samuel Nilesh Prasad was in Sigatoka Hospital after the accident and that he had not seen him before. He said as he was about to leave the hospital, the first plaintiff told him that the second plaintiff was also in the truck. He stated that only Ravindra Singh and Navin Prasad had left his yard in the truck in the morning. Additionally there is the statement of Samuel Nilesh Prasad himself to police in which he described himself as student and he also stated that he wanted to go with his uncle namely the first plaintiff to Sigatoka to see his grandmother which would mean his trip had nothing to do with Krispa Foods.

[11]	Opposed to this is the sworn evidence of the plaintiffs themselves. The second plaintiff stated that he had left Drasa Secondary School in June 2003 and began to look for a job. He stated that on 20th October 2003, Ravindra Singh came to his home and told him that there was a job available at Krispa Foods. He told the court that next morning he went to Krispa Foods and met Shiu Narayan who told him that he would be given a temporary job and that he would be paid on Saturday as workers did not turn up on Saturday if they were paid on Friday. He said after this he got onto a loaded truck. He sat in the middle. Navin Prasad too confirmed that in the morning the second plaintiff came with him and Ravindra Singh as the boss had wanted a boy for the Sigatoka trip. I note that the two plaintiffs are related.

[12]	However, I believe that Samuel Prasad was telling the truth. His version that he was only a temporary worker and why wages would be paid on Saturdays have a ring of truth about them. Opposed to that both the manner of Shiu Narayan’s evidence and its contents were unconvincing. He was being evasive in his answers even to his own counsel. He also stated that he had gone to Sigatoka Hospital and when he was about to leave that Navin Prasad plucked out a bundle of notes from his shirt pocket and gave it to him even though he had never asked for money. Navin’s evidence on this which I believe was that his clothes were torn and even his own wallet and money inside could not be traced. This fact was also not put to the plaintiff in cross-examination. Besides he also stated that as he was leaving, Navin Prasad told him that Samuel was also in the vehicle. Shiu Narayan’s evidence on this point was unconvincing and I believe contrived. I am totally convinced that Samuel Prasad was in the truck with full knowledge of the defendant. He was a temporary employee but an employee nevertheless on that day. As such the defendant company is vicariously liable for the negligence of his servant Ravindra Singh.

Quantum of Damages:

[13]	The next issue is how much damage shall I award to each of the plaintiffs.

Navin Prasad

[14]	I shall deal with Navin Prasad first. He was born on 17th February 1982 and about 211/2 years old at the time of the accident. He was earning $80.00 per week wages. As a result of the accident, he received lacerations to the right leg, laceration to the right ankle, on the right forearm and fracture of the lower fibula close to the right ankle. According to Doctor Joeli Mareko the fracture had not united even by 2005. He looked at X-rays taken in 2005. He also stated that there were significant chances of osteoarthritis developing. He assessed the plaintiff’s disability at fifteen percent.

[15]	The plaintiff testified that on impact he was thrown out of the truck onto the road and received lot of cuts. He said he also received a cut on his head and showed a scar on right side of the head and blood from the head went into his eye. His clothes were torn. A glass was removed from his eye at Sigatoka Hospital.

[16]	The plaintiff after spending a night at Sigatoka Hospital was transferred to Lautoka Hospital. The doctor had only the Lautoka Hospital folder with him and hence a few of the injuries were not stated in the medical report. These injuries I accept were painful and the plaintiff had to be put on pain relieving medicine.

[17]	His leg had to be plastered and he walked with the aid of crutches for over two months. He could not work till May or June 2004.

[18]	The first plaintiff claimed special damages of $505.00 being for cash and a mobile phone he lost during the accident, price of crutches and transport. He needed to buy crutches for $35.00. He claims $220.00 for transport in a taxi for outpatient visits. He stated that return trips to hospital cost him $10.00 or $12.00 at times. These are all reasonable claims. I allow these.

[19]	He was unable to work till May or June 2004. His pay was $80.00 per week so for a period of about 32 weeks, his loss of wages would be $2,560.00.

[20]	Mr. Patel submitted that the first plaintiff’s earning capacity has not been diminished. He had left work voluntarily and then returned. He admitted cutting cane and doing some work on the farm after the accident. He still drives part time and earns $50.00 to $70.00 per week. Further he said he has done a course in Information Technology and therefore can get and do a sedentary job. I consider each of these points has merits except I note that the course he did was not from a university or a renowned technical institute.

[21]	The plaintiff submits a sum of $25,000.00 for general damages for pain and suffering. The plaintiff I believe did suffer serious pain. He had to be put on pain relief medication. He suffered inconvenience of being on crutches. In assessing damages under this head the court has to consider the pain and suffering which the plaintiff suffered and which he will continue to suffer. Each case depends on its own facts and circumstances and I have to take the peculiar position of the plaintiff. Past awards are looked at to maintain a level of consistency. 

[22]	In Rajesh Prakash v. Kamlesh Ramesh Parmar & Another – HBC 350 of 1996, a 32 male cinema technician who suffered a left ankle fracture and twenty percent permanent incapacity a sum of $45,000.00 was awarded for pain and suffering.

[23]	In Samuel Shalendra Sahay v. Manju Reddy & Another – HBC 189 of 2003L (date of judgment – 8th December 2004) a self employed motor mechanic suffered multiple abrasions and fractured right femur and fractured right ulna. He was hospitalized for sixteen days. He was awarded a sum of $25,000.00 for pain and suffering.

[24]	In Dinesh Kumar v. John Elder – HBC 560 of 1995 (date of judgment – 17th March 1999) a sum of $45,000.00 was awarded for pain and suffering to a 14-year old passenger who suffered compound fractures to his left tibia and fibula. 

[25]	I consider the sum of $25,000.00 as suggested by counsel for the plaintiff as just and fair with $15,000.00 being for past pain and suffering and $10,000.00 for future pain and suffering.

Loss of Earning Capacity:

[26]	Doctor Mareko fixed his disability at 15%. Whether that was a percentage he worked on the basis of Workmen’s Compensation Act or the American Standard I was not told. However one thing stands out and that is his fracture has not united. The first plaintiff also stated that he cannot drive vehicle for long periods. He is earning less now, compared to the $80.00 he earned previously.

[27]	The calculation of future loss of earnings is always a difficult exercise because of the uncertainties of the future which one has to consider like for how long the plaintiff would suffer disability, prospects of future employment in a sedentary job, which employment will the plaintiff have and at what wages and what would have been the plaintiff’s prospects had he not been injured.

[28]	Having taken the above factors into account I award a sum of $8,000.00 for future loss of earnings.

Samuel Nilesh Prasad 

[29]	He was born on 8th May 1986 and at the date of accident was about 171/2 years old.

[30]	His injuries are really serious and so are the results of his injury. After the accident he found himself lying on the road in pain. He had cuts on his forehead. He felt pain from his right hip down to the foot. He was taken to Sigatoka Hospital and then transferred to Lautoka Hospital the next day. He remained admitted at Lautoka Hospital till 17th December 2003 close to two months. The medical report bears him out. It states that he had cut above the right leg, abrasion of right hand, painful right hip, foot drop and he was not able to stand. The X-ray revealed that he had suffered dislocation of the right hip with fracture of the right acetabulum.

[31]	Doctor Mareko stated that the fracture had to be manipulated and the leg had to be put on traction. The doctor pointed out from the X-rays of the hip how it had partially due to fracture moved inwards and therefore needed to be manipulated by traction to bring it back into its correct position. He says X-rays show there are already signs of osteoarthritis developing and that eventually he might need a hip replacement. However, he stated that hip replacement is not the usual norm for young people who are active. In such case chances of hip replacement failure are high.

[32]	As far as his foot is concerned, he suffers from foot drop and he cannot move his foot up and down and this is likely to be a life long problem. He will face difficulty doing strenuous work. Doctor Mareko placed his disability at 25% to 30%.

[33]	The plaintiff showed the court his foot and his right knee. He had a knocking knee which gave jerking movements making it very unstable. He could not move his foot upwards and downwards.

[34]	This plaintiff went through a great deal of pain and discomfort. He will suffer from osteoarthritis. He stated that he still feels numb from hip down and the hip pains when it is cold and he has to take pain relieving medicine to ease the pain. He cannot play soccer now as he cannot run.

[35]	The plaintiff’s counsel has been very modest in seeking a sum of $45,000.00 for general damages for pain and suffering and loss of amenities of life. In Raben Prasad v. T.F. Jan Bulldozing Company Limited & Another – HBC 292 of 2002L the plaintiff was 44 years old educated to class 8. He was hospitalized for seven weeks. He had received severe hip injury and was significantly disabled as a result and unable to engage in any gainful employment. He was awarded $50,000.00 for pain and suffering. 

[36]	I award the second plaintiff $45,000.00 for pain and suffering being $25,000.00 for past pain and suffering and $20,000.00 for future pain and suffering.

Loss of Earning Capacity:

[37]	Samuel Nilesh Prasad was told that his wages would be $50.00 per week. The day of accident was his first day at work and he was employed on a temporary basis. Further he had not been able to find employment for four months since he left school. He has been educated up to Form 4 and therefore would only be considered for manual labour jobs, where physical capabilities are important. In fact he was not taken into employment in two places due to his disability. He is therefore handicapped in the labour market and would find it difficult to obtain a job. In the event he loses a job for one reason or another then he would find it more difficult to find another employment compared to other able bodied normal rivals. Given his injury, these risks are very substantial. I award him a sum of $8,000.00 under this head.

Special Damages:

[38]	The special damages claimed are for transport $560.00, massager $360.00, loss of wages $2,560.00 from 21st October 2003 to 8th June 2006.

[39]	He stated that his mother used to visit him in hospital. She came in a taxi costing $6.00 per return trip. Further he said he also paid a massager $25.00 per week to massage him. This lasted eight to ten weeks. These are reasonable claim and are allowed.

[40]	As for his loss of wages, I note that Krispa employed him on a temporary basis. Further even before the accident he could not find work for some months. Given this history, some adjustment to loss of wages needs to be made. I grant him $1,500.00 for loss of wages.

Conclusion:

[41]	I therefore award the following damages.

First Plaintiff

(a)	Special damages being for lost cash, mobile phone, crutches and transport
	$503.00
	
(b)	Loss of Wages	2,560.00
	
(c)	Damages for pain and suffering		
	past pain	15,000.00 	
	Future	10,000.00
	
(d)	Loss of earning capacity	8,000.00
	
(e)	Interest at 3% - (a) and (b) from filing of
writ 8th June 2006 to date of judgment
	141.00
	
(f)	Interest on past pain at 6% from
8/6/06 to present	
1,381.00	
		$37,585.00
========	

Second Plaintiff

1)	Special damages transport & massager
	$920.00	
2)	Loss of wages
	1,500.00	
3)	General damages for pain & suffering		
	Past	25,000.00	
	Present
	20,000.00	
4)	Loss of earning capacity
	8,000.00	
5)	Interest on (a) and (b) at 3% from
 8/6/06 to today
	111.00	
6)	Interest on past pain at 6% from 
8/6/06 to present
	
2,301.00
_________	
		$57,832.00
========	

 [40]	Accordingly I enter judgment for the first plaintiff in the sum of $37,585.00 and for the second plaintiff in the sum of $57,832.00. I also order costs summarily fixed in the sum of $3,500.00

[Jiten Singh]
JUDGE

At Lautoka
19th December 2007