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Kumar v Rabukawaqa [2011] FJHC 507; Civil Action 100.2006 (8 September 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. 100 of 2006

BETWEEN:

ARVIND KUMAR (f/n Ram Brij) of Maqbool Road, Nadera, Taxi Driver
PLAINTIFF

AND:

PACOLOMIU RABUKAWAQA of Lot 26, Chandwick Road, Naulu,
Minibus Driver and SAHID HASSAN of Nakasi, Mini Bus Owner.
DEFENDANTS

Appearances: Mr Daniel Singh for the Plaintiff
Mr Raman Pratap Singh for the Defendant
Date of Hearing: 21st March, 2011

JUDGMENT

1. The sole issue in this case is the quantum of damages to be awarded to Arvind Kumar, the victim of a road accident on 31st May, 2003.
   
2. Arvind Kumar was driving his taxi from Daniva Road towards Yasiyasi Road, when the first defendant driving a van from Nausori towards Suva, collided with his taxi at Valelevu roundabout at Kings Road. The first defendant was driving the said van as a servant and/or agent of the second defendant. These matters were recorded as Agreed facts at the pre trial conference.
   
3. Determination
   

It is an agreed fact and the first defendant admitted he was convicted of the offence of dangerous driving in terms of Section 98(1) and 114 of the Land Transport Act No. 35 of 1988, after pleading guilty.

In terms of Section 17(1) read with 17(3)(a) of the Civil Evidence Act,2002 a person convicted of an offence by a court in Fiji, is taken to have committed the offence, unless the contrary is proved.

The Fiji Court of Appeal in Prasad v Lata (2005) FJCA 39, cited Lord Denning in Stupple v Royal Insurance Co (1971)1 QB 50, at page 72, who explained the effect of the equivalent section in England, as follows:

" It shifts the legal burden of proof...the defendant must show that he was not negligent....otherwise he loses by the very fact of his conviction."

The first defendant has failed to discharge the burden of proof that he was not negligent. Accordingly, I find the first defendant negligent and that his negligence caused injuries to the plaintiff.

At the hearing, the second defendant, the owner of the mini bus stated he had authorised the first defendant to drive his vehicle. The first defendant confirmed he was acting in the course of employment of the second defendant. He also admitted he failed to give way to traffic on the right, as was the plaintiff's vehicle, at the Valelevu roundabout.

In the circumstances, the second defendant is vicariously liable for the negligence of the first defendant.

(a) General damages

The plaintiff sustained multiple bodily injuries .He was in a coma for three days and placed on ventilator support at the CWM hospital. The medical report dated 01 March, 2004, of Dr J.M.Gallardo, CWM hospital provides:

"tracheostomy..was performed on 09 June,2003. He. ...became severe on 28 June 2003 thus it became necessary to reinstate the trachcostomy tube. ..Tracheal resection was performed on 19 August,2003 whereby 1.5 cm of the trachea....was removed....With persistent dyspnea on exertion he was again reinstated with a trachcostomy tube".

He was referred to a specialist in Australia for treatment. The report dated 16 March, 2004, of Dr Michael Farrell of St George Private Hospital, NSW provides treatments included "microlaryngoscopy on 23 December,2003. Further microlaryngoscopies and debulking of tissue in the subglottic region" on 11 February, 2004, and 26 February, 2004. Since the treatment was unsuccessful, he underwent laser treatment in Brisbane.

The medical report dated 10th November,2005, from Dr Chris Perry,Princess Alexandra Hospital, Queensland provides that the plaintiff had his "Montgomery T-tube stent put in after carving away the stenotic scar tissue below his vocal chords.."

The final medical report dated 16 October,2009,from the same hospital provides that:

"he originally suffered a post traumatic hypo tracheal stenosis and anastomosis .in 2005.This was revised ..at this hospital in 2007........There is no stridor at rest. He is able to manage 18 holes of golf without problems........On examination he has a good airway present with no stridor and nil nick masses".(emphasis added)

In his closing submissions, the plaintiff claims $ 85,000 as general damages for pain and suffering and loss of amenities of life. The cases of Thorsell v Hoem, 1984 Can LII 890 and Beverly v Hill-Douglas, (1998) QSC 31 are relied in support. The injuries are not comparable. In the first case, a decision of the Supreme Court of British Columbia, the plaintiff had lost her voice. In the other, a decision of the Supreme Court of Queensland, there was a total impairment of 64 % and there was a necessity for ongoing medical treatment.

In Shell Fiji Ltd v Susil Chand, (Civil Appeal No.ABU0038 of 2008), a passenger in a tanker vehicle plying from Labasa to Savusavu had suffered multiple injuries and fractures in a tragic accident, that left the driver of the tanker vehicle instantly dead. He had regained consciousness in a hospital in New Zealand, where he had experienced considerable discomfort. He had used a crutch for a year. The injuries had healed, but he had been left with substantial scarring. The Court of Appeal increased an award of $ 17,000 for pain and suffering to $ 60,000.

The plaintiff was 31 years old at the time of the accident. He was at the CWM hospital for a period of almost 4 months. The medical reports, which are agreed, provides he encountered several surgical interventions. He experienced considerable discomfort in having a breathing tube inserted in his throat and could not converse for 4 years. He has now recovered and does not appear to have been left with a residual disability.

In the light of the principles applicable to assessing damages, I assess the general damages for the pain suffered by the plaintiff in the circumstances of this case at $ 40,000.00 (forty thousand dollars).

(b) Costs for past gratuitous care

The evidence discloses that the plaintiff's family provided care to him. The claim for past gratuitous care by his family at $80 per week for a period of 4 months totalling $1280 is allowed.

(c) Loss of earnings

The plaintiff advances a claim under this head, as his loss of earnings for the period 31st May 2003 to 30th June, 2004 and 1st September, 2005 to 6th May, 2008.

The plaintiff did not provide any documentary evidence as to his earnings. His earnings as a part time taxi driver at night, was disputed as excessive. Then, the plaintiff retracted the statement made in evidence in chief, that his earnings were $410 gross per week, and stated in cross-examination, that his earnings were $410 net per week and expenses were $ 250 - $280 per week.

No claim was made with respect to his earnings as an electrician.

In my view, it is more likely that his earnings were $410 gross per week, as initially stated less expenses of $250. I award the sum of $160 per week for the period claimed as follows:

(d) Special damages
The plaintiff filed an up to date schedule of special damages on 22nd March, 2011. The plaintiff is entitled to the following medical expenses, as evidenced by the receipts produced:

The Court disallows the other expenses claimed.

In British Transport Commission V Gourley [1955] UKHL 4; (1956) AC 185, Lord Goddard stated:

"Special damage has to be specifically pleaded and proved"

In Mahendra Naidu and Ravindra Patel C.A. No. 105/197999 (West Div) it was stated:

"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".(emphasis added)

(e) Interest
The plaintiff has claimed interest. Interest on general damages is awarded to compensate a plaintiff for being kept out of the capital sum –Pickett v British Rail Engineering Ltd (1980) AC 136 at 137.

In Jeffords and another v Gee [1970] EWCA Civ 8; (1970) 2 WLR 702 at 703, it was held 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 the exercise of my discretion under Section 3 of the Law Reform (Miscellaneous) (Interest) Act, (cap 27), I award interest at 6% per annum on general damages of $40,000.00 from the date of Writ 08 March, 2006 to date of trial 21 March, 2011, and 3 % per annum on special damages on the sum of $30524.66 from the date of accident to date of trial 21 March, 2011.

4. Orders

The total sum awarded to the plaintiff as damages is $ 122246.78 made up as follows:

There will therefore be judgment for the plaintiff against the first and second defendants in the sum of $122246.78 together with a sum of $2,000.00 payable by the defendant to the plaintiff as costs summarily assessed.

A.L.B.Brito-Mutunayagam

8th September, 2011 Judge