IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Action No. HBC 356 of 2005

BETWEEN:

RAMESHWAR PRAKASH father's name Hari Nath of 13 Shiv Place, Varadoli, Ba, Fiji, Barrister and Solicitor.
Plaintiff

AND:

ROHNESH RAM son of Daulat Ram, formerly of Navatu, Ba, Fiji, Driver but now residing in Auckland, New Zealand.
1st Defendant

AND:

DAULAT RAM (father's name not known to the Plaintiff) of Navatu, Ba, Fiji, Manager
2nd Defendant

Appearances;
For Plaintiff; Mr. V. Mishra of Mishra Prakash & Associates 
For the Defendants; Mr. H.A. Shah for the Defendants. 
Date of Judgment; 5th December 2011.

JUDGMENT

1)	On the 16th of December 2002 the 1st Defendant while reversing his father's car out of the Plaintiffs driveway collided with the Plaintiffs gate and the gate in turn collided with the Plaintiff causing the Plaintiff injury and rendering him unconscious. The Plaintiff alleges that the 1ST Defendant reversed the car negligently and that the 2nd Defendant (the 1st Defendant's father) was the owner of the car (Motor Vehicle Registration No. DD 707) and it was driven by the 1st Defendant with the implied/express consent of the 2nd Defendant or as his agent or servant for a purpose of the 2nd Defendant, and as such the 2nd Defendant is vicariously liable for the negligence of the 1st Defendant. 

PARTICULARS OF NEGLIGENCE;

2)	In the Statement of Claim the Plaintiff alleged the following particulars of negligence on the part of the 1st Defendant; 

a) Reversing at an excessive speed.

b) Failing to keep any or any proper control of the said motor vehicle.

c) Failing to stop, slow down, to swerve or in any other way so to manage, control the said motor vehicle in order to avoid colliding with the Plaintiff. 

d) Failure to brake, swerve or maneuver the said vehicle in order to avoid collision with the Plaintiff.

e) Failure to take adequate steps to discharge duty as a prudent driver.

f)	Reversing at an excessive speed in the circumstances when it was not safe to do so with concern to the well being of the Plaintiff.

The Defendants denying the particulars of negligence alleged by the Plaintiff, pleaded that the Plaintiff was solely responsible for the alleged collision by his negligent conduct and set out the following particulars of negligence on the part of the Plaintiff;

(a) Attempting to close gates of the Plaintiff's driveway at the back of a moving vehicle.

(b) Attempting to close gates of the Plaintiff's driveway without giving any or any adequate warning to the 1st Defendant of an intention of so doing.

(c) Failing to advise or warn 1st Defendant that Plaintiff was intending to block off access from the Plaintiff's driveway.

(d) In all the circumstances of the case acting in a dangerous and foolhardy manner with full knowledge of the consequences of so doing. 

COUNTER CLAIM BY THE 1ST DEFENDANT;

3)	The 1st Defendant counter claimed that the Plaintiff on or about the 17th day of December 2002 maliciously and without reasonable and probable cause brought about the Prosecution of the 1st Defendant of the following offences;

 (i) 1st Count: Criminal Trespass

 (ii) 2nd Count: Damaging Property

 (iii) 3rd Count: Reckless or Negligent Act. 

The 1st Defendant set out the following particulars of malice on the part of the Plaintiff; 

(a) Making a false complaint to the Police.

(b) Knowingly making a statement to the police which the Plaintiff knew to be false.

(c) Knowingly making a false statement on oath. 

The 1st Defendant on the 15th July 2003, in the Magistrate's Court, was acquitted of all charges.

COUNTER CLAIM BY THE 2ND DEFENDANT;

5)	The 2ND Defendant alleged that the Plaintiff on the 16th day of December, 2002 willfully and unlawfully or in the alternative negligently damaged the 2nd Defendant's motor car Registration No. DD 707, and set out the following particulars of negligence on the part of the Plaintiff by the 2nd Defendant;

(i) Slamming iron gates against the 2nd Defendant's motor vehicle.

(ii)	Slamming iron gates against a moving vehicle namely the 2nd Defendant's motor vehicle.

PRE TRIAL ADMISSIONS AND ISSUES;

6)	At the Pre Trial Conference the parties agreed to raise the following issues;

1. Whether the Defendant had the care, control, and possession of vehicle No. DD 707 with the express and/or implied consent of the Second Defendant. 

2. Whether at the relevant time the Second Defendant was the owner of vehicle No. DD 707 and is vicariously liable for the negligence of the First Defendant.

3.	Whether the accident was caused by the Plaintiffs negligence or the negligence of Defendants.

4.	If the accident was caused by the negligence of First Defendant, is the Second Defendant vicariously liable for his actions.

5.	Whether there was any contributory negligence on the part of the Plaintiff.

6.	If the Defendants or either of them are liable then what is the quantum of damages payable to the Plaintiff. 

ADDITIONAL ISSUES, RELATING TO THE COUNTER-CLAIM AND THE DEFENCE, RAISED AT THE PTC;

7. Whether the Plaintiff on or about the 17th day of December 2002 did maliciously and without reasonable and probable cause bring about the Prosecution of the First Defendant. 

8. Whether the Defendant was put to considerable expense and loss in defence of the said malicious prosecution.

9. Whether the plaintiff did willfully and unlawfully damage the motor car Registration No. DD 707 of the Second Defendant.

10. Whether the damage was caused by the negligence of the Plaintiff.

11.	 Whether the Defendants suffered loss and damages.

Agreed Documents;

The following documents were agreed upon and noted as "Agreed Documents" in the PTC minutes by the parties;

(a) Copy of Radiology Report of Ramesh Prakash.(Plaintiff)

(b) Copy of X-Ray Results dated 17th January 2003.

 (c) Copy of the medical report from Downtown Boulevard Medical Centre.

(d) Copy of Court Record re: First Defendant's Criminal Case 574/2002 (Ba Magistrates Court)
Parties have further filed an AGREED BUNDLE OF DOCUMENTS hereinafter referred to as the "ABD".

ADMISSIONS;

 (A) At the PTC admissions were recorded that the 1st 

Defendant on the 16th day of December 2002 was driving Motor Vehicle Registration No. DD 707, and that the Plaintiff is a Barrister and Solicitor.

(B) At the commencement of the trial a further admission was recorded that the 2nd Defendant was the owner of vehicle Registration no. DD 707 at all times material. 

As such this action proceeded to trial on altogether 11 issues and the aforesaid relevant admissions.

THE TRIAL; (AND DETERMINATION OF ISSUES)

Plaintiff and two other witnesses gave evidence for the Plaintiff. 1st Defendant and another witness gave evidence for the Defence.

 1ST AND 2ND ISSUES;
 1. "Whether the Defendant had the care, control, and possession of vehicle No. DD 707 with the express and/or implied consent of the Second Defendant." 

2. "Whether at the relevant time the Second Defendant was the owner of vehicle No. DD 707 and is vicariously liable for the negligence of the First Defendant."

7)	In view of the admissions the 1st and 2nd issues are answered partly in the affirmative in that the 1st Defendant has admitted that he was the driver of vehicle no. DD 707 on the day of the accident (16/12/2002) and the 2nd Defendant have admitted that he was the owner of the said vehicle at the time of the accident. 

8)	In his evidence the 1st Defendant stated that at the time of the collision he was reversing the car (DD 707) down the Plaintiff's driveway. The 1st Defendant stated that the 2nd Defendant the owner of the vehicle is his father and that he drove the vehicle to the Plaintiffs premises to confront the Plaintiffs house girl for making calls to his father. 

9)	The 1st Defendant at that time according to his evidence was 30 years of age. Though the 2nd Defendants age is not on record still given the 1st Defendants age he ought to have been of sufficient maturity not to have been perturbed by any calls made by anyone to his father unless his father complained to him of such calls and of any particular circumstances (of which details were not placed before Court and only vaguely referred to by the 1st Defendant as being of a personal nature and that both the Plaintiff's house girl and the 2nd Defendant's house girl are sisters.). There was no other reason given for the 1st Defendant to have driven up the Plaintiffs driveway to subsequently reverse down the driveway as a consequence of which the collision took place. 

10)	The fact that according to the 1st Defendant his brother too accompanied him to the Plaintiffs premises further suggest that the purpose of the 1st Defendants use of the 2nd Defendants vehicle was not for a lone mission of his own inspired by his protective love for his father. It appears as if the 2nd Defendant has sent both his sons on a mission to draw the chestnuts out of the fire for his benefit. The 2nd Defendant did not give evidence in this case to deny and displace the burden by inference that shifted to him after admitting to be the owner of the vehicle and especially the burden by evidence that shifted further to him, after the 1st Defendants evidence, to prove that he had nothing to do with the 1st Defendants use of his vehicle. 

11)	Therefore the 1st Defendant having come from New Zealand for a holiday was admittedly on a mission driving the 2nd Defendants vehicle no.DD 707, for and on behalf of the 2ND Defendant for the 2nd Defendant's benefit when the collision occurred. Therefore the 1st Defendant had more than implied authority; he in fact appears to have had express and explicit authority. 

12)	The 1st Defendant was, when driving the 2nd Defendant's vehicle on a mission of the 2nd Defendant, to speak to and negotiate with the Plaintiff's house girl for and on behalf of his father the 2nd Defendant, which makes the 1st Defendant the agent of the 2nd Defendant acting in the course of and during the agency in furtherance of the very personal objective of that agency when the collision occurred. 

13)	The 2nd Defendant subsequently had called and apologized to the Plaintiff further indicating that his son came to the Plaintiffs premises on his business. 

14)	This case is clearly distinguishable from the Privy Council judgment in the Rambaran's case referred to in Chandra Vs. Narain (1997) FJCA 42; Abu0051u.96 (submitted for the Defendants), in that in Rambaran vs. Gurrucharan (1970) 1WLR 556, the son was driving the fathers vehicle with the fathers general permission, whereas in this case the son was driving the fathers vehicle for a specific mission of a personal nature to the father which the father obviously could entrust to no other than to his sons. To attract vicarious liability the nexus between the driver and the owner in this particular case could not have been stronger. 

15)	As such this Court answers issues 1 and 2 fully in the affirmative in that the 2nd Defendant is vicariously liable for the negligence of the 1st Defendant.

3rd AND 4TH ISSUES; 

The 3rd issue is; "Whether the accident was caused by the Plaintiffs negligence or the negligence of Defendants?" 

The 4th issue is; "If the accident was caused by the negligence of First Defendant, is the Second Defendant vicariously liable for his actions?"

16)	The gate consists of two parts of approximately 2.5 meters (h) x 1.5 meters (w) each and for convenience of reference the part of the gate to the left of the house when facing the closed gate from inside the premises of the house (looking towards the road) shall hereinafter be referred to as the L gate and the other part of the gate to the right shall be referred to as the R gate. (i.e. the part of the gate to the right of the house when facing the road from inside the Plaintiffs premises.)

17)	The gate opens inward towards the house THEREFORE its movement is limited when it comes to the position when it is closed or thereabout, (as the gate only opens inwards according to evidence) which position is when it is parallel to the front boundary of the house, or when it is fully open when the two parts of the gate are kept flush against the two walls either side of the driveway. 

18)	 As the direction of the vehicle was from inside the driveway towards the main road the relevant point when the gates movement was limited would be the point where the gate is fully closed as the gate will be pushed in the same general direction as the vehicle on impact. Another possibility is where the vehicle collides with the outer edge of the locking frame of the gate and the force of the collision transferring horizontally on the frame dislodges the two hinges and throws the gate in that same plane towards the Plaintiff and the road.

19)	The 1st among the particulars of negligence is that the 1st Defendant reversed at excessive speed. Given the fact that the 1st Defendant was reversing on a driveway the maximum speed at which he ought to have reversed is less than when reversing on a wider road without immediate obstruction on either side. 

20)	The photograph P1(C) shows that where the 1st Defendant had parked his vehicle which was under the porch is level ground and the 1st Defendant ought to have known that, from that level stationary position he was reversing downhill and as such his reversing ought to have been with minimum speed. 

21)	The vehicle was said by the 1st Defendant to be an automatic gear car. One distinction between a car with automatic gears as against manual gears is that in an automatic gear system by pressing the brake automatically the car can be bought to a standstill without stopping the engine whereas in manual gears unless the clutch too is pressed, or the gear is in neutral, the engine will stop. The said distinction is of such common and ordinary knowledge this Court takes judicial notice of same. 

22)	When reversing downhill a driver of an automatic gear vehicle will only need to keep his foot on the brake peddle once the car starts moving downhill to control its speed. Not to do that simple act would certainly amount to negligence. Once the driver gets in to the vehicle the automatic gear would be on "park" and he can start the engine in that position, and once the engine starts he has to press the brake peddle and transfer the gear lever to "Reverse" and thereafter ease his pressure on the brake peddle till the vehicle starts moving backwards. On level ground the vehicle begins to move backwards slowly once the brake is released and it is only to reverse faster or to reverse uphill that the accelerator needs to be pressed. Once the car moves from the stationary position, to reverse downhill the driver has to only manipulate the brakes and not the accelerator. In a manual gear car both the brake and the clutch need to be manipulated when reversing downhill, (and not the accelerator). The task is therefore easier in an automatic gear car.

23)	The revving of the engine heard by more than one witness could have happened if the 1st Defendant pressed on the accelerator to gain speed in reversing. The reverse gear ratio is similar to the 1st gear where more engine revolutions and power thereby is employed for more torque at less speed to initially move the vehicle, thereby giving a noticeable engine sound when seeking speed in the 1st or reverse gear, unlike when the car is passing by or cruising. The continuous "reversing sound" heard by all the witnesses and the high revolution sound of the engine heard by some indicates clearly that the 1st Defendant was using the accelerator and reversing at a speed which is excessive under the circumstances of reversing downhill. Reversing downhill ought to be a very slow process and to combine even slight speed is negligent if not rash. 

24)	At slow speed there would not have been a "big bang" when colliding with the gate, as even admitted and stated by the 1st Defendant. One witness stated that the time between the engine revving and the "bang" was a split second, which is another indication of the 1st Defendant's speed, in reversing downhill over 16 meters (the length of the driveway). 

25)	The visibility by the driver when on level ground would be parallel to the level ground from the rear view mirror. When the ground falls at a gradient behind the car after a distance the driver may not see the ground or even a person standing. Depending on the gradient that distance will differ. It is the 1st Defendant who drove up the drive way and as such he ought to know he has to reverse downhill. It was also clearly visible to the 1st Defendant as stated in his evidence that he had to reverse downhill. Therefore a driver under those conditions knowing he is reversing down hill needs to exercise caution. He ought to know that visibility is limited in reversing and more so when down hill and to reverse at speed or even use the accelerator under those conditions would certainly amount to negligence being a breach of duty of care to those standing behind the reversing vehicle.

26)	There was another passenger in the vehicle who could well have been another pair of eyes when reversing, unless the speed of reversing was such that no warning would have been timely. The 1st Defendant in his own evidence stated that he was in a "panic mood" at the time of reversing the car, which is a further indication of the lack of control and self discipline of the 1st Defendant at the time of reversing the car as well as its speed. It amounts to the 1st Defendant admitting that he reversed the car in a "panic mood". The Defendants have not displaced the burden that shifted to the Defendants under the circumstances and by the above referred evidence and the applicable reasoning. 

27)	Therefore this Court on a balance of probability holds that the 1st Defendant reversed the vehicle at a speed that was excessive under the circumstances and had not used the brake to stop the vehicle to prevent collision with the gate and the Plaintiff. As such this Court answers issue 3 in that the ACCIDENT WAS CAUSED DUE TO THE NEGLIGENCE OF THE 1ST DEFENDANT. IN VIEW OF ANSWERING ISSUE 3 IN THE AFFIRMATIVE AS SUCH ISSUE 4 TOO IS ANSWERED IN THE AFIRMATIVE IN THAT THE 2ND DEFENDANT TOO IS VICARIOUSLY LIABLE FOR THAT NEGLIGENCE AS HELD IN ANSWERING ISSUE 2 ABOVE. 
28)	
CONTRIBUTORY NEGLIGENCE – ISSUE 5;

ISSUE 5; "Whether there was any contributory negligence on the part of the Plaintiff."

29)	The Plaintiff himself stated in his evidence that the vehicle first collided with the gate and thereafter as a result the gate collided with him. For that to happen, the gate ought to have been between the vehicle and the Plaintiff. The question is the proximity of the Plaintiff to the gate at the time of the vehicle colliding with the gate. Did the relatively stationary gate having been hit by the reversing vehicle travel even a short distance with the inertia and thereafter hit the relatively stationary Plaintiff transferring that energy to the Plaintiff causing the Plaintiff injuries or did the reversing vehicle hit the gate when the Plaintiff was holding on to the gate thereby the Plaintiff travels with the gate and gets thrown off when the movement of the gate is limited by its hinges? It appears to this Court that for the Plaintiff to have been found on the side-walk almost at the edge of the main road (curb) away from the place where the broken R gate was found fallen (the larger red square in photograph P1(C)), the Plaintiff could not have been holding on to the R gate, on the other hand it would have been likely and probable that the R gate may have traveled a distance from the parallel line of the front boundary of the house in to the side-walk or curb (kerb-public area) and then hit the Plaintiff.

30)	The point of impact on the gate as visible in the photograph P2(J) indicated its position in its arc of possible movement, when the vehicle collided with it. That in turn would give an indication whether the gate was in the process of being opened or closed. The dent on the locking side outer frame, only, without damage to the diagonal bar and the mesh as visible in P2(J) indicates that the R gate had collided with the car when the said R gate was more open than closed. There was virtually no damage to the L gate while the R gate had even dislodged from its hinges. If it was the intention of the Plaintiff to damage the 2nd Defendants car by slamming the gate against the car as alleged in the 2nd Defendants Counter claim, he could have done it by pushing the gate from the garden without exposing himself to danger. 

31)	Furthermore even the 1st Defendant in evidence admitted both parts of the gate was not equally open and that the R gate "WAS NOT AS HARD UP TO THE WALL" as the L gate. This particular admission by the 1st Defendant at page 18 of the typed evidence (when shown P1(c) ) makes credible the Plaintiffs position and his evidence that he went down the driveway to open the part of the gate that has moved due to the wind. The Defendant further admitted that the part of the gate that was not fully open was the right half of the gate when looking towards the road from inside the premises which is the R gate. 

32)	The evidence of the 2nd witness for the Defence Mrs. Elizabeth Kumar ( at page 17 ) that the Plaintiff was holding on to both gates (R gate and L gate ) and trying to close the gates, contradicts the circumstantial evidence to the effect that ONLY the R gate WAS DAMAGED AND NOT the L gate, as well as the evidence of the other witnesses including the 1st Defendant's evidence. Though Mrs. Kumar stated before this Court that she heard somebody shout "lock him in," in her evidence before the Magistrates Court ( at page 17-19 of the Agreed Bundle of Documents) she does not appear to have made any reference to having heard so. Mrs. Kumar's memory appears to have "improved" questionably over the years, as the incident took place in December 2002. She further stated that she was putting her baby of 5 months to sleep when the incident took place and insisted that she was observing everything in spite of having to give the baby over to her cousin in order to run to the Plaintiffs side after he fell from the collision. Mrs. Kumar's memory was far too good to be true after more than 7 years, and appears to "improve" questionably as well, as observed above. The "over confident" demeanor of this witness reminds the Court of a good actress not a good witness. This Court views with caution the evidence of the said witness and is not inclined to consider her evidence to contradict any other witness in this case. 

33)	The Plaintiff is admittedly a Barrister and Solicitor and having ordered the 1st Defendant to leave his premises this Court cannot come to a conclusion that he would at the same time try to prevent the 1st Defendant from leaving the premises by closing the gate or would try to damage the 2nd Defendants car by slamming a gate against a reversing car which he would at least given his education know, will certainly rebound back to him. 

34)	The demeanor of the Plaintiff when giving evidence was that of a cultured person and when describing the incident did not exhibit any residual anger towards the 1st Defendant which left this Court to believe that he went down the driveway behind the car to fully open the R gate so as to prevent damage to the 2nd Defendants car as well as to his gate. The allegation that the Plaintiff slammed the gate against the reversing car was made in the counter claim of the 2nd Defendant. Given the demeanor in Court of the 1st Defendant, to the extent of even showing misplaced anger towards the Plaintiff exhibiting aggression, and even admitting using profane language immediately before reversing the vehicle, is more indicative of what the 1st Defendant may have done under the circumstances if he was in the Plaintiffs position. The falsity of this allegation may well have led the Defendants not to raise an issue on that allegation as pleaded, at the subsequent PTC. Further the 2nd Defendant did not give evidence in support of the allegation pleaded by him, nor did the 1st Defendant or any other witness suggest that the Plaintiff slammed the gate against the reversing car. The most that the 1st Defendant stated was that he thought that some body had thrown some thing at the car, which is far from slamming a gate against the car. This particular allegation though prudently abandoned subsequently, stands out as an aggravating factor when considering aggravating damages.

35)	What is certain is that the Plaintiff did suffer injuries on the 1st Defendant reversing the car and colliding with the gate which in turn collided with him. The gate may well have minimized the injuries the Plaintiff may have suffered otherwise, as the 1st Defendant has stated in evidence that he did not see the Plaintiff when he was reversing, and as such could well have run over him. Though the injuries to the Plaintiff is a secondary cause of the 2nd Defendants vehicle driven by the 1st Defendant colliding with the gate (R gate), given the fact that the gate and the Plaintiff was in close proximity and within the vision of the 1st Defendant as a reversing driver this Court is inclined to consider the injuries to the Plaintiff as having being caused as a direct result of the 2nd Defendants vehicle no.DD 707 negligently driven by the 1st Defendant colliding with the gate (R gate) and the Plaintiff. 

36)	Given the fact that the Plaintiff had every right to proceed down his driveway to better open the gate, (or even close it after the 1st Defendant) AND the 1st Defendant being aware as admitted by him that one part of the gate was not fully open, and the Plaintiff was visible to a driver of a reversing vehicle as he was within the visibility or tunnel of vision, the duty of the 1st Defendant to the Plaintiff as a driver of a reversing vehicle is clear and this Court does not find any contributory negligence as set out in the elements regarding contributory negligence and as such issue 5 is answered in the negative. 

ISSUE 6;

37)	Issue 6 is; "If the Defendants or either of them are liable then what is the quantum of damages payable to the Plaintiff."

38)	INJURIES; In the Agreed Bundle of Documents (ABD) the1st document is a photocopy of a Radiology Report and as the date was not clear, during the trial, on the agreement of parties and comparing with the original the date of 17 Jan 2003 was inserted by Court (the original given for comparison is still in the record) . In the 3rd document of the ABD, which is a photocopy of a report of Dr. Mitchell, in the second line of the penultimate paragraph of the 1st page the numbers "..right ribs 4,5,6" was agreed by parties to be in error and ought to read as "..right ribs 3,4,5" instead and as such underlined and noted on the side of the page by this Court during the trial on the 10/5/2010. 

39)	The said ABD document 3, the report of Dr. Mitchell, refers to a CT Scan reporting "as normal with no indication of any treatable damage". However the ADB document 1 which is the Radiology Report states; "The right 3rd, 4th and 5th ribs posteriorly are fractured with minimal displacement", and Dr. Mitchell refers to the 3 rib fractures (in error referring to them as 4,5, and 6 instead of 3,4 and 5), and recommended that "he refrain from any sporting or similar activity for six weeks and be reviewed with a further x ray". The same report concludes at the end that; " His prognosis for the future is excellent but one always takes into consideration previous head injury when assessing any patient with a neurological problem. Patients have been known to present with problems, months or years after a head injury which resulted in loss of consciousness for a period of time". The said report is dated 17/1/2003, and 6 years after there is a medical report in 2009 which is Document 10 in the Agreed Bundle of Documents. 

40)	Though Document 10 in the Agreed Bundle of Documents refers to an incident occurring on 13/1/2003, the incident relevant to this action occurred on 16/12/2002, and Dr. Mitchell was seen for the first time by the Plaintiff on the 13/1/2003 (Document 3 of the ABD AND Dr. Mitchell's evidence). Therefore the parties too appear take the "incident occurring" to mean the first date that Dr. Mitchell was consulted. The Defendants Counsel did not put to Dr. Mitchell that there were no multiple rib fractures suffered by the Plaintiff and did not refer to the absence of the X rays. It was not put to Dr. Mitchell that she did not see or was not shown the X rays. Though it was put to the Plaintiff in cross examination that the injuries may have been suffered due to some other incident, the incident was not specified and the Plaintiff denied the suggestion. Though the 1st report of a Doctor was marked as D1(page 42 of the ABD) by the Defendants, and referred to suggest that there was no rib fractures, the said report does not exclude rib fractures though it is silent as to any fractures. The Defendant did not lead the evidence of the Doctor who filed up the said report to contradict the evidence of Dr. Mitchell or the Plaintiff. Therefore this Court accepts the injuries to the Plaintiff as set out in the Medical Reports Document 3 and Document 10 of the Agreed Bundle of Documents. (with the typographical errors corrected as aforesaid during the trial).

41)	The Plaintiff in his statement of Claim set out the following particulars of his injuries and disabilities resulting from the accident;

 Injuries; 

a)	Fracture of 3, 4 and 5 right ribs.

b)	Lacerations and depression of right side of leg, hip and shoulder.

c)	Lacerations and bruises on the left leg and left knee.

d)	4cm cut on the right back scalp of head.

e)	Swelling of right side of stomach (abdomen)

f)	Swelling and contusion of right eye.

g)	Swelling and contusion of right arm.

h)	Swelling on right sub mandibular area.

i)	Difficult in opening mouth.

j)	Difficult in eating.

k)	Abrasions on various parts of body.

l)	Shock and concussion.

m)	Blood coming out of nose.

 Disabilities;

a)	 Loss of some power, and mobility and restricted movement of right hand and inability to lift ups and down with ease.

b)	 Difficulty in working due to injury.

c)	 Scarring.

d)	 Inability to eat solid food for three weeks.

e)	 Severe headaches

f)	 Lock jaw.

g)	 Pain in right hand and other areas of body.

h)	 Inability to concentrate on work as previously.

i)	 Inability to perform sporting activities as previously.

42)	Out of the injuries listed above injury (a) and (d) appear to be the significant injuries referred to in the Medical Reports resulting in pain and suffering and temporary disabilities listed as item (b), (e), (h) and (i) above. The Plaintiff was rendered unconscious by the collision and gained consciousness fully after many hours.

43)	Pain and suffering; the Plaintiff stated that he was unable to sleep due to the pain, and the rib fractures added to the discomfiture. When the Plaintiff gave evidence of the pain he had to endure due to his injuries it became apparent to the Court that his level of tolerance for pain had been severely tested. He stated that he could not work for 2 months. 

44)	The Accident took place on the 16/12/2002 and though it coincides with the Court vacation, still many Solicitors do work in preparation for the coming year. When a Solicitor does not work for one month it is not only that months work that is lost but the new work he would gather during that month which is his continuing practice. As such a Solicitor would not be without working unless he is compelled to. 

45)	The Plaintiff was 45 years of age when he suffered the rib injuries. He indicated that the pain surfaces during cold weather. It has dented his confidence and his freedom to enjoy the sports of his liking such as cricket, football and horse riding. The plaintiff suffered pain every time he attempted to evacuate and more so when he was constipated due to taking "pain killer" drugs. 

46)	In the light of the authorities submitted by the Plaintiffs Counsel; in Sashi Prakash v. The Commissioner of Police & another (HBC 237 OF 2001L), where the Court awarded $42,000/= for 7 broken ribs with likely hood of osteoarthritis developing, and in BW Holdings Limited v. Lavenia Vuli Civil Appeal No. ABU 89 of 2008 where $20,000/= for a fracture of the right distil radius which had healed though giving pain during cold weather, and in Taicirua Transport Company Limited v. Virend Chand (Court of Appeal) FLR Vol.41 page 44 the Court awarded $20,000/= for two fractured ribs together with several laceration injuries; the sum of $30,000/= urged in respect of injuries that took place in 2002 in this case is not excessive and as such this Court finds $30,000/= sufficient damages to be awarded in respect of pain and suffering and loss of amenities as sought by the Plaintiff in his written submissions. 

47)	The claim under the heading of FUTURE CARE /LOSS in a sum of $10,000/= in the Plaintiffs written submissions, this Court considers is excessive given the recovery of the Plaintiff and reduces to a sum of $5,000/=. The Plaintiffs recuperation was submitted to be for the duration of 8 months (two months total and 6 months partial) and as such at $1000/= a month for the first two months ($2000/=) and at $500/= per month for the subsequent 6 months ($3000/=) make the said sum of $5000/=. Therefore damages in $5,000/= is awarded for future care/loss.

48)	Loss of income; Given the bills produced, which were not challenged nor contradicted, the Court finds the Plaintiffs billing rate of $250/= per hour acceptable. On a normal 8 hours a day billing with a daily income loss of $2,000/= a day, the monthly (20 working days) loss in income is $40,000/=. For 2 working months the loss of income would be $80,000/=. The claim of the Plaintiff for a further period of 6 months is reasonable at a reduced performance of 50% given that the Plaintiff suffered 3 rib fractures. Therefore the loss of half a months income being $20,000/= for 6 months after the two initial months would amount to $120,000/=. Therefore the total for loss of income for the 8 months is $200,000/=.

49)	Loss of prospective income/ reduction of earning ability; the Plaintiff in his written submissions calculated loss of income for a further period of 6 months at a 50% reduced performance rate suggesting 100% performance at the end of that 6 months. Therefore the loss of prospective income /reduction of earning ability would not apply to the Plaintiff after the said 8 months from the injuries, according to the Plaintiffs own submissions. Furthermore there was no evidence of injury to justify such a loss of prospective income beyond the 8 months, and as the 2009 medical report indicates full recovery, the claim under that heading of loss of prospective income/ reduction of earning ability sought in the Plaintiffs written submissions in a sum of $90,000/= is disallowed.

50)	Aggravated damages; the 1st Defendant having caused injury to the Plaintiff rendering him unconscious drove off without stopping according to the 1st Defendants own evidence. He tried to justify such conduct on the basis that he feared that the neighbors might harm him and that he drove straight to the Police station. However there was no entry in the Police station to that effect produced in evidence, said to have been made close to the time off the accident. The Defendant was not alone in the vehicle as his brother was with him, and to have fled without offering assistance to a person he has rendered unconscious on the side of the road is aggravating circumstances if not reprehensible. The 1st Defendant entered the Plaintiffs premises without invitation for a purpose that the 1st Defendant was unable to fully disclose to Court, a purpose at least to the extent disclosed, not decent. The 1st Defendant had failed to extend to the Plaintiff the basic concern owed to another human being, who has done him no harm. In making an allegation that the Plaintiff slammed the gate against the vehicle, (even after the 2nd Defendant apologizing to the Plaintiff after the collision), and making a claim for malicious prosecution (and failing to prove it at the trial), on the part of the Defendants, too are aggravating circumstances. (vide- paragraph 57 below). Over and above the physical injury caused to the Plaintiff the Defendants by their aforesaid conduct have caused unnecessary pain of mind and embarrassment to the Plaintiff. See- Alexander v Home Office [1988] 1 WLR 968, Sutcliffe v Pressdram Ltd (1990) 1 All ER 269. As such this Court awards 1/3rd the sum awarded for pain and suffering being a sum of $10,000/= as aggravated damages. Uren v. John Fairfax & Sons Pty Ltd, 1966 40 ALJR 124, cited by the Plaintiff deals with exemplary damages.

51)	Special damages; Documents at page 5 to 11 of the Agreed Bundle of Documents give receipts to the value of $385/=,$153/-, $100/=, $70/=, and $88/= making a total of $796/= which this Court allows. When the Plaintiff was rendered unconscious he had to be taken to the hospital (BA Mission Hospital) many Kilometers a way while unconscious, and he had to travel back as well. A sum of $200/= under the circumstances is not excessive for such traveling necessitated by the Defendants negligence, and as such allowed though receipts were not produced, as the Plaintiff cannot be expected to be asking for receipts under such trying circumstances. The Plaintiff has sought $50/= for loss of clothing, which is reasonable given the fact that the Plaintiff is a Barrister and Solicitor and would have been in clothing suitable to his position. The Plaintiff has however sought $1,816/= and again $1,690/= in their written submissions. However as above this Court shall allow the total sum of $1046/= as special damages.

52)	Interest on damages; in the Milton Ross Dube & others v. Kristamma Goundar (HBC 61 OF 2005) case the 10% interest was awarded taking into consideration the commensurate bank interest the Judgment creditor was compelled to pay and not a precedent to be followed in this personal injury case. Interest at the rate of 6% per annum till date of judgment is reasonable under the circumstances. The Plaintiff is not entitled to interest on aggravated damages and for future care and loss from the date of the injury, however he is entitled to interest on same along with the other awards for damages from the date of judgment, at 4% per annum as per section 4(1) of the Law Reform(Miscellaneous Provisions) (Death and Interest) Act (Cap. 27) amended by the Law Reform(Miscellaneous Provisions) (Death and Interest) (Amendment) Decree 2011 (Decree no.46 of 2011).

53)	Therefore the quantum of damages payable to Plaintiff by the Defendants jointly and severally are;

1. Pain and suffering-	$ 30,000.00	
2. Future care & loss	$ 5,000.00	
3. Loss of income	$ 200,000.00	
4. Aggravated damages	$ 10,000.00	
5. Special Damages	$ 1,046.00	
Total	$ 246,046.00	

Interest at 6%p.a is due from 16/12/2002 till judgment only on the sum of $231,046/=, being $246,046/= less item 2 and 4 above ($15000/=). 

Interest at 6% per annum on $231,046/=, from 16/12/2002 till date of this judgment (5/12/2011) is = $124,379/77. Therefore the total sum of the judgment as at 5/12/2011 is $370,445/77. As set out above, Plaintiff is entitled to interest at 4% per annum on the judgment sum of $370,445/77, from date of judgment till satisfaction in full.

ADDITIONAL ISSUES, RELATING TO THE COUNTER-CLAIM AND THE DEFENCE;

54)	Issue 7; "Whether the Plaintiff on or about the 17th day of December 2002 did maliciously and without reasonable and probable cause bring about the Prosecution of the First Defendant." 

55)	Though the proceedings before the Magistrates Court were part of the Agreed Bundle of Documents, and though the 1st Defendant was acquitted, that does not per se prove malicious prosecution. The Plaintiff denied making an entry in the police station launching the prosecution, and the Defence did not suggest otherwise. 

56)	Even if the Plaintiff did seek the prosecution of the 1st Defendant there is no proof that he did so maliciously. Furthermore even if that be the case (of which there is no evidence) it would not be without reasonable and probable cause as the 1st Defendant had entered the Plaintiffs premises without invitation, for a purpose not fully disclosed to Court, and admittedly used profane language against the Plaintiff in addition to causing injury to the Plaintiff and not even thereafter assisting to take the Plaintiff to hospital. 

57)	Had the police not prosecuted the 1st Defendant, whether they succeeded or not in the prosecution, would in the public eye appear as if the police are in dereliction of its duties, or turning a blind eye. This counter claim though raised in issue was not pursued diligently or at all at the trial. As such this issue no.7 is answered in the negative. 

58)	Having caused the Plaintiff injury by their negligence the Defendants have made false or unsubstantiated counter claims and allegations against the Plaintiff as if to rub salt on his wounds. Such conduct warrants the award of aggravated damages and further justifies the award of $10,000/= awarded above as aggravated damages.

59)	Issues 8,9,10 and 11;

8. "Whether the Defendant was put to considerable expense and loss in defence of the said malicious prosecution."

9. " Whether the plaintiff did willfully and unlawfully damage the motor car Registration No. DD 707 of the Second Defendant."

10. " Whether the damage was caused by the negligence of the Plaintiff."

11. "Whether the Defendants suffered loss and damages."
In answering issue 7 in the negative as above consequentially issue 8 too is answered in the negative. 

There was no evidence itemizing the damage to the motor car Registration No. DD 707, or any repair bill, and in any event as held above the collision was due to the negligence of the 1st Defendant in reversing the said motor car and there was no evidence of the Plaintiff "willfully and unlawfully damaging" the said motor car. As such issue 9 too is answered in the negative.

There was no evidence of negligence on the part of the Plaintiff and particulars of such alleged negligence were not proved. As such in view of answering the aforesaid issues in the negative and in view of the aforesaid reasons issues 10 and 11 too are consequentially answered in the negative.

55)	Location of the accident; though the events leading up to the accident was begun by the driver (1st Defendant) of vehicle Registration No. DD 707 reversing down the Plaintiffs driveway, the collision with the Plaintiff took place and the injuries were sustained by the Plaintiff, as observed and held by this Court as above, outside of the driveway on the curb (side walk) which is a public area maintained by the local authority (Ba Municipal Council).

56)	In the premises aforesaid this Court gives judgment for the Plaintiff jointly and severally against the 1st and 2nd Defendants in the sum of $370,445/77, together with interest at 4% per annum on the judgment sum of $370,445/77 from date of judgment (5/12/2011) till satisfaction in full.

57)	Costs assessed summarily, awarded to the Plaintiff in a sum of $4000/= against the Defendants.

Hon. Justice Yohan Fernando.
JUDGE.

High Court of Fiji
At Lautoka
5th December 2011.