Kumari v Hasad [2012] FJHC 1153; Civil Action 19.2009 (8 June 2012)

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Appearances: Mr Amrit Sen for the plaintiff
Mr A. Kohli for the first and second defendants
Date of hearing: 14 and 17th February, 2012

The primary facts are undisputed. Mohammed Hasad alleges that the accident occurred as he suffered a blackout and lost control of the bus. The extent of injuries suffered by Raj Kumari are also disputed.

Raj Kumari, Dr Chowdry and Rolesh Chand, a eye witness to the accident testified.

Mohammed Hasad testified . Dr Mua was called by the defence to testify from the medical report prepared by Dr V.H.Wasson on Mohammed Hasad's medical condition.

Rolesh Chand was serving a customer at the New World Bakery at Jaduram Street on 2nd June, 2008, when the accident occurred. He testified that he saw a bus proceeding at a high speed from Labasa market hit a lady standing on the step of the New World Supermarket. He had heard the toot of the horn of the bus and saw the driver trying to control the bus. After the accident, the driver who was awake at that time had leaned back . Rolesh Chand said he had not seen any brake marks.

The defence states that Mohammed Hasad suffered a blackout. The medical report prepared by Dr V.H.Wasson provides that Mohammed Hasad was "brought to hospital in a drowsy state but responded to painful stimuli and vocal command". On examination, his "Vital Signs" were found normal. All laboratory tests, neurology report and investigations carried out pertaining to his heart, blood sugar, etc were normal. Dr Mua testified that he was assessed as probably having " benign positional vertigo". Upon a review two weeks later, he was found to have a "slight improvement in symptoms of dizziness but did not have chest pain nor LOC (loss of consciousness) again"

Mohammed Hasad was 66 years of age at the time of the accident. As Mr Sen has pointed out, he was admittedly not medically examined to ensure that he was fit to drive an omnibus. Mohammed Hasad testified that his health was good and he did not experience a blackout prior to or subsequent to the accident. In all the circumstances, it would seem unlikely that he had a medical condition that would have brought about a blackout, as contended.
In his examination in chief, Mohammed Hasad said he could not recall the accident. In cross-examination, he denied that he was driving at a high speed when he struck Raj Kumari. He stated he got unconscious after he moved gear from one to two. His response to Mr Sen, as to what would take place in that situation and when the foot is taken after the accelerator, was as follows:

The defence did not call any independent evidence to contradict Rolesh Chand's testimony that the bus was travelling at a high speed, when it struck Raj Kumari. I accept the evidence of Rolesh Chand that Mohammed Hasad was driving the bus at a high speed and could not control the bus.

Mr Sen, in his closing submissions, has cited Lord Normand in Barkway v South Wales Transport, (1950) 1 AER 392 at page 399 as follows:

"the fact that an omnibus leaves the roadway and so causes injury to a passenger or to someone on the pavement is evidence relevant to infer that the injury was caused by the negligence of the owner, so that, if nothing more were proved, it would be a sufficient finding of liability against him."

"The speed at which a vehicle should be driven must be reasonable in the circumstances. The general rule is that the vehicle should be driven at a speed which enables the driver to stop within the limits of his vision, particularly having regard to the weather and the state of the road

I hold Mohammed Hasad was negligent and is liable for the injuries caused to Raj Kumari. Parmod Enterprises Limited, as his employer is accordingly vicariously liable, as Mohammed Hasad was admittedly acting in the course of his employment.

Raj Kumari suffered a fracture of the pelvis. She testified she was in pain and hospitalised for four days. It took her two months to recover,and her mother and daughter cared for her during this period. She stated that her condition has worsened, since the accident and she cannot walk fast nor with the same gait.

Dr Chowdry was called by Mr Sen, counsel for Raj Kumari. Dr Chowdry said it takes 1 ½ to 2 months for a fracture of the pelvis to heal. In answer to Mr Sen, Dr Chowdry said if a fracture is displaced, it is likely that a person could walk with an abnormal gait. In cross-examination, he said Raj Kumari suffered a closed fracture and the bone though cracked, was intact.

Dr Chowdry said Raj Kumari had presented herself for a follow up, six weeks after the accident on 17 July,2008. He stated, the medical record of that day, does not disclose that Raj Kumari made any complaint as to her condition and that any Doctor would have observed, if she walked with a gait. Finally, Dr Chowdry stated he prepared the medical report dated 8 December, 2009, and found she had no permanent disability.

In determining the damages, Raj Kumari is entitled to for pain and suffering, it is necessary to consider general level of comparable awards. These awards can be used as a guide, but the facts of each case have to be considered.

Mr Sen, in his closing submissions, has cited Singh v Rentokoil Laboratories Ltd, (1993) FJCA 26 and Eta Naqeletia v Ram Kumar, (HBC 19 OF 2010). In the first case, the Court of Appeal had awarded $ 60,000. The injuries are not comparable. In that case, the plaintiff had suffered injuries to all limbs except the left leg. He had a fracture of the "mandible", right humerus with radial nerve palsy and displaced fracture of the pelvis. In the second case, there was injury to the plaintiff's right forearm and wrist, which required reconstructive surgery. The plaintiff had a 19% permanent disability and was awarded $ 114,100 as general damages.

Mr Kholi, in his closing submissions, has cited Prakash v Khan,(2009)FJHC 160,and submitted that a similar award be made in the present case. The plaintiff in that case, had suffered a pelvic fracture like Raj Kumari, and was awarded $ 30,000 as general damages.

Raj Kumari was hospitalised for a period of four days and took two months to recover. In the light of the principles applicable to assessing damages, I assess the general damages for pain and suffering in the circumstances of this case at $ 30,000.00 (thirty thousand dollars).

In her statement of claim, Raj Kumari claims $5 in respect of a medical report, $ 100 for transport to hospital for review and $50 for medicines purchased. .

Despite the absence of any documentary evidence of expenditure to support the claim for transport to hospital, and given that receipts are not issued by taxi drivers, I hold the Raj Kumari is entitled to this expense . I also allow the claim for cost of the medical report in a sum of $5.

In Narendra Kumar (f/n) Shiu Kumar and Sairusi Drawe 36 FLR 90 at page 95, Palmer J stated:

"Notwithstanding that not a single receipt has been produced in evidence I am satisfied from the Plaintiff's evidence that he paid those amounts."

I disallow the claim for medicines purchased. The absence of receipts has been addressed by the Courts in Fiji. 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".

A schedule of special damages has not been filed in support of the other claims for transport.
Loss of earnings

Raj Kumari testified that she supported herself prior to the accident, by selling vegetables, she planted .She stated she earned $ 100 a week, though on certain days her sales were $ 10

In Singh v Bui (2007) FJCA 2, the Court of Appeal declared a trial judge, as a trier of fact was entitled to consider the evidence to assess the income of a villager. The Court of Appeal stated "..the reality of the situation seems to be that for self-employed traditional farmers, growers and fishers, in a lower socio –economic group, niceties of commerce, such as accurate book-keeping are often not observed".

I accept the evidence of Raj Kumari that she was a vegetable seller. The claim for $100 a week in earnings is however, excessive. I assess her income at $50 a week. I hold she is entitled to loss of earnings from the date of accident to 8 December, 2009, the date Dr Chowdry found there was no permanent disability.

Raj Kumari stated that she could not revert to vegetable planting after the accident, as she experienced pain when digging. This is inconsistent with the medical finding and I disallow this claim.

Her testimony that she requires future care after she befell the accident, is also inconsistent with the medical evidence. I therefore disallow this claim

Raj Kumari has claimed interest pursuant to Section 3 of the Law Reform (Miscellaneous

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 I award interest at 6% per annum on general damages of $ 30,000.00 from the date of writ to date of hearing on 14th February,2012, and 3 % per annum on special damages from the date of accident to 14th February,2012.

The total sum awarded to the Raj Kumari as damages is $ $ 44632.83 made up as follows:

a.	General damages	30,000.00
b.	Interest on General damages	4880.77
c.	Special damages	105.00
d.	Past domestic care	4400.00
e.	Loss of earnings	4270.00
f.	Interest on c,d and e	977.06
	Total	$ 44632.83

There will therefore be judgment for Raj Kumari against Mohammed Hasad and Parmod

Enterprises Limited in the sum of $ 44632.83 together with a sum of $ 3000 payable by

High Court of Fiji

Kumari v Hasad [2012] FJHC 1153; Civil Action 19.2009 (8 June 2012)