Kishore v Nemani [2012] FJHC 1257; Civil Action 22.2005 (1 June 2012)

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Appearances: Mr Daniel Singh for the Plaintiff
Mr Ritesh Naidu for the First and Second Defendants
Mr Diven Prasad for the Third Party

The facts are not in dispute. It is an agreed fact that Motouila Nemani was convicted of the offence of dangerous driving by the Magistrate's Court at Suva, fined and disqualified from holding or obtaining a driving license for three months. 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 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, where His Lordship exemplified 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."

Motouila Nemani has failed to discharge the burden of proof that he was not negligent. Accordingly, I find him negligent and that his negligence caused injuries to Ravindra Kishore. Tebara Transport Limited, as employer is accordingly vicariously liable, as Motouila Nemani was admittedly acting in the course of his employment.

Upon application by Motouila Nemani and Tebara Transport Limited, Dominion Insurance Limited had been made a third party. Tebara Transport Limited then filed statement of claim against Dominion Insurance Limited, seeking a declaration that in the event they are held liable to Ravindra Kishore, they are entitled to be indemnified by Dominion Insurance Limited in terms of the Workman's Compensation Policy and a Compulsory Third Party Motor Vehicle Policy held with them.

Dominion Insurance Limited filed defence stating that the accident did not arise out of or in the course of employment and that it is not obliged to indemnify Tebara Transport Limited. The defence also stated that Ravindra Kishore was a non-fare paying passenger and in terms of the Compulsory Third Party Motor Vehicle Policy and the relevant statute, Tebara Transport Limited was not entitled to indemnity and/or indemnity was limited to $4000.

The case turned on the liability of Dominion Insurance Limited to indemnify Tebara Transport Limited against any judgment entered against the Tebara Transport Limited, in terms of the Workman's Compensation Policy and Compulsory Third Party Motor Vehicle Policy .

At the hearing, Ravindra Kishore gave brief evidence through a deaf and mute interpreter, which was then interpreted to court. He testified that he left home at 7am on 3rd August, 2002, and the accident took place at 8am before he reached work. He was not cross-examined.

Ravindra Kishore's wife recapitulated the pain and suffering, he underwent. She had cared for him for a period of one year, after his discharge from hospital, as he was confined to bed. She produced photographs of the injuries sustained by Ravindra Kishore and receipts from the CWM hospital and Suva Private Hospital. She testified that she gave up working at a vegetable stall in front of her house, in order to look after her husband. She was cross-examined only with respect to the time he left home for work, the place and time his work commenced and his mode of transport to work.

The Director, Operations of Tebara Transport Limited testified that Ravindra Kishore had been a senior employee of the company for a period of 15 years, prior to the accident. His weekly salary was $ 85.25. He stated that Ravindra Kishore was travelling in the bus on the basis of an authorisation given by the Directors of the company. In cross-examination, he stated that transport for employees were not provided by his company, except when they worked overtime.

Vikash Kumar of Dominion Insurance Limited testified as regards the coverage included under the Compulsory Third Party Motor Vehicle Policy given by his company.

Counsel for Ravindra Kishore, Mr Daniel Singh and counsel for Dominion Insurance Limited, Mr Diven Prasad contended that Ravindra Kishore was not acting in the course of his employment, when the accident occurred. At the hearing on the legal arguments, Mr Ritesh Naidu, counsel for Ravindra Kishore, while associating himself with the submissions made by Mr Daniel Singh as regards the Compulsory Third Party Motor Vehicle Policy, alternatively relied on the Workman's Compensation Policy .

Mr Diven Prasad cited Lord Denning in Vandyke v Fender and another (Sun Insurance Office Ltd, Third Party), (1970) 2 AER 335 at page 340 referring to two leading cases, namely St Helen's Colliery Co. Ltd v Hewitson, (1924) A.C. 59 and Weaver v Tredegar Iron & Coal Co. Ltd. (1940) A.C. 955 as follows:

"They show, to my mind quite conclusively, that when a man is going to or coming from work, along a public road, as a passenger in a vehicle provided by his employer, he is not then in the course of his employment – unless he is obliged by the terms of his employment to travel in that vehicle. It is not enough that he should have the right to travel in the vehicle, or be permitted to travel in it. He must have an obligation to travel in it. Else he is not in the course of his employment. That distinction must be maintained: for otherwise there would be no certainty in this branch of the law". (emphasis added)

Lord Lowry in Smith v Stages, (1989) 1 AER 833 at 847 agreeing with Lord Denning MR's observations on the meaning of the expression "in the course of his employment" in the above case stated:

"Both the plaintiff and Fender (who was driving) were undertaking their customary journey from their homes to their regular place of work. The employers provided a car and a travelling allowance, no doubt as an inducement to the men to accept their employment, but the men were not paid for the time during which they were travelling to work; they were not on duty and not in the course of their employment".

The Director, Operations of Tebara Transport Limited, in his testimony, stated that Ravindra Kishore was travelling as a non-paying passenger in a bus belonging to Tebara Transport Limited, on the basis of an authorisation by Tebara Transport Limited. He had not reached his place of work, when the accident occurred.

In my judgment, it is evident that Ravindra Kishore was not obliged by the terms of his employment to travel in that vehicle. Accordingly, he was not in the course of his employment and the Workman's Compensation Policy is inapplicable.

The Compulsory Third Party Motor Vehicle Policy provides under the title " IN RESPECT TO SECTION2 –LEGAL LIABILITY" that Dominion Insurance Limited agrees to indemnify Tebara Transport Limited if:

"You shall become legally liable for accidental physical loss or damage to property of others or for personal injury to passengers (who are not fare paying passengers) arising out of the use of any vehicle insured under Section 1". (emphasis added)

Mr Daniel Singh submitted that Ravindra Kishore was a non fare paying passenger and hence this clause applies to him . He submitted further that the policy provides comprehensive coverage in excess of the limit of liability of $ 4000 imposed under the relevant statute. He stated the coverage under this clause, was specifically increased to $250,000 .

Counsel for Dominion Insurance Limited, Mr Diven Prasad in his written argument, advanced three arguments. Firstly, he submitted that since Ravindra Kishore was travelling free, he was not covered. He appears to rely on an ingenious interpretation given to the above clause by Vikash Kumar, who testified on behalf of Dominion Insurance Limited . For my part, I reject that argument.

His second argument was based on section 6 (1) of the Motor Vehicles Act(cap177), which provides for the compulsory insurance of third parties against injury by motor vehicles in these terms:

" In order to comply with the provisions of this Act, a policy of insurance must be a policy which-

(ii) save in the case of a passenger carried for hire or reward in a passenger vehicle or where persons are carried by reason of or in pursuance of a contract of employment, liability in respect of the death of or bodily injury to persons being carried in or upon or entering or getting on to or alighting from the motor vehicle at the time of the occurrence of the event out of which the claims arise; or

(b) such policy shall not be required to cover liability in excess of $4,000 for any claim made by or in respect of any passenger in the motor vehicle to which the policy relates or in excess of $40,000 for all claims made by or in respect of such passengers. The amount herein specified shall be inclusive of all costs incidental to any such claim or claims,

The provision requires that persons specified in the policy have to be insured against any liability which may be incurred by him or them, in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle. Proviso (a) enacts that such compulsory insurance was not required in respect of persons falling under (i) to (iv) except "in the case of a passenger carried for hire or reward in a passenger vehicle or where persons are carried by reason of or in pursuance of a contract of employment".

It was thus submitted quite correctly that in terms of the above proviso, compulsory insurance of a passenger carried for hire or reward in a passenger vehicle or carried by reason of or in pursuance of a contract of employment, was necessary.

Thirdly, Mr Diven Prasad asserted that section 2,22 (b) of the policy excludes "injury sustained by any employee of yours" (emphasis added).This is inconsistent with his preceding argument.

Mr Diven Prasad, in his written argument, accepts the evidence given by the Director, Operations of Tebara Transport Limited that Ravindra Kishore was travelling in the bus on the basis of an understanding and not as a contractual obligation. He also states that Ravindra Kishore was not in his position as a tyre repairman when he sustained the injuries, and the bus in which he travelled was a public service and not for its employees. Accordingly, his reliance on section 2,22 (b) of the policy is inconsistent.

I agree with Mr Daniel Singh's riposte that the "employee" exclusion in section 2, paragraph 22 (b) of the policy is not applicable, as Ravindra Kishore had not reached his place of work. He was travelling with the general public. In my judgment, Ravindra Kishore was "not in the course of his employment" and not obliged by the terms of his employment to travel in that vehicle" to re- echo the words of Lord Denning in Vandyke v Fender and another (Sun Insurance Office Ltd, Third Party)(supra) .

More importantly, in my view, the exclusion in section 2, 22 (b) of the policy is contrary to the requirement in proviso a) (ii) of section 6(1) of the Motor Vehicles Act, which mandates compulsory insurance " where persons are carried by reason of or in pursuance of a contract of employment".

In my judgment, the Legal Liability clause in the policy under review provides an express stipulation "for personal injury to passengers (who are not fare paying passengers)" . Accordingly, I hold that Dominion Insurance Limited is liable under the Compulsory Third Party Motor Vehicle Policy to indemnify Tebara Transport Limited the increased coverage of $250,000 as stipulated therein, in terms of this judgment entered against Motouila Nemani and Tebara Transport Limited.

I now turn to the injuries sustained. The medical evidence was not challenged. Two medical reports were produced. One dated 13th March, 2003 from Dr Taloga, Orthopaedic Surgeon, CWM hospital, who stated that Ravindra Kishore sustained open comminuted fracture of the left tibia and fibula, closed fracture of the left hip and patella and degloving injury to left popliteal fossa and underwent several operations to stabilise fracture and dislocation of the left hip and skin grafting.

The other report dated 11th July, 2005, from Dr Eddie McCaig, Orthopaedic Surgeon, Suva Private Hospital stated the multiple injuries suffered included the following:

It is reported that Ravindra Kishore was an inpatient at the CWM Hospital for about 3 months and underwent multiple operations for wound debridement, skin grafting, open reduction and internal fixation to the hip joint and acetacular fracture and external fixation to the leg fracture. It is also reported that he walks with a stiff knee gait with the left lower limb shortened and extensively scarred in the calf and popliteal region and over the anterior aspect of the mid leg as depicted in the photographs produced. Finally, it is stated that he has limited rotation and extremes of abduction of the left shoulder causing discomfort, "hip flexion to 45 degree" and the nature of the hip pathology has resulted in "avascular necrosis of the femoral head "

Dr Eddie McCaig has advised that he have a below knee amputation as his "knee is ankylosed i.e the joint is fused as a result of the open injury" and states a "fifty 50 percentage permanent incapacity" is reasonable. It is stated that surgery including a total hip joint replacement may help him, and this was estimated to cost $20,000 at the Suva Private Hospital.

In determining the damages, the plaintiff is entitled to, for pain and suffering, it is necessary to consider general level of comparable awards. The plaintiff, in his closing submissions, has cited the following precedents to support his claim for pain and suffering and loss of amenities.

In Litiana Ciri Domokamica v Saiyad Saheem & Permanent Secretary of Ministry of Mineral Resources, (HBC 492 of 2000S) the plaintiff, a 35 year old typist had suffered a comminuted fracture of the left lower and upper femur with intra-articular extension. She was admitted in hospital for 3 months. Ten months after the accident, she walked with a limp and crutches. A sum of $65,000 was awarded for pain and suffering and loss of amenities of life.

In Rothmans Pall Mall (Fiji) Limited v Edward Narayan, (1997 FJCA 2) the Court of Appeal held that the general damages awarded in a sum of $60,000 was not excessive. In that case, a 25 year old sales representative had suffered a multiple facial injuries, lacerated right hand with severed tendrons and a comminuted fracture of the left femur into which a rod was inserted. General damages in a sum of $60,000 was also awarded to a 28 years old man suffering from multiple fractures with 2 months admission in hospital in The Attorney General of Fiji v Singh, (1999 FJCA 35).His right femur was fractured and he had a longitudinal scar of 34 x 0.4 from buttocks to knee.

In Chand v Padarath Bros & Sons Ltd,( 2005) FJHC 542, a 33 years old taxi driver and farmer had suffered open comminuted fracture of distal right femur extending to knee joint, comminuted fracture proximal "tibia" and fibula (right) and open fracture of shaft of mid "tibia" as a result of motor vehicle accident. His right lower limb was shortened by 6cm and the range of motion of the right knee was limited. His incapacity was assessed as 25% disability for his injuries and he was awarded $65,000 as general damages.

These awards can be used as a guide, but the facts of each case have to be considered. Ravindra Kishore has undergone pain and suffering as a consequence of the multiple injuries he suffered, as outlined above. His pain and suffering was not disputed. The injuries have resulted in a 50 % degree of physical impairment. The figure put before me was $ 80,000.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 $ 65,000.00 (sixty five thousand dollars).

Ravindra Kishore is entitled to the reimbursement of hospital charges amounting to $ 737.50, as evidenced by the receipts produced at the hearing.

He also claims travel expenses, in respect of 10 visits made to CWM hospital for review costing him $ 15, one way, which has not been disputed. Despite the absence of any documentary evidence of expenditure to support this claim, and given that receipts are not issued by taxi drivers, I hold he is entitled to expenses reasonably incurred in respect of fares to the hospital, which I pare down to 6.

The absence of receipts has been addressed by the Courts in Fiji. 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 expenses claimed for hire of crutches and medication purchased, since receipts have not been produced in support. The expenses claimed for visits to the hospital by Ravindra Kishore's wife, brother and visits to his solicitor are also disallowed.

The closing submissions filed on behalf of Ravindra Kishore claims future gratuitous care. No evidence was led in this regard. I therefore, disallow this claim .

Ravindra Kishore was in employment with Tebara Transport Limited for 15 years and hence it was most likely that he would have continue to be in employment.

A sum of $44,019.40 for loss of earnings from the date of the accident up to the date of filing the schedule of special damages on 28 February, 2011,is claimed. I find in that figure, a discrepancy in the calculation of interest on the FNPF contribution, which I assess as follows:

Loss of wages at a rate of $85.28 per week for 445 weeks (03/08/2002 – 28/02/2011)	$ 37949.60
Loss of FNPF contribution at a rate of $6.82 per week for 445 weeks	$ 3034.90
Loss of interest at a rate of 8% on FNPF contribution for 445 weeks	$ 2077.73
	$ 43062.23

The Wages Record Sheet in the Agreed Bundle of Documents depicts his FNPF contribution and salary. In Samuel Fong v John Beater Enterprises Pty Ltd,(HBC No.0482 of 2003), interest on FNPF contribution was assessed at 8%.

I hold Ravindra Kishore is entitled to loss of earnings in the sum of $ 43062.23.He is entitled to interest on this amount, as well as on the monies he expended on hospital charges in a sum of $ 737.50 and travelling costs of $ 180.

The medical report dated 11th July, 2005, from Dr Eddie McCaig has estimated the cost of surgery for hip joint replacement at $20,000 at the Suva Private Hospital. A sum of $30,000 has been claimed under this head. In my view, a sum of $ 25000 would take into account increased costs of the required surgery.

The plaintiff has claimed interest pursuant to Section 3 of the Law Reform (Miscellaneous) (Interest) Act, (cap 27).

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 $ 65,000.00 from 20th January,2005, the date of writ to date of hearing, 20th October, 2011 and 3 % per annum on special damages on the sum of $.172458.35 from the date of accident, 3rd August, 2002 to date of hearing.

The total sum awarded to the plaintiff as damages is $ 172458.35 made up as follows:

a.	*General damages*	*65,000.00*
b.	*Interest on General damages*	*26325.00*
c.	*Special damages*	*43979.73*
d.	*Interest on special damages*	*12153.62*
f.	*Future surgery*	*25,000.00*
	*Total*	*$ 172458.35*

There will therefore, be judgment for Ravindra Kishore against Motouila Nemani and Tebara Transport Limited in the sum of $ 172458.35 together with a sum of $3000 payable as costs summarily assessed. Tebara Transport Limited is entitled to be indemnified by Dominion Insurance Limited under the terms of the Motor Vehicle Compulsory Third Party Policy Certificate the total amount of damages and costs awarded to Ravindra Kishore.

High Court of Fiji

Kishore v Nemani [2012] FJHC 1257; Civil Action 22.2005 (1 June 2012)