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Prasad v Kumar [2013] FJHC 572; HBC288.2006 (24 October 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL NO. HBC 288 of 2006

BETWEEN:

Uday Prasad
PLAINTIFF

AND:

Satish Kumar
FIRST DEFENDANT

AND:

Jaswant Lal
SECOND DEFENDANT

COUNSEL : Mr Prasad D for the Plaintiff
Mr. Samad for the First Defendant
Mr. R.P Singh for the Second Defendant

Date of Judgment: 24 October 2013

JUDGMENT

Introduction

1. This is an action for damages by the Plaintiff for injures caused to him in motor traffic accident.
   
2. The First Defendant was at all material times the driver of motor vehicle DP 872. At the time of the accident the First Defendant was employed by the Second Defendant and the Second Defendant is the registered owner of the motor vehicle registration no: DP 872. The Second Defendant is made a party to the action based on vicarious liability.
   

Background

3. On 1 July 2004 the First Defendant was assigned to deliver certain items to Suva and he drove the Second Defendant's said motor vehicle whereby the Plaintiff was also assigned to travel as a delivery boy. The incident in issue occurred whilst on its way.
   
4. The Plaintiff alleges that the First Defendant was driving the said vehicle in an excessive speed, lost control at the bend and went on the wrong side of the road and into a ditch. Hence the Plaintiff alleges that the accident occurred due to the negligence of the First Defendant. The subject motor vehicle DP 872 was owned by the Second Defendant.
   
5. The First Defendant denies liability on the basis of the strict proof of the same and the Second Defendant denies liability on the basis at the time the incident occurred the vehicle was in the possession of the First Defendant and the First Defendant was never instructed or authorized to travel to Suva as such that the First Defendant did not have the authority from the Second Defendant to take the Plaintiff in the vehicle.
   

The Agreed Facts (In relation to the issue of liability)

6. The parties have agreed that:
   
   1. First Defendant was the driver of motor vehicles DP 872 at the time of the accident.
   2. First Defendant was employed by the Second Defendant for one month only.
   3. The Second Defendant is the registered owner of the motor vehicle.
   4. On the day while on its way to Suva the vehicle registration DP 872 in which the Plaintiff was a passenger was involved in an accident.
      

The Issues (To be determined in relation to liability)

7. a] Was the Plaintiff working as a delivery boy for the Second Defendant at the time the incident occurred?
   

b] Was the Plaintiff injured during and in the course of his employment, if yes, was there an implied term in the said contract of employment between the Plaintiff and the Second Defendant's company to provide, take all reasonable precautions for the safety of the Plaintiff while the Plaintiff was engaged upon his work?

c] Whether the First Defendant was driving the vehicle under the instruction of the Second Defendant during his course of employment?

d] Whether the First Defendant was authorized by the Second Defendant to carry the Plaintiff in the vehicle at the time of the accident?

e] Can the Second Defendant be held vicariously liable for the First Defendant's actions?

8. The issues for determination require the court to make a finding on liability, and, if necessary on quantum of damages, which I would deal with in later in my judgment.

The Evidence on Liability

9. The question of liability, naturally, must be determined first. To make an analysis on the issue of liability, I will initially concentrate on the party's evidence pertaining to liability.
   
10. If liability is established to any extent, I will then revert to the issues on the quantum of damages, and will summarize the relevant evidence on the quantum of damages then.
    
11. The first witness for the Plaintiff to testify on liability was the Plaintiff himself. Through his examination in chief the Plaintiff stated that the First Defendant, on First July 2004, was told by his boss the Second Defendant, to bring a labourer to help the First Defendant to load some machinery parts and household items onto a single cab van owned by the Second Defendant to transport these items from Rakiraki to Suva after which the Second Defendant was to pay the Plaintiff $20.00.
    
12. The Plaintiff further testified that he and the First Defendant left Rakiraki for Suva via the Kings Road between 4:30pm and 5:30pm and stopped at Korovou Town to buy juice.
    
13. The Plaintiff also gave evidence stating that the Plaintiff and First Defendant met the Second Defendant at Korovou Town and the Second Defendant had told the First Defendant that he (Second Defendant)would take the lead and they (First Defendant and the Plaintiff) were to follow. After following for a while, the Plaintiff's vehicle overtook the vehicle in which the Second Defendant was travelling. The Plaintiff states that the vehicle in which the Second Defendant was travelling had overtaken the vehicle in which the Plaintiff was travelling.
    
14. Plaintiff's further states that at no time during the trip from Rakiraki to Suva did the Second Defendant tell the Plaintiff not to travel in his vehicle or not to touch his items.
    
15. I now turn to the evidence of defendant's case. The First Defendant stated that on 1 July 2004, while working for the Second Defendant he was asked by the Second Defendant, to find a labourer to help him (First Defendant) to load some items belonging to the Second Defendant in order to transport those items from Rakiraki to Suva for which the Second Defendant would pay $20.00 to the labourer.
    
16. The First Defendant also gave evidence before this court that he told the Plaintiff that the Second Defendant, boss of Prime Image, wanted a labourer or to help him (First Defendant) loads the items and delivers them from Rakiraki to Suva and that the Second Defendant would pay the Plaintiff for the work.
    
17. The First Defendant's evidence also established that he had informed the Second Defendant that the Plaintiff would carry out the work with him as per the instruction of the Second Defendant and that the Second Defendant agreed to the same.
    
18. Plaintiff's evidence was corroborated by the First Defendant's evidence on the point that, between Korovou Town and Suva, during the rally between the two vehicles in which the Plaintiff and the First Defendant were travelling with the vehicle in which the Second Defendant was travelling, the Second Defendant saw the Plaintiff sitting in the vehicle.
    
19. Under cross-examination, the First Defendant testified that he lost control of the vehicle and went to his right side of the road and applied brakes the vehicle then lost balance, went on the side of the road over a drain and tumbled. He admits that he lost control of his vehicle at the bend before the vehicle lost its balance.
    
20. The First Defendant was also cross examined on Plaintiff's exhibit No. 4 the sketch plan. He testified that when he approached the bend he went to his far right, that is, his wrong side of the road and therefore lost control the vehicle.
    
21. The First Defendant's evidence clearly corroborates the version of events that resulted in the accident and the injuries to the Plaintiff.
    
22. I am clear in my mind from the evidence before the court, that, it was the Second Defendant, who the First Defendant states as authorizing the hiring of the Plaintiff for work that day.
    
23. The First Defendant admits losing control of the vehicle on the bend as the vehicle veered onto far right hand side of the road before tumbling. In my mind the Plaintiff has established that the First Defendant was clearly driving at a speed excessive for a bend at 60 kilometers per hour whilst the vehicle was loaded. The First Defendant has not established any defence to this allegation before court.
    

The Law and the Analysis - on the Issue of Liability

24. The matter before me to be determined is as to whether employers of drivers vicariously liable to trespasses injured by the negligence of their employee drivers.
    
25. The Supreme Court in Shell Fiji Limited v Sushil Chand CBV 0003/2011 in its delivered judgment on 4 May 2012, their Lordships said:
    

" The tanker deceased driver asked the Plaintiff to accompany him to Savusavu and he would pay $10.00 for the trip. Shell Fiji Limited argued that the driver had no authority to take anyone in his truck to Savusavu and was acting outside the scope of work therefore not vicariously liable.

High Court Judge found that Sushil Chand was in the truck after invitation from the driver to assist him even though taking passengers in the vehicle was prohibited by the driver's employer. The Court of Appeal considered this position and upheld the findings of the High Court."

26. The Court in the said judgment considered Sri Lankan case for Sarath Kumara Perera v Winifred Keerthiwansa & Others (1993) LKSC 48, where the Supreme Court held that the employer is liable in a situation where the driver of a vehicle had taken passengers in his vehicle in spite of prohibition from taking passengers. The Supreme Court held that the employer is liable on the basis that the employer was at fault in engaging employees who carry out their duties carelessly.
    

"The problem is that drivers with tasks to perform over short distances like to take their friends for a ride and some distance. On long journeys they want minor assistance and some company. So particularly if there is under employment, the instruction and notices are regularly flouted by the drivers. The employers must be aware of this but will only dismiss the drivers when it is done before their eyes and represents a blatant challenge to their authority."

27. The Supreme Court in Shell Fiji Limited said:
    

"The law relating to vicarious liability has developed over the years and has advanced to the stage of imposing a very heavy burden on employers when engaging employees as they have to act prudently in selecting employees to carry out the task for the employer. If the task to be carried out by the employees with or without prohibitions amounts to situations where the employer would be held liable for the wrongs his employees. In the above circumstances this court is of the opinion that the Petitioner is vicariously liable for the negligent driving of its driver and affirms the findings of the Court of Appeal."

28. Upon consideration of the guidelines set out by Supreme Court of Fiji, I now revert to the evidence before me in the application of the Law.
    
29. Having considered the evidence before me, I am of the view that the driver of the vehicle, the First Defendant, whilst approaching a bend on the trip between Korovou Town and Suva, lost control of the vehicle being a van, and the vehicle veered onto the opposite side of the road, tumbled and landed on its side.
    
30. Therefore, I am clearly of the view, based upon the evidence before me, that the First Defendant, by his own admission, was negligent.
    
31. The Second Defendant in his Statement of Defence denied that the Plaintiff was his employee, and that he never authorized the Plaintiff to travel in his vehicle to Suva.
    
32. The Second Defendant did not adduce any evidence, hence there is no evidence to support the defence. I therefore dismiss this defence.
    
33. Even if I were to decide that the plaintiff was not an employee; despite clear evidence before me of the Second Defendant clearly witnessing the presence of the Plaintiff in the Second Defendant's vehicle driven by the First Defendant, I am bound by the decided cases in Fiji as held in the Supreme Court decision in Shell Fiji Limited, as it still finds in favour of the Plaintiff in that he was invited to travel to Suva by the First Defendant and again Second Defendant would be vicariously liable.
    
34. In the circumstances, I conclude that the accident occurred due to the sole negligence of the First Defendant. I hold the Second Defendant vicariously liable.
    
35. Accordingly, on the issues of liability to be determined by me, given that I have already concluded that the accident occurred due to the negligence of the First Defendant, and the Second Defendant been vicariously liable for the reasons as set out above, I dismiss these defences without any further considerations in favour of the Plaintiff.
    
36. Having determined on the questions of liability I now address the issues on questions of damages as claimed by the Plaintiff.
    

The Issues (To be determined in relation to quantum of damage)

37. a. Has the Plaintiff suffers loss and damages, pain and suffering and loss of amenities of life?
    
    2. Does the Plaintiff suffered for any permanent disability and result of the accident?
       
    100. Is the Plaintiff entitled to damage and if so, its quantum?
         
38. The Plaintiff in the prayer of the Writ of Summons claims for damages under the following heads:
    
    1. Special Damages.
    2. General Damages.
    100. Interest from the date of the cause of the action.
    4. Port judgment interest.
    5. Costs, and
    6. Such other relief as the Court deems just and equitable in the circumstances.
       

Analysis of the Evidence on Quantum of Damages

39. I take note of the fact that the Plaintiff was 26 years of age at the time of the accident and sustained Grade IIIB open fracture distal 1/3 left radius and ulna and laceration ulna border of PIP joint of left index finger.
    
40. It is also noted as agreed facts between the parties with regards to the Plaintiff's various visits and admissions to CWM hospital including the surgeries of the 7 July 2004 for external fixator to stabile his facture, surgery of 23 July 2004 undergoing skin grafting, admissions at CWM Hospital 2 July 2004 until 30 July 2004 and the re-admission on 13 August 2004 until 15 August 2004 for readjustment of external fixator and after re-displacement of radius fracture. It is also an admitted fact on the Plaintiffs admission at CWM Hospital on 5 July 2005 until 8 July 2005.
    
41. The Plaintiff led the evidence of Dr. Taloga who testified corroborating the treatment report of Dr. Sitiveni Traill the orthopedic registrar of CWM Hospital who has awarded the Plaintiff the a 26% (WPI) whole person impairment in accordance with the 5th Edition of the American Guide to the Evaluation of Permanent Impairment.
    
42. Dr Taloga's testified a 26% percent level of impairment in his opinion as a 'significant' impairment.
    
43. The Plaintiff testified that he is not able to lift every items such as change the tyre of a tractor which he previously used to do, as well as experiencing pain in his left arm and permanent numbness in his left index finger. Plaintiff also established in his evidence that has to buy painkillers, Panadol and Brufen to cope with pain.
    
44. The Plaintiff's pain and suffering was not disputed. I accept that he has gone through excruciating pain with a permanent disability of 26%. I also accept that the Plaintiff has considerate restrains in relation to what he is capable of doing with his current level of pain.
    
45. Assessment of non-pecuniary losses is something the courts constantly have found to be difficult with no uniform formula. In The Mediana (1900) AC 113 at 116 and 117, the House of Lords observed as follows"
    

'[One] very often cannot even lay down any principle upon which [one] can give damages; nevertheless it is remitted to the jury, or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person had undergone by reason of an accident. In truth, I think it would be very arguable to say that a person would be entitled to no damages for such things. What manly mind cares about pain and suffering that is past? But nevertheless the law recognizes that as a topic upon which damages may be given.

46. Lord Denning MR, in Lim Poh Choo v. Camden And Insllington Area Health Authority [1979] 1Q.B.196 at 215, observed that:
    

".. Scarcely any sum could compensate a laboring man for the loss of a limb, yet you don't in such a case give him enough to maintain him for life .... You are not to consider the value of his existence as if you were bargaining with an annuity office ... I therefore advise you to take a reasonable view of the case and give what you consider a fair compensation:: see Armsworth v South Eastern Railway Co [1847) 11 Jurist 758, quoted in Rowley v London and North Western Railway Co (1847) 11 Jurist 758, 760, quoted in Rowley v London and North Western Railway Co. (1873) L.R.8 Ex 221, 230.

47. Special damages are those given in compensation of expenses that are suffered by a claimant in monetary terms. In British Transport Commission v Gourley [1955] UKHL 4; [1956] AC 185, Lord Goddard stated:
    

"Special damages have to be specially pleaded and proved. This consists of out of pocket expenses and loss of earning incurred down to the date of trial, and is generally capable of substantially exact calculation."

48. Brirkett L J, dealing with the issue of loss of amenities in Manley v Rugby Portland Cement Co. Ltd. [1951]C.A. No. 286, (reproduced at Kemp and Kemp, The Quantum of Damages, Vol. 1. 2nd Ed. 1961 p. 624 at p.626) help as follows:
    

"...There is a head of damages which is sometimes called the loss of amenities, the blind man made blind by the accident will no longer be able to see the familiar things he has seen all his life; the man who has bad both legs removed and will never again go upon his walking excursions – things of that kind – loss of amenities."

49. It is noted that the Plaintiff is left handed as such the injury is caused to his dominant hand. Taking in to consideration of the facts of this case, and upon consideration of the above principles, and the comparable awards relied on by Mr Prasad on behalf of the Plaintiff in cases, Osea Vakalalabure v Waisea Nakorovou Lutu & Attorney General HBA 2 of 1995, Subhash Candra v Domalco Limited HBC No. 3 of 1998L, Tomasi Vusovuso v Government Printer & Attorney General Civil Action HBC 44 of 2006 Shell Fiji Limited v Sushil Chand, CBV 0063/2011, I assess the general damages that Uday Prasad is entitled for pain and suffering at $30,000.00.
    

Future Care and Treatment

50. The Plaintiff has not presented and or established any evidence in support of future care and treatment before me. Therefore I deny the Plaintiff's claim for any future care and treatments.
    
51. Obviously the Plaintiff is therefore not entitled any interest for future care and treatment.
    

Special Damages

52. The Plaintiff has pleaded and testified to a claim for special damages as set out in the schedule of special damages of 24 April 2012, for a claim for $18,928.50.

Schedule of Special Damages as claimed by the Plaintiff.

Medical Report $ 5.00

Medical and Transport expenses $1,000.00

Police Report $ 22.50

Medicine $ 500.00

Loss of earnings at $100.00 net per week

From 1/7/04 to 31/12/04 (28 weeks) $2,800.00

Loss of earnings at $100.00 net per week

From 1/1/05 to 31/12/05 (52 weeks) $5,200.00

Loss of FNPF contribution of $16 per week

From 1/1/05 to 31/12/05 (52 weeks) $ 832.00

Loss of interest at 8% per annum of FNPF

Contributions ($832.00 x 8%) $ 67.00

Loss of earnings a $50.00 net per week

From 1/1/06 to 31/12/06 (52 weeks) $2,600.00

Loss of FNPF contributions of $8 per week

From 1/1/06 to 31/12/06 (52 weeks) $ 416.00

Loss of interest at 8% per annum of FNPF

Contributions ($416.00 x 8%) $ 33.00

Loss of earnings at $50.00 net per week

From 1/1/07 to 31/12/07 (52 weeks) $2,600.00

Loss of FNPF contributions of $8 per week

From 1/1/07 to 31/12/07 (52 weeks) $ 416.00

Loss of interest at 8% per annum of FNPF

Contributions ($416.00 x 8%) $ 33.00

Loss of earnings at $50.00 net per week

From 1/1/08 to 6/10/08 (41 weeks) $ 2,050.00

Loss of FNPF contributions of $8 per week

From 1/1/08 to 6/10/08 (41 weeks) $ 328.00

Loss of interest at 8% per annum of FNPF

Contributions ($328.00 x 8%) $ 26.00

$18,928.50

53. The Plaintiff under cross examination admitted that he is not a member of Fiji National Provident Fund. Hence, I am unable to award any sum for loss of Fiji National Provident Fund contribution to the Plaintiff.
    
54. It is noted that the Plaintiff has not produced any documentary evidence of expenditure to support the claim for medical and transport expenses, medicines and loss of earnings.
    
55. In Narendra Kumar (f/n) Shiu Kumar and Sairusi Drawe 36 FLP 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 amount."

56. In view of the above authority I allow only the following loss of earnings and expenses incurred by the Plaintiff.
    

Medical Report $5.00, Medical and Transport expenses $1,000.00, Police Report $22.50, Medicine $500.00, Loss of earnings at $100.00 net per week from

1/7/04 to 31/12/04 (28 weeks) $2,800.00, Loss of earnings at $100.00 net per week from 1/1/05 to 31/12/05 (52 weeks) $5,200.00, Loss of earnings at $50.00 net per week from 1/1/06 to 31/12/06 (52 weeks) $2,600.00, Loss of earnings at $50.00 net per week from 1/1/07 to 31/12/07 (52 weeks), Loss of earnings at $50.00 net per week from 1/1/08 to 6/10/08 (41 weeks) $2,050.00. Total $14,177.50.

Interest

57. 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.
    
58. 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 and 3% per annum on special damages on the sum of $14177.50 from the date of writ to date.
    
59. The total sum awarded to the Plaintiff as damages is $60,311.11 made up as follows:
    

60. There will therefore be judgment for the Plaintiff against the Second Defendant in the sum of $60,311.11 together with a sum of $2,000.00 payable by Second Defendant to the Plaintiff as costs summarily assessed. I further order interest at the rate of 4% per annum under section 4(1) of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27 of the Laws of Fiji, as amended by the Decree No. 46 of 2011, until the judgment is satisfied.
    

Susantha N. Balapatabendi
JUDGE