|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
Civil Action No. 3 of 2012
BETWEEN:
ASISH MUDALIAR
Plaintiff
AND:
RAJESH RAMA
1st Defendant
AND:
BULILEKA TRANSPORT LTD
2nd Defendant
Appearance: Mr. Amrit Sen Counsel for the Plaintiff
Mr. A. Kohli Counsel for the Defendants
Date of Judgment: 4/4/2014
JUDGMENT
1. The Plaintiff had instituted this action presently 36 years of age claimed damages for personal injuries which he suffered caused to him by a motor vehicle No. CR 460 (hereinafter referred to as bus) at Market Bus stand. The Plaintiff was a pedestrian and walking in between two buses to cross the road the bus number CR 460 moved forward and the Plaintiff was crushed in between the two buses on 06th August 2011. There were two other pedestrians were injured due to the accident and the Plaintiff suffered serious injuries and the Plaintiff alleged that the said injuries caused to him due to the negligence of the 1st Defendant and the 1st Defendant was driving the said bus as the servant and/or agent of the second defendant who was the registered owner of the bus no. CR 460.
2. The Defendant in his defence admitted that the 1st Defendant was driving the bus no. CR 460 on 6th of August 2011 as servant and/or Agent of the 2nd Defendant.
3. The Defendants agreed at the Pre Trial conference inter alia:
(a) On 6th of August 2011 1st Defendant was in change of bus registration no. CR 460 that was parked at Labasa Market Bus Stand.
(b) On 6th August 2011 the Plaintiff was struck by the Bus Registration no. CR 460 and crushed against another bus which was parked in front.
(c) The Plaintiff sustained injuries being right communitted closed midshaft femour fracture.
4. At the Trial held on 2nd April 2014 on behalf of the Plaintiff following witnesses gave evidence.
The Defence opted not to call any witnesses.
Evidence
5. There was no dispute that the Bus registration No. CR 460 hit the Plaintiff on 6th August 2011 and caused him injuries. The 1st
Defendant was the driver of the said bus as the servant and/or agent of the 2nd Defendant who owned the bus No. CR 460.
6. The Plaintiff stated in his evidence, interalia
6.1 That the Plaintiff is 36 years of age (Birth Certificate marked P1) married and living with his family in Wailevu, Labasa. Prior to the date of the accident he was employed as a welder at Waiqili Sawmills Ltd for 8 years. He was paid a weekly wages $144.00 and contributed for FNPF 8% and the employer further 8%. Pay slip for the month of July 2011was tendered marked as P2.
6.2 The witness explained how the accident was occurred and his evidence was unchallenged. The Defence Counsel suggested that there was a alternative foot path and he would have not exposed to risk if he used the foot path without going in between the buses. The witness replied that he is not aware of the foot path and all the pedestrians were crossing the road the way he did by going in between the two buses parked. I personally observed the movement of the people at the Labasa Market bus stand to verify the statement of the witness. My finding was that almost all the people who comes from the market are crossing the road through the space between the buses approximately 4 to 5 feet. It is the common practice. It can easily observe that the buses are stationery in rows where engines are running. The Defendant's Counsel's position was that the Plaintiff had taken a risk by going through the space in between the buses without using the alternative foot path and for any injuries or damages suffered by the Plaintiff were contributed to or caused by the Plaintiff in negligence. This position cannot be accepted since the driver who was in bus No. CR 460 was well aware people were crossing in between the space between stationary buses. The 1st Defendant had failed to exercise his duty of care. As such I conclude there was no contributory negligence by the plaintiff, the accident occurred due to non exercise of duty of care by the 1st Defendant.
As cited by the Counsel for the Plaintiff Lord Dennig's statement in Jones V. Livox Quarries Ltd [1952] EWCA Civ 2; (1952) 2 QB 608.
"Although contributory negligence does not depend on a duty of care, it does depend on forseeability. Just as actionable requires the forseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have forseen that."
In this case there is no evidence to establish contributory negligence on the part of the Plaintiff. Walking between the buses to cross the road was the normal practice of the public in the bus stand. There was no warning given by the first Defendant by hooting the horn or by other means which proves the breach of duty of care, by the 1st Defendant. As such there was no foreseeable of harm by the Plaintiff in this case and there is no contributory negligence by the Plaintiff over the accident occurred. The 1st Defendant too failed to give evidence that he has exercised duty of care and I believe the evidence of the Plaintiff which was corroborated by witness Ram Chan.
6.3 The Plaintiff stated in his evidence that when he walk through in the space between the two buses CR 460 moved and he was in the middle and he tried to get into the bumper of the front bus to avoid any injury which he could not do so since he was able to raise one leg to the bumper and the right leg got hit by the bus no. CR 460. He screamed and he heard sound from his leg and it was paining and that was a severe pain he suffered in life. He was taken to Labasa Hospital and was treated and he was conscious. After taking the x-ray he was informed that upper bone of the right leg was crushed and broken it to two pieces. Thereafter for one week he was in the emergency ward for alignment of his fractured bone through weight. During this period he suffered severe pain and could not move and he was assisted by his wife during the day time and his brother in the night. His leg was operated after one week and the back of his right thigh was cut length of one feet. The operation was done under general anesthesia. Steel rod was placed inside to get the bone healed. He was discharged from the hospital on 21st or 22nd of October 2011 the witness said.
6.4 After discharge of the hospital he was at his residence suffering pain and on 27th November 2011 he was readmitted to the hospital and another operation was performed to remove the rod and he was discharged on the next day. Time to time he had to go for clinics and he was suffering severe pain.
6.5 Witness stated he was working as a welder for 8 years prior to the accident and since 6th August 2011 he couldn't get any employment due to the disability. As a welder he was doing welding jobs for bulldozers, diggers and other heavy equipments. Now for his living he had to depend on his wife's income. She is working at Farm Fresh. To date he had to use crutches to move and he cannot attend to any work because of his disability.
6.6 The Plaintiff tendered receipts for 22 trips for the visits made to the hospital. Each trip costed $16.00. Bundle of Receipts tendered marked as P3.
6.7 He stated after work he used to do gardening in his compound and earned approximately $50.00 per month by selling the crops. Now he cannot do it and income was lost. He paid for the medical report receipt was marked as P4. Medical report was tendered marked as P5. No compensation was paid to him and he prayed the reliefs in the statement of claim.
6.8 During the cross examination he stated that the receipts were issued for travelling same day or later after one week. He repeatedly told he was suffering pain and it was severe some times and he cannot work with his disability.
7. Before considering the medical evidence I will now consider the evidence of Ram Chan who was an eye witness. He stated he was walking with his wife to cross the road. His wife was infront and he was behind. In front of his wife was the Plaintiff. When he was trying to cross he saw the driver of CR 460 counting coins in a can and engine was running. Both buses were stationery and when his wife started moving the plaintiff was in the middle of the space between the buses and bus no. CR 460 suddenly moved front and hit people who were crossing including the Plaintiff and his wife. His wife too was injured and treated at Labasa Hospital. The witness too confirmed that the way to cross the road was only the space between the buses. Several buses stationery and the people use the space between the buses approximately 3 to 4 feet wide to cross the road.
Under cross examination the Defence counsel suggested that there was a alternative foot path. In answering witness stated all the people went through the space between the buses. His evidence corroborate the evidence given by the Plaintiff. He further stated he had not seen any incident where anyone getting crushed using the space between the buses.
Accordingly I conclude the Plaintiff had proved on balance of probabilities the following.
(a) The injuries were suffered on 6/8/2011 was due to the negligence of the 1st Defendant and the 2nd Defendant is vicariously liable for the injuries being the registered owner of bus No. CR 460 which was driven by the 1st Defendant who was Agent and/or servant of the 2nd Defendant.
(b) The Plaintiff is not liable for contributory negligence.
8. Now I turn to the evidence of Dr. Maloni Bulanauca who is the General Surgeon at Labasa Hospital. He gave his evidence referring to medical folder of the Plaintiff kept by the hospital. It was stated by the witness record commence from 6th August 2011. He stated the Plaintiff's right communitted midshaft termour fracture on the bone was broken to more than one piece. If pain scale is 0 – 5 the pain suffered by the Plaintiff would have been 4 to 5. At the operation cut was done from skin to the middle of the bone to place the rod around 18 inches. The rod was two and half times of diameter of a ball point pen. Rod was removed after 2 months. The witness too stated this 73% of the patients suffer pain due to certain reasons and stated it could be:
(a) Due to pressure applied to put the rod inside.
(b) The insertion of muscles will weaken the muscles and lose it's strength.
(c) Weight bearing problem of the knee.
The Defendants counsel stated that the plaintiff could be belonging to the 27% who does not suffer the pain. This position cannot be accepted without any evidence or medical examination of the patient and believe the evidence given by the Plaintiff with regard to his pain.
Medical report marked as P5 dated 19/6/2013 issued by Dr. Madhukar Prasad was tendered through the witness which states:
(a) The Plaintiff sustained a right communitled closed midshaft femur fracture which was admitted by the Defendant in their statement of Defence.
(b) Treatment included the following.
The said report also states currently the plaintiff is followed up in clinics.
However there was no assessment with regard to permanent disability of the plaintiff.
Giving evidence referring to the Medical folder of the Plaintiff the witness stated when the Plaintiff was admitted to the Hospital he was in pain and pathedene was given. In a scale of 0 – 5 the pain will come down to 3 – 3 ½ range. Apart from pathedene when he was taken to the theatre morfin was prescribed. The operation had taken 1 hour and 5 minutes. At the time of his discharge blufunt was prescribed. After removal of the rod he had come for the clinic on 7/9/2011 and no complains was recorded in the folder. The Dr. stated on the following dates plaintiff visited the hospital for clinics.
noted.
general anesthesia.
No clinics were attended in 2013.
The witness stated he had us examined the plaintiff and he cannot give an assessment for the disability. In general it would be in the range of 22% to 25%.
9. In the cross examination the witness stated to give an assessment of disability he has to examine the patient and physical examination to be done. In the folder every time it is not noted the medicine is given. Prescription for medicine would have given to the collect the medicine from the pharmacy. There could be a possibility of continuing pain and pain killer won't prevent the whole pain. He cannot answer how long the plaintiff has to use the crutches, it may be for life time witness stated.
10. Considering the medical evidence placed before me, I conclude:
1. There is no evidence to assess the permanent disability.
2. The Plaintiff suffered and suffering pain and will suffer pain in future.
3. The plaintiff cannot engage in employment and he cannot earn for his living. He had lost amenities of his life and his normal life is affected causing him pain of mind.
4. The injury suffered by the plaintiff was severe.
11. Considering all the evidence lead before me the plaintiff a young person with a family facing a life time of deprivation his normal expectations loss of employment, walking, sporting activities and all those persuits which are so important to the persons of his age. He was left with visible physical deformity different from a person of his age who enjoys the life which cause him psychological pain.
12. I have considered the submissions made by the counsel for the parties. In my view this case calls for a substantiated sum by way of damages for pain and suffering past, present and future and loss of amenities. The Defendant's counsel submitted there was contributory negligence. However he could not substantiate the contributory negligence which I have dealt in paragraphs 6 and 7 of this Judgment. The Defendants fail. The Defendant's counsel further submitted there was no evidence with regard to assessment of permanent disability and I agree with the submissions. However it's not a bar to award damages since it is considered only as a guide line for the quantum.
13. In assessing damages what damages should be awarded I bear in mind to provide plaintiff with a fair compensation to accord with his needs. I cite Planet Fisheries Proprietory Limited v La Rosa & another [1968] HCA 62; (1968) 119 CLR 118 at page 125.
"The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the damages must be fair and reasonable compensation for injuries received and disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions; even if sum similarity between their situation may be supposed to be seen"
14. The plaintiff's counsel caused had cited several case authorities with regard to damages and I have considered those cases for my award.
15. The Plaintiff was 34 years at the time of the accident and was employed and earning $144.00 per week. He had suffered loss of earnings up to the date of the judgment and he was unemployed for 32 months. I don't consider his additional income $50.00 per month from gardening for this award.
Accordingly under loss of earnings until date of the judgment I award:
$144.00 (per week) x 52 = $624.00 (per month) x 32 months = $19968.00
12
Loss of FNPF Contribution by the employer
8% (19968 x 8) = $1597.44
100
16. The future earnings can be calculated on the basis of income he received at the time of the accident. At the time he met with the accident he was receiving income of $624.00 per month. Without taking into consideration of the increase of the wages during the period even at $624.00 a month yearly he would have earned $7488.00 + FNPF per year. The plaintiff would have employed for approximately 21 years from the date of accident and 18 years from the date of this Judgment without taking into consideration inflation and interest on FNPF he would have earned more than $150,000.00 from future earnings. As such on the claim for future earnings I award $30000.00 as claimed considering that he may be able to engage in a light job in future.
17. Special damages with regard to travelling expenses $1052.00 was claimed. I restrict this claim considering the days visited for the clinics and the evidence given by Dr. Maloni that the Plaintiff being attended 9 clinics. I award nine trips $16.00 x 9 = $144.00. I also award $57.50 payment for the medical report. (Marked P4)
18. The Plaintiff had claimed $80000.00 for the pain and suffering. Considering the factors stated in paragraphs 10 and 11 I award general damages $60,000.00 for pain and sufferings of the Plaintiff.
19. Accordingly I made total award of pain:
1. Pain and suffering - $60,000.00.
2. Interest at 6% from the date of the accident up to the date of Judgment
(25 months) $60,000.00 x 6 = 300 x 25 = $7500.00
100 x 12
3. Loss of earnings until the date of Judgment - $19968.00
4. Loss of FNPF from the employer - $1597.44
5. Special damages (travelling and medical report) - $201.50
6. Loss of future earnings - $30,000.00
7. Pain and sufferings and loss of amenities - $60,000.00
$119,266.94
20. The Plaintiff claimed interest on the award of general damages which was awarded at 6% per annum. I cite the statement of Hutley J. A. in Cane Bernett v Jones (1977) N. S. W. L. R. 355:
"I am by no means convinced that the conduct of the parties should ordinarily affect the award of interest. If the fault is that of the defendant, the plaintiff is adequately compensated by the award of interest of that part of the award which is not apportioned to pain and sufferings, and gains the benefit of inflation in the assessment of damages for pain and suffering. If inflation is brought under control, the same considerations will apply, as the interest in the whole award of damages will then fall to the traditional rate which was the rate appropriate to the cost of retention of money alone. If the plaintiff is at fault, as in this case, and the defendant is an insurance company equipped to use funds in the various money markets, it gains from the plaintiff's delay. If the plaintiff does not comply with the rules, it can move to force the expedition of the proceedings or to have them struck out for want of prosecution. If an insurer, with its resources and professional knowledge, neglects to take steps to force the plain tiff to the barrier, I do not see why the court should not assume that it was considered by it to be the course most advantageous to itself."
As stated in the said case if the monies were paid at earlier time the Plaintiff would earned interest. In the circumstances I have awarded 6% percent per annum as interest on the sum of $60,000.00 amounting to $7500.00.
Accordingly I made the following order:
C. Kotigalage
JUDGE
04th April 2014
At Labasa
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2014/231.html
