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Silatolu v Prasad [2014] FJHC 899; HBC20.2013 (9 December 2014)

IN THE HIGH COURT OF FIJI AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 20 OF 2013

BETWEEN:

VITI MATANGITOGA SILATOLU
Plaintiff

AND:

ROHIT VIMAL PRASAD [DC 2884]
1st Defendant

AND:

FIJI POLICE FORCE
2nd Defendant

AND:

ATTORNEY GENERAL OF FIJI
3rd Defendant

Counsel : A. Zen for the Plaintiff
Mr. J. Mainavolau for the Defendants

Date of Hearing : 23rd July, 2014
Date of Judgment : 9th December, 2014

JUDGMENT

[1]. The plaintiff's deceased husband was a Police Officer working at the Labasa Police Station. While on official duty the police vehicle driven by the first defendant, veered off the road and met with an accident. The driver and the plaintiff's husband were taken to Labasa Hospital. The plaintiff's husband died after 78 days.

[2]. At the trial the Plaintiff gave evidence and called one witness while the defence called four witnesses including the first defendant to give evidence.

[3]. At the Pre Trial Conference the parties had agreed to the following facts:-

1. " The plaintiff is a widow and administratrix in the estate of ISIRELI BALEIBAU MOCE, late of Nasea, Labasa, Police Sergeant, who died intestate on 13th April, 2012.
   
2. Letters of Administration were granted to the plaintiff on 12th September 2012.
   
3. The plaintiff brings this action for the benefit of the deceased's estate under the Law Reform (Miscellaneous Provisions), Death and Interests Act Cap 27 for the benefit of the dependents of the deceased pursuant to Compensation to Relatives Act.
   
4. That at all material time, the 1st defendant was driver of motor vehicle registration no. GN. 864 which is owned by the Fiji Police Force.
   
5. That at all material times the 1st defendant was driving the said motor vehicle as a servant and agent of the 2nd defendant.
   
6. The deceased and the 1st defendant were at work in employment with the 2nd defendant at the time of the collision.
7. On the 26th day of January, 2012, the deceased was a passenger in the said motor vehicle registration no. GN 864 that was driven by the first defendant along the Labasa/Wainikoro Road at Vulovi when it went off the road and collided causing injuries to ISIRELI BALEIBAU MOCE whereby he died 78 days later on 13th April 2012.
   
8. The deceased was 48 years of age at the time of his death. He was born on 10th February 1964.
   
9. The 1st defendant has been charged for the offence of Dangerous Driving Occasioning Death.
   
10. As a result of the accident, the deceased died."
    

[4]. The issues before court are:

11. "Was the accident caused by the negligence of the 1st defendant?
12. IS the doctrine of res ipsa loquitur applicable?
13. Can the 1st defendant be exonerated from liability by reasons of the weather condition as appearing in the pleadings?
14. Has the plaintiff incurred any loss or damages?
15. If answer to the above is affirmative then what is the quantum of damages to be awarded."
    

Determination

[5]. As per the agreed facts parties are not at variance on the plaintiff's capacity to bring this action as the administratrix of the estate of Isireli Baleibau Moce and on the following:

• He was a police officer died while on official duty.
• The vehicle was the official vehicle and driven by the first defendant within the scope of his employment.
• The deceased suffered severe injuries and died 78 days later as a result of the accident.
  

[6]. Accordingly as per the admissions and the evidence, this court determines that at the time of the accident the deceased and the first defendant were both acting within the scope of their employment. Having come to that conclusion I will now venture to see whether the accident was caused by the negligence of the first defendant.

[7]. The plaintiff in her evidence has testified that the deceased was her husband and that they were married in 1996. The Marriage Certificate was marked as P1. The husband had died on 13.4.2012 and the Death Certificate marked as P2.The deceased had been 48 years at the time of death. They had no children. They were living in the police barracks. When the husband died she had taken the Probate for her husband's estate and she was suing in the capacity of administratrix of the estate. None of these facts were disputed by the defendants.

[8]. One counsel appeared for all three defendants. The defendants' entire defence was based on the issue whether the accident was caused as a result of the negligence of the first defendant.

[9]. The plaintiff in her testimony has stated that after the husband left the house for work, the next she heard was that the husband has met with an accident and was in hospital. Accordingly she was unaware of how the accident occurred.

[10]. The defendants' main defence was that at the time of the accident it was raining heavily. The roads were slippery and as a result the vehicle had skidded and met with an accident. The defense pleaded the defense of act of God.

[11]. The plaintiff's first witness Mr. G. Singh another police officer in his evidence stated at 12.45 am on 26th early morning he had been informed that a police vehicle driven by the first defendant and carrying Sgt. Isireli the deceased had met with an accident. He had given instruction to inform the Traffic Unit and had immediately proceeded to the scene of the accident. The witness further stated that within a couple of minutes he had arrived at the scene of the accident. The vehicle was a new vehicle and was coming towards Labasa but it had gone to the wrong side of the road and had hit the culvert. He further described the positioning of the vehicle after the accident.

[12]. As per his evidence the vehicle was looking towards Labasa but on the wrong side of the road (right side). The passenger's half of the vehicle was towards the road and the drivers half was out of the road. The first defendant driver had not been in the vehicle but Sgt Isireli was in the front seat with his buttocks on the passenger seat and the head on the driver's side. He had observed that Sgt Isireli was not wearing the seat belt.

[13]. The first defendant had been on CID duty but had been reassigned to drive the vehicle on that night. The first defendant was an authorized driver and to be an authorized driver he had to pass a test by the police. He had been on Mobile duty at the time of the accident and on a shift. The drivers are given intermittent breaks whenever the driver feels tired.

[14]. He further states a driver normally drives only about 40 or 50 km and they will take a rest. The rest will last for two hour, one hour or a couple of minutes depending on the driver. The first defendant had been on night shift, he was on duty from 7:00pm till 7:00 am on the 27th.

[15]. According to the witness the weather was bad. It was raining and a flood warning had been given. Under cross examination he agreed that the road was wet and it could have been slippery or hazardous. However there is no cogent evidence to show the road was slippery or hazardous.

[16]. The vehicle was a brand new twin cab and in good condition. He had observed the speedo meter had got stuck between 50-60 km/ph.

[17]. In re-examination the witness said that even though it was raining there was no difficulty in driving as the witness had gone in another vehicle to the accident site just few minutes after the accident. He further said that if the road conditions were hazardous then police officers are not supposed to take risks and that they could have stopped or gone slowly.

[18]. According to defence witness Kushal Naicker he had been on traffic duty on the date of the accident and gone to the scene of the accident. It was raining and the road was wet. The witness corroborated the plaintiffs witness Sgt. Gyan Singh's version as to where the vehicle was found and how it was positioned. He had drawn the sketch D4, and the key to the fair sketch was marked as D5.

[19]. As per the sketch and the key to the fair sketch the width of the road is 11.6m. From the road edge to the middle of the left lane of the road is 6.2 m. It had been a straight road and tar sealed. As per the sketch and the evidence. The vehicle had cut across the entire width of the road climbed up the culvert, and had got stuck. There had been no brake marks.

[20]. The witness also testified that police drivers are advised to be extra cautious and extra vigilant.

[21]. The defendants third witness Constable Shuvenesh Pillay the Investigating Officer, had prepared a summary of facts document D7. His findings were that the driver had fallen asleep and the vehicle had veered of the road. He had found no mechanical defects in the vehicle. According to the witness first defendant had been charged for dangerous driving occasioning death and the case is still pending. The charge sheet was marked as D8.

[22]. The witness corroborated the fact that the vehicle was new. Had no mechanical defects. D10 the vehicle accident report describes the extensive damage caused to the vehicle. As per the report the suspension system, brake system, steering system, electrical system, seat belts, tires had no mechanical defects and has ruled out any mechanical defects as a contributory factor. The witness further testified that Isireli died as a result of the accident. Under cross examination he admitted if the road condition were not good the first defendant should not have driven the vehicle and also if the driver was tired he should not have driven the vehicle.

[23]. The first defendant admitted that he does investigations as well as driving duties. On the 26th when he was driving the deceased was on the passenger seat and that It was raining. The places they visited were only about 4-5 km from the police station. He admitted that it was not heavy rain.

[24]. The court makes a special note of the demeanor of the witness .The truthfulness of his testimony is much to be desired. The first defendant submitted he saw a man in front and took the vehicle to the right side when it hit the culvert.

[25]. The witness admitted giving a caution interview and stating that he would have dozed off or slept at the time of the accident.

[26]. The witness admitted that the driver should take necessary precautions when driving in bad weather. He was driving at a speed of 40-50 km/ph it was misty he couldn't clearly see through the windscreen, his vision was affected by the weather condition, a man coming on the left side of the road, he had turned to the right when the car hit the culvert. After some hesitation he said he was not sleeping at the time of the accident. He was not aware of the speed limit on the stretch of the road was 50 km/ph.

[27]. Under cross examination witness admitted that it was for the first time, he narrated about a man coming in front and his attempt to avoid a collision.

[28]. He admitted giving a statement to the police without any duress in English. The demeanor of the first defendant under cross examination deserves a comment, at the outset the witness contradicts his own statement about the accident and whether he was sleepy. He admits lying to the police. Subsequently he admits telling the police that he fell asleep at the time of the accident. The plaintiff has successfully attacked the credibility of the first defendant's testimony. Accordingly I disbelieve the evidence of the first defendant.

[29]. In my view the plaintiff has established the vehicle had been traveling at a speed in excess of 50 km/ph. No evidence was led to the affect that the accident was a result of skidding. The court disbelieves the first defendant's uncorroborated version of seeing a man and his attempt to avoid a collision. The width of the road at the point of the accident is nearly 11.6m. In the absence of any evidence to show that the vehicle has slipped and with no brakes marks, the first defendant's version of taking evasive action to avoid the so called person on the left side becomes highly improbable. Further without any evidence of skidding, a vehicle traveling only at the speed of 40-50 km cannot proceed 11.6 meters to the opposing side and knock against the culvert.

[30]. The first defendant with 10 years driving experience and 3 years driving experience as a police driver was aware of dangers of night driving. If the road conditions were bad a prudent driver would have taken precautionary measures. However there was no evidence submitted by the first defendant to this effect.

[31]. The court disbelieves that the first defendant was ignorant of the speed limit. He being a police officer should be aware of the speed limit.

[32]. The plaintiff through the witness Gyan Singh, corroborated by the defendant's own witness and the first defendant has established that in the given circumstances the vehicle was being driven at a speed making it too fast and dangerous to be driven. The first defendant admits that his concentration was affected by mist and rain. But still decided to drive at a speed. He has failed to keep a proper concentration on the road and failed to pay sufficient attention to the road condition. The first defendant has failed to apply brakes or take any evasive action to prevent the accident. For these reasons I hold that the first defendant has failed to take adequate precautions for the safety of the passenger in his vehicle, the vehicle and himself. Accordingly I come to the conclusion that the plaintiff on a balance of probability has proven the negligence of the first defendant and this court answers the issues "whether the accident was caused by the negligence of the first defendant" as yes. This court has already expressed the view that at the time of the accident the deceased and the first defendant were within the scope of the employment. Accordingly the second defendant had a duty of care towards the deceased safety. The plaintiff has established the negligence of the first defendant and as per the evidence before this court the first defendant was within the scope of his employment, directly under the control of the second defendant. The plaintiff has been successful in establishing vicarious liability on second and third defendants. The second and third defendant in any event did not contest the vicarious liability in the event the court finds the first defendant negligent.

[33]. In given circumstance and in absence of any credible explanation on how the accident occurred, I hold that this is an instance where the doctrine of res ipsa loquitur is applicable. In this instance I follow the decision Scott –v- London and St. Katherine Docks Co [1865] EngR 220; (1865) 3 H & C 596 at p667 Erle CJ delivering the majority decision of the court said:-

"There must be reasonable evidence of negligence and in this case there is overwhelming evidence of negligence.

But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."

[34]. In view of my finding above I do not think the court need to venture as to whether the first defendant can be exonerated on the grounds of inclement weather. However it is suffice to say the first defendant had thought it was fit to drive at an excessive speed exceeding the speed limit.

[35]. In the written submissions the defendants have address the court on contributory negligence of the deceased as a mitigating factor. The plaintiff vehemently objected to this on the basis that contributory negligence had never been pleaded nor was an issue. The court observes that in the absence of any pleadings or an issue raised or evidence being led this court upholds the plaintiff's objection on raising contributory negligence as an issue in closing submissions.

[36]. Now the court will proceed to determine the quantum of damages.

Damages

[37]. The parties were not at variance on the issue that the deceased lived for 78 days in hospital after the accident. With a spinal injury the deceased would have suffered from pain. This fact has been established by the plaintiff and was not contested. The deceased was transferred to the Labasa Hospital and during the later part had suffered from large sores.

Pain and Suffering and Loss of Amenities of Life.

[38]. As per the evidence of the plaintiff the deceased had been conscious but was unable to move and in great pain for 78 days.

[39]. The deceased had suffered the enjoyment of life. The defendant conceded on this ground to a certain extent. The plaintiff cited Gyan Wati –v- Fonotaga Fusi & Others, Labasa High Court, Civil Action 30 of 2009 where the court had offered for pain and suffering of 9 days a sum of $6000.

[40]. The defendants failed to cross examine on the treatment given to reduce the pain or pertaining to surgical procedures preformed that would have reduced the consequence of the injury. In deciding the quantum to be offered under this heading the court in Gyan Wati case (supra) had referred to the decision of the Medical Superintendent and Another –v- Abdul Hafeez Ismail: CA 50/00.

[41]. This court has considered both these decisions. The plaintiff has submitted a sum of $40,000 under the heading and the defendant has submitted a sum of $25,000. Considering the evidence before this court and taking the cited case as a guidance this court awards a sum of $39,000.

Loss of Expectation of Life

[42]. In considering the question under this headings the attention of the court is drawn to the decision in Rose –v- Ford (1937) AC 826, where it was held " a living person can claim damages for loss of expectation of life. If he can, I think that right is vested in him in life and on his death passes under the 1934 Act to his personal representative. I do not see any reason why the fact that the expectation is realized".

[43]. This has been followed in Daya Ram –v- Peni Cara and Others (1983) 29 FLR 147 and at Wati –v- Fusi 2011; FJHC 667.

[44]. The present case is filed by the estate of the deceased. In Yorkshire Electricity Board –v-Naylor (1967) 2 ALLER 6 it was held "though it is said that his death was instantaneous, the appellant have not sought to dispute that a valid cause of action is vested in him. By reasons of the provisions of the Law Reform (Miscellaneous Provision) Act 1934 that cause of action survives for the benefit of his estate."

[45]. The plaintiff submitted that at the time of death the deceased was 48 years of age and was healthy and has suggested a sum of $5000. The defendants have relied on Subamma –v-Chandra HCA 373/79, Foro Tanakisuva –v- Sant Kumar & Eroni Tokaolagi; CA 465/80 and Ram –v- Peni Cara (supra) where a relative low sum of $1250 had been awarded. However in Hari Pratap –v- AG (civil appeal no. 14/92 FCA) a sum of $2500 had been awarded. Considering the evidence submitted and following the basis laid in Daya Ram –v- Peni Cara (supra) where it was held the basis was "for loss sustained by the removal of proposed predominantly happy life". I consider a sum of $2500 to be appropriate.

Damages under Law Reform (Miscellaneous Provisions) Death and Interest Act

[46]. In calculating the quantum under this segment court has approached it under the following:-

1. The net earnings as at the time of death.
2. Less the sum used for his personal expense.

100. The above sum is then multiplied by the actual number of lost year which has to be ascertained by the cost taking into account the contingencies and vicissitudes of life.
     

[47]. As per the evidence before this court the time of his death the deceased was a healthy person of 48 years. There was no evidence tendered to court to suggest of any ill health. He was a police officer but during his leisure time he had engaged in fishing and cultivation for home consumption. However there was no evidence led to establish the income derived from these. The plaintiff could have worked till the retirement at 55. He would have had 7 years more to work.

[48]. As per the plaintiff's evidence the deceased was a Sergeant at the time of his death and he was in the regular police force. He would have got a promotion to the post of inspector. But the plaintiff has failed to establish this probability or the salary of an inspector with evidence. It was also submitted that he had paid $50 to the plaintiff for utilizing for holidays. The pay slips were marked as D3. As per D3 after the deductions the deceased had got a net pay of $655.71 every fortnightly. After the monthly expenses the deceased had given the plaintiff a sum of $500 fortnightly. This evidence was not contested by the defendant. The plaintiff has submitted that the deceased had given a sum of $14, 300 per year. The deceased was 48 years and it was not disputed that he could have worked till 55 years to reach his retirement age. The defendant has failed to establish any grounds as to why the deceased would not have been able to work till the age of 55. There was no evidence about any disciplinary action or warnings given to the deceased in his career.

[49]. It is pertinent to note that the accident had occurred in the month of April. The deceased had been paid for the period he was in the hospital.

[50]. The defendant submitted that the plaintiff had been paid $10,000 by the second defendant under an insurance scheme.

[51]. This court observes that the said scheme was a voluntary insurance scheme and the deceased had contributed to it. Accordingly the benefit that the estate got was not compensation but a payment under an insurance scheme to which the deceased contributed.

[52]. The plaintiff is claiming $100,100.00 under general damages for loss of further earnings. In calculating damages under this heading the plaintiff suggests to use the multiplier of 7. However considering the fact that the plaintiff has been paid his salary and all benefits during his hospitalization and being mindful of further contingencies that could occurre I think it's appropriate to award $14,300 X 6 = $85, 800.

[53]. The plaintiff has claimed for loss of FNPF on salary. As per the document p 4 his lost FNPF benefit would be $1684.88 X 6 = $10, 109.28.

[54]. The plaintiff has claimed under the category of special damages for funeral expenses, miscellaneous expenses, transport medicine etc, and for loss of expectation of life.

[55]. As per the funeral expenses. It was not disputed that the casket was provided by the second defendant and the body was transported by the second defendant. The plaintiff has claimed $2500 under this heading but had failed to submit any bills. Considering the fact that there are traditions to be observed at the funeral, and that the defendants have conceded that a sum of $500 should be allowed, I allow a sum of $750 for funeral expenses.

[56]. The plaintiff submitted that she had to buy certain essential items not provided by the hospital to be taken to the deceased at the hospital. On some occasions the second defendant had provided her with transport to the hospital but on some occasions she had to spend bus fare. The plaintiff had sought an award of $5000 to be appropriate under this heading. However in the absence of any documentary evidence to substantiate this claims and in the absence of any proof to show the medicines purchased and their cost, this court disallows this claim

[57]. The plaintiff submitted that she had to keep her relatives near the patient and there was an expense incurred and that the plaintiff had to buy diapers for the deceased at a cost. Accordingly this court award a sum of $500.

Interest

[58]. In 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 it was held "in general interest should be allowed on special damages from the date of accident to the date of trial at half the appropriate rate" this has been relied in Kumari –v- Hasad 2012; FJHC 1153 Civil Action 19/2009.

[59]. Exercising this courts discretion I award an interest at the rate of 6% per annum on general damages $39,000 from the date of Writ to the date of hearing on 19.6.13 – 27.3.14. I award 3% per annum on special damages from the date of accident 26.1.12 to 24.7.14.

Conclusion

[60]. Accordingly for the above stated reasons I hold that the plaintiff has proved his case on a balance of probability and I award the plaintiff damages in a sum of $141,093.18. It is computed as follows: -

[61]. I also award a summarily assessed cost of $4000 payable by the defendants to the plaintiff.

...................................
Mayadunne Corea
JUDGE
9.12.2014