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Lata v Nasib [2015] FJHC 571; HBC244.2006 (5 August 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 244 of 2006

BETWEEN:

PRAVEEN LATA
of Wailailai, Ba, Cook.
PLAINTIFF

AND:

MOHAMMED NASIB
of Tauvegavega, Ba.
FIRST DEFENDANT

AND:

SHEIK AMZAD SAHEB
of Korovutu, Ba, Driver.
SECOND DEFENDANT

Appearances : Messrs Samuel K Ram for the Plaintiff
Defendants in person

RULING

INTRODUCTION

1. This is my ruling on a personal injury claim by one Praveena Lata, the plaintiff. Although liability is not admitted, from the evidence of all witnesses for all parties, it is not disputed that Lata suffered personal injuries on 02 June 2006 in the township of Ba when she was mowed down by a truck, registration number BW132. Lata is claiming general damages for pain and suffering, loss of amenities of life and loss of earning capacity as well as special damages including cost of future medical care and medicine plus costs which she suffered, and will suffer, as a result of the accident.
   
2. It is also not disputed that, at all material times, BW132 was being driven by and was under the control and care of the second defendant, namely one Sheik Amzad Saheb ("Amzad"). Amzad was subsequently charged and convicted of one count of dangerous driving at the Ba Magistrates Court.
   
3. The extent of the injuries sustained by Lata, and the resulting incapacities and/or disability she allegedly suffered and continues to suffer, are all that this court will have to determine after all.
   
4. On the evidence that emerged at trial, there is also a lingering issue as to who really was the owner of the vehicle in question on the date and time of the accident.
   

THE ACCIDENT

5. On 02 June 2006, Lata was a 39 year-old mother of two young adults (daughter is 21 years old and son, 18 years of age). At around 6.00 p.m. on the said day, she finished work at Chand's Restaurant in Ba where she was employed as a cook. She signed off, collected her bag, and then went outside to wait for Mohan Singh ("Singh") – her husband of 11 years. Lata immediately spotted Singh's car just as she was stepping out of the restaurant. She proceeded to the zebra crossing just in front in order to get to Singh. Before she actually stepped onto the zebra crossing, she looked to both sides of the road. She saw that the road was clear, and she then proceeded to cross. It had been a clear day and Lata could see her surroundings clearly and the lines where vehicle were supposed to stop just before the zebra crossing were quite visible on the road. Lata had walked some 3 to 4 meters across the zebra lines when she was struck by BW 132. She was immediately knocked unconscious as a result of the impact and could not remember anything during this time.
   
6. She would regain consciousness a short while later.
   
7. What happened during that brief time when Lata momentarily lost consciousness was witnessed by Singh from his car. Singh recalls how he had observed Lata step out of the restaurant and start to proceed to cross the road and then, all of a sudden, hearing a loud bang. It was then that he saw Lata being dragged underneath the truck for almost 20 meters. He saw other people on the street screaming and trying to stop the truck. Singh said he was in a state of shock and thought the worst had happened to Lata. The truck had stopped about twenty meters after the zebra crossing. Singh quickly got out of his car and ran towards the truck. There, he found Lata covered in blood. Lata was later rushed to hospital in a taxi. Singh said the driver of the truck was also in shock. He got out of the truck and kept apologizing to him (Singh). He identified the driver in court.
   
8. Lata would regain consciousness at the spot where the truck had come to a stop. She found herself trapped underneath it near the rear wheel several meters. She said she felt severe pain and saw blood on her forearms, mouth and legs. She was pulled out from under the truck by some bystanders and taken to hospital in a taxi.
   
9. Sheik Nazil Saheb ("Nazil"), a carpenter, was 18 years of age on the day of the accident. He was sitting in the truck as a passenger right beside the driver, his father, Amzad. Nazil said he did not see the accident happening. He said he only heard some noise underneath the back half of the truck when after it had crossed the zebra-crossing. He said some people were yelling out to Amzad to stop the vehicle.
   
10. Amzad said he and Nazil had just driven the vehicle out of a mechanical garage situated in the other end of Ba Town. Like Nazil, Amzad also said that the truck was halfway across the zebra crossing when he heard a loud bang underneath the rear half of the vehicle.
    

ROUGH SKETCH PLAN

11. As stated, both Nazil and Amzad had said in Court that BW132 was already halfway across the zebra-crossing when they heard a loud bang underneath the rear half of the vehicle.
    
12. What they appear to be suggesting is that they had already crossed the zebra crossing when Lata somehow fell (or threw herself) at the side of the truck about midpoint on the side. However, the Rough Sketch Plan ("RSP") drawn by the police officer who investigated the accident tells a slightly different story. The RSP was tendered through Police Officer Riyaz. PC Riyaz has been in the Police Traffic Department for past 2 years and in the Police for the last 15 years. He said the RSP was drawn up by one George Driver who, on the date of trial, was away in Sudan on Peace Keeping duties. From the RSP, Riyaz was able to identify a dent on the front bumper panel left hand side of the truck. This suggests that Lata was actually mowed down by the truck. Riyaz also confirmed from the Abstract of Particulars of Accident ("Abstract") that the front left panel of the truck was dented. He said Lata would have been trapped under the truck and dragged several meters. The RSP and the Abstract were shown to Amzad but he offered no comment on these documents.
    
13. I do not believe that Nazil and Amzad were telling the truth. I accept what the RSP says.
    

RECORD OF CONVICTION

14. During trial, Amzad conceded under cross-examination that he was charged for the offence of dangerous driving and convicted of the same in the Ba Magistrates Court, for which traffic offence he was fined $250.00. Peniana Nawaco, a clerk at the Ba Magistrates Court, tendered a copy record of Ba Magistrate Court ('PEX-5'). This document records that "the driver of BW 132 was charged and convicted for the offence of dangerous driving and was fined."
    
15. On the basis of this conviction, and considering also that Amzad had tendered no evidence to suggest otherwise, I find that Amzad had driven the truck BW 132 negligently at all material times and that his negligence resulted in the accident which caused the injuries sustained by Lata.
    

INJURIES SUSTAINED & TREATMENT

Medical Reports & Documents

16. Dr. Mareko (PW1) was the first witness called by Lata. He is a well known Orthopedic Surgeon in Fiji with close to 20 years experience in Orthopedics. Dr. Mareko gave evidence from the medical folder from Lautoka Hospital. The records in the folder confirm that Lata was brought to and admitted into Lautoka Hospital on 03 June 2006.
    
17. A medical report on Lata dated 10 July 2006 (P EX1) which Dr. Mareko wrote records that Lata suffered a "loosening of her teeth", facial injuries, injuries to both knees, as well as bed sores - as a result of the accident .
    
18. Dr. Janette Khan, Dental Officer with 13 years experience, based at Ba Dental Health Centre brought with her some medical folder dated 23 June 2009 relating to Lata's dental injuries and treatment. Dr. Khan testified from records on a certain report of one Dr. Penaia Serutabua (Ba Dental report marked as MFI 14 was put to Dr. Khan and she identified the report).
    
19. Doctor Mareko also testified from records on a medical report by Dr. Eddie McCraig dated 30 March 2007. According to this report, the loss of 2 incisors (teeth) amount to 4% impairment.
    
20. Doctor Mareko also tendered a second medical report he wrote dated 19 March 2014 and which confirmed the following scars on Lata:
    
    1. a contracture at the joints in left ankle which diminished the range of motion of the ankle.
    2. Lata was and will continue to use crutches for support.
    100. Lata suffering pain in the ankle.
    4. diminished range of motion in left wrist and knee.
    5. healed bed sores, scar of the sacral region
    6. scarring of the upper lip
       
21. A series of photographs was tendered by Lata. These photographs show the bodily injuries she sustained from the accident. From the photos, Lata drew the Court's attention to the scarring on her upper lips, teeth, knee and left ankle as well as the bed sores on her buttocks, and the injuries on her legs, face and wrist.
    

Loosening of Teeth & Dental Treatment

22. Lata lost two teeth as a result of the accident. Some other teeth were injured and became rather loose and required dental attention. Because of extensive injury to her teeth, Lata could not chew on solid food for some two (2) weeks or so. During that time, she was put on a strict liquid diet and had to be taken to Lautoka Dental Clinic for treatment and to monitor recovery for her loosed teeth.
    
23. Dr. Serutabua's report, which was tendered through Dr. Khan, records that some root canal treatment was performed on Lata. From the records, Dr. Khan said Lata made a total of three visits for treatment. Each visit would cost $30.00. As if to emphasise that the modest cost of $30 charged by the Government Dental Services is not a reflection of the seriousness of the injuries and the treatment being given, Dr. Khan said that a private dental clinic would charge between $200.00 to $300.00 per visit for exactly the same services.
    
24. Dr. Khan also confirmed from the records that Lata lost two (2) teeth altogether. She had to have lower anterior teeth fillings done in Lautoka Hospital. The fillings cost around $15.00 per tooth. Dr. Khan said that Lata also had to have root canal done to sustain non vital teeth. She said that the procedure for root canal is moderately painful.
    
25. The medical report of Dr. Eddie McCraig dated 30 March 2007 which was read in Court by Dr. Mareko also recorded the observation that Lata did lose two (2) incisors for which Dr. McCaig assessed a 4% impairment.
    

Facial Injuries

26. As stated, Dr. Mareko's report records his observations of facial injuries on Lata.

Skin Grafting

27. Lata said that some skin tissue from her thighs had to be removed and used to cover other body parts where skin was damaged beyond repair or lost. Dr. Mareko confirmed that some skin graft from Lata's thigh had to be transplanted onto her hands and foot. Dr. Mareko said Lata had to undergo eight (8) skin grafting surgeries in total.
    

Injuries to Both Knees, Foot, Forearm & Wrists

28. These too are noted in Dr. Mareko's Report as well as in the viva voce evidence of Lata.
    

Pain Killers

29. Dr. Mareko said Lata was given heavy pain killers such as penicillin and macro-neroflgyal. She had some lacerated wounds which were cleaned with salt water.
    

Scarring

30. Although Lata's injuries did heal eventually, she suffered extensive scarring even after she had healed. The scarring did restrict her movement considerably in the foot and the knee, as confirmed by Dr. Mareko.
    

Bed Sores

31. Lata also suffered bed sores. A photograph was tendered showing a huge gaping sore which Doctor Mareko confirmed as being a bed sore. From the report and folder, Doctor Mareko highlighted that on 27 June 2006, the bed sore on the buttocks were noted. He also observed that the bed sores took place after the skin grafting procedure.
    

Physiotherapy

32. Lata had to undergo further physiotherapy. Ankle support and crutches were also given to her. Physiotherapy commenced on 30 June 2006 after the skin grafting surgeries.
    

Back Pain

33. Lata said she also suffered some back pain which she continues to suffer to this day.
    

Incapacity

34. Lata had restricted movement on the left ankle, and restricted movement on the knee. The resulting incapacities were assessed at 10% and 5% respectively by Dr. McCaig's Report who then rounded the combined incapacity to 18%.
    
35. Doctor Mareko said Lata will be on crutches for the rest of her life. He gives a slightly higher assessment at 20%, which figure includes 5% assessment for scarring but does not include dental incapacity. I note that Dr. McCaig had given Lata a 4% assessment for dental incapacity.
    
36. Doctor Mareko also tendered a second medical report he wrote which is dated 19 March 2014 and which confirmed the following scars:
    
    • there was a contracture at the joints in left ankle and this diminished the range of motion of the ankle.
    • Lata was and will continue to use crutches as a means of support.
    • Lata suffering pain in the ankle.
    • diminished range of motion in left wrist and knee.
    • healed bed sores scar of the sacral region
    • scarring of the upper lip
      
37. I accept Dr. Mareko's assessment at 20% incapacity and allow a further 3% for the teeth.
    

PAIN & SUFFERING/LOSS OF AMENITIES – CASES

38. Kemp & Kemp (Vol. 1 p.200 2-010) states:
    

"...the Court must take into account, in making its assessments in the case of any particular plaintiff, the pain which he actually suffered and will suffer and the suffering which he had undergone by any and will undergo. Pain and suffering are not measurable by any absolute standard and it is not easy, if indeed possible other than in the most general way to compare the degree of pain and suffering experienced by different people, however, the individual circumstances of particular Plaintiffs clearly have a significant effect upon the assessment of damages."

39. The manner in which Lata was mowed down by the truck, and subsequently entrapped underneath the moving vehicle causing her to be dragged along the road for some 20 meters or so from the point of impact, would make anyone one cringe. When I take that together with the evidence in the medical reports, as well as the viva voce evidence of Dr. Mareko, Dr. Khan as well as Lata's and her husband's, it is hard not to accept that Lata would have endured tremendous pain and suffering associated with her bodily injuries.
    
40. From her evidence, Lata lost consciousness immediately upon impact and only regained it to find herself trapped under the truck with her clothes torn, and her shoes and wrist-watch, damaged. There was sand in her mouth. She was taken to Ba Mission Hospital where her wounds were cleaned with salt water. Later in the night she was transferred to Lautoka Hospital via Ambulance.
    
41. At Lautoka Hospital, the doctors wanted to amputate her leg because it was turning black due to infections.
    
42. The eight (8) skin grafting procedures that Lata had to undergo would have been extremely painful, according to Dr. Mareko, and Lata had to be sedated during each and every one of them procedures. Dr. Mareko said that, on a scale of one (1) to ten (10), he would rate the pain that Lata would have to endure in the skin grafting procedure at eight (8). Throughout that period, Lata was admitted in hospital.
    
43. Singh said Lata used to work prior to the accident and used to contribute towards household expenses. She also used to work on the small vegetables farm that they have. However, Lata is now no longer able to do these things anymore due to the pain she continues to suffer on the back. Now mostly she is involved with light duty work only. After the accident Lata started using crutches. She would feel dizzy occasionally. She also still feels shock sometimes when she saw a vehicle.
    
44. Singh says his intimate relationship with Lata was also affected because Lata is not able to enjoy sexual activities due to the injuries.
    
45. In Ashish Mudliar v Rajesh Rama &Ors [Civil High Court Action No. 3 of 2012, the 36 year old plaintiff/pedestrian was walking in between two buses to cross the road when one of the busses moved forward. He was crushed in between the two buses and suffered serious injuries. The plaintiff's right communitted midshaft termour fracture on the bone was broken to more than one piece and a steel rod had to be inserted to hold the pieces together. The plaintiff continued visiting the hospitals for regular checkups. There was no disability assessment done, let alone presented to court. The court nonetheless awarded the plaintiff a sum of $60,000 as damages for pain and suffering.
    >
46. In Sarojini Devi & Ors v Vidya Wati & Ors [Civil Action. 462 of 2002], 31 yed plaintiff was a passengerenger in a pick-up van driven by the 1st defendant and owned by the 2nd defendant. The vehicle was involved in an accident andplaintiff suffered ired injuries to her left hand and left side of the body. She was taken to hospital and treated for 2 months and 3 weeks. The plaintiff's left lower arm was badly affected and she could not use the hand for day to day work. The Medical Report after final clinic assessed her permanent disabilit35%. 35%. The 1st named plaintiff was granted a sum of $80,000, as general damages for past, present and future pain, sufferings, loss of amenities in life and ological trauma suffered by her.
    
47. In Nasese Bus Company Limited & Anr vs Muni Chand [Fiji Court of Appeal Civil Appeal No. ABU 40 of 2011, an 18 year old child was injured in an accident when she was struck by a bus driven by the 2nd Respondent and owned by the 1st Respondent. She suffered a crushed injury fracture of left leg with a de-gloving injury to right thigh and was assessed to have a permanent disability of 14%. After a trial in the High Court, the Judge ordered $65,000-00 as damages for pain and suffering<60;and fond for future loss of amenities. The Court of Appeal in considering the appeal against the award of damages for pai0;and suffering increasedaward to $90,0$90,000-00 due to progressive arte arthritis with appropriate deductions for contributory negligence.
    
48. In Chand v Padarath Bros & Sons Ltd [High Court Civil Action No. HBC 134 of1995, a 33 years old taxi driver and fasuffered ered open comminuted fracture of distal right femur extending to knee joint, comminuted fracture proximal "tibia" ibulaht) and open fracture of shaft of mid "tibia" as a result of motor vehicle accideccident. Hnt. 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 a was awar awarded $65,000 as general damages.
    
49. In Korovou v Naidu [High Court Civil Action No. HBC 289 of 200f 2005 5 a flight attendant was the front seat passenger in a vehicle which collided with another. She lost 3 front teeth in the lower jaw and was hospitalized for 3 days. Her teeth were wired and she was fed only liquids.
    
50. The Learned Judge took into account that the loss of her teeth would have caused severe pain e mind for her in lightlight of her profession for which a pleasant appearance is vital. The fracture wires were removed on 12 Or, 2004, nearly after one month after the accident and throughout which time she was on a ln a liquid diet only."
    
51. The past pain and loss of amenities of life was assessed at $10,000. Considering the total disability percentage of 10%other circ circumstancch as her occupation and age and other factors like she has to wear the dentures most of thof the time in her life and almost all the whenis in her occupation, due to the nature of the oche occupatcupation, future loss of amenities of life was assessed at $ 3,000.
    
52. The 1st Plaintiff, a 32 year old aircraft engineer in the matter suffered more serious injuries. His hip got dislocated and fractured and metal nuts and bolts were inserted to hold the hip together. The right lsulted in being shortehorter than the left one. He also underwent 3 surgeries, one in the hip and two in the elbow. He stated that he felt lot of pain afhe accident. After ther thery he had to use a wheel chel chair for 1 ½ months, and thereafter, a walking- frame for nearly 2 months and later, a walking stntil full recovery of strength to his leg muscles. He also also underwent physiotherapy for a considerable time. He was assessed to have a permanent disability of 24%. The Court considered he would have suffered severe pain of mind and loss of amenities of life – and also that he was confined to the hospital bed for 79 days and 3 surgeries that were carried out. The cowarded $50,000 as the past pain and loss of amnestf liff life. The CourtCourt further ordered award $35,000 as his future loss for pain and loss of amenities of life.
    
53. In Deo v Kumar [Civil Action No: HBC 037 of 2008, a 10 year old child wt by a bus and sustained exed extensive laceration of right leg&and there was no bony iony involvement. She was treated with repeated debridement and washed. She also had skin grafting under anaesthesia and spent about 1 month in hospital. She suffered frodorsiflexion of her ankle, kle, which meant that she could not bend her ankle in a dorsal direction and had a large permanent scar on her right leg. Her impairment was assessed at 19 %. The Court in arriving at the sum of $40,000 for pain and sufferb> ddecided that the plaintiff's incapacity was mainly of a cosmetic concern and restriction of her ankle movement ook into consideration her age, the way she sustained injuries and the permanent #160;scar on her rig60;leg.;leg.
    
54. In Atish Sharma v Hardwood Sales & ting ) Ltd Civil Action No. HBC 137 of 2008, t08, the plhe plaintiff was using an Electric Bench saw at work to rip a piece of baton length wise when the said baton shot back hitting his left thumb which, eventually, had to be amputated. He was found to have had a permanent disability of 35%. The Court ordered a sum of $20,000.00 as General Damages for pain, suffering and loss of amenities of life of the Plaintiff.
    
55. In Shankar v Fortech Construction Ltd [High Court Civil Action No. 486 of 2003, the plaintiff suffered bodily injuries while crossing a 'pedestrian crossing' near Lakeba Street, Samabula on Ratu Mara Road when she was hit by a vehicle driven by the 2nd Defendant. The medical reports found the following injuries: closed midshaft fracture of right humerus, multiple superficial abrasions, avulsion right big toe nail. She was found to have 13% whole person impairment. She was 58 years old and in good health at the time of the accident. She had been a tailor since 1959 and she sewed uniforms for&school children andn and other people from nearby village in Tavua. On average, she earned $120.00 per week.