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Koroi v Tuirara [2019] FJHC 1080; HBC323.2015 (31 October 2019)

In the High Court of Fiji
At Suva
Civil Jurisdiction

Civil Action No. HBC 323 of 2015

Litiana Koroi
Plaintiff
v
Samisoni Tuirara
First Defendant

National Fire Authority
Second Defendant

Counsel: Mr N. Lal for the plaintiff
Ms M. Latianara for the first and second defendants
Dates of hearing: 22^nd and 23^rd May, 2019

Date of Judgment: 31^stOctober, 2019

JUDGMENT

1. The plaintiff claims damages for injuries suffered by her on 6^th May, 2015, when the ambulance she was travelling in, collided with a bus on Waimanu Road. The ambulance was driven by the first defendant and conveying a patient to the CWM hospital. The plaintiff, in her statement of claim states that the first defendant failed to drive the ambulance with due care and attention, slow down in a timely manner, lost control and collided with the rear of a bus parked at the bus bay. The second defendant was the registered owner of the ambulance.
   
2. The plaintiff pleads the following particulars of negligence.
   1. Driving at an excessive speed having regard to all the circumstances.
   2. Failing to keep any or any proper lookout or to have or any proper regard for other vehicles travelling on the said road.
   100. Failing to drive as a diligent and prudent ambulance driver and failing to slow down in a heavy traffic area.
   4. Failing to exercise such degree of care and control over the said vehicle as was warranted having regarding to all the circumstances.
   5. Failing to swerve and avoid colliding with the bus from the rear and knowing fully well that the road was wet at the material time and extra precaution was required at all times.
   6. In the premises failing to drive with due care and attention as is required from an ambulance driver.
      
3. The defendants, in their statement of defence admit that the plaintiff was taken to the CWM hospital after the accident and deny the claim.
   
4. On 23^rd May, 2019, I directed both parties to file closing submissions on 7th June, 2019. The submissions were filed by Diven Prasad Lawyers on behalf of the plaintiff on 28^th June, 2019. The defendants have not filed submissions.
   

The determination

5. It is not disputed that the first defendant knocked the ambulance onto the rear of a bus parked at the bus bay. The sketch map produced by the first defendant depicts that the bus was correctly parked. The ambulance was in a diagonal position. The point of impact being on the rear of the bus.
   
6. The plaintiff, in her evidence said that the ambulance was driven fast by the first defendant. The plaintiff called five witnesses.
   
7. PW1, (Sergeant Ananaisa Rawaiduvu) in his evidence said that he saw the accident occur. He was the Traffic Officer of the Samabula Police Station at that time. He was facing the Central Bus parking area where passengers were boarding a bus, when he heard the siren of an ambulance. The driver of the ambulance F 1479 was driving above the speed limit, faster than normal. He attempted to apply brakes. PW1 said that he saw the plaintiff in the back of the ambulance. She was shivering and holding her broken arm. He produced his Accident Report. The Report states that the driver of the ambulance could not control his vehicle and bumped the rear of bus, FS O35. As a result, the plaintiff was injured.
   
8. PW3, (Parmesh Narayan, bus driver) testified that he parked his bus at the Samabula bus bay. He was sitting in the driver’s seat collecting money from passengers. The bus was stationary. There was enough space for vehicles to pass along the side of the bus. It was fine weather. After two minutes, he heard the siren of an ambulance. When he looked back, he saw that ambulance had hit the back of his bus. He saw a lady holding her hand in the ambulance. She was in pain. If the brakes of the ambulance were good, the accident would not have occurred. In cross examination, he said that he did not see an on-coming vehicle. He gaged the speed of the ambulance by the manner the brakes were applied.
   
9. PW5, (Ramendra Gosai),a taxi driver said that when he was travelling towards Samabula Police Station, he heard a siren. He parked on the side to give way for the ambulance to pass. He had a clear vision of the accident. The ambulance hit the rear of a bus, which was parked and loading passengers. There was enough space for the ambulance to pass along the side of the bus. The driver was over speeding. In cross examination, he denied that he would have had a head on collision with the ambulance, if he continued driving.
   
10. The defence called three witnesses.
    
11. DW1,(the first defendant, fire fighter and driver of the ambulance) said that the sketch map was a correct reflection of the incident. The siren and beacon light of the ambulance were on during his journey. When he entered Waimanu Road, a taxi came in front of him from the opposite lane. Either the taxi or he had to give way. He tried to slow down. He did not know that the taxi driver would park his taxi and give way for him. He was driving at 51/52 kmph. In answer to Ms Latianara, counsel for the defendants, he said that he did not know that the taxi was parked. When he saw the taxi coming towards him, he tried to slow down and press the brake. Suddenly the ambulance hit a bus which was parked. The lady at the back of the ambulance was injured. He pleaded not guilty.to the charge of dangerous driving. In cross-examination, DW1 admitted that his ambulance collided with the rear of a bus parked at the bus bay. He applied the brakes, but all of a sudden the ambulance hit the bus. The ambulance was in a diagonal position after knocking into the bus, as depicted in the sketch plan. The road was straight.
    
12. DW2, (Mosese Voka, fire fighter) said that he was seated in the passenger seat in the ambulance. As soon as the ambulance approached the Central bus stand, he saw a taxi coming and suddenly the ambulance bumped the bus. He was not sure if the taxi was giving way to the ambulance. If the ambulance continued, there would have been a straight on collision. He did not know that the taxi driver would park his taxi and give way .When he opened the back of the ambulance, a lady was holding her hand in pain. In cross-examination, DW2 agreed that sketch map depicted the correct position of the bus. The taxi was on the correct side of the road. He denied that the first defendant was negligent and over-speeding.
    
13. DW3,(James Trusler, Managing Director of the Foneology Solutions) produced the “historical data” Report from the GPS tracking system setting out the time, speed, location, etc of the ambulance. On 6^th May, 2015, at 12:34:49pm, the ambulance was travelling at 53km/hour.
    
    14. In my judgment, the evidence establishes that the first defendant drove the ambulance negligently. The first defendant said that when he saw the taxi coming towards him, he tried to slow down and press the brake. Suddenly, the ambulance hit the bus, which was parked. I am satisfied that he failed to keep a proper look out, slow down and exercise care and control to avoid the collision.
        
    15. I find the first defendant negligent and his negligence caused the collision. It is admitted that the first defendant was the authorized driver of the ambulance and the second defendant was its registered owner. It follows that the second defendant is vicariously liable for the negligence of the first defendant. In the result, the plaintiff is entitled to recover damages from the first and second defendants.
        
    16. The evidence of DW3 was led to establish that the ambulance was driven at the normal speed. Speed is only one of the several particulars of negligence pleaded in the statement of claim. Moreover driving at the normal speed limit is not a defence to an allegation of negligence.
        
    17. As Calanchini AP(as he then was) in Nasese Bus Co. Ltd v Chand, [2013] FJCA 9; Civil Appeal ABU 40 of 2011(8 February,2013) at paragraphs 23 to 24 stated:

Furthermore, in my judgment, it is not a defence to an allegation of negligence in the form of driving too fast under the circumstances to claim that the driver of the bus complied with the applicable speed limit. It may well be that even driving at a speed limit of 8kph is excessive under the circumstances.

I am satisfied that the learned Judge was entitled to infer that the driver was not driving carefully if he was satisfied on the balance of probabilities that the bus was being driven at an excessive speed under the circumstances and/or the driver was failing to keep a proper lookout.

(emphasis added, underlining mine)

18. It is likewise not a defence to knock into a parked vehicle to avoid a collision with an on-coming vehicle. The evidence revealed that PW5 had parked his taxi to give way for the ambulance and the first defendant had made a misjudgment in that regard.
    
19. The plaintiff, in evidence in chief said that she was admitted the CWM hospital for 8 days. She was in pain. Her left arm was broken and her shoulder was dislocated. Cement was put on her hand. After she was discharged, she attended clinics on several occasions. She could not move her left arm and wrist freely. Presently, she is unable to have a firm grip of her left arm. She cannot lift heavy objects with her left hand. She was self employed, selling flowers, cassava, root cops and food. She did sewing and sold what she sewed. She earned $150 to $180 a week. She did planting. She said that she cannot do those activities now, because her hand is broken.
    
20. In cross examination, it was put to her that the medical evidence provided that her arm had healed. Her riposte was that she cannot sew nor plant flowers and root crops, even though the medical evidence provides that she was healed. She said that she does the washing of clothes in the machine and the cooking.
    
21. PW6, (Alivereti Nadakuitavuko, husband of the plaintiff) said that the plaintiff planted vegetables, baked and sold cakes and tamarind chutney. She cannot earn as she did. She does not have a firm grip in her left hand and experiences pain when using her left hand. She cannot lift heavy objects. In cross examination, he said that she is trying to sell cassava and bake cakes. She cannot carry her hand bag. He does the washing. It was put to him that the medical evidence provided that her bone has healed.
    
22. PW2, (Dr Pauliasi Bauleka, Orthopedic Surgeon, CWM hospital) testified. He said that the plaintiff had suffered a spiral fracture of the left humerus/arm. She was treated non-surgically. The bone has healed, but the radical nerve injury does not have full power. Her nerve has healed and she has gained function of her left arm. She has difficulty in lifting heavy objects. In cross examination, he said that the bone has healed completely. She is able to extend her wrist and fingers.
    
23. The medical report issued by Dr Bauleka, provides that she has a physical impairment of 10% and reads as follows:

Mrs. Koroi is a 45 year old i-taukei housewife who sustained a fracture of left humerus with an associated neuropraxic radial nerve injury ..
Date of Admission:06/05/15
Treatment: Non-operative – casting for at least 6 weeks
ASSESSMENT: 18/03/19
Maximum Medical Improvement (MMI) reached
Ref: Guides to the Evaluation of Permanent Impairment 5^th Edition AMA
Symptoms: - Occasional pain left arm, especially during cold weather.

Inability to lift heavy objects with left hand due to weakness (daily chores –

lifting pots etc.

On examination
Left Humerus (fracture) – clinically and radiologically united (healed)
Range of motion – left elbow and shoulder – good
Sensation – reduced and feeling of shock sensation first web space and along radial nerve distribution
(Table 16 – 15: page 492: Radial nerve – (elbow sparing of triceps) = 5%
sensory deficit (UE)

Motor = Elbow and wrist: 4/5 (power grade): 1.25% ....... 13% UE

(Table 16 – 3 Conversion of Impairment of the Upper Extremity to Impairment of the Whole Person)..

- 13% + 5% = 17% UE WHOLE PERSON = 10%

24. The plaintiff has undergone pain and suffering. She was admitted for 8 days. After her discharge, she was required to attend clinics.
    
25. The injuries suffered and damages awarded in the following cases referred to in the closing submissions of the plaintiff are not comparable.
    
26. In Kumar v Fletcher Construction(Fiji)Ltd,[1999]FJHC124;HBC0316j.97s(19 November,1999) the plaintiff suffered an open fracture of his left lower humerus (arm) and fracture in his distal radius. He had restricted arm movement and could not carry on with his carpentry works.
    
27. The plaintiff in Naqeletia v Kumar, [2012] FJHC 29;HBC19.2010(20 January, 2012) sustained laceration of upper lip and chin, loose incision on the right side, open fracture of right radius and ulna, laceration over right forearm and closed fracture of left radius.
    
28. In Tamanibuici v Prasad, Civil Action No. HBC 34 of 2012l (29 September 2015) the plaintiff suffered fracture of right femur, fracture of left forearm and ulna of left arm and fracture of right clavicle.
    
29. The assessment of damages depends upon the consequences to the individual plaintiff. In the instant case, the medical evidence provides that the plaintiff’s arm had healed. Her medical report provides that her “Left Humerus (fracture) was clinically and radiologically united (healed)” and her elbow and wrist is “4/5(power grade)”.
    
30. 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 $15,000.00(fifteen thousand dollars).
    
31. I do not find that her earning capacity has been affected, as contended. The medical evidence is to the contrary. Dr Bauleka said that her bone has healed. He confirmed that she was actively able to extend her arm to a grade of power of 4/5. She has gained function of her left arm. Her only symptom is that she is unable to lift heavy objects, as stated in the medical report,
    
32. I decline the claim for loss of future earnings.
    
33. The plaintiff, in his statement of claim seeks as special damages, the following: $500 as transport expenses; $57. 50 for the medical report from CWM Hospital; $22.50 for the Police Report; $7 to the Land Transport Authority for a vehicle search; $1000 for medicines totaling $1,587.00.
    
34. Her evidence on the claim for special damages was not challenged in cross examination nor did the defendant call any evidence to prove that the claim was unreasonable. In the circumstances, I accept the evidence of the plaintiff.
    
35. In Narendrar v Sairusi Dusi Drawe, Minister for Home Affairs and Auxillary Army Services and The AG, [1990]36 FLR 90 at page 95, Palmer J stated:

Notwithstanding that not a sireceipt has been produced iced in evidence I am satisfied from the Plaintiff's evidence that he paid those amounts

tyle='text-indent:0pt; marg margin-top:0pt; margin-bottom:0pt;' value='36' value="36">The plaintiff claims loss of earnings. The statement of claim does not plead the facts nor set out details of her loss.

37. Calanchini AP (as he then was) in Nasese Bus Company Limited v Chand,(supra) at paragraph 65 stated:

In a personal injury claim a plaintiff should provide in his pleadings (with an up to date amendment at the start of the trial) full details of his part loss of earnings. There is also an obligation on the part of a plaintiff to particularise the facts upon which calculations for past loss of earnings have been made.(emphasis added)

38. The plaintiff has claimed interest. In the exercise of my discretion, I award interest at 6% per annum on general damages awarded from the date of service of writ(14^thOctober,2015) to date of trial and 3% per annum on special damages from date of accident to date of trial.
    
39. Orders

The total sum awarded to the plaintiff as damages is $ 20026.24 made up as follows:

There will therefore be judgment for the plaintiff against the first and second defendants in the sum of $20026.24 together with a sum of $ 2500 payable by the defendants to the plaintiff as costs summarily assessed.

A.L.B.Brito-Mutunayagam
Judge
31^st October, 2019