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Magistrates Court of Fiji |
IN THE CIVIL DIVISION OF MAGISTRATES COURT AT NASINU
Civil Case No. 119/08
RUBEN SESAIYA RAJ
Plaintiff
V
FRED DRIVER
Defendant
Mr. Sunil Kumar for the Plaintiff
The Defendant was absent and unrepresented at the hearing
Judgment
1] By writ of summons the plaintiff commenced this action against the defendant. The plaintiff seeks following reliefs by this claim.
(a) A declaration that the Defendant is liable to indemnify the Plaintiff;
(b) Special damages as the full particulars will be provided at the trial that to be confined to the jurisdictional limit of this Honorable Court.
(c) General damages in the sum of $49,000.00 (Forty-nine thousand dollars) that to confined to the jurisdictional limit of this Honorable Court.
(d) Exemplary damages that to be confined to the jurisdictional limit of this Honorable Court.
(e) Aggravated Damages to be confined to the jurisdictional limit of this Honorable Court.
(f) Interest under Law Reform (MISCELLANEOUS Provisions) (death and interest) act that to be confined to the jurisdictional limit of this Honorable Court.
(g) Costs including costs on a Solicitor's client basis confined to the jurisdictional limit of this Honorable Court.
(h) Any other relief deemed just by this Honorable Court.
2] On 29th January 2009 the Defendant filed notice of intention of defend. On 04th February 2009 the Defendant filed the Statement of Defence seeking that the Plaintiff's claim be struck out and cost on an indemnity basis. . On 02-03-2009 the Plaintiff filed Reply to the statement of Defence asking that the statement of defence be struck out and judgment for the Plaintiff. .
3] On 11th May 2010 the Defendant made preliminary objections by saying that the defendant has immunity under following promulgation and decree.
4] Both parties have made written submission in this regard. It was filed before my predecessor and there was no ruling in this issue. I now deal with this issue.
5] The Defendant submitted that the above case falls within the ambit of the above Promulgation and Decree. The Defendant says that at the time of the road accident on the 11th of October 2006, the Defendant was in the employment of the Republic of Military Forces and that he was driving the said vehicle in the "course of his employment". He drove the Vehicle Registration Number EL855 was registered to and belonged to the Republic of Fiji Military Forces. The incident arose that the Plaintiff who collided with the vehicle driven by the Defendant thereby causing it extensive damage. Then the Plaintiff who was charged by the Police for careless driving of which the matter was set down for Hearing on the 15th of May 2007. On the 25th of September 2007, the Director of Public Prosecution withdrew the charges against the Plaintiff on the grounds of lack of evidence. The Defendant said that the Defendant has never been interviewed by the Police, nor charged with assault against the Plaintiff at any time whatsoever.
6] The Defendant said that on the 5th of January 2007, the Interim Government Promulgation No. 3 came into force immediately upon its enactment with full retrospective and prospective effect whether before the 5th of December 2006 or on it and up until the 5th of January 2007. This Promulgation irrevocably grants full and unconditional immunity to all persons including "all officers and members of the Republic of Fiji Military Forces" before from any prosecutions and for any civil liability as a result of directly or indirectly pertaining to or arising from the acts and omissions of the Fiji Interim Military Council and no Court whatsoever shall have any jurisdiction to entertain any action or proceedings.
7] On the 29th of March 2010, Decree No. 18 of 2010 came into Force immediately. It has full retrospective effect. In that it gives full immunity to all "prescribed persons" such as all officers and members of the RFMF with retrospective effect to the 19th of May 2000. In this Decree the Prescribe Political event is extensively interpreted. The Defendant heavily relies on item (f) that is "all dialogues, discussions, correspondence between the RFMF and the Government between September 2001 to December 2006."
8] This court admits that this Decree grants an "unconditional immunity" to all "prescribed persons" from any criminal prosecution and from any civil or any other liability in any Court or Tribunal as a result of any "direct or indirect" participation or involvement in any prescribed political event or pertaining to or arising from any prescribed political event.
9] The court notes that the Defendant at the time of the said motor accident between the parties was involved, that he was employed as an "intelligence officer" in the Military. Then he could be categorised as a "prescribed person". But to get this unconditional immunity the incident must be related to any prescribed political event.
10] The Plaintiff drove a bus and he denied that he had collided with the Defendant's vehicle. Although the Plaintiff was charged for careless driving by the DPP, the charges were withdrawn due to lack of evidence. The Defendant, it seems did not deny the assault. Instead he says that his acts were covered under said promulgation and Decree. The mere fact that he was employed as an "intelligence officer" at the time he was driving the unmarked vehicle registration number "EL855" belongs to the RFMF in the course of carrying out his duties as a "prescribed person" is enough for him to qualify first limb of this protection or immunity. But for an "unconditional grant of immunity", his (The Defendant's) acts should come under any prescribed political event. There is no evidence that the Plaintiff was engaging to overthrow the government or made any dialogues, discussions, correspondence between the RFMF and the Government between September 2001 to December 2006. This is merely personal dispute and assault between the Plaintiff and the Defendant. Further, according to the Defendant submission, it was a road accident which has no related to prescribed political event. Therefore it has no nexus between any prescribed political event whatsoever. I therefore hold that there is no immunity lies on the Defendant under those promulgation and Decree. I therefore suppressed the preliminary objections.
11] The case was called on 08th December 2010. Both Parties have represented by solicitors. The Plaintiff represented by Mr. Sunil Kumar and the Defendant was represented by Mr Amani Bale. Then case was fixed for hearing on 15th June 2011 as suitable dates for counsels. When this matter was called for hearing on that date the Defendant or his counsel was not present in court. The defendant lawyer has made an application for adjournment through the Court Clerk Mr Rakesh Chand Bagawan and no acceptable reason was given by the counsel. Seeking dates by telephone is not acceptable practise. Then the Court adjourned the matter till 2pm and the defendant Counsel had been notified that case will be taken up at 2 pm. At 2pm there was no appearance for the Defendant. The case was allowed to formally prove on the application of the Plaintiff's Counsel. Then, on the application of the Plaintiff's Counsel, the statement of Defence was struck out for want of appearance.
12] On formal proof, the Plaintiff adduced following evidence. The Plaintiff RUBEN SESAIYA RAJ said that he can recall the incident which occurred on 11-10-2006. He said that he was driving the bus bearing registration number DW 786. The bus was fully crowded. He said that the defendant was not known to him and his vehicle was EL 855. His name is Fred Driver. At the material time, there was no sign of accident and he drove the bus. At Manikosa Junction the defendant came behind him and overtook him. He then blocked his roadway. The plaintiff was at bus stop. The defendant approached him and said that his vehicle was hit by the plaintiff. Then the Plaintiff tried to come out from the bus. When he was on the last step of the bus, the Defendant punched on his left eye. Then he described the incident. The plaintiff said the police came after that and at the police station he was referred to a doctor. That Medical Report was marked as EX-1. The Witness said that he got stiches on his left eye lid and it got black eyes. It was painful and he still gets pain from that eyes. Because of this assault he stayed seven day in home without any work. He lost $137 nett pay. Then the plaintiff said due to false complaint of the Defendant he was charged for careless driving. The summons of traffic case number 1387/2007 was marked as EX-2. This case was called before His Worship Resident Magistrate Mr. S. Temo and the Plaintiff retained Mr. Sesefo Inoke as his counsel. He said he pleaded not guilty to the charge and it was later withdrawn By the DPP. He paid $1000 to the counsel and the plaintiff seeks that fees may be recovered as indemnity basis. He said he was not at fault and on instruction he wrote a letter to the DPP. It was marked as Ex-3. The DPP's reply letter was marked as Ex-4. The Plaintiff marked investigating officer Corporal Mohammed Tayoob's statements as Ex-5 and rough sketch and fair sketch plans as Ex-6. The Plaintiff's statement to the police marked as Ex-7. The Plaintiff says because of this assault he now drives only in daylight. To prove this he produced a letter from his employer and it was marked as Ex-8. He then marked the defendant's Statement to the police as Ex-9. The Plaintiff said that he paid $1500 to the Mr. Abhay Singh to institute this matter. He seeks that cost to be recovered from the defendant. He said he seeks exemplary damages and general damages. He claimed interest and cost solicitor client basis. He said that he is continuously suffering and when his eyes get red he uses Chloramphenicol eye drops (a packet of eye drops was shown in evidence). By this accident the witness said that he suffered mental trauma and he will never forget this evil incident.
13] The Plaintiff further called witness to prove this incident. Pravin Narayan Prasad in his evidence said to the Court that he was a passenger of the bus when this incident occurred. The date was 11-10-2006. He was going to work and he sat behind the driver's seat. The bus Driver was Mr. Ruben. When they were nearing to the 8 miles the van came and blocked the roadway of the bus. The van driver wanted to stop the bus. The witness said the van driver called the Plaintiff and when the plaintiff was getting down from the bus the van driver punched the plaintiff. The van driver was wearing a big ring of the right hand finger. He said it was hard punch and the assault took place in the public's eyes. The Plaintiff was humiliated by this act of the Defendant. He said that people of the bus were surprised of the incident. This witness categorically said that there was no impact or accident occurred before the incident. After the incident, he then returned to work.
14] I now evaluate the evidence before me. The Plaintiff in his evidence adduced the he was unexpectedly and unreasonably assaulted by the Defendant. By this assault he suffered pain and suffering. He further said that he suffered mental trauma. He claims General, Special and exemplary damages.
15] General Damages: The medical Report proves that by this assault he suffered "superficial lacerated wound 1 cm left upper eye lid and slight swelling of the left eyes". There are no injuries can be noted and the Plaintiff was not hospitalised according to the Medical Report. These are minor injuries. General damages can also be awarded for mental pain and suffering. This incident was occurred in a crowded bus. It was happened unexpectedly and even the Plaintiff had no chance to know what had really happened. The plaintiff said his eye sight was deteriorated and he is still suffering. To that effect that he has not produced any medical evidence but he showed prescribed drug that is Chloramphenicol eye drops. The general damages could be two types. That is pecuniary loss (loss of income) and non pecuniary loss such as pain and suffering and loss of amenities. It is hard task to assess the damages. In assessing the amount of general damages, the court must exercise common sense and good judgment based on general experience, social affairs, economic value and guiding authorities. The plaintiff eye sight was not completely loss but he cannot drive in the dark. The Plaintiff adduced that he could not work for 7 days after this incident. He further said that he now can work only in day light. This was proved by Ex-8 a letter of Mr. Virendra Kewal the director of Island Bus Company. This is also a loss of earning. In FSC v Subarmani Fiji Court of Appeal case no 47/1993(25th May 1995) has affirmed $37,500 for 75% of loss of sight. It is for complete 75% loss and in this case considering all facts before me, I grant $15,000 as loss of sight and earning including 7 days absence of earning (working). In addition, for the mental trauma and pain and suffering I award $5000.
16] Special Damages: In this case, the Plaintiff has not produced any bill or cost involved. The main relief is sought here in the writ is that the Defendant is liable to indemnify the Plaintiff. This seems to be an action of declaration. It is seen that the Plaintiff have amalgamated two causes of Action namely his personal injury case and malicious prosecution case. In malicious prosecution case he only asks the legal cost which incurred. Therefore, this court thinks under the main relief both relief could be entertained. The Plaintiff adduced that he paid $2500 as legal cost for both cases. By documents (EX-3), it is proved that Mr. Sesefo Inoke appeared as his counsel. He further asked cost for solicitor client basis. Apart from that he did not ask any compensation for malicious prosecution. I therefore award $ 5000 as cost in the whole case including criminal prosecution which is summarily assessed.
17] Exemplary damages and Aggravated damages: the exemplary damages are stand outside the General and Special Damages. Aggravated Damages are awarding under aggravating circumstances. In this matter that the Defendant claimed that Plaintiff caused an accident and tried to flee. The Defendant chased the Plaintiff (According to the Ex-9) and held him. But evidence shows that after that, the Defendant assaulted the Plaintiff in front of the public eye. Being a Military Officer, the Defendant conduct was unacceptable. Evidence shows that he is an intelligent Officer of R.F.M.F. By doing that he tarnished the image of Military. Military is to safe guard the country and community and it is also well disciplined place. His acts of impulse deserve to award Exemplary damage. In these circumstances, I award $2500 as Exemplary damages and Aggravated damages.
18] All in all, together with the tendered documents, I am satisfied that the Plaintiff has proved his case balance of probabilities. I award following damages;
General Damages: $ 20,000
Special Damages: $5000
Exemplary damages and Aggravated damages: $2500
19] I make following orders.
20] Judgment to be entered accordingly.
On 03rd August 2011, at Nasinu, Fiji Islands
Sumudu Premachandra
Resident Magistrate-Nasinu
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