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Sharma v Waqa [2004] FJHC 222; HBC0092J.1998L (7 July 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action HBC0092.98L

VIRENDRA SHARMA

V

VILIAME WAQA AND FSC LTD.

Fiji High Court, Lautoka
17 April, 1-3 August, 21, 23, 24 November 2000
6-7 August, 27 September 2001, 1 August 2003
7 July 2004
Gates J

JUDGMENT

Negligence; collision on unfenced rail crossing between train and private motor vehicle; absolute priority to be accorded to rail traffic on level crossing, Reg. 149 Traffic Regulations Cap. 176; common law duty of care owed by defendants to plaintiff; scalp, brain, neck and chest injuries; scarring, sexual dysfunction, unsteady gait, cognitive deficiency, post concussion syndrome; 44 year old law clerk; future economic loss; multiplier of 16; less 15% for vicissitudes.

Mr R. Prakash and Ms L.R.M. Vaurasi for the Plaintiff
Mr A.R. Jungwirth and Mr S. Sharma for the Defendants

Introduction

[1] The plaintiff claims the driver of a private motor vehicle in which he was a passenger was not the cause of a collision between that vehicle and a locomotive which had been reversing across an unfenced level crossing. He claims the train driver was negligent. He says the train driver did not have warning lights on at the time, and crossed the main road at night without any lights. He also alleges that the train driver failed to heed the presence and proximity of the motor vehicle. On the other hand, the defendants plead that precedence was not accorded to the train by the driver of the car as it should have been in order to comply with regulation 149(4) of the Traffic Regulations Cap. 176.

[2] The defendants in their defence asserted that there were lights illuminated on the train, both the flashing amber beacon light and the locomotive front and rear lights. They claim that the train driver [the 1st Defendant] had sounded the horn continuously when proceeding with the train across the main Lautoka-Ba road at the level crossing.
[3] Regulation 149 grants absolute priority on a level crossing to rail traffic. It is worthwhile to set out the regulation in full. It reads:

“149. (1) The driver of a vehicle approaching a level crossing shall –

(a) drive at a speed which will enable him to yield right of way to a train approaching or crossing the level crossing;

(b) obey a sign or signal requiring the vehicle to stop or to slow down before the level crossing;

(c) yield right of way to a train at or approaching the level crossing.

(2) A person shall not stop or park a vehicle on, or so as to obstruct, a level crossing.

(3) A person shall not drive or attempt to drive a vehicle or an animal onto or across a level crossing so as to cause a risk of collision with a train.

(4) Rail traffic shall have absolute priority on a level crossing.

(Substituted by Legal Notice 55 of 1985.)”

[4] The evidence, says the plaintiff, showed that the train driver commenced to cross the main road without checking to see if it were safe to do so, and without operating the train’s horn, beacon, and lights. This manoeuvre he says was done in a hurry making it impossible for the driver of the car to avoid the collision which occurred. The plaintiff must prove the defendants were negligent to the civil standard of proof, of proof on a balance of probabilities.

[5] The defendants submit the evidence points otherwise, namely, to an orderly crossing by the train whilst its horn, beacon, and lights were operating. The accident occurred because of the inattention of the driver of the private motor vehicle and the excessive speed at which it was being driven.

The collision

[6] The accident happened on Wednesday 13 August 1997 shortly after 7.45 pm when it was dusk. The plaintiff was travelling in a private motor vehicle AA263 on the Kings Road from Ba to Lautoka. He was the rear left passenger. There were two other passengers. The driver was Umesh Chetty. They were going to attend a religious ceremony in Lautoka and to sing bhajans.

[7] It had been a dry day and the tar-sealed road surface was dry. The plaintiff’s witnesses said they were proceeding along at about 50 kmph when the train came out from the right into the road in front of them. This was at the junction of the Kings Road and Naikabula Road, a short distance out of Lautoka. The driver of the car tried to brake, swerved to his left, and was dragged further to the left by the train on impact.

Where did the impact occur?

[8] The locomotive engine had been reversing across the path of the motor vehicle from right to left, whilst the locomotive was on its way, without trucks, to pick up loaded cane trucks from the left hand side, as it appeared to the plaintiff’s vehicle. These trucks would then have been brought back across to the main line and attached to the trucks already in line and towed to the mill. The tramline across the main road was a subsidiary line.

[9] Two police officers attended the scene of the accident. They were PC Hussein Abbas and PC Nitya. Of these two, only PC Abbas gave evidence for the defence. He said he left the police station at Lautoka at 8.04 pm and arrived at the scene about 3 minutes later.

[10] He found the private car AA263 on the grass verge along with the locomotive on the Naikabula Rd. side the left hand side for the car travelling towards Lautoka. The locomotive was half on the road and still on the tramline. PC Abbas was the investigating officer in the case, and he had had 10 years experience in the traffic section. He concluded that the point of impact was close to the edge of the Kings road. No sketch plan was produced, nor measurements given to pinpoint the exact area where this witness had seen debris on the road which might have indicated a point of impact.

[11] A sketch plan had been drawn by his colleague PC Nitya. But PC Nitya was not called nor any explanation given as to why he might not have been available to give this evidence.

[12] At the place on the road suggested as point of impact by PC Abbas there was found to be mud and pieces of glass and headlight. Besides stating that the road was in good condition at that point, “nice and flat, no potholes, properly marked”, the witness said the vehicle and train were not attached to each other. He thought they were a metre or so apart but he also said he thought the officer who drew the sketch plan was the right person to answer the question.

[13] In cross-examination, PC Abbas said there was no mud in the centre of the road. It was near the train on the right hand side of the road as you face Ba. His evidence was given without measurements and was not therefore satisfactory on this issue. He said the glass was scattered on the right hand side heading towards Ba, and on the edge of the road. He conceded it was night time when he arrived and he could not remember if he used a torch to see.

[14] PC Abbas also noted that there was a paint mark from the vehicle on the side-centre of the locomotive. There was no evidence of the length of the locomotive, or as to how the paint mark corresponded in relation to the road and to the debris. Viliame Waqa [1st Defendant] gave evidence of what happened just before he made the crossing of the road in the locomotive. He said:

“We could not see any vehicles just before crossing”, and “I saw nothing. I was concentrating on my locomotive.”

[15] He continued: “As we crossed the main road, we could not see any motor vehicles. As we crossed, about to enter the grass about 5 seconds the accident happened.” This account pinpoints the impact to the plaintiff’s car’s lane near the left hand edge. Waqa said he could not say how fast the locomotive proceeded across the road.

[16] He had almost reached the other side. The car came at a very high speed and he could see it swerving. The car hit the left hand side of the reversing train at the back. Later he said he forgot how the impact occurred. He did say the train had crossed over the centre white line of the road when the collision happened. He accepted that the car and the train were attached immediately after the accident. He did not know who moved them apart.

[17] The locomotive driver’s pointsman, Ratu Isoa Waqaiwai, supported his driver in saying the accident took place on the other side of the road, the Naikabula side. He agreed the train and the motor car were still attached afterwards.

[18] According to the plaintiff, who said he himself was a driver, his vehicle was travelling along at about 50 kmph. He said they were caught up in a queue. The car in front went across the rail crossing. Then the train appeared in front of them from the right. It was 6-8 metres away. The driver of the car took avoiding action, braked and swerved to the left. The locomotive driver said at one stage he did not apply the autobrake, and then later said he could not remember if he did. But by not stopping, it was more likely that the car which was swerving to the left had nowhere else to go and that an impact was inevitable. Even with the autobrake applied an impact was still probable.

[19] The plaintiff said the car had stopped before the impact. If so, less damage to the car might have been expected. The photographs showed the driver’s side front bonnet and engine compartment considerably crumpled. The vehicle looked undriveable and the front screen was shattered. Even accepting the train’s greater size and weight, I find that the motor vehicle was still moving forward when the impact occurred.

[20] The plaintiff said the “impact occurred almost in the middle mark of the road.” He remembered nothing after the impact because he was rendered unconscious by it. Towards the end of his evidence in chief he said: “The collision was on the tar seal road, on the left hand side facing Lautoka on the tramline.”

[21] Umesh Chetty was in the motor vehicle sitting behind the driver Jagdish. He also was a driver. He confirmed they were traveling at 40-50 kmph. The headlights were on dipped beam. There were a few vehicles in front of them, whey they approached the junction with Naikabula Rd, with which this witness was familiar. The car in front had proceeded ahead. It was about two car lengths in front. He saw the rear of the train as it reversed across the road. Jagdish braked and tried to swerve towards the left. But the locomotive ran into their car, and dragged it to the left.

[22] Chetty also confirmed that the train and the car were connected when stationary, a fact also observed by Subash Chand who came along on his way to work shortly afterwards. Chand was the driver’s brother.

[23] I conclude that the impact occurred somewhere into the motor vehicle’s left hand lane, and probably more to the left than to the centre of that lane. It is not possible to be more precise than this.

Was there a line of traffic?

[24] All of the plaintiff’s witnesses state that they were travelling in a line of traffic towards Lautoka. All that is except Mr G.P. Shankar who was near the parked vehicle on the other side of the level crossing facing Ba. He was not feeling well at the time, and prior to the accident had no reason to notice such an occurrence.

[25] The locomotive driver Waqa said the weather was good that evening. There had been no rain. Presumably there was no atmospheric impediment therefore to a clear vision up and down the road. There was a slight bend in the road. The driver had a clear vision towards the bridge on the Ba side. He said he saw a car which had not yet reached the bridge.

[26] The surveyor’s assistant said he had measured the distance from that bridge to the middle of the crossing, and it came to 171 metres. The road he said was clear and without bushes or growth that might obstruct vision.

[27] Later Waqa said “I did not see anything. I was concentrating on the loco. As I went across, I did not see any vehicles. I saw a car 100 metres away on the Ba side.” He added “As I was coming down to main road I saw the headlights. Before I entered the main road I saw the headlights. When I came down the main line there were trees blocking. When I was coming to the main road, that is when I saw them. It was 20 to 30 metres from the train to the bridge.”

[28] This estimate of distance was considerably wide of the mark in view of the surveyor’s measurements. The pointsman said he saw a vehicle “far away from where I stood.” He also thought the car was beyond the bridge towards Ba, about 100 metres away. The next time he saw the car it was “going like zig zag.”

[29] I prefer the evidence of the plaintiff and his witnesses on this issue and I conclude there was a line of traffic coming from Ba, the plaintiff’s vehicle being the last in line.

Was the car speeding?

[30] The two defence eye witnesses say the motor vehicle was travelling at an excessive speed. I find this not to be so. The locomotive driver’s estimate of distance was widely inaccurate, and other estimates in his evidence were similarly implausible and I find inaccurate. Had the plaintiff’s vehicle been driven at the speed necessary to travel from the bridge to the crossing in such a short time the car would have been even more damaged than it was. It was an old car, and a small car. I find that it was travelling at moderate speed at the end of a queue of cars. I accept the estimates of the driver witnesses called by the plaintiff as well as the plaintiff’s own evidence of a speed of 40-50 kmph.

[31] I find also that no brakes were applied by the locomotive driver. The plaintiff’s driver Jagdish on the other hand did try to avoid an impact, swerved and braked. Waqa said first he did not apply the brakes and then that he could not remember. He said:

“I had emergency brakes. There was still space at the back, space for it to go round at the back of the loco.”

I find the locomotive driver did not apply any brakes.

Did the locomotive display its lights and beacon and sound its horn?

[32] It is much easier to accord precedence in the day time to rail traffic at a crossing because it is easier to see a locomotive. But at night time it is necessary for the locomotive driver to alert other road users to the locomotive’s presence so that precedence can be accorded. There were no street lights provided on this road. The period from dusk to darkness is a particularly dangerous time since users of the road have to accustom their eyes to the change in visibility. It is imperative that all of the precautions provided in the instruction manual to drivers and pointsman by FSC be strictly followed. For the public roads are primarily for vehicular traffic not trains. Though in this part of Fiji, everyone expects trains to cross roads at level crossings, train usage of the roads is obviously a much smaller percentage in comparison with vehicular usage.

[33] The locomotive driver maintained that all his lights were on, two at the front and two at the rear and the flashing light. They had been on whilst the train was still on the mainline. Waqa said his pointsman Ratu Isoa started the horn 10 yards from the road. He said he sounded it for 5 to 10 minutes. This estimate did not seem to fit with the evidence of Mohammed Yusuf called by the defence also, a traffic officer at the Lautoka mill, who said it would take between 75-80 seconds for the train to cross the road. Once across there would be no need to keep the horn tooting, which had to be done by hand.

[34] Waqa had denied that the horn tooting by Ratu Isoa had gone on for 10-15 minutes. Later he said it was for 10-20 minutes. These seemed to be incongruous timings.

[35] Crucially he described the accident circumstances as follows:

“I was concentrating on the locomotive and I saw nothing. I saw a car 100 metres away. I have lost my memory from crisis of last year.

I did not see anything. I was concentrating on the loco. As I went across, I did not see any vehicles.”

[36] His evidence often seemed to chop and change. At one time he said before he entered the main road he saw the headlights, and at another that he had not seen anything. Of the road crossing he made he said:

“I had made up my mind to cross because most of the Ba vehicles usually turn into Naikabula Junction Road. I thought I could still get across because the car was still 100 metres away.”

[37] He also thought that the car approaching could get round the back of him. I find Waqa’s decision to cross when he did to have been the main cause of the accident. As with most of his estimates of time and distance, the locomotive driver miscalculated seriously.

[38] He did not appreciate that the plaintiff’s car was part of a queue of traffic from Ba, and that there was neither time nor space for making the crossing at that time. He should have waited for that one remaining car to clear and he could have crossed the road to the Naikabula Junction in safety without rushing. I find also that he rushed across either thinking he could clear the main road in time, or at least that the plaintiff’s car could go behind him.

[39] In taking this course the driver miscalculated and was negligent. He just came out into the road when it was not safe to do so and hurried across. The plaintiff’s car which I have already found was not speeding, applied its brakes, swerved to the left, and unavoidably collided with the train. The train was too close and was too long for the car to avoid.

[40] Waqa’s police statement was put to him in which he had stated that he himself had started tooting the horn. This he denied in evidence and said his pointsman had operated the horn. At another time he said “I pulled the alarm for all the period whilst crossing.” On the lights, he said to save the battery, he usually put the light on inside the cabin. Further on in his evidence, he said “the light is on all the time”. Ratu Isoa supported his driver on these aspects.

[41] The first witness for the plaintiff was Mr G.P. Shankar, the Ba lawyer. He knew the plaintiff and had at one time employed him in his office as a law clerk. He was feeling sick that day and had asked his driver to stop. He had a heart problem. That vehicle was facing Ba and was parked on the left just before the crossing. This witness got out of the car and was facing towards Ba.

[42] He saw a dark object going to the right along the tramline. It had no lights on, nor did it “blast its whistle”. This witness, who said he was 2-3 yards from the mainline on the grass verge, said the train had no lights on, none in the cabin and no beacon flashing. He saw a car coming from the Ba side. He heard a crash. His car moved forward and then he blacked out. In fact, Mr Shankar was taken to the Lautoka Hospital. A day or two later he was evacuated overseas for treatment. He concluded his evidence by saying the train had not sounded its horn either.

[43] The plaintiff was smoking at the time and the windows of his vehicle were down. It was an old car without air conditioning. There was no impediment to his hearing the train’s horn, nor indeed of hearing its familiar diesel engine. He asserted there were no lights, beacon or horn that night operating on the locomotive.

[44] Umesh Chetty sitting behind the driver of the motor vehicle said there were no lights on the train that night. He went on:

“We hear the horn everyday from our home at that crossing. We are about 1 km away.

We did not hear the hooter.

We would have heard it.”

[45] He also said he saw the locomotive driver switching on the train’s lights on top about 2-3 minutes after the accident. This was the orange light, the beacon. He said he saw the lights come on. He did not notice the other lights. The driver was the only person inside the train. He said he had known the locomotive driver for years.

[46] PC Hussein Abbas said the train lights were on when he was at the scene, the swivel light, the front and rear lights and the cabin light. At that time the occupants of the motor vehicle were no longer at the scene. They had left for the hospital. This witness accepted that he did not know when the lights were switched on.

[47] There is a complete divergence by the two sides on the issue of the lights, beacon and horn. On a balance of probabilities I find the evidence of the plaintiff’s witnesses is to be accepted. In view of my findings on the other material issues and the unsatisfactory nature of the evidence of the locomotive driver, there would be no other reason for the driver of the motor vehicle not to accord precedence to the train. I have found that the locomotive came out onto the road suddenly, and crossed hurriedly when it was not clear to do so. I also find that this manoeuvre further handicapped the motor vehicle driver from responding to that sudden manoeuvre by a complete lack of warning devices being operated by the train driver. It may be the pointsman was not, as Chetty testified, on board the train when it crossed. This would explain why the locomotive driver could not sound the horn. He was concentrating he said on driving the train across the crossing, as soon as the pointsman had changed the points. In his hurry, he must have omitted to put on the lights or beacon.

[48] I find no merit in the defendants’ arguments concerning the giving of statements to police in Jagdish Chand’s case, or the failure to call Jagdish or others in Shankar’s car as witnesses. On the evidence, I find the plaintiff’s witnesses to be more credible and their evidence to be more plausible.

[49] In view of all these findings, I conclude that the defendants are liable for the breach of duty of care to the plaintiff for the negligent driving of the train that night.

Quantum of damages

[50] There are various items claimed under special damages, transport to hospital, medicine, damaged clothing and the like. These have been agreed at $508. There will be judgment for special damages for that amount.

[51] Immediately after the accident the plaintiff lay in the front of the car, having been thrown forward. He had his head on the dashboard and his feet towards the rear. This was the account given by the witness Chetty. The plaintiff said he was unconscious. He woke up in hospital at about 10 pm, and was in pain.

[52] Prior to the accident he had had no health problems. He remained 2 weeks in hospital recovering from his injuries. He was attended to by Dr Viliame Taoi, who noted the plaintiff was distressed by pain. He had minimal movement of neck, profuse bleeding from a scalp wound extending 25 cms from the bridge of the nose shearing up across the forehead to the vertex (occipital bone). The skull was exposed and the gap was filled with gravel, pieces of grass and soil. He had soft tissue trauma and bruises on the chest. On x-ray it was found he had suffered a fracture of the 2nd cervical spine.

[53] Under anaesthetic, the wound was cleaned and stitched. He recovered and had physiotherapy. He was found to complain of headache, weakness over the lacerated area, and limited neck movement. He also suffered visual disturbance and dizziness.

[54] Dr Taoi reviewed the plaintiff a number of times, and he also interviewed the plaintiff’s wife. The complaints were that the plaintiff had become very irritable, intolerant to noise, very forgetful, and easily fatigued. The plaintiff’s wife confirmed these symptoms. He also had an unstable gait and was unsteady. The prognosis was that he had suffered some brain injury and post concussion syndrome. He was sometimes dizzy. It was a condition that “comes and goes”.

[55] The 2nd cervical spine injury resulting in the stiff neck with osteoarthritis was a permanent injury according to Dr Taoi and would give rise to pain from time to time. Dr Taoi also concluded that there was an incapacity for sexual dysfunction. He calculated the percentage of permanent incapacity with reference to an American Medical Text as being:

1. Post concussion syndrome 25%

2. Neck injury 10%

3. Facial disfigurement 5%

4. Sexual dysfunction 5%

Total 45%

[56] These figures met with the approval of the Consultant Psychiatrist Dr S. Narayan of St. Giles Hospital. Dr Narayan was able to confirm some of the symptoms reported by the plaintiff. The plaintiff still has the limp and difficulty in sitting without pain in a chair for long periods. He has pain in his neck and back, and a restricted range of movement in his neck and head. He has unsettled sleep, and is often anxious. His wife says he is isolated and withdrawn.

[57] He used to be outgoing and sociable. He joined in social events, religious, charitable and musical groups. He also did fishing and hunting. He does none of these now. Instead he presents, though well groomed and co-operative, as a rather sad figure. Clearly his personality and behaviour have changed. The psychiatrist concluded he had difficulty with cognition in a way that indicated he fulfilled the criteria for post concussional syndrome on the ICD-10 classification.

[58] Dr Narayan concluded that he suffered a 30% mental disability on the Global Assessment of Functioning (GAF) Scale. This dovetailed in with Dr Taoi’s estimate. Dr Narayan concluded this deficit had been caused when the brain had been shaken up against the skull in the accident. He thought the condition could develop either way, improve or deteriorate. The plaintiff could go on to develop epilepsy. Dr Narayan was cross-examined thoroughly on his methodology, but I am satisfied that he has made a careful and accurate assessment. I also accept the evidence of Dr Taoi on these matters.

[59] The psychiatrist said that he had undertaken certain tests to ensure there was no functional overlay here, and that the symptoms were genuine. He was satisfied they were. The lack of superior diagnostic machinery does not undermine the value of the plaintiff’s witnesses evidence in toto. The defendants brought no contrary medical evidence.

[60] For the pain and suffering following the accident, the pain also continuing, the bruising, the skull wound and scarring, the neck injury, the limp, the loss of social life, the sexual dysfunction, and the cognitive decrease and change in personality and behaviour I award $65,000.

[61] I award the agreed component of $1,200 for past loss of wages, the reduction in wages. Clearly the plaintiff, 44 years old at trial, has shown he is incapable of holding down a job as law clerk in a busy law office. Taking the defendants’ counsel’s figures but allowing a figure of loss of $240 pw (not $200) and applying a 30% loss of earning capacity (not 25%), but in all other respects accepting defence counsel’s factors I award the following:

$240 (gross loss of wages per week) x 30% [= $80 pw]

x 579.5 (multiplier for 16 years to retirement)

[= 46,360] x 85% (less 15% for vicissitudes) [= 39,442]

That comes to an award for future economic loss of $39,442.

[62] I also award the figure of $2,000 for FNPF which defence counsel submits as reasonable. In the circumstances of the total award, I decline to award interest.

[63] As for costs, this was a lengthy trial and I award the plaintiff his costs fixed summarily. For the trial I award $10,000, and $1,500 for all other matters, pleadings, preparation and interlocutories. I also award $500 for court fees and $1,500 for expert witnesses and witnesses attendance costs. The total global award for costs comes to $13,500.

[64] I tabulate the award as follows:

1. General Damages $ 65,000

Pain and suffering

2. Past economic loss $ 1,200

(as agreed)

3. Future economic loss $ 39,442

4. Loss of FNPF $ 2,000

(as agreed)

5. Special Damages $ 508

(as agreed)

6. Interest Nil

7. Costs $ 13,500_

$121,710

[65] There will be judgment for the plaintiff against the defendants in the sum of $121,710 inclusive of costs.

A.H.C.T. GATES
JUDGE

Solicitors for the Plaintiff: Messrs Chandra Singh & Associates, Tavua
Solicitors for the Defendants: Messrs Vijay Naidu & Associates, Lautoka