IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0341 OF 2001L

BETWEEN:

SANIT LAL
s/o Bihari Lal
Plaintiff

AND:

BANK OF BARODA
1st Defendant

AND:

SANJAY KUMAR
s/o Chandar Bali
2nd Defendant

Counsel: Mr. R. Chaudhary for the plaintiff 
Mr. H. Nagin for the defendants

Date of Hearing: 27 July 2005
Date of Judgment: 26 August 2005

JUDGMENT

The plaintiff claims by writ of summons damages for injuries sustained by him in a motor vehicle accident which occurred on the Kings Road near Ba on the 12th March 2001 when the plaintiff was a passenger in a motor vehicle owned by the 1st defendant and driven by the 2nd defendant.

Background

The plaintiff was born on the 4th September 1968 and was 32 years of age at the date of the accident and almost 37 years of age at the date of trial. He is currently unemployed and is unmarried.

The plaintiff completed his primary schooling from class 1 to 8 at the Mission Primary School in Ba and then attended Form 3 to Form 6 at DAV College, Ba, leaving school in 1989. He passed only mathematics in Form 6.

On leaving school, the plaintiff ultimately found work as a clerk with Emperor Bus Services in Ba where he remained for a period of 2 years. He was then unemployed for a period and then commenced employment at the Video Library Shop again for a period of 2 years and was earning $60.00 per week cash. He then became unemployed again for a lengthy period and ultimately found employment in a further video shop as a manager where he was earning $70.00 per week cash. This shop was sold which led him to his employment with Babu’s Security Service in February 2001. In this employment, he was earning $50.00 per week cash and was engaged by Babu’s Security Service to work at the Bank of Baroda Tavua agency. The plaintiff resided in Ba and travelled to Tavua each day with the 2nd defendant or another bank officer in the bank’s motor vehicle.

At the Tavua agency of the bank, the plaintiff was to control the entry of people into the bank and was engaged to work Monday to Friday but was on a very small number of occasions to work on a Saturday. He earned an additional $10.00 when required to work on a Saturday.

The Accident

On the 12th March 2001, the plaintiff was being driven by the 2nd defendant from Tavua to Ba when a motor vehicle accident occurred. Earlier that day, the plaintiff had been driven by the defendant from Ba to Tavua, leaving Ba at about 7.30am. The plaintiff says that they left Tavua for Ba at about 4.15pm. He says that the 2nd defendant was driving at a very high speed and that he spoke to him and told him to slow down. He says that the 2nd defendant responded, he wanted to get there fast as he had some other job at the bank to do.

The plaintiff says that he was sitting in the front passenger seat of a Suzuki four wheel drive vehicle owned by the 1st defendant. The plaintiff says near Nadari junction, north of Ba, the vehicle was going at a high speed and that it tumbled. He does not remember anything after that, when he opened his eyes, he was in the Colonial War Memorial Hospital, Suva. The plaintiff says he then spent 3 to 4 days after he opened his eyes at the CWM Hospital and was then transferred by ambulance to the Lautoka Hospital. He recalls that at this time his head was bandaged and that the bandage kept being changed. He says he spent 3 to 4 days at the Lautoka Hospital and then was sent home but that he has not returned to work since the accident. He had and has headaches everyday. He cannot go out in strong sunlight and that the cold weather affects him. He has a scar on the left of his head and the area around the scar feels very soft. He says he is not able to turn his head to the left and he is not able to sleep properly due to the pain when he puts the soft part of his head onto the pillow. Loud noise causes pain and he is only able to do limited work only at home where he resides with his brother.

The plaintiff says that he takes 4 different types of tablets each day and he spends $7.00 to $8.00 per week on those tablets but is unable to produce any receipts with respect to their purchase. He says that his back pain when he walks and that he isn’t able to walk properly. He held the driver’s licence before the accident but hasn’t driven since and doesn’t own a motor vehicle but did drive his sister-in-law’s car prior to the accident. He now feels nervous when passenger in a motor vehicle.

The plaintiff says that prior to leaving Ba on the morning of the accident, he had drawn to the 2nd defendant’s attention the low level of air pressure in the rear tyre. He says he told them to check the tyres as it must have a small leakage. He is not aware of the tyre being checked or attended to in any way.

It was put to the plaintiff that the cause of the accident was the rear left tyre blowing out and it caused a loud bang. The plaintiff said he did not know if the tyre blew out or not as he had his glass half way up and that he didn’t hear any loud bang or any particular noise. He says at the time of the accident, the vehicle was travelling at a 100km/hour.

The 2nd defendant acknowledges driving the motor vehicle and driving the plaintiff to and from Tavua from Ba, he says that he was doing 70 or 80km/hour at the time the incident occurred and that there was no mention made to him by the plaintiff of the low air pressure or any other problem with the tyres prior to departure from Ba that morning. He says that the cause of the accident was the left rear tyre suddenly blowing out and that after the tyre blew out, the vehicle bumped into a pothole and he lost control, applied the brakes and the vehicle went over. He also denies that the plaintiff asked him to slow down and that he was not in a hurry having left Tavua at 3.45pm and that he had no other duties to perform when he arrived in Ba. After the accident he says he flagged down an ambulance that was passing, the ambulance took the plaintiff to hospital but he, the 2nd defendant, was not hurt. He also gives evidence of the police having investigated the accident and no charges having been laid against him. Somewhat surprisingly he gives evidence of not knowing the whereabouts of the vehicle or of having inspected after the accident or being aware of anybody else having inspected the vehicle at any time after the accident. He is not aware of any maintenance register with respect to the vehicle or any record whatsoever of the maintenance of vehicle but says that the manager of the bank was the person responsible for it.

Medical Evidence

On behalf of the plaintiff, there is tendered to the court the reports of Dr. Taoi dated 18 July 2005 and 24th October 2001. Dr. Taoi also gave evidence before the court.

A further medical report is also tendered on behalf of the plaintiff from Pan Yi, a consultant surgeon at the Colonial War Memorial Hospital, Suva. Dr. Yi, in his report, details an emergency operation on the left fronto-pariental craniotomy and blood clot evacuation with haemostasis was performed upon the plaintiff’s admission to that hospital. This procedure is commonly known as a burr hole operation and has resulted in the scar and tender area to the left front of the plaintiff’s forehead.

Dr. Taoi, in his reports and in his evidence, notes that the plaintiff suffered from multiple lacerations on the scalp over the parietal region, bruise neck, bruise chest, contused lungs, multiple lacerations and abrasions on the hands, head injury and exrtradural haematoma and cerebral oedema. He says on review that the plaintiff is suffering from recurrent headaches and giddiness, left sided weakness and unsteady gait, forgetfulness, irritability to noise and is easily depressed that he has still has the tender area over the scar and his scalp and there is a palpable 3 cm diameter hole on the left temporal region of the skull. He has a reduced alertness and a slowness to react to commands. Dr. Taoi assesses his permanent impairment at 44%. 

The plaintiff was examined on behalf of the defendant by Dr. McCaig at the Suva Private Hospital. Dr. McCaig has only seen the plaintiff on one occasion and that was on the 13th February 2005 for the purposes of preparation of a medico legal report. He recites a history as given to him by the plaintiff. He assesses the plaintiff as having a 14% incapacity but in his report does not deal with the psychological impairment that might have been suffered by the plaintiff nor of course, as an orthopaedic surgeon, is he able to give evidence with respect to the neurological issues arising from the head injuries sustained by the plaintiff.

Liability

Much was made by the defendant of the varying versions of the cause of the accident apparently given to doctors in hospitals from time to time. Clearly the plaintiff was unconscious upon his admission to CWM Hospital and by virtue of the seriousness of the head injuries sustained by him could not have been able to give any history to that hospital and any history that they have recorded must have come from some other person. The history given to Dr. McCaig is a history some 4 years after the incident and can only be a reconstruction by the plaintiff from the information given to him by others.

The various scenarios appear to be that a rear tyre blew out and the vehicle then hit the pothole or alternatively that the vehicle hit the pothole which caused the rear tyre to blow out. The plaintiff pleads amongst other things res ipsa loquitur. The defendant on the other hand says that it was an inevitable accident 

There is no evidence before the court as to why the tyre blew out. There is no evidence of the tyre having a nail in it or of it having incorrect pressure prior to the accident. There is no evidence of the tyre having been examined after the accident and there is no report or other evidence before the court proffering any view as to what occurred apart from the evidence of the defendant that there was a loud bang, the tyre blew out, he then hit the pothole and lost control.

Counsel for the Defendant has referred the court to Ramzan v Jagdish Chand Gosai - 14 FLR 136. The Fiji Court of Appeal there held that on the facts of that case the doctrine of res ipsa loquitur did not apply, however in doing so, the court said at page 138:

“The third submission is that the learned judge ought to have applied the principle res ipsa loquitur. There is no merit in this suggestion. The doctrine may well have applied if the motor car had overturned from an unknown cause, or even if the accident had been due to the unexplained bursting of a tyre. But in the present case there was ample evidence of the facts surrounding the accident and its cause. As Lord Porter said in Barkway v South Wales Transport Co. Ltd. [1950] 1 All ER 392, at 395 – “…if the facts are sufficiently known, the question ceases to be one where the facts speak for themselves, and the solution is to be found in determining whether, on the facts as established, negligence is to be inferred or not.”

The doctrine of res ipsa loquitur was considered by the High Court of Australia in Schellenberg v Tunnel Holdings Pty. Ltd. 200 CLR 121. The court there held that the doctrine of res ipsa loquitur ceased to operate once the cause of the occurrence was identified. The Court further held that where an occurrence is outside the experience of the layperson, and the evidence does not establish that such an occurrence ordinarily does not occur without negligence, res ipsa loquitur is inapplicable.

There is no evidence before the court as to the ultimate cause of the accident. The only evidence is that the tyre blew out and the vehicle hit a pothole and then overturned. Why did the tyre blow out? This question is not answered. There is an absence of an explanation and a lack of evidence as to the specific cause of the accident. 

In the circumstances, I am not satisfied as to the cause of the accident and in particular as to the cause of the tyre bursting. In these circumstances, it is appropriate to apply the principle of res ipsa loquitur and accordingly, I find for the plaintiff on liability.

Damages

The plaintiff is before the court as a single man, almost 37 years of age, who has suffered very serious injuries in a motor vehicle accident which have left him significantly disabled. He is a man with limited education and experience and is ill equipped to engage in gainful employment in his disabled state. He has not worked since the date of the accident and there are little prospects for him in the future. By virtue of the principles expressed in Appal Swamy Naidu v Bechai & Anor – Civil Appeal No. 43 of 1994, he is entitled to an award of compensation for his loss of earning capacity in the future. Prior to the accident and without his present disabilities the plaintiff was only able to work about 7 years out of 11 years.

Counsel for the Plaintiff submits that a multiplier of 18 should be used with respect to the loss of earning capacity. Counsel for the Defendant submits that this is indeed too high that the maximum allowable in this country is 16. It is clear that 18 is in fact the maximum that has been adopted in the past. In the circumstances of this matter, it would appear, however that 16 is probably an appropriate multiplier and that the appropriate multiplicand is the plaintiff’s earning as at the date of the accident, that is, $50.00 per week. That would result in $50.00 x 52 x 16 which equals $41,600.00.

There appears to be no dispute that the plaintiff has not worked since the accident, accordingly the loss of wages to date is $50.00 per week x 227 weeks for the total $11,350.00, the future medical expenses would appear to be $7.00 to $8.00 per week, tablets, there being no need for any future surgery. It would seem appropriate a figure of $5,000.00 for future medical expenses.

General damages are much more difficult to accurately assess. The percentage disability which is somewhere between 44% and 14% is indeed significant. The 14% assessed by Dr. McCaig is acknowledged not to include any psychological impairment. The head injuries sustained by the plaintiff were serious and there appears little dispute as to his resultant disabilities with respect to those injuries.

In Anita Kumar Singh v Rentokil Laboratories Limited – Civil Appeal No. 73 of 1991, the Court of Appeal considered an award of $60,000.00 for general damages appropriate. The injuries sustained by the plaintiff in that matter were perhaps more comprehensive than those sustained by the plaintiff in the matter now before the court. That award of course was made some 11 years ago and needs significant adjustment for the lapse of time.

In the circumstances doing the best I can, I think an appropriate award of general damages would be $70,000.00 made up as to past, $30,000.00 and future $40,000.00. Interest is claimed and should be awarded on the principles expressed in Jefford v Gee as adopted by the Fiji Court of Appeal in Charles Valentine v Attorney General. The appropriate rate of interest would appear to be 6%.

Summary of Damages

General Damages:
Past		..	..	..	..	..	..	..	$30,000.00
Interest on past general damages @ 6%	..	..	..	$ 7,500.00
from 12/3/01 

Future	..	..	..	..	..	..	..	..	$40,000.00

Loss of earning capacity				.	..	$41,600.00

Loss of wages to date	..	..	..	..	..	$11,350.00

Interest on Loss of Wages @ 3%..	..	..	..	$ 1,430.00

Future Medical Expenses	..	..	..	..	..	$ 5,000.00

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	TOTAL	..	..	..	..	..		$136,880.00
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Orders of the Court

1.	Verdict and judgment for the Plaintiff in the sum of One Hundred Thirty Six Thousand, Eight Hundred and Eighty Eight ($136,880.00).

2.	Defendant to pay the plaintiff’s costs summarily assessed in the sum of Three Thousand Dollars ($3,000.00).

JOHN CONNORS
JUDGE

At Lautoka
26 August 2005