IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: 43 OF 2006

BETWEEN:

SANJAY SINGH
f/n Brij Bahadur Singh of Korowiri, Labasa
Plaintiff

AND:

VALEBASOGA TROPIC BOARDS LIMITED
a limited liability company having its registered office in Labasa
(In Receivership) and
CHIRK YAM and ILAITIA BOILA
as Receivers and Managers of
VALEBASOGA TROPIC BOARDS LIMITED (In Receivership).
Defendants

Mr. A. Sen for the Plaintiff
No Appearance for the Defendant

Date of Hearing: 28th August 2007
Date of Judgment: 25th September 2007

JUDGMENT

The plaintiff is aged 30 years. In July 2005 he was employed by the defendant as a truck driver. He drove a 10-wheeler truck used to transport logs from forests to the defendant’s factory at Labasa. He had started work for the defendant on 17th May 2005. He was given a truck registered number CQ 255 to drive.

He told the court that on 4th July 2005, this truck encountered problems with the brake when coming downhill. He brought the truck to the yard, unloaded the logs and told Ilaitia Boila the receiver about the problem. Boila asked him to go home as the mechanics would attend to the truck.

The next morning the supervisor of the mechanics told him the truck had been fixed and he was sent to Mount Kasi to bring logs. On his return journey the truck, loaded as it was with logs, began to accelerate while going downhill. He applied the brake but the brake pedal went right in. The brakes failed to slow the truck. The truck went off the edge of the road and capsized. He was trapped inside the truck. The logs had shifted on top of the cab of the truck. He suffered injuries to his right index finger, right leg and on the back. He was taken to Labasa Hospital where he remained admitted for fifteen (15) days.

Was the defendant negligent?

The answer is obviously yes. The plaintiff had brought to the defendant’s notice that the truck had problem with the brakes. It was defendant’s duty to attend to the problem. This was a 10-wheeler truck carrying logs and going over difficult terrain. As such proper maintenance of brakes was of paramount importance.

PW3 Hector Jones supported plaintiff’s version of events in that the truck was brought to the yard for faulty brake. He explained that the truck had a leaking valve which would cause brakes to fail if the truck was loaded and going downhill especially if it was on a long journey. He said that he was the assistant supervisor for trucks and bulldozers at the time. He stated that only the brake liners of the truck were changed but not the foot valves as none was available in the yard or with a dealer.

The truck therefore was sent on a trip without the cause of the problem being fully fixed. The defendant company although aware of the defect nevertheless took the risk. It did not care about the safety of the plaintiff. Hector Jones stated that the truck was checked after the accident and the only conclusion he could draw was that the brakes malfunctioned due to faulty foot valve.

I accept his evidence. The company owed a duty of care to its driver. This duty involved providing a safe equipment. That it failed to do. The defendant was aware of the faulty foot valves but did not fix it. It should have kept the truck in the yard and not send it on a long journey, thereby exposing the plaintiff to danger. The defendant was negligent. This negligence resulted in plaintiff suffering severe injuries and damages. 

The Quantum of Damages:

The plaintiff had claimed special damages for transport and medical expenses. He was in hospital for fifteen (15) days which resulted in his father and wife being with him to provide him support and comfort. Additionally he said he had to make about twenty trips to hospital after his discharge. Taxi fares from his home to hospital cost $5.00 each way. He also had to spend about $7.00 on medicine on each visit. These claims are entirely reasonable. In the pre-trial conference minutes the parties had agreed to a sum of $1,000.00 as special damages. I allow $1,000.00 as special damages.

General Damages:

These include damages for pain and suffering, loss of amenities, cost of future nursing and future medical expenses and loss of future earnings.

Pain and Suffering:

Damages for pain and suffering are determined by the nature of injuries, the severity of the injuries and their impact on a particular claimant. The damages are awarded by bearing in mind previous awards so there is a measure of consistency and certainty. The level of awards is also increased with passage of time to take into account inflation and decline in value of money.

Doctor Abhay Chaudhary described the injuries from the medical folder from Labasa Hospital. The plaintiff had suffered fracture of right index finger, fracture of radius of right leg, fracture of third metacarpal (not shown in pleadings) and fracture of the first lumber vertebrae. This is spinal injury. His serious injuries are the ones of right index finger and the spine injury. He cannot bring his finger down to grip things as it has stiffened at an angle as demonstrated by the plaintiff. He is right handed. Because of his spinal injury, he cannot walk straight. He is hunch backed now. He needs to walk by means of a crutch with a great deal of difficulty.

His injuries were serious. He described them as very painful. On being discharged from hospital, he had to be brought in a wheelchair to the waiting vehicle and then lifted and put in the car. He was bedridden for further three weeks at home being nursed by his wife and father. The doctor confirmed that such injuries would cause a lot of pain. The plaintiff too stated that his back still causes pain and he cannot sit cross legged on the floor.

His back injury and hand injury are so bad that he cannot return to manual work. The doctor’s report bears this out. He has been only up to Class 6 so he has a very low level of education. Clerical job would be out of question for him now.

The highest awards in Fiji for pain and suffering and loss of amenities are in the region of $80,000.00 to $85,000.00: Rohit Vikash & Another v. Suruj Mati Prakash – ABU 47 of 2003. This was a case of left arm amputation. In Jone Maka & Another v. Broadbridge – ABU 63 of 2001 the Court of Appeal reduced an award of $75,000.00 to $60,000.00 for injuries to right forearm and right hip fracture and right foot partly paralysed. The judgment was delivered on 30th May 2003.

Having considered the evidence and seen the great deal of difficulty the plaintiff had in walking and sitting while testifying I award him a sum of $55,000.00 for pain and suffering being $30,000.00 for past pain and suffering and $25,000.00 for future pain and suffering.
 
Loss of Earnings:

I intend to split these into two subheadings: past loss up to date of trial and future loss of earnings.

Past Loss:

The plaintiff was earning $109.00 per week nett. There was no evidence adduced whether the truck drivers have received any increase in wages. He was injured on 5th July 2005 which is roughly 110 weeks to trial date. His past loss would be 110 weeks by $109.00 or $11,990.00.

Loss of future earnings:

This is an area of great difficulty as it involves so many uncertainties. These would be life expectancy, possibility of redundancy, whether the plaintiff would find another employment, the opportunity of promotion or any increase or decrease in salary.

The plaintiff was a healthy man prior to accident. He had been able to find employment with a number of employers. I have no evidence, however, that there has been any increase in driver’s salary since the time of accident. The chances of this man finding any manual work are nil.

Out of the multiplier of fifteen years I have already taken 110 weeks for past loss of earnings leaving the balance of 670 weeks. I calculate his future loss of earnings at 670 weeks by $109.00 which is $73,070.00.

Future Medical Expenses:

Doctor McCaig saw the plaintiff once and did not recommend surgery. He recommended physiotherapy. He did not rule out surgery altogether. A visiting overseas orthopaedic surgeon Dr Lofeler had seen the plaintiff at Labasa Hospital on 14th November 2005 and 5th June 2005. He advised surgery for the spine but it is not available locally. Such surgery alone would cost $15,000.00 to $20,000.00 Australian dollars. Dr Chaudhary who is himself a surgeon considers spine surgery as a risky operation and the chances of success would depend on how competent a surgeon was. I would allow a sum of $25,000.00 for future medical expenses.

Loss of FNPF:

Mr. Sen has asked for loss of FNPF for the entire period of fifteen years. While I have no difficulty in awarding FNPF on loss of past earnings, I have my reservations about the future. In addition to uncertainties already stated, I cannot rule out the possibility of legislative change or the plaintiff starting his own business. I will allow eight percent on $11,990 or $959.20.

Interest:

The plaintiff is entitled to interest. I allow interest at three percent on special damages and on past loss of earnings and at six percent on past pain and suffering. Interest on special damages and past loss is therefore comes to $824.00 and on past pain and suffering it comes to $3,808.00

Costs:

The plaintiff is entitled to his costs. I fix costs at $3,000.00.

Conclusion:

Accordingly I grant the following damages to the plaintiff:

(a)	Special damages	$1000.00	
(b)	Damages for pain and suffering		
	(i) past pain and suffering	30 000.00	
	(ii) future pain and suffering	25,000.00	
(c)	Pre-judgment loss earnings	11,990.00	
(d)	Post judgment loss earnings	73,070.00	
(e)	Future medical expenses	25,000.00	
(f)	Loss of FNPF	959.20	
(g)	Interest on (a) and (c)	824.00	
(h)	Interest on (b)(i)	3,808.00	
	$171,651.20	

Order:

Accordingly I enter judgment for the plaintiff against the defendant in the sum of $171,651.20 together with costs which I summarily fix in the sum of $3,000.00.

[ Jiten Singh ]
JUDGE

At Suva
25th September 2007