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Daku v Prasad [2009] FJHC 369; HBC29.2005 (7 December 2009)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION HBC 29 OF 2005

BETWEEN:

MAIKA DAKU
PLAINTIFF

AND:

HARI PRASAD
FIRST DEFENDANT

AND:

RAJENDRA PRASAD
SECOND DEFENDANT

Mr S Prasad for the Plaintiff
Mr A Sen for the Defendants

DECISION

This is a claim for damages for personal injuries sustained by the Plaintiff as a result of a motor vehicle accident.

On 30 May 2003 the Plaintiff was one of about 50 passengers travelling in a bus registration No. DI556 (the bus) from Labasa to a church function in Savusavu. The bus had been chartered by the All Nations Christian Fellowship Church.

The bus was licensed to carry 61 passengers. It was owned by the Second Defendant and driven by the First Defendant. It was not disputed that the First Defendant was an employee of the Second Defendant and was driving the bus on that day as an employee of the Second Defendant.

The bus was manufactured by Leyland and had been first registered in July 1999 as reconditioned. It was certified for road usage. It was an open bus or bus with curtains (no side glass windows).

At a location on the Labasa – Savusavu road known as Urata, a short distance from Savusavu, the bus was involved in a single vehicle accident. It was not disputed that a short distance before the accident, all the bus lights, including the headlights, went out. As a result the driver (the first defendant) could not see where he was going and could not steer the bus which came to rest in a ditch on the right side of the road.

It was not disputed that as a result of the accident the Plaintiff received injuries and was admitted overnight to Savusavu Hospital. He was conveyed by ambulance the next day to the Labasa Hospital.

The bus had left Labasa town at about 6.00p.m. in the evening of Thursday 30 May 2003. The accident occurred at about 9.00p.m. the same day. It was dark but otherwise fine and visibility was good.

As a matter of law the first defendant driver owed a duty of care to the Plaintiff. In general terms it was a duty to use reasonable care in the management, control and driving of the bus.

Similarly the second defendant owner owed a duty of care to the Plaintiff. His duty was to exercise reasonable care to ensure that the bus was in a safe condition and properly maintained.

The Plaintiff has pleaded that the first defendant breached that duty and sets out particulars of negligence that it is claimed constitute the breach. Although the particulars are somewhat repetitive and to a certain extent widely worded, there are sufficient particulars for the First Defendant to comprehend the nature of the allegations being made against him in the action.

It was always open to the First Defendant to seek further particulars in respect of any of the allegations of negligence made by the Plaintiff.

The Plaintiff alleges negligence on the part of the Second Defendant in that the bus was not fit and proper for the trip to Savusavu. He also alleges that the bus was not mechanically sound for the journey.

Although not expressly pleaded, the statement of claim sets out details of the employment relationship between the First and Second Defendants that implies an allegation that the Second Defendant is also vicariously liable for any act of negligence by the First Defendant.

Six witnesses including the Plaintiff were called to give evidence on behalf of the Plaintiff. The five other witnesses were Dr J Vulibeci, Pastor I Buadromo, Mr I Bolatini, Ms M Fugawai and Mr T Masiwiri.

Five witnesses were called on behalf of the Defendants. They were the two defendants, Mr H Chand, Dr E Taloga and Mr J Chand.

Having carefully considered the evidence I propose to set out my findings in respect of the essential facts that were in dispute and state briefly the reasons for those findings. I propose to set out those findings in a chronological order rather than dealing with the allegations against the first defendant and then the second defendant.

First, I am satisfied on the balance of probabilities that between picking up passengers in Natua (Seaqaqa) and the Saivou Hills, smoke started entering the bus and a smell of burning rubber became apparent to the passengers. In reaching this conclusion I have no hesitation in preferring the evidence of the Plaintiff, Pastor J Buadromo and Ms M Fugawai. Their evidence was consistent and yet did not appear in any way to have been the subject of collusion. Each witness was impressive in the manner in which they gave their evidence. Their evidence had the ring of truth and was credible.

On the other hand, the evidence given by witnesses called by the Defendants was not independent. The evidence suggested collusion with a view to protecting the interests of the Second Defendant.

Secondly, I find that during the same part of the journey, the headlights flicked on and off on a number of occasions. I accept the evidence of the witnesses called by the Plaintiff on this point for the same reasons as stated above.

Thirdly, I accept that one of the Pastors travelling on the bus compelled the First Defendant to stop the bus in the vicinity of Nabalebale due to the concerns of the passengers brought about by the smoke, the burning smell and the flicking lights. I also accept that the passengers requested either a different bus be brought out for them to continue their journey or that a mechanic be brought out to fix the problems. I also accept that the First Defendant refused their requests and told the passengers that there was no problem and that Savusavu was not far away. I accept the evidence given by the witnesses called by the Plaintiff on these matters. I do not accept the First Defendant’s evidence that nothing of the kind occurred.

I find that while the bus was descending the Urata Hills, the headlights suddenly went out permanently. As a result the First Defendant could not see the road and therefore could not steer the bus. He was unable to stop the bus. The bus moved across the road and entered a ditch along the right side of the road, coming to a stop at an angle a short distance further down the hill.

As a result of these conclusions I find that the first defendant was negligent in that he failed to exercise reasonable care in the management of the bus. I am satisfied that when the bus had been stopped by the Pastor and the passengers voiced their concerns about the condition of the bus, a prudent driver exercising reasonable care would have acceded to the passengers’ request. He should have called for either a different bus or a mechanic before continuing the journey.

I am not satisfied on the balance of probabilities that, at the time of the accident, the First Defendant was driving at an excessive speed.

I find that the Second Defendant is liable in a personal capacity for providing a bus that was not fit for the purpose of conveying the Plaintiff (and the other passengers) from Labasa to Savusavu. It was a bus that was either not properly maintained or it was a bus that was not in safe mechanical condition.

As a result of the finding of negligence on behalf of the First Defendant, I find as a matter of law that the Second Defendant is also vicariously liable.

On the evidence before me I find no contributory negligence on the part of the Plaintiff.

In considering the question of damages, the Court has been presented with a difficult task due the inadequacy of material in support of the Plaintiff’s claims for both special and general damages.

In his Statement of Claim under the heading of special damages there is pleaded: (i) Medical expenses $300 (ii) Transport $520 (iii) Loss of earnings (from PWD) $712.

In the schedule of special damages filed on 16 July 2009, the same amount is claimed for loss of wages for 25 days at $28.48 per day.

The evidence given on behalf of the Plaintiff was somewhat confusing. The Chief Clerk at the Labasa Public Works Department gave evidence that the Plaintiff was absent for 55 days of unpaid sick leave between 2006 and October 2009. He was not able to give any evidence about the number of absent days due to sick leave between May 2003 and 2006.

It would appear that the Plaintiff is limiting his claim to 25 days representing the unpaid sick leave portion of the approximate three months that he was unable to return to work immediately after the accident. I propose to allow the sum of $712 for loss of wages. I also award $56.96 as the loss of FNPF contributions by the employer for those 25 days.

I accept that the Plaintiff will have incurred medical expenses. However there is no documentary material to assist the Court in determining what that amount should be. I do accept that the Plaintiff has required medication to ease pain. As the accident occurred in May 2003, I consider the sum of $300 to be adequate to cover the past and future need for pain medication.

In relation to transport expenses, there was, once again, no evidence whatsoever to substantiate the claim. It is clear that the Plaintiff will have incurred some transport expenses when travelling from his home to Natua for medical purposes related to his injuries. I am prepared to award $200 for medical expenses.

Although the Defendants did not respond to the Plaintiff’s Schedule of Special Damages as required by a 1987 Practice Direction, I am unable to award the amounts claimed in the absence of any supporting material. This approach to the question of unsubstantiated special damages claims is consistent with that taken by Coventry J in Galib Ali Shah v. Roshni Lata and Northern Manufacturers Limited (unreported Civil Action No. 30 of 2005 delivered 24 July 2007).

There is a further claim for special damages pleaded by the Plaintiff. That claim is for past loss of earnings as a fisherman. In the Statement of Claim the Plaintiff seeks an amount of $80.00 per week from the date of the accident (30 May 2003) to the date of judgment.

This claim is further explained in the Plaintiff’s Schedule of Special Damages. Although it is claimed that the Plaintiff earned over $200 per week prior to the accident from fishing, his claim was only for $80.00 per week. There was no explanation given by the Plaintiff in his evidence as to why he had reduced his claim. The past loss is claimed for the period from 30 May 2003 to 30 August 2009. At the rate of $80 per week for 325 weeks, the Plaintiff claims $26,000.00 for past loss of earnings as a fisherman.

In support of his claim, the Plaintiff called a witness who stated that he accompanied the Plaintiff on his weekly fishing activities. Apart from the evidence given by the Plaintiff and his witness, there was no independent evidence called to support the Plaintiff’s claim that he had sold fish on a weekly basis for $80, let alone for $200, prior to the accident.

The Plaintiff claimed that as a result of the injury suffered in the accident, he had not been able to pursue his fishing activities. He claimed that the pain he experienced when he attempted to go fishing for the first time after the accident was so intense that he could not continue to fish any more.

The Plaintiff gave evidence that he used to sell fish prior to May 2003 on a regular basis to the local supermarket at Seaqaqa owned at the time by Mr Hari Chand.

The Defendants called Mr Chand to give evidence on this point. Mr Chand stated that he had owned and operated the supermarket at Seaqaqa for 18 years up to 2006. He also stated that he knew the Plaintiff who used to shop at the supermarket and who was a member of the mataqali that owned the land on which the supermarket stood.

Mr Chand gave strong unequivocal evidence that the Plaintiff had never sold any fish to him or any of his employees at any time prior to 2003.

I have no hesitation in accepting the evidence given by Mr Chand. I therefore reject the evidence given by the Plaintiff and his witness and disallow this claim in its entirety.

Whilst I accept that the Plaintiff may have been a weekend fisherman and is now no longer able to engage in that activity as a result of his injury, I do not accept that the Plaintiff was a part time commercial fisherman.

The Plaintiff’s claim for loss of future earnings or loss of earning capacity is set out in the Schedule of Special Damages. It is a confusing if not bewildering claim. There is an almost incomprehendable claim for future loss of wages as an employee of the Public Works Department.

It is sufficient to say that the evidence established that the Plaintiff is currently employed as a labourer with the Public Works Department. He is currently aged 41 years (date of birth being 17 February 1968). There was no evidence before me to suggest that he would not continue to work until he reached the retirement age of 55. I therefore reject the claim for damages for future loss of wages.

In his closing submissions counsel for the Plaintiff submitted that the evidence supported a claim for future loss of earning as a fisherman. Counsel submitted that the Plaintiff intended to fish until he was 50 and suggested a simple calculation of nine years multiplied by $4160 (being $80 per week for 52 weeks). For the reasons stated earlier in this judgment I do not accept Counsel’s submission that the evidence supported such a claim. I reject the claim.

The next issue is the question of general damages. The Plaintiff claims damages for pain and suffering and loss of amenities of life. The Statement of Claim alleges that the Plaintiff was a healthy person who took interest in fishing and diving as his additional source of income.

I do accept that the Plaintiff was a healthy man of 34 years at the time of the accident. I also accept that he was injured in the accident and that he spent 12 days in hospital. I accept that he experienced considerable pain from the date of the accident and for a considerable period following the accident.

I accept that the Plaintiff suffered a serious fracture of his left arm. Following manipulation under anesthesia, the arm was placed in a full length plaster of paris. After some time the full length plaster was replaced by a shorter plaster of paris that was removed some three weeks after discharge from hospital.

In a medical report dated 16 February 2005 Dr Vulibeci (the Plaintiff’s treating doctor) stated that he carried out a final examination of the Plaintiff on 14 April 2004. In his report the doctor stated that he assessed the total whole person impairment at 16%. It is noted that the final examination of the Plaintiff by the doctor was less than 12 months after the accident.

In a report dated 17 September 2009 Dr Taloga stated that he examined the Plaintiff at the Waimanu Medical Centre that day. Dr Taloga is a Consultant Orthopedic Surgeon at the Colonial War Memorial (CWM) Hospital. Towards the end of the report the doctor stated:

"Examination of the left upper limb did not show any evidence of muscle wasting. There is no neurological deficit. The motion of the shoulder, elbow, forearm and wrists were comparable to the uninjured side.

X-rays of the left humerus done today showed a well united fracture of the distal humerus with good alignment.

The examination of Mr Daku and x-rays showed a well healed fracture with no evidence to suggest any residual permanent incapacity."

Both doctors gave evidence at the trial and both stood by their reports. However under cross-examination Dr Vulibeci did agree that there was, even in 2004, no sign of muscle wasting. He also accepted that although he had noticed neurological deficit and motion deficit, he conceded that the impairment would diminish to a large extent over time.

Considering the evidence given by Dr Vulibeci at the trial and the report and evidence of Dr Taloga, I have concluded that there is in fact no significant difference of opinion between the two doctors in relation to the present condition of the Plaintiff. Although pain and tolerance to pain are subjective, I accept Dr Taloga’s evidence that there is no clinical basis for the Plaintiff’s complaint of on-going pain.

Under the circumstances I consider an award of $20,000 to be appropriate for general damages for pain and suffering and loss of amenities.

In summary, the Court awards the Plaintiff:

(a) $1268.96 as special damages.

(b) Interest on special damages at 4%.

(c) $20,000.00 as general damages.

(d) Interest on general damages at 3%.

(e) Costs fixed summarily in the sum of $1000.00.

W D Calanchini
JUDGE

7 December 2009
At Labasa