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Chand v Nair [2011] FJHC 393; HBC382.2006 (27 June 2011)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 382 of 2006

BETWEEN:

MUNI CHAND
Plaintiff

AND:

VIJENDRA NAIR
1st Defendant

NASESE BUS COMPANY LIMITED
2nd Defendant

Counsel: Mr. V. Maharaj for the Plaintiff.
Mr. A. K. Narayan for the Defendants.

Date of Judgment: 27th June, 2011

JUDGMENT

1. The plaintiff, a minor, instituted this action through her next friend claiming inter alia special and general damages for personal injuries suffered in a motor traffic accident, allegedly caused by the first defendant. The plaintiff was a major at the time of trial.
   
2. The alleged accident occurred on or around 26.01.2006 at about 3.20 p.m., at the Suva Bus Station. Admittedly the first defendant was the driver of the bus, registration No CZ 271 (bus) and the second defendant is the registered owner. The cause of action against the second defendant is premised on vicarious liability, as the employer of the first defendant.
   
3. The defendants admitted that the bus was driven by the first defendant on 06.01.2006 at the material time; but, denied the accident was caused by any act of carelessness or negligence on their part and placed the plaintiff in strict proof thereof. The defence is based on negligence or contributory negligence or either of the plaintiff's. The defendants also deny causing the injuries suffered by the plaintiff.
   
4. The following facts were agreed to by both parties at the pre -trial conference.
   
   1. The original plaintiff is the father of Anju Artika Mala;
      
   2. The first defendant was at all material times the driver of the bus registration No CZ 271;
      
   100. The first defendant acted as the servant, employee or agent of the second defendant;
        
   4. The second defendant was at all material times the registered owner of the bus;
      
   5. On the 26th of January 2006 at about 3.30 pm, there was a collision at the Suva bus stand involving the plaintiff and the bus registration number CZ 271 which was driven by the first defendant; and,
      
   6. As a result of the collision, the plaintiff, aged 18 years at that time, sustained personal injuries; a crushed injury, fracture of left leg with a degloving injury to right thigh.
      
5. Parties are at variance on the following issues:
   
   1. Whether the accident occurred due to the negligence of the first defendant
      
   2. Whether the plaintiff's negligence or her contributory negligence or either of it caused the accident.
      
   3. If so, whether the plaintiff is entitled for damages.
      

BACKGROUND FACTS

6. At the trial, evidence of three witnesses were led on behalf of the plaintiff; (1) the plaintiff (2) one Isofo and (3) Dr Sitiveni Trail. The first defendant and Moce gave evidence in support of the defence. Both, Isofo and Moce are not eyewitnesses to the incident, but they soon arrived at the incident to pull out the plaintiff who was under the bus. None of the parties led evidence of eyewitnesses. Dr Sitiveni Trail examined the plaintiff and testified to the injuries, which will be discussed in turn.
   

PLAINTIFF'S CASE

7. In examination-in-chief, the plaintiff stated that, while she was walking from bus bay 1 to bus bay 2, the front right side of the bus, which was driven at an excessive speed, hit her and the front right tyre ran over her ankle. She maintained that in view of the speed, she had no time to get away from the road. In cross-examination, she stated that she was pulled out from behind the rear wheel of the bus and that the front tyre of the bus went over her.
   
8. Isofo, an employee of the bus station was called by the plaintiff to give evidence. According to Isofo, the plaintiff was lying between the front and the rear tyre under the bus. He further stated that he pulled the plaintiff from under the bus and no one assisted him.
9. Dr Sitiveni Trail, the orthopaedic surgeon attached to the CWM hospital in his evidence, submitted the medical report dated 22.02.2007, which reads as follows:
   
   1. Closed Displaced Comminuted Intra-articular fracture of left ankle.
      
   2. Closed Extensive Degloving Injury right Thigh
      
   3. Grade II Anterior Cruciate Ligament Injury right knee'
      
   4. Multiple Abrasions both upper and lower limbs.
      
   • She had visible tyre marks on her right thigh and left ankle.
     
   • She was seen and admitted to CWM Hospital on the same day. She was given tetanus toxoid injection, analgesics for pain and her left ankle was manipulated in theatre to reduce tension of the overlying skin. She also received 5 units of blood transfusion during her hospital stay.
     
   • On 15.2.06, she underwent debridement of her right thigh injury, open reduction and internal/ external; fixation of her left ankle. She received antibiotics post operatively. Post operative X-rays showed some intra-articular bone fragments in her left ankle which was removed in theatre on 17.2.06.
     
   • On 3.3.06 she underwent skin grafting of her right thigh with subsequent regular dressings to it. She also underwent physiotherapy and went home on 16.3.06. Her external fixator was removed on 21.6.06. Her right thigh wound has healed with large scar. She had good range of motion of the right knee.
     
   • She gets swelling and pain of her left ankle especially on prolonged standing. She does not play netball anymore and has cut down on her social life because of her thigh scar and stiff ankle. She currently works at the Paris Hair/ Beauty Salon.
     
   • The plaintiff has sustained very severe crush injuries to her right thigh and left ankle. Her right thigh now has a residual large scar which is a cosmetic concern to her. She has been booked to see the plastic surgeon who can qualify the percentage impairment of her right thigh injury. As for her ankle she will have long term pain swelling and stiffness.
     
   • Reference is made to the 5th edition of the American Guide to the Evaluation of Permanent impairment which assigns a 7 % impairment for a grade 2 cruciate ligament injury of the right knee and 8% impairment for a displaced intraarticular ankle fracture. The two figures are combined to give a14% whole person impairment.
     
10. Therefore Dr trail concluded that the plaintiff had suffered a crushed injury, fracture of left leg with a degloving injury to right thigh. He said these injuries were consistent with a person run over by a bus. He further stated that the tyre marks found on the plaintiff's thigh indicated that a tyre would have actually gone over the thigh. Dr. Trail confirmed that he did not observed any head injuries, nor any injury or trauma to the abdomen or the hip. The plaintiff had also suffered some bruises, from the fall.
    
11. The first defendant although admitted the accident failed to describe its occurrence. He stated that he did not see the plaintiff at the time of impact. He offered a defence that the plaintiff might have slipped and would have fallen under the moving bus.
    
12. This undoubtedly shows that the defendant had not been driving the bus carefully and slowly. This was more so when the bus station was full of people as stated in the evidence. The defendant's position in his evidence-in-chief that he was driving the bus slowly and carefully at the time of the accident, therefore unacceptable; and, I see no difficulty in rejecting that item of evidence as false.
    
13. The defendant summoned one Moce, a police officer. He did not see the collision but came to the scene shortly after the accident. According to him, the plaintiff was lying on her back behind the rear right tyre under the bus, with both her legs behind the rear tyre. He said that one Fijian man assisted him to pull the plaintiff out. Thereafter, the plaintiff was sent to the hospital in a taxi.
    
14. It must be pointed out that the police has not carried out a proper investigation regarding this accident despite police officer, Moce had been at the scene. The police are duty bound to report to the accident scene soon afterwards and note detail observations, record statements and prepare sketch and plans. Had the police made notes of the blood patches, tyre marks, position of the tyres of the bus when the plaintiff was pulled out from underneath the bus, the place where the bus stopped after the collision, the length of the bus, the break marks, the measurements in relation to the place where the plaintiff lied, and other important and relevant facts, it could have assisted this court to determine negligence conveniently. The fair sketch plan attached to the copy records in the Suva Traffic Case No. 548 of 2006, which is in the agreed bundle of documents, is scanty and do not contain any material facts and is therefore not much of assistance to this court.
    
15. Police recorded the statements of the two witnesses almost 10 months after the accident. The belatedness of the statement affects the credibility, truthfulness and the veracity of the statement as the memory of the witnesses, with the passage of time would fade away thereby, the witnesses would be unable to describe the accident accurately.
    
16. In the trial, a plan of the bus station sans any observations made by the police was tendered in court where the plaintiff and the other witnesses showed the place where the bus collided with the plaintiff, the direction from where the bus was driven and the place where the plaintiff lied after she was hit by the bus.
    

NEGLIGENCE:

17. There appears to be some inconsistencies in the plaintiff's evidence relating to the point of impact and the fall. In examination -in-chief, the plaintiff said that she was lying in the middle between the front and the rear wheels, whereas in cross-examination, she answered that the front tyre of the bus went over her and she was lying behind the rear wheel. This accident occurred in January 2006, almost four and half years before the trial, and I am conscious that a witness would be unable to precisely narrate the incident due to the time gap. Therefore, the evidence of this case will be evaluated in that context as the aforesaid inconsistencies do not permit me to reject the plaintiff's evidence in toto.
    
18. Dr Trail in his evidence said he observed only one mark of tyres thereby confirming that the both front and back tyres would not have had gone over the leg. I could therefore safely reject the evidence that the plaintiff was found behind the rear tyres as it is contrary to the medical evidence. Therefore I am inclined to accept the independent evidence of Isofo that he pulled the plaintiff from the middle of the two tyres.
    
19. The bus had travelled from the Rodwell road and had turned to the bus station when it had collided with the plaintiff. On a scrutiny of the plan of the bus station (exhibit 1), it appears that the bus bay 1 was on the left side of the bus. Had the plaintiff slipped as alleged by the defendant, she should have been under the left side of the bus and not under the right side, as she was coming from bus bay 1 to bus bay 2, facing the bus bay 2, which was on the right side of the bus. The evidence of Isofe and Moce clearly established that, the place where the plaintiff lied was closer to the bus bay 2. Therefore, considering the direction of the bus travelling, it is highly improbable the plaintiff to be under the right side of the bus. I therefore reject the dependent's defence of contributory negligence; that the plaintiff slipped and fell under the bus.
    
20. At the request of both parties Court made a visit to the bus station, and observed that there were no zebra crossings at the bus station. This was further confirmed in exhibit 1. It evinces that there is no specific place for the passengers to cross. It is therefore incumbent upon the driver to be cautious and take extra measures when driven inside the bus station.
    
21. The bus was about 40 feet in length. When a bus of that length turns from Rodwell road and enter the bus station, it cannot be expected to come along a straight line. The Suva Bus Station is probably the busiest bus station in Fiji. Therefore, the first defendant was required to be cautious, when driving the bus inside the bus station and should have had a proper lookout of both sides of the bus before and after he entered the bus station.
    
22. Furthermore, the defendant in the present case, while driving bus CZ 271 inside the bus station owed a duty of care towards the plaintiff and as well as the other people who were at the bus station. Considering the nature of the place, the length of the vehicle, and the time of the accident, a very high degree of care is necessarily expected from the defendant.
    
23. There are no eyewitnesses to the collision. The plaintiff says she was hit by the bus while walking from the bus bay 1 to 2. The first defendant in his evidence said that he had felt that the rear tyre of the bus had gone over something but still had not stopped or made inquires until the bystanders screamed and banged on the bus. It undoubtedly shows that the first defendant, as the driver of the bus had not seen the plaintiff at the time of the accident nor was vigilant when driving. Further, the first defendant did not seem least concerned for others safety, when he admitted that he did not stop the bus to check when he felt something running over the tyre. Had the first defendant driven the bus cautiously, with a proper lookout he could have prevented the accident. I therefore determine that the first defendant drove the bus negligently. I accordingly hold the first defendant liable for the accident and causing injuries to the plaintiff. Consequently, the 2nd defendant is also liable vicariously.
    

Assessment of damages

24. Let me now consider the quantum of damages the plaintiff is entitled for the injuries suffered due to the negligence of the defendant.
    
25. The heads under which the damages claimed are:
    
    1. General damages.
       
    2. Special damages.
       
    100. Loss of wages.
         
    4. Interest.
       
    5. Costs.
       
26. Assessing damages for non pecuniary loss is fraught with difficulties. This issue was discueed by Earl of Halsbury LC in The Mediana (1970) AC 113 at 116 & 117 as follows:
    

"You very often cannot even lay down any principle upon which you can give damages; nevertheless it is remitted to the jury, or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person had undergone by reason of an accident. In truth, I think it would be very arguable to say that a person would be entitled to no damages for such things. What manly mind cares about pain and suffering that is past? But nevertheless the law recognises that as a topic upon which damages may be given".

27. The following passage from the judgment of Lord Denning M.R in Lim Poh Choo v. Camden And Islington Area Health Authority [1979] 1 Q.B.196 at 215 must be borne in mind while assessing damages in an action of this nature.
    

"In considering damages in personal injury cases, it is often said "The defendants are wrongdoers. So make them pay up in full. They do not deserve any consideration." That is a tendentious way of putting the case. The accident, like this one, may have been due to a pardonable error such as may befall anyone of us. I stress this so as to remove the misappropriation-so often repeated-that the plaintiff is entitled to be fully compensated for all the loss and detriment she has suffered. That is not the law. She is only entitled to what is, in all the circumstances, a fair compensation-fair both to her and to the defendants. The defendants are not wrong doers. They are simply the people who have to foot the bill. They are, as the lawyers say, only vicariously liable. In this case it is in the long run the tax payers who have to pay. It is worth recording the wise words of Parke B. over a century ago;

"Scarcely any sum could compensate a labouring man for the loss of a limb, yet you don't in such a case give him enough to maintain him for life.... you are not to consider the value of his existence as if you were bargaining with an annuity office....I therefore advise you to take a reasonable view of the case and give what you consider a fair compensation": see Armsworth v.South-Eastern Railway Co(1847) 11 Jurist 758, 760, quoted in Rowley v. London and North Western Railway Co. [1852] EngR 1037; (1873) L.R. 8 Ex. 221, 230.

In light of the above legal principles, I will now assess damages and in doing so, I have considered both evidence and submissions made by counsel.

28. According to Dr. Trail, there were serious injuries on the plaintiff and she was in severe pain at the time of admission to the hospital. She had been in the hospital for over 2 months. In addition to the surgery, she had undergone a skin draft to cover the defects on the right thigh. She has also undergone physiotherapy before been discharged from the hospital. She also had an external fixator for four months. Once the facture was healed sufficiently, her external fixator was removed.
    
29. Dr. Trail further stated when the plaintiff stood up for long periods she developed swelling and pain on her left ankle which is one of the potential complication of this kind of injuries. Furthermore, he stated that the plaintiff has already started to show signs of Arthritis and it will be progressive as time passes, and she will have more pain and swelling as far as the ankle is concern.
    
30. I am satisfied on the evidence before me that the plaintiff suffered the abovementioned injuries due to the accident and is at present under certain disabilities as a consequence of the said accident.
    
31. It is noteworthy that the plaintiff was examined by the defendant's own medical experts in November 2007. However, the defendants did not summon any medical expert to contradict the evidence of Dr Trail.
    

General damages for pain and suffering and loss of amenities and enjoyment of life:

32. The plaintiff is entitled to damages for pain and suffering. As stated in Kemp & Kemp (vol. 1 P 2-007-2-010):
    

"..the court must take into account, in making its assessment in the case of any particular plaintiff, the pain which he actually suffered and will suffer and the suffering which he has undergone and will undergo. Pain and suffering are not measurable by any absolute standard and it is not easy, if indeed possible other than in the most general way, to compare the degree of pain and suffering experienced by different people, however, the individual circumstances of particular plaintiffs clearly have a significant effect upon the assessment of damages".

33. It must be emphasised that in assessing damages for pain and suffering court must take into account not only the suffering which she had suffered immediately after the accident, but also the future suffering that she will have throughout her life.
    
34. The plaintiff described the pain and suffering that she endured after the accident and upon her release from the hospital for a period of 9 months. Considering the manner in which the accident occurred and its injuries, no doubt that the plaintiff suffered immense pain. Unquestionably, she would have also experienced excruciating pain when she was being run over by the bus. Plaintiff is said to be still suffering from the injuries received consequent to the accident. Dr. Trail has explained, these injuries have left her with pain and swelling when stands up for a long periods. These injuries certainly would have affect her quality of life and interfere with her enjoyment of life. According to Dr Trail, the plaintiff has sustained 14% permanent incapacity.
    
35. The plaintiff is 24 years old and a beautician by profession. She has to spend the rest of her life with a permanent disability and a large scar of a cosmetic concern on her right thigh. Further, according to Dr. Trail the plaintiff has already started showing signs of arthritis, it will be progressive as time goes by and she will have more pain and swelling. In other words she has to live not only with a permanent disability, but also with a permanent pain in her ankle, which warrants a dominant consideration by the court in assessing damages for pain and suffering. Furthermore, as a result of the crush injuries caused to her ankle, her gait will not be normal.
    
36. In deciding the loss of amenities, court has to take into account the degree of incapacity, the plaintiff's age, loss of enjoyment of hobbies, damage to the plaintiff's marriage prospects and loss of any facets of life. Also, court has to consider the length of time that deprived the plaintiff of these amenities and whether they are permanent.
    
37. Upon consideration of the foregoing facts, specially the fact that the plaintiff has to live with a permanent pain, which will be progressive as time goes by, and in the circumstances of this case, I award the sum of $ 65000.00 (sixty five thousand dollars) for pain and suffering and loss of amenities of life.
    

Loss of Earning Capacity

38. In assessing compensation one has to bear in mind the purpose of granting compensation. That is to restore the plaintiff to the same position as he or she would have been, if the tort was not committed.
    
39. In examination-in- Chief, the plaintiff gave details about the places she worked before the accident as well as after the accident. Further, she stated that in 2007, she worked for sometime at Paris Hair and Beauty Salon on average earning of $100.00 plus 40% commission. She further stated that she worked there until mid-June 2007, but could not carry on after June 2007 due to the pain and discomfort. Furthermore she stated that she applied for jobs but has not been successful and also she is unable to work in air-condition rooms because her leg starts swelling due to the cold.
    
40. However, plaintiff's sister in her evidence stated that the plaintiff had recommenced work at Holistics as a beautician after 2006. In any event since the plaintiff has shown signs of osteoarthritis, chances are very high that it would affect her working ability in future. Considering her injuries, there is no doubt that the plaintiff has had a setback as far as her carrier is concerned.
    
41. The court observes that despite the accident, the plaintiff managed to complete the beautician course at FIT and there is no evidence of the expenses incurred by her to sit for the exams.
    
42. The plaintiff has failed to produce any reliable evidence, to demonstrate that she was employed at the time of the accident. No pay slips or any other document such as a letter of appointment has been tendered to show that the plaintiff was employed at the time of the accident.
    
43. Further, the plaintiff has failed to establish that she would lose employment opportunities as a result of her injuries. However, court cannot disregard the opinion expressed by Dr Trail, where he stated that the plaintiff has already shown signs of onset of Osteoarthritis and also develops swelling and pain when stands up for a long hours.
    
44. The plaintiff submits that court, in assessing the damages should adopt the approach followed in New Brook v. Marshall [2002] 2 NZWR 606
    
45. However, it must be noted that such an approach can be adopted only when it is clear that some substantial loss has been occurred. In other words the plaintiff must prove that she was employed at the time of accident, lost her job consequent to the accident and thereby lost her income. In the present case court is not inclined to adopt such an approach to assess the loss of past earning because the plaintiff has failed to prove that she was employed at the time of the accident. Had there been sufficient evidence to show that the plaintiff was employed at the time of the accident, indeed court could have adopted a robust approach in assessing the loss of past earning even though there is no corroborative and documentary evidence as to the exact amount earned by the plaintiff.
    
46. The plaintiff had ample opportunity to provide sufficient information as to the rates payable by the beauty culture industry. However, the plaintiff not only failed to produce any documentary evidence, but also failed to summon any witnesses either from the plaintiff's field of work or from the labour department to prove the past or future earning of the plaintiff. The court should not be called to assume that the plaintiff suffered such a loss. Nor should the court be asked to assess a figure in the absence of satisfactory evidence. Therefore, I am unable to conclude from the available evidence this element of damages.
    
47. Special damages:
    

The plaintiff claims special damages as follows according to her evidence:

Taxi fares 1104.00

Ambulance charges 105.00

Crutches 40.00

Medication 500.00

48. The plaintiff tendered some receipts for taxi fares amount to $ 1104.00. The plaintiff admitted that all the receipts were written by her. Therefore, the defendants submit that it raises doubt as to the authenticity of those documents. It is common knowledge that no one is issued with receipts when he or she hire a taxi in Fiji. Therefore, the plaintiff cannot be expected to have receipts issued by the taxies. In any event I am of the view that $ 1104.00 for taxi fare is excessive. However, considering the plaintiff's condition and, the fact that she was on crutches immediately after she was discharged from the hospital and the number of visits she may have made to the hospital for clinical reviews, I calculated the taxi fare to $ 500.00.
    
49. However, in assessing the medical expenses and travelling expenses, court can adopt such an approach and calculate a reasonable amount which may have incurred to the plaintiff even if she has failed to produce relevant receipts or documents. Despite the absence of receipts for medication, the claims I find are reasonable. For Ambulance charges and crutches I accept the amount mentioned above.
    

Interest:

50. The pleading contained a claim for interest and this the plaintiff is entitled to under section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act which provides as follows:
    

In any proceedings tried in the High Court for the recovery of any debt or damages the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment:

51. I would award interest on general damages (on pain and suffering and loss of amenities) at the rate of 6% per annum on $ 65000.00 from 26th January 2006 (date of accident) to 24.06.2011 (date of judgment) which amounts to $ 21450.00.
    

Cost:

52. Plaintiff is also entitled to costs. This trial was heard in the High Court for 5 days and therefore I summarily assessed the cost in the sum of $6000.00
    

Summary of awards:

53. The summary of awards and costs are as follows:
    

1. General damages $ 65000.00

2. Special damages $ 1145.00

3. Interest in the sum of $ 21450.00

4. Costs in the sum of $ 6000.00

ORDERS:

1st and 2nd Defendants to pay a sum of $ 93595.00 to the plaintiff together with costs in the sum of $6000.00.

Pradeep Hettiarachchi
JUDGE

27.6.11