Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Deo v Kumar [2011] FJHC 438; HBC037.2008 (29 July 2011)

IN THE HIGH COURT OF FIJI ISLANDS
AT LABASA
CIVIL JURISDICTION

Civil Action No: HBC 037 of 2008

BETWEEN:

SHAYAL SHIVANI DEO F/n Indar Deo
By her next to kin/friend & father Indar Deo
Plaintiff

AND:

AVINESH KUMAR F/N Dharam Reddy
1st Defendant

BULILEKA TRANSPORT LTD
2nd Defendant

Counsel: Mr. Kholi for the Plaintiff.
Mr. Sen for the Defendants.

Date of Judgment: 29th July, 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 1st defendant.
   
2. The alleged accident occurred on or around 26.07.2007, at the Labasa Bus Station. Admittedly, the first defendant was the driver of the bus registration no. CG 546 and the 2nd defendant was the registered owner of the bus. The cause of action against the 2nd defendant is based on vicariously liability, as the employer of the 1st defendant.
   
3. The defendants, in their statement of defence, admitted that the bus was driven by the 1st defendant on 26.7.2007, at the material time and the 2nd defendant was at all material times the registered proprietor of the said vehicle and vicariously liable for the acts of his agents and/or servants.
   
4. The defendants also admitted the fact that a collision occurred between the infant plaintiff and the 2nd defendant's bus, but denied the accident was caused by negligence on their part. Their defence is based on negligence or contributory negligence of either of the plaintiffs.
   
5. The following facts were agreed to by both parties:
   
   1. The plaintiff was at all material times 10 years and 11 months of age;
      
   2. The 1st named defendant was at all material times the registered proprietor of the said vehicle and vicariously liable for the acts of his servants or agents;
      
   3. The 2nd named defendant was at all material times the registered proprietor of the said vehicle and vicariously liable for the acts of his servants or agents;
      
   4. That on 26.07/2007, a collision occurred between the infant plaintiff and the 2nd defendant's bus at the market stand;
      
6. In view of the above admissions, the following main issues are to be determined by court:
   
   1. Was the collision caused by the negligence of the defendant?
      
   2. Did the plaintiff contribute to the accident through her negligence?
      
   3. What is the extent of injuries suffered by her?
      
   4. Is she entitled to damages and if so what is the amount?
      
7. At the trial, three witnesses were called on behalf of the plaintiff:
   
   1. The plaintiff;
      
   2. Shiva Kumari Prasad;
      
   3. Hema Wati.
      
8. The 1st defendant gave evidence in support of the defence.
   
9. In examination-in-chief, the plaintiff stated that, when she was crossing the road a bus came and hit her. Then she fell down on the road and was taken to the hospital. She further stated that she looked both sides before crossing but did not see the bus. Furthermore, she stated that when she saw the bus it was parked.
   
10. In cross examination it was suggested that the plaintiff moved in front of a moving bus and the driver did not see her, but the plaintiff denied it. She stated that when she crossed only the bus came.
    
11. Further, in answering cross examinations the plaintiff stated that she can do the normal work and take no medicine at present.
    
12. The next witness for the plaintiff was a school teacher named Shiu Kumari, who gave evidence on behalf of the plaintiff.
    
13. According to her the plaintiff has a partial hearing defect. She further stated that before the accident the plaintiff was a very active girl but after the accident she has a setback as far as her day to day activities are concerned.
    
14. The 3rd witness for the plaintiff is one Hema Wati. She is an eye witness to the accident.
    
15. According to Hema Wati, when the plaintiff was walking from the town side to the Market side the bus came very fast and hit the plaintiff and the plaintiff fell down. The witness had yelled at the driver to stop.
    
16. In cross examination she stated that at the time of the accident she was at the front side of the market and was talking to a lady.
    
17. It was suggested to the witness that the plaintiff came between two buses and suddenly got into a path and hit by the bus, but the witness denied it.
    
18. The 1st defendant in his evidence in chief stated that on the day of incident he was driving the bus CG 546. At about 3.40 pm he drove the bus into the Labasa bus station. Then the passengers got off. After the bus was reloaded and when he moved the bus, people told him that there was a girl under the bus, but he did not see her as she had been removed by the people. The 1st defendant did not know how she came under his bus. However, he agreed that he was driving in a careless manner.
    
19. It must be noted that the 1st defendant admitted in cross examination, that around 3.45 pm – 4.00 pm the bus station was very busy as school children come to the market to board buses at that time.
    
20. Further, the following facts were disclosed in cross examination.
    
    • When he drove the bus from the main road and enters the bus stop it is the 1st lane nearest to the market.
      
    • There were about five lanes for the buses.
      
    • People used to walk through parked buses to get into their bus and crossing in front of the buses is a common thing.
      
21. The evidence of the plaintiff and Hema Wati proved that the plaintiff was hit by the front part of the bus. Therefore, it is safe to infer that the plaintiff was crossing the road when hit by the bus.
    
22. Furthermore, it was revealed by evidence that the Labasa bus station is a busy place since it is situated adjacent to the market, and it is normally crowded between 3.00 pm to 4.00 pm when the students break from schools. Buses parked in lanes and the people have to cross between the parked buses to reach their buses.
    
23. The 1st defendant used to drive the bus daily and was well aware of the nature of the bus station.
    
24. It must be noted the 1st defendant admitted that he did not see the plaintiff until the people shouted. Further, the 1st defendant although admitted the accident, failed to describe its occurrence. He stated that he did not see the plaintiff at the time of impact. It is proved that Labasa bus stations was very busy between 3.00 pm to 4.00 pm mainly because of the school children. There were no zebra crossings in the bus station. It is further proved 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 driving inside the bus station.
    
25. There was no evidence to suggest that the plaintiff suddenly crossed and the 1st defendant had no time to avoid the accident.
    
26. Therefore, it is proved that the 1st defendant had failed to have a proper lookout when he entered the bus station. Since it is proved that the front left side of the bus hit the plaintiff, the 1st defendant cannot say that he did not see the plaintiff.
    
27. The above facts clearly shows that the 1st defendant has failed to exercise due care.
    
28. Had the 1st defendant driven the bus slowly and exercised caution this accident could have been prevented.
    
29. The 1st defendant should be aware that children are always appearing at unexpected places in the bus station. Therefore, the explanation given by the 1st defendant in his defence is far from satisfactory and hence cannot be accepted.
    
30. Further, there is no evidence before me that the girl acted negligently. Even in the evidence of the only eye witness, it does not suggest that the girl jumped in front of the bus carelessly.
    
31. Upon analyzing the above evidence it is safe to infer that there is no negligence or contributory negligence on the part of the plaintiff.
    
32. On the above premise, I conclude that this accident occurred due to the negligence of the 1st defendant.
    
33. Accordingly, I find the 1st defendant is liable for the accident and causing injuries to the plaintiff. Consequently, the 2nd defendant is also liable vicariously.
    

Assessment of Damages

34. Let me now consider the quantum of damages. The plaintiff is entitled for the injuries suffered due to the negligence of the defendants.
    
35. The heads under which the damages claimed are:
    

a). General damages;

b). Special damages;

c). Interest;

d). Costs.

36. The issue of assessing damages for non-procuring loss was discussed in T.L Mediana [1900] AC by Earl of Halsbury LC 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".

37. In assessing damages in an action of this nature the following passage of Lord Denning M. R. in Lim Poh Choo v. Camden And Islington Area Health Authority [1979] 1 Q.B.196 at 215 is of great assistance.
    

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.

38. It is with these legal principles in mind I assess the damages, and in doing so I have considered both evidence and submissions made by counsel.
    
39. According to the medical report dated 02.10.2007, the plaintiff sustained extensive laceration of right leg and there was no bony involvement. She was treated with repeated debridement and wash and skin grafting under anesthesia. She was admitted to Labasa hospital on 26.07.2007. She was discharged on 27.08.2007.
    
40. The final medical report prepared by Dr. Jaoji Vulibeci, dated 24.02.2011, was tendered to court with the consent of both parties and marked as "P1".
    
41. It reads as follows:
    
    • She was admitted for almost a month with laceration to her skin over her calf muscle with skin loss.
      
    • She ended up having split skin graft.
      
    • Physically she walks with an abnormal gait with no heel strike like in high 'stepping' gait. There was obvious movement of skin together with her calf muscle as seen from outside. She has no dorseflexion of her ankle but no ankylosis.
      
    • She can planta flex her ankle at will.
      
    • There is a 21cm x 6cm scar with split skin graft noted from the posterior aspect of her right knee to the tendo-calcaneas. There is no sensation or sweating over the big grafted zone.
      
    • Calculation of the permanent impairment was taken from the "Guides to the Evaluation of Permanent Impairment" Volume 5 by the American Medical Association. Criteria for rating permanent impairment due to skin disorder was used as no other method can be used for her.
      
    • Table 8.3 classifies her problems into the ii category of 10%-24% impairment of the whole person. She has skin order signs and symptoms present or intermittently present and limited performance of some activities of daily living and may require intermittent or constant treatment.
      
    • Therefore, I would rate her as having 19% whole person impairment.
      

42. The plaintiff had been admitted in the hospital for one month and no doubt that she is under a disability as a consequence of the said accident.

General Damages for Pain and Suffering and Loss of Amenities

43. The plaintiff is entitled to damages for pain and suffering, as stated in Kemp & Kemp (Vol 1, P2 – 007 – 2010):

"..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".

44. The plaintiff is a 10 years old girl. She has a permanent and large scar of a cosmetic concern on her calf muscle.

45. The plaintiff's teacher in her evidence stated that the plaintiff's normal life and activities like dancing and taking part in athletics are curtailed after the accident. This is further confirmed by the final medical report dated 24.02.2011, where it is stated that the plaintiff has no dorsiflexion of her ankle, which means the plaintiff cannot bend her ankle in a dorsal direction. Hence, it is obvious that the plaintiff has sustained some physical disability consequent to the accident.
    
46. Further, she has a skin disorder; which according to Dr Vulibeci's opinion may require intermittent or constant treatment.
    
47. 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, and loss of any facets of life. In the present case apart from the restriction of her ankle movements the plaintiff's incapacity is mainly of a cosmetic concern.
    
48. However, in assessing damages, I have not lost the sight of the plaintiff's age, the way she sustained injuries and the permanent scar on her right leg.
    
49. Considering, the manner in which the accident occurred and it's injuries, no doubt that the plaintiff suffered excruciating pain. Further, she would have experienced immense pain and discomfort while being treated at the hospital. According to Dr. Vulibeci the plaintiff has sustained 19% whole personal impairment.
    
50. The medical report dated 2.10.2007 prepared by Dr. Manisha Nakate clearly shows that the plaintiff sustained extensive laceration of right leg but there was no bony involvement.
    
51. Upon consideration of the foregoing facts, I award the sum of $40,000 for pain and suffering and loss of amenities of life.
    

Special Damages

52. The plaintiff claims special damages as following:-
    

Medical Report fee - $5.00

Transport Charges - $50.00

Police Report - $22.50

LTA Records - $7.00

53. However, no evidence led in order to prove special damages. Special damages have to be specially pleaded and proved, but in this case the plaintiff has failed to present any evidence as to the special damages. Therefore, I do not award special damages.
    
54. In British Transport Commission –v- Gourley [1955] UKHL 4; [1956] AC 185 Lord Goddard stated:-
    

"Special damages have to be specially pleaded and provided. This consists of out of pocket expenses and loss of earnings incurred down to the date of trial and is generally capable of substantially exact calculation."

55. In the present case it could be noted that the plaintiff has not produced adequate evidence to substantiate special damages. Therefore, I conclude that medical expenses, transport expenses and expenses for police report and LTA reports were not proved by the plaintiff.
    
56. Thus, I am unable to assess what it would be and I disallow the claim for special damages in this action.
    

Interest:

57. The pleading contained a claim for interest and 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:

58. I would award interest on general damages (on pain and suffering and loss of amenities) at the rate of 6% per annum on $ 40000.00 from 26th July 2007 (date of accident) to 23.02.2011 (date of trial) which amounts to $ 8600.00.
    
59. This trial commenced on 23.02.2011, and concluded on the same day. Hence, costs is summarily assessed in the sum of $ 1500.00
    
60. The orders are therefore as follows:
    
    1. General Damages for pain and suffering and loss of amenities - $40,000.
    2. Interest – $ 8600.00
    3. Costs - $1500.00
       

Pradeep Hettiarachchi
JUDGE

29.7.11