IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

HBC NO. 303 OF 2009

BETWEEN:

RAJA SINGH 
f/n Bhim Singh of Lot 13, Gagali Place, Nakasi, Nasinu
PLAINTIFF

AND:

AMANT ABHINESH LAL 
f/n Mani Lal of Lot 11, Kings Road, Nasinu, School Teacher
DEFENDANT

Appearances: Mr Daniel Singh for the Plaintiff
Mr A.Vulaono for the Defendant
Date of Hearing: 24 March, 2011 and 1st April, 2011

1.	The Plaintiff’s case

It was 8pm on 27th October, 2007.Raja Singh, the plaintiff, was returning with his family after a six month ritual held for his late sister . He walked ahead of his family and was crossing King’s Road at Nasole, Nasinu, when the motor vehicle driven by Amant Abhinesh Lal, the defendant, collided with him. It is alleged that the collision occurred due to the defendant negligently and unskilfully driving his motor vehicle.

The plaintiff claims general damages for pain and suffering and loss of amenities of life; special damages; costs for future care; loss of future earnings; interest and costs. An up to date schedule of special damages was filed on 18 March, 2011.

2.	The Defence

The amended statement of defence (filed with leave of court, after the pre- trial conference), denies negligence and provides : 

a.	“all reasonable care in accordance with the standard of a careful and prudent driver (was taken by him) to avoid the collision with the plaintiff.

b.	(He) was driving the said vehicle at a reasonable speed....

c.	There was no street lights at the place the collision occurred, and if there was any street light, it was very dim.

d.	At the time of the collision, the defendant was travelling on the inner lane and his view was obscured by the lights of the oncoming vehicles, which at the place the collision were many in numbers.

e.	The plaintiff was not standing on the double line that separates the lane the defendant was travelling on and the on-coming vehicle, but in fact came on to the path of the defendant’s vehicle.

f.	At the time of the collision, the defendant could not sway his vehicle away from the defendant either direction because there was another vehicle travelling alongside the defendant’s vehicle (left side) whilst there were on-coming vehicles on the opposite lane.

g.	The part of the highway the plaintiff crossed was not a pedestrian crossing.

3.	The Agreed Facts

i.	That the defendant was at all material times the registered owner and driver of a motor vehicle registration number DK 787.

ii.	That on 27th October, 2006 there was a collision between the said motor vehicle driven by the defendant and the plaintiff who was crossing the Kings Road at Nasole, Nasinu.

4.	The hearing

At the hearing, the plaintiff gave evidence in support of his claim and called one witness. The defendant also testified.

5.	 The Determination

5.1 The plaintiff,(in his statement to the police)and testimony stated that he was standing on the white mark between the two lanes of traffic from Nasole, Nasinu to Suva and the singular lane of traffic from Suva to Nasole, Nasinu, when a vehicle driven by the defendant, approaching at a distance at a high speed bumped him on his right side. The vehicle, it was alleged, was racing on the inner lane from Nasole, Nasinu to Suva with another vehicle.

Two eye witnesses, Ana Vula (a house girl) and Dhamendra Singh(the plaintiff’s son), in their statements to the police made immediately after the accident on 27th October, 2007, stated that the defendant was driving at a high speed. Ana Vula stated the car stopped at approximately 4-5 metres from the point of impact. Dhamendra Singh stated it stopped 6-7 metres from the place of accident.

The defendant in his testimony, and Vimlesh, a passenger in the defendant’s vehicle in his statement to the police, stated that the defendant was driving at a speed of about 50 kmph. The defendant, in his interview with the Police immediately after the accident, however, stated he was driving at a speed of around 60 kmph. Regulation 24(1) (a) of the Land Transport (Traffic) Regulations 2000 provides a “person must not drive a vehicle on a public street

(a)	in a city or town at speed exceeding 50kmh”

In cross-examination, the defendant admitted he had been charged under section 97(4) of the Land Transport Act No 35 of 1998 for the offence of dangerous driving.

Clerk & Lindsell on Torts (19th Ed, 2006) at paragraph 502 states:

“The speed at which a vehicle should be driven must be reasonable in the circumstances. The general rule is that the vehicle should be driven at a speed which enables the driver to stop within the limits of his vision, particularly having regard to the weather and the state of the road....Clearly, to exceed a speed limit is evidence of negligence ...”(footnotes omitted, emphasis added)

The fair sketch plan and police sketch in the Agreed Bundle of Documents depict the brake marks at a distance of 7.1 metres from the point of impact. This undisputed evidence indicates the high speed at which the defendant was driving.

The plaintiff submitted that the defendant should have seen the plaintiff at least 45 metres away. In support, cited Regulation 56 (2)(e) of the Land Transport (Vehicles Registration and Construction Regulations 2000,which provides “low beams” must ..“be capable of illuminating and rendering discernible under clear night conditions a person in dark clothing 45m straight ahead of the vehicle’.

The defendant’s defence, to this provision of law, and the failure to stop his vehicle at the exact place of impact are without merit.

In my judgment, the evidence establishes that the defendant was driving at a high speed. I hold the defendant was negligent and is liable for damages arising from the collision.

 5.2 Contributory Negligence

 The defence in its closing submissions, contended that the plaintiff was guilty of contributory negligence. The defence has not been expressly pleaded. The facts alleged in support, are however, raised in the amended statement of defence, viz, “the plaintiff was not standing on the double line that separates the lane the defendant was travelling on and the on-coming vehicle, but in fact came on to the path of the defendant’s vehicle”.

The plaintiff’s position was that he was standing on the double white lane waiting for the singular lane of traffic from Suva to Nasinu to pass.

Ana Vula, in her statement to the police stated the plaintiff had “stopped on the white mark between the two lanes towards Suva”, when the defendant’s vehicle “instead of staying in one of the lane’s bumped this man”. The plaintiff testified as follows:

Q:	Behind you how many lanes?
 A:	1 lane

Q:	In front how many lanes?
 A: 2 lanes, I passed 1 lane and standing in the middle of the other lane.

It transpired in the cross-examination of the plaintiff that he looked on his right side, and observed the defendants’ vehicle and another car approaching.

Dhamendra Singh’s statement to the police, provides that he saw the plaintiff “was very near to the double white (ie,the singular lane of traffic from Suva to Nasinu)when all of a sudden a white car coming from Nausori bumped him.” 

In this regard, the following excerpts from the record of the defendant’s interview with the police, are pertinent :

18. Q: Can you recall whether you saw anyone crossing the Kings Road at Nasole?

A:	 No, I didn’t see anyone crossing because there was busy traffic from Suva 
side and on my left there was a car.

20. Q: What was the distance from you to this guy when you first saw him?
A:	 He was very close and he seemed to have jumped in front of my car all of a sudden.

21. Q: 	Did you notice from which side did he came?
A:	From my right side.

33. Q: According to the witnesses the victim was crossing from your left to the right 
but according to the answer in questions No.21, you had stated that the  victims had come from your right side. What can you say?

A: It was so sudden and for me the victim was on the road.

34. Q. According to the answer to question number 18 you had stated that you didn’t see anyone crossing the road and you have answered questions 33 that the victim was on the road. Can you clarify the difference in the answers?

A: The light was dull and the incident happened so fast i.e. I was driving in a relax mood where this person appeared from nowhere.

In my judgment, the evidence establishes the plaintiff was standing on the white mark between the two lanes of traffic towards Suva. The collision occurred when he was crossing the inner lane of traffic from Nasinu to Suva. The point of impact was on the inner lane, as consistent with the positioning of the defendant’s motor vehicle and the brake marks, as depicted in the fair sketch plan and rough police sketch.

I now proceed to determine whether the plaintiff is guilty of contributory negligence . The defendant has cited the case of Nisha v Basant [1997] FJHC 288, which cites Lord Parmoor in Grayson v Ellerman Lines Ltd (1920) A.C. 466 at 477, statement as 
to the test of contributory negligence as follows:

 “I do not think that the question of contributory negligence depends upon any breach of duty as between the plaintiff and a negligent defendant; it depends entirely on the question whether the plaintiff could reasonably have avoided the consequences of the defendant’s negligence”.(emphasis added)

The plaintiff testified to this matter as follows:

Q. Did you see car coming?
A. Yes.

Q. Did you make an effort to avoid the accident?
A. Car was far away, there was another car passing.

Q. Was the other vehicle in front or behind ?
A. In front. I was waiting for the other car to pass.
Q. If the car was a fair distance, how did it strike you?

A. 2 cars were racing with each other and suddenly one car struck me..
Q. Was there a pedestrian crossing

A. No

Denning L J in Jones v Livox Quarries [1952] 2 QB 608 described the way in which the presence of contributory negligence should be examined in the following passage:

“A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless.” (emphasis added)

The plaintiff had observed that the defendant’s car was far away. The plaintiff however, ought to have foreseen the consequences that could arise from the approaching vehicle of the defendant, that was racing with another vehicle. In the circumstances, I find that there was contributory negligence on the part of the plaintiff ,which I assess at 20%.

6.	The Plaintiff claims the following:

(a)	General damages 

Under this head, the plaintiff claims damages for pain and suffering, loss of amenities and cost of future domestic care.
Counsel for the defendant, in the cross-examination of the plaintiff, pointed out a discrepancy in the medical reports of Dr Vaigalo E.McCaig, Surgical Registrar, CWM hospital, produced by the plaintiff. The discrepancy was with respect to the particular leg that was injured. The defendant submitted the medical report of Dr Taloga dated 19th January, 2010, which provides the plaintiff suffered the following injuries:

1.	“Segmental fracture of the right tibia and fibula.
2.	 Closed fracture of the right scapula.
3.	 Dislocation of the right shoulder joint.
4.	 Scalp laceration.

Calculation of Permanent Disability:-

1.	Tibial fracture angulations	8%	
2.	ACL tear	7%	
3.	Ankle arthritis (Table 17-31)	12%	
4.	Limb shortening (Table 17-4)	2%	
5. 	Gait derangement (Table 17-5)	7%	

........The possible future treatment would include fixation of the non-union and ankle fusion or replacement of the arthritic ankle”.

Dr Taloga stating that “the injuries sustained have resulted in a 31 % permanent incapacity”, concluded the plaintiff “has severe limitation of mobility due to injuries of the right leg. It is unlikely that he would return to his previous duties”.

In determining the damages, the plaintiff is entitled to, for pain and suffering, it is necessary to consider general level of comparable awards. 

The plaintiff , in his closing submissions, has cited precedents to support his claim for pain and suffering and loss of amenities. 
In Alak Ram v Ernest Patterson, HCCA No. 210 of 1997S, the plaintiff had suffered compound fracture of left tibia and fibula and fractures of left radius, right femur and ankle. He was awarded $45,000 general damages.	

In Rajesh Prakash v Kamlesh Ramesh Parmar and D.Gokal & Co. Ltd,	HCCA No. 350 of 1996, a 32 year old male technician suffered serious fractures of ankle in a motor vehicle accident. His left leg was shortened by 2cm resulting in him walking with a limp. There was limitation of all facts of movements of the ankle joint. His permanent incapacity was assessed as 20%, and the general damages awarded was $45,000-00.

In Chand v Padarath Bros. & Sons Ltd.,[2005]FJHC 542,HBC 0134 of 1995,a 33 years old taxi driver and farmer had suffered comminuted fracture of distal right femur extending of knee joint, comminuted fracture proximal tibia and fibula (right) and open fracture of shaft of mid tibia (right) as a result of a motor vehicle accident. His right lower limb was shortened by 6cm and the range of motion of the right knee was limited. His incapacity was assessed as 25% disability for his injuries and was awarded $65,000 as general damages.

The defendant has cited Nand v Vatuwaqa [1997] FJHC 207 and Tevita Benico v Ambika Nand, High Court Civil Action No. 163 of 1990L .In Nand v Vatuwaqa, a truck driver had suffered 27-28.5% total permanent incapacity and the court had awarded $ 15,000 for pain and suffering and loss of amenities as a result of fracture of the right hip, fracture of the lower leg in four places and fracture of the neck. In Tevita Benico v Ambika Nand, the plaintiff had suffered a left mandibular fracture, dislocated hip joint, a ruptured knee, a fractured toe, a stiff and painful hip, an unstable knee and walked with a limp and the court had awarded $12,500.00 for pain and suffering.

These awards can be used as a guide, but the facts of each case have to be considered. The plaintiff has undergone pain and suffering as a consequence of the injuries outlined above. He was hospitalised from 28 October, 2007, to 8 November, 2007.He testified that after being discharged, he was in bed for a period of one year. His social life, he said was affected, and he cannot walk long distances. He walks with the aid of crutches. This evidence was not challenged. With respect to loss of amenities, damages must also compensate the plaintiff for no longer being able to do the things he was accustomed to do. 
In the light of the principles applicable to assessing damages, I assess the general damages for pain and suffering in the circumstances of this case at $ 60,000.00 (sixty thousand dollars).

Future earnings

The plaintiff testified that he was an ice cream seller who earned $150 a week (and $100 weekly on bad days) by selling ice creams seven days a week, in the populous areas of Sawani, Davuilevu Housing, Nakasi, Wainibuku, Narere and Makoi.
In support, the plaintiff called Rathan Prasad, an ice cream seller and member of plaintiff’s family, who the defendant has submitted, conveniently testified that he earns $150 a week. It was also submitted that the plaintiff failed to provide any documentary evidence as to his earnings. In cross-examination, it transpired that the plaintiff obtained social welfare benefits of $60 per month, and would not have qualified for welfare benefits, if his earnings were, as asserted by him. The plaintiff’s answer was that he obtained welfare benefits for the future.

In Singh v Bui (2007) FJCA 2, the Court of Appeal declared a trial judge, as a trier of fact was entitled to consider the evidence to assess the income of a villager. The Court of Appeal stated “..the reality of the situation seems to be that for self-employed traditional farmers, growers and fishers, in a lower socio –economic group, niceties of commerce, such as accurate book-keeping are often not observed”.

This dictum was cited with approval by Justice Mr Inoke in Dre v Min of Health (HBCL 20 of 2007).

I accept the evidence of the plaintiff that he was an ice cream seller. The claim for $150 a week in earnings is however, excessive. I assess his income at the lower figure of $100 a week.

Taking into account, the plaintiff’s heart ailment (as stated in the undated medical report of Dr Vaigalo E.McCaig, and drawn attention to by the defendant in his closing submissions) and other contingencies that may have arisen in his remaining period of work till he reached the age of 60 years, a multiplier of 3 is appropriate. I award the loss of future earnings to be 100 x 52 x 3 = $15,600. No interest is payable on this amount, as the plaintiff receives it in advance.

Future care

The plaintiff testified that after he befell the accident, he has difficulties in squatting and obtains assistance from his wife for bathing. This evidence was not challenged.
The High Court of Australia in Van Gervan v Fenton 175 CLR 327, held that that damages are to be awarded, not by reference to the actual cost to the plaintiff of having the services provided, but generally, by reference to the market cost of providing the services needed by the plaintiff, as a result of the damage suffered. 

The closing submissions states that the plaintiff requires future gratuitous care at $ 80 per week. The evidence falls short of establishing constant care. The plaintiff requires assistance for the afore mentioned activities. I therefore award the sum of $40 x 52 x 10 = $20800.00. No interest is payable on this amount, as the plaintiff receives it in advance.

(b)	Special damages

The plaintiff claims $5 in respect of a Medical Report and $200 for medicines purchased. No receipts have been produced in support.

The absence of receipts has been addressed by the Courts in Fiji. In Mahendra Naidu and Ravindra Patel C.A. No. 105/197999 (West Div) it was stated:

"No receipt or evidence has been tendered to show that hospital fees amounted to $50.00 and I do not accept that figure. I am unable to guess what it would be and I do not allow it.As Lord Goddard and the F.C.A. have pointed out claimants are expected to call evidence supporting their claims". 

In Narendra Kumar (f/n) Shiu Kumar and Sairusi Drawe 36 FLR 90 at page 95, Palmer J stated:

"Notwithstanding that not a single receipt has been produced in evidence I am satisfied from the Plaintiff's evidence that he paid those amounts."

The plaintiff claims travel expenses, in respect of 20 visits made to the hospital for review. Despite the absence of any documentary evidence of expenditure to support the claim, and given that receipts are not issued by taxi drivers, I hold the plaintiff is entitled to expenses reasonably incurred in respect of 6 visits made to the hospital totalling $108.00 [6 x ($9 x 2 )].

I disallow the expenses claimed for medication purchased, since receipts have not been produced in support. I allow the claim for cost of the medical report, as contained in the Agreed Bundle of Documents, in a sum of $5.The expenses claimed for visits to the hospital by the plaintiff's wife and the plaintiff's visits to his solicitor are disallowed.

(c) Interest

The plaintiff has claimed interest pursuant to Section 3 of the Law Reform (Miscellaneous) (Interest) Act, (cap 27).

Interest on general damages is awarded to compensate a plaintiff for being kept out of the capital sum –Pickett v British Rail Engineering Ltd (1980) AC 136 at 137.
 In Jeffords and another v Gee (1970) 2 WLR 702 at 703, it was held that "in general interest should be allowed on special damages from the date of accident to the date of trial at half the appropriate rate".

In the exercise of my discretion I award interest at 6% per annum on general damages of $ 60,000.00 from the date of accident to 27th July, 2011, and 3 % per annum on special damages on the sum of $113.00 from the date of accident to 27th July, 2011. 

7.	Orders

The total sum awarded to the plaintiff as damages is $ $88,020.57 made up as follows:

a. 	General damages	 60,000.00	
b.	Interest on General damages	13500.00	
c.	Special damages	113.00	
d.	Interest on special damages	12.71	
e.	Future earnings	15,600.00	
f.	Cost of domestic care	20,800.00	
	 Total	 110,025.71 	
	Less 20 % contributory negligence	 $ 88,020.57	

There will therefore be judgment for the plaintiff against the defendants in the sum of $88,020.57 together with a sum of $ 1600 payable by the defendant to the plaintiff as costs summarily assessed.

A.L.B.Brito-Mutunayagam
3rd August, 2011
Judge