Rayawa v Mote [2011] FJHC 652; Civil Action 6.2006 (14 October 2011)

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SEVANIA NAULUMATUA RAYAWA
of Lot 26, Princess Road, Waila,
Nausori.
PLAINTIFF

TABONTORA MOTE
C/- Rabi Council of leaders, Nuku, Rabi, Driver.
1^st DEFENDANT

RABI COUNCIL OF LEADERS
a duly constituted body under the Banaban Settlement Act Cap. 123.
2nd DEFENDANT

THE SOUTH PACIFIC ORGANISING COMMITTEE
C/- FASANOC of 17 Bau Street, Flagstaff, Suva.
3rd DEFENDANT

Counsel : Mr D.Prasad for the Plaintiff
The 2nd defendant absent and unrepresented

Whether the Plaintiff suffered personal injuries due to the Defendants' negligence and therefore suffered loss. If yes, the quantum of such loss.

Is the Plaintiff liable for the injuries sustained due to his own contributory negligence? If yes what is the percentage of contributory negligence?

The plaintiff testified that when the first defendant was proceeding uphill on Nuku Road, he had changed gear. This had resulted in the truck starting to go downhill at a high speed. The children in the truck were screaming and the plaintiff was holding them to prevent them from falling. The first defendant had then swerved the truck, resulting in the plaintiff being thrown out of the truck, which then ran over his leg.

The plaintiff's testimony on the accident was supported by Temasa Nakelo, a military officer involved as a Protocol in the torch relay, and travelling in the same truck.

The sketch plans produced in the Agreed Bundle depicts that the truck had gone downhill a distance of 22 feet from the place where the plaintiff was seen seated on the road.

I am satisfied on the evidence that the first defendant was negligent. Accordingly, the second defendant is vicariously liable for the negligence of the first defendant, and the failure to have a back tray and safety belts fitted in the truck, as provided in the next paragraph.

In its defence, the second defendant has pleaded particulars of contributory negligence on the part of the plaintiff in standing at the back tray and jumping off the truck, when it was being reversed. There was no evidence of contributory negligence.
Indeed the evidence showed that the plaintiff had to stand to hold the children and prevent them from falling, since there was no back tray nor safety belts fitted in the truck.

The plaintiff, has claimed general damages for pain and suffering in the sum of
$80,000.

Dr Taloga, Consultant Orthopaedic Surgeon, CWM hospital testified in support of the injuries suffered. The medical report dated 23 February, 2006, of Dr Taloga provides that the plaintiff was hospitalised for 3 months 3 weeks and that:

"he walks with a stiff knee which is held in extension for an untalgic gait. There is scaring over the medial and back of the knee from skin graft. The knee is ankylosed in full extension".

In determining the damages, the plaintiff is entitled to for pain and suffering, it is necessary to consider the 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 Samuel Fong v John Beater Enterprises Pty Ltd,(HBC No.0482 of 2003 S),the plaintiff was left with a scar on his upper right leg. There was no permanent incapacity. The Court awarded general damages in a sum of $ 36,666.00 as general damages.

Turning to the present case, the plaintiff was hospitalised for over 3 months. The medical report of 2nd September, 2003, provides he underwent seven "debridement(s) with right knee joint washout " after the initial debridement. He was bedridden for 2 years and in a wheel chair for 1 ½ years. He is no longer able to play sports and has a scar on his right leg .It is unfortunate he is unable to wear his military uniform. 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 $ 50,000.00 (fifty thousand dollars).

The plaintiff submitted that he should be fully compensated under this head, on the basis he would have been a full Colonel by now, if not for the accident .

The plaintiff asserted he had been a Captain for 16 years and that it was not normal to be in this position for so long a period. It was submitted the rise to the rank of Captain, Major, Lieutenant Colonel or Colonel is ordinarily made after 6 years in each position .He had been confirmed as a Captain in 2003 and promoted to a Major in 2010.

Given his period of service as Captain, it is doubtful whether he would have been promoted as full Colonel in 5 years as claimed, apart from other contingencies and prerequisites that have to be satisfied in order to be promoted to Lieutenant Colonel and then Colonel. I therefore disallow this claim.

The plaintiff and his wife stated that after he befell the accident, he requires the services of a housemaid daily. The evidence falls short of establishing a daily need. The medical evidence provided he can drive and walk with a stiff knee, which however, he cannot bend. A housemaid thrice a week for washing his clothes would suffice.

The closing submissions provides that a housemaid would cost $ 10 per day. He is presently 47 years.

I therefore award the sum of $30 x 52 x 13 = $ 20280.00. No interest is payable on this amount, as the plaintiff receives it in advance

He does not need a ramp to enter his house. The claim for renovations to his house is disallowed.

There was a claim for special damages, but the evidence was unsatisfactory and the claim was not made out, except in relation to a claim for $10 in respect of a Medical Report.

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".

I disallow the expenses claimed for medical and transport expenses, since no evidence was 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 $10.

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

In the exercise of my discretion I award interest at 6% per annum on general damages of $ 50,000.00 from the date of accident to 26th April, 2011, and 3 % per annum on special damages on the sum of $10.00 from the date of accident to 26th April, 2011.

The total sum awarded to the plaintiff as damages is $ 93,992.37 made up as follows:

a.	General damages	50,000.00
b.	Interest on General damages	23,700.00
c.	Special damages	10.00
d.	Interest on special damages	2.37
e.	Cost of domestic care	20280.00
	Total	93,992.37

There will therefore be judgment for the plaintiff against the 2nd defendant in the sum of $93,992.37 together with a sum of $2000 payable by the 2nd defendant to the plaintiff as costs summarily assessed.

High Court of Fiji

Rayawa v Mote [2011] FJHC 652; Civil Action 6.2006 (14 October 2011)