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Naulumatua v Satalaka [2014] FJHC 821; Civil Action HBC5.2013 (13 November 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 5 of 2013

BETWEEN:

SIMELI NAULUMATUA
PLAINTIFF

AND:

JOJI SATAKALA
FIRST DEFENDANT

AND:

SAKEO TURUKAWA
SECOND DEFENDANT

BEFORE : Hon. Justice Kamal Kumar

COUNSEL : Mr. S Prasad for the Plaintiff

Mr. A Kohli for the First Defendant

No Appearance for the Second Defendant

Date of Hearing : 19 and 20 June 2014
Date of Ruling : 13 November 2014

JUDGMENT

1.0 Introduction

1.1 On 13 February 2013, Plaintiff filed Writ of Summon and Statement of Claim claiming for alleged injuries sustained by him as a result of an accident on 30 August 2010 at Subrail Park, Labasa whereby he was allegedly hit by vehicle Registration No. EW 427 driven by the 1st Defendant.

1.2 On 19 July 2013, Plaintiff entered Judgment in Default of Defence which Judgment was subsequently set aside.

1.3 1st Defendant (driver) filed Statement of Defence denying any negligence on his part and alleging negligence on part of the Plaintiff.

1.4 Upon completion of pre-trial matters this actions was set down for trial on 19 June 2014. Due to issue of disclosure of medical report this matter was adjourned to 20 June 2014 for continuation of trial.

1.5 At completion of the trial, and with consent of the parties they were directed to file Submissions by 11 July, 2014. Any Reply to Submission was to be by 25 July 2014, and this matter was adjourned for Judgement on Notice.

1.6 Both parties filed their Submissions but neither party filed Reply to Submissions.

2.0 Agreed Facts

2.1 In the Minutes of Pre Trial Conference dated 5 February 2014 and file herein parties agreed to following facts:

(i) The Plaintiff is a Retired Civil Servant/Consultant and resides at Vunivau, Labasa.

(ii) The 1st Defendant was at all material times the driver of motor vehicle Registration No. EW 427.

(iii) The 2nd Defendant was at all material times the owner of motor vehicle Registration No. EW 427.

(iv) 1st Defendant was driving motor vehicle Registration No. EW 427 as the servant/agent of the 2nd Defendant.

(v) On the 30th day of August, 2010 while the motor vehicle No. EW 427 was being driven by the 1st Defendant towards the Labasa Town Council Depot, there was collision between the said vehicle and the Plaintiff.

3.0 Plaintiff's Case

3.1 Plaintiff in addition to giving evidence called one other witness namely Mere Sakealevu in prove negligence of the 1st Defendant and Mr Maloni Bulanauca the Medical Officer.

3.2 Plaintiff gave evidence that:

(i) On 30 August 2010 being the date of the accident he was at Subrail Park to attend Friendly North Festival and just before two o'clock he was walking alongside Ground No. 2 at Subrail Park.

(ii) He was walking alongside the road at Ground No. 2 when he was hit from the back by the vehicle driven by the 1st Defendant.

(iii) There were people in the ground and on both sides of the road.

(iv) He was hit on the right hip by the vehicle and as a result he fell. A Police Officer and few people came and assisted him.

(v) He knew Joji Satakala, the 1st Defendant and identified him in court.

(vi) 1st Defendant came to him and said to him that he was very sorry and did not see him as he was looking at the ground.

(vii) Plaintiff then stated to 1st Defendant that it is alright.

(viii) He was then taken to Labasa Hospital by the Police Officer where he was treated for the injuries sustained by him.

(ix) Incident was reported at Labasa Police Station by the Police Officer.

(x) In his Statement to the Police he told them not to take any action as he has not received much injury, he knew 1st Defendant's family and he did not want to spoil 1st Defendants career and his studies.

(xi) He was discharged by Labasa Hospital and was asked to come back for review.

(xii) He was then referred to Lautoka Hospital where surgery was performed on his left elbow by fixing steel rod, and his left elbow was put on a cast.

(xiii) Upon discharge from Lautoka Hospital he went home and went back to hospital to have the cast removed.

(xiv) He was told by the medical officer at Lautoka Hospital to go for compensation.

(xv) Upon his return to Labasa he lodged a complaint with Police Department.

(xvi) He feels pain on his left hand and is unable to do any work with his left hand.

(xvii) After his retirement he worked as logging consultant for his clan.

(xviii) He also helped his wife in selling handicraft and earned $100 to $200 per week.

(xix) He incurred $150.00 in fares and $150.00 in buying medications.

3.3 In cross examination Plaintiff gave evidence that:

(i) He was hit by the vehicle driven by the 1st Defendant when he was walking along the road next to the ground.

(ii) When he was walking he was facing the river.

(iii) There were lot of people and some were walking alongside the road.

(iv) He was walking along left hand side of the road.

(v) There were plenty stalls because of the festival and stalls were some 2 metres away from the road.

(vi) He came from in between two stalls.

(vii) He agreed that whilst walking along the road facing the river he went and struck left hand side of the 1st Defendant vehicle and as a result he fell towards his left.

(viii) He told his solicitors that at the time of accident he was walking.

(ix) Denied suggestion that he was talking on his mobile phone at the time of accident.

(x) Admitted that 1st Defendant was not studying at the time of accident and reason for not reporting accident was that he did not want to spoil 1st Defendant's career.

(xi) Denied that accident took place because of his fault.

(xii) At time of accident he heard someone saying sorry to him.

(xiii) 1st Defendant did do ask for forgiveness from him and did not visit him which was not normal in iTaukei tradition.

(xiv) Prior to the accident he was acting as consultant earning $100.00 to $200.00 per week or $5,000.00 to $10,000.00 per year.

(xv) After the accident he stopped doing consultancy work.

3.4 During re-examination Plaintiff gave evidence that:

(i) He was walking along the road when he was hit by the vehicle.

(ii) After the accident he heard someone saying "sorry, I did not see you".

(iii) He did not see the 1st Defendant when he got up.

(iv) His mobile phone was in his pocket and he was not talking to anyone at the time of accident.

3.5 Plaintiff's second witness was Maloni Bulanauca, the Chief Medical Officer Surgery at Labasa Hospital (PW2).

3.6 During examination in chief PW2 stated that:

(i) He attended to the Plaintiff on the date of accident at around 2:10pm in relation to injuries sustained by the Plaintiff in an accident.

(ii) Plaintiff complained of pain in his left elbow and left ankle.

(iii) His elbow was swollen and x-ray revealed fractured radius head and left forearm.

(iv) He was given Ibuprofen, Voltaren and Panadol and his left upper limb was secured by a back-slab.

(v) Plaintiff was not admitted but on 2 September 2010 he was examined at Orthopaedic Clinic at Labasa Hospital.

(vi) Plaintiff was then referred to Lautoka Hospital for surgery.

3.7 The witness was referred to report dated 20 December 2010 from Pauliasi Bauleka Senior Orthopaedic Registrar.

3.8 PW2 further testified that:

(i) Plaintiff was referred to Lautoka Hospital for definite treatment and surgery which involved treatment requiring insertion of plate.

(ii) Plaintiff was admitted at the Trauma Ward when the treatment known as K-wire fixation to left radial head under anaesthesia was performed.

(iii) K-wire fixation is treatment of broken bones by using stainless still wire. It is performed under anaesthesia whilst patient is asleep.

(iv) Plaintiff was re-admitted on 21 October 2004 to remove K-wire if it was no longer required.

(v) At times another incision is needed.

(vi) He was not aware if Plaintiff needed another incision as it was not provided in the medical report from Lautoka Hospital.

(vii) He examined Plaintiff on a day before the trial (i.e 18 June 2014).

3.9 It must be noted that at this point in time Counsel for the 1st Defendant objected to any question being asked on any report prepared by the witness as his office or 1st Defendant have not been provided with a copy of the medical report.

3.10 With consent of both Counsel and the witness I adjourned the trial to 20 June 2014 at 10:00am to enable the witness to have his report typed and provide copy to 1st Defendant's Counsel for him to take instruction from the 1st Defendant. On 20 June 2014 Counsel for the 1st Defendant informed the Court that he had been provided with written report and 1st Defendant is ready to proceed with trial.

3.11 PW2 continued with his evidence and stated as follows:

(i) Plaintiff told him that he is ambidextrous but writes predominantly with his right hand.

(ii) Classified pain received by Plaintiff using clinical score as mild that is 2.5 on score of 0 to 5 with 5 being the highest level of pain.

(iii) Plaintiff is unable to touch his right shoulder with his left hand as Range of Motion (ROM) of his left hand has been affected.

(iv) There is a possibility that Plaintiff will suffer pain in future.

(v) As per medical report prepared by him he assessed Plaintiff' scar at 2%, Wrist ROM and power at 0% Elbow ROM and power at 5% with Whole Person Impairment (WPI) at 7%.

During cross examination PW2 testified that:

(i) Side-swipe injury described in Dr Bauleka's report (Exhibit P3) gives fair idea of loading mechanism of body weight and gives an idea on type of injury and what body region needs to be examined.

(ii) Side-swipe injury is received where elbow does not hit ground directly but is injured because of lending on an outstretched arm.

(iii) He examined Plaintiff on 18 June 2014 to assess Plaintiff's impairment.

(iv) On date of examination, Plaintiff was taking pain reliefs and medication for pressure and diabetes.

(v) 10% of person who suffer from personal injury also suffer psychologically.

(vi) No sign of any psychological effect was noticed in respect to Plaintiff.

(vii) Plaintiff responded well to questions.

3.12 During re-examination PW2 testified that if someone is hit from the back it is possible for that person to injure his elbow if he falls on his side.

3.13 PW2 on query from Court stated that it is possible that if a person when falling tries to rest his/her body on his/her hand and injure the elbow than he/she may not feel the pain straight away.

3.14 In answering 1st Defendant Counsel's question arising out of clarification sought by Court, PW2 stated that one will feel pain when fright of flight comes down and in view of the this type of injury suffered by Plaintiff one will suffer pain immediately.

3.15 PW2 further testified that if injury is less serious than that suffered by the Plaintiff is likely that it may take time to feel pain but could not say how long.

3.16 Plaintiff's third witness was Mere Sakealevu of Bulileka, Labasa (PW3).

3.17 PW3 during her evidence in chief stated:

(i) She knew the Plaintiff and 1st Defendant and identified both of them in court.

(ii) She could recall 30 August 2010, the date of accident (DOA).

(iii) On DOA she was at Subrail Park working at a BBQ stall.

(iv) On the DOA she saw Plaintiff hit by vehicle driven by 1st Defendant.

(v) When Plaintiff was hit by the vehicle he was walking towards a stall and she was at the back of Plaintiff at her stall.

(vi) 1st Defendant's vehicle hit Plaintiff from the back and as a result Plaintiff fell down.

(vii) After Plaintiff fell 1st Defendant came to Plaintiff and said sorry.

(viii) Plaintiff was lifted by a military officer present on the ground and few other people and he was taken to hospital.

3.18 During cross examination PW3 stated as follows:

(i) She could not recall her stall number but said stall belonged to one Taitusi.

(ii) Stall was covered with roofing iron and BBQ was done in open fire.

(iii) Stall was constructed some two metres from the road and the BBQ stand was placed between the stall and the road.

(iv) She could not recall the date the festival started and date it finished.

(v) While doing BBQ she was facing the road.

(vi) She has known the Plaintiff for a long time as a friend.

(vii) In 2012 she was asked by the Plaintiff to give evidence regarding the accident.

(viii) Three weeks prior to the trial she visited Plaintiff Solicitors office and told Plaintiff's Solicitors that she will give evidence of what she saw at the time of the accident.

(ix) She could not recall the time of accident.

(x) She does not know what Plaintiff was wearing at the time of accident.

(xi) The colour of vehicle that hit Plaintiff was greyish in colour.

(xii) First time she saw Plaintiff, he was walking facing the river.

(xiii) Accident took place approximately 2 metres on left side of her stall.

(xiv) She did not see Plaintiff fall.

(xv) She did not go and touch Plaintiff, assist him or talk to him.

(xvi) She stated that there were plenty people at the scene of accident but when she was asked as to how many people were there she stated "not plenty".

(xvii) She first saw the vehicle when it hit the Plaintiff.

(xviii) Plaintiff was walking on part of the ground that had

soil and was going to another stall.

(xix) When Plaintiff passed her stall they exchanged greetings.

(xx) She heard people talking about accident but she did not speak to anyone about it.

(xix) She did not tell Plaintiff's family about the accident and that she told Plaintiff's wife who was at the ground in the afternoon.

(xxx) She only saw Plaintiff fall down but could not recall how far the vehicle stopped after the accident.

(xxxi) She saw 1st Defendant getting out of his vehicle and heard him say "please forgive me, I didn't see you" to the Plaintiff.

(xxxii) She was not asked about the accident by the Police Officer.

4.0 First Defendant's Case

4.1 First Defendant gave evidence himself and did not call any other witness.

4.2 1st Defendant gave evidence that:

(i) At time of accident he was driving motor vehicle registration No. EW 427 to Land Transport Authority tent at Subrail Park Ground No. 2.

(ii) On DOA Friendly North Festival was being held at Subrail Park, Ground No. 2.

(iii) He was driving at 5km/hr and there were people alongside the road leading to Subrail Park Ground No. 2 some of whom were walking on the road.

(iv) Road leading to Subrail Park Ground No. 2 was gravel road.

(v) While he was driving he saw a man coming from side of the stall facing the road and holding mobile to his right ear.

(vi) When he saw the Plaintiff he was about 1 metre ahead of his vehicle.

(vii) He stopped the vehicle and Plaintiff hit on the left hand side of the vehicle and fell on left hand side of the road.

(viii) He got out of the vehicle and the Police Officer present at place of accident and some of the people present there told him that it was not his fault.

(ix) After that some people took Plaintiff to the hospital and he left.

(x) He did not say sorry to or ask for forgiveness from Plaintiff because he knew he was not at fault.

(xi) With people on side of road and on the road he was driving cautiously.

(xii) When he saw people walking on the road he stopped his vehicle and people gave way to his vehicle.

(xiii) At time of accident vehicle was stationary.

(xiv) Plaintiff was holding his mobile and trying to cross the road.

4.3 During cross examination he maintained that:

(i) Plaintiff was walking towards the river and trying to cross the road and that he was driving cautiously.

(ii) He did not say sorry to Plaintiff.

5.0 Analysis of Evidence

5.1 For sake of convenience I will refer to Plaintiff's third witness (PW3) evidence first.

5.2 From the evidence given by the PW3 it is apparent that she did not see the accident take place and her evidence is based on what she was told by the Plaintiff, his Solicitor or someone else.

5.3 I do not find PW3's evidence as to how accident took place credible and as such no weight is given to her evidence in this respect.

5.4 I also do not believe PW3's evidence during cross examination that 1st Defendant said to Plaintiff "please forgive me, I am sorry" as during examination in chief she stated that 1st Defendant came to say sorry. Also the evidence in this regard is contrary to evidence of Plaintiff who said during examination in chief that 1st Defendant said "very sorry, didn't see you". I was looking at the crowd on the side and during cross examination he stated he heard "someone saying to me, was a voice saying sorry to me."

5.5 From the evidence produce in Court and the demeanour of witnesses I make following finding of facts:

(i) On DOA 1st Defendant was driving along the gravel road next to Subrail Park Ground No. 2 where Friendly North Festival was being held.

(ii) Plaintiff whilst walking to another stall came and hit vehicle registration No. EW 427 driven by 1st Defendant as agent, servant and with consent of the 2nd Defendant.

(iii) For Plaintiff to claim for compensation for injuries sustained as a result of the accident was an afterthought.

(iv) I do not believe that Plaintiff decided not to pursue traffic case to save 1st Defendant career or not to spoil his studies. In fact there was no evidence to prove that 1st Defendant at time of accident was studying.

(v) I also note that the Police Officer or the Military Officer (as was stated by PW3) who was present on the ground and assisted the Plaintiff was called to give evidence for the Plaintiff. The Police or Military Officer's evidence would have been crucial on the issue of liability.

(vi) Accident took place due to sole negligence of the Plaintiff who took no regard for his own safety by hitting vehicle registration No. EW 427.

5.6 Whilst it is well established that 1st Defendant owed a duty of care to other road users at the time of accident, I find that 1st Defendant did not breach the duty that was required of prudent driver at the time of the accident in view of the surrounding circumstances.

6.0 Conclusion

6.1 I therefore find that Plaintiff has failed to prove liability against the 1st Defendant and as a result Plaintiff's claim on liability against both Defendants will be dismissed.

6.2 In view of the nature of the case and fact that Plaintiff did suffer injuries which required surgery and expenditure I do not make any order as to costs.

6.3 I make following Orders:

(i) Plaintiff's claim against the Defendants is dismissed.

(ii) Each party to bear their own cost of this action.

K. Kumar

JUDGE

At Suva
13 November 2014

Mr. Sarju Prasad Esquire for the Plaintiff
Mr. Kohli & Singhs for the First Defendant