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Ram v Kumar [2016] FJHC 79; Probate Action 32.2014 (9 February 2016)

In the High Court of Fiji at Suva
Probate Action No. 32 of 2014

Between:

Rishal Rinik Ram
Plaintiff

And:

Naina Kumar
First Defendant

And:

Chaganlal Indravadan

Second Defendant

Appearances: Mr A. Koli for the plaintiff
Mr A Ram with Mr K.Ratule for the first and second defendants
Dates of hearing: 20th and 21st October,2015

Judgment

1. In these proceedings, the plaintiff, a minor born on 14th October,2007,sues by his father and next friend Daya Ram for damages for injuries suffered by him. The plaintiff alleges that he was knocked down by the first defendant on 12th October, 2013, when she negligently drove the vehicle of the second defendant on the wrong side of the Nukubalavu Road in Savusavu. The defendants state that a collision did not occur and any injury was caused solely by the negligence of the plaintiff. Alternatively, that he was contributory negligent in recklessly running across the road and coming onto the path of the defendant's vehicle.
   
2. The plaintiff pleads the following particulars of negligence against the first defendant:
   
   1. failed to keep any or any proper lookout or to have any or any proper regard to the safety of the Plaintiff.
   2. drove her motor vehicle at a speed which was excessive in all the circumstances.
   3. failed to warn the Plaintiff by tooting the horn as she drove the vehicle in a reckless manner on that day.
   4. failed to keep her motor vehicle under any or any proper control.
   5. failed to accord safety to a pedestrian who was standing on the right side of the road.
   6. failed to steer or control the said vehicle so as to avoid the said collision with the Plaintiff.
   7. failed to apply the brakes on her said motor vehicle in time to avoid the said collision at all.
   8. failed to give any or any adequate warning or her negligent approach.
   9. failed to drive with due care and attention.
   10. drove her vehicle negligently and or recklessly under all the circumstances.
   11. she tried to avoid pot holes and thereby drove on the wrong side of the road on the date of the accident.
       
3. The defendants, in their statement of defence plead the following particulars of negligence against the plaintiff:
   
   1. Failed to keep a proper lookout.
   2. Failing to see the Defendant's approaching vehicle.
   3. Crossing the road when it was clearly not safe to do so.
   4. Being reckless and inattentive in the circumstances.
   5. Suddenly coming into the path of the Defendant's oncoming vehicle.
   6. Recklessly running across the road in an attempt to follow his sister.
      
4. The determination
   
   1. The agreed facts provide that on 12thOctober,2013, the first defendant was driving vehicle no HC 132 belonging to the second defendant,(as his agent) along Nukubalavu Road("road') towards Savusavu town.
      
   2. The plaintiff was injured in the vicinity of the residences of the plaintiff and George Tuitama,("George") in Nukubalavu Road,("road').
      
   100. Looking at the position as the first defendant was proceeding on the left lane of the road, the plaintiff's house was on the left side. George's house was on the right side of the road.
        
   4. The plaintiff's father had gone to George's house. The plaintiff and his elder sister joined him at their "Uncle George's" house.
      
   5. Subsequently, the plaintiff and his sister came out of "Uncle George's" house to the road. The plaintiff's sister ran across the road to her house on the opposite side of the road. There was a bush in front of George's house. The first defendant applied the brakes of her car, as she saw the plaintiff's sister run across.
      
   6. What happened next is disputed.
      
   7. The plaintiff states that he came out of "Uncle George's" house with his sister, but did not cross the road. While he was standing on the right side of the road, the first defendant drove from the left to the right side of the road and struck him.
      
   8. The defendants on the other hand, state that the plaintiff ran across the road and fell on the gravel road injuring himself. There was no collision with their vehicle.
      
   9. I turn to the evidence.
      

The plaintiff,(PW1)

10. The plaintiff, in evidence in chief said that the defendants' vehicle struck the right side of his head, when he was standing on the right side of the road.
    
11. In cross-examination, the plaintiff denied that he crossed the road.
    

50. It was put to him that his sister had given a statement to the Police that he did cross the road and the Police sketch depicted that he had crossed.
    

13. The plaintiff said that his sister was running, while he was walking from "Uncle George's" house towards the road. He was standing on the side of "Uncle George's" house, because he saw the vehicle approaching. His sister told him to stand there. She was waiting on the other side for him.
    
14. It was put to him that his sister had not lifted him, when he fell down. He said that his sister went to call his mother.
    

PW2,(Roshini Devi Dutt)

• PW2, in evidence in chief said that she heard the sound of brakes. Her daughter came running saying that there was an accident. When she reached the place where the accident occurred, she saw her son on the "right side of the road". She picked him up and took him towards the side of her house. The defendants came in their car.
  

16. When she asked the first defendant how the accident occurred, she said that the boy came on to the middle of the road.
    
17. In cross-examination, she said that the plaintiff was lying on the right side of the road and the defendants' vehicle was parked on the left side. She denied that the defendants had picked up her son when she came out. She said that they were still in the car.
    
18. Mr Ram, counsel for the defendants put it to PW2 that ordinarily, a person would say that he was lying on George's side rather than on the "right side of the road".
    
19. It was also put to her that there was no need to take him to the left side of the road, as the plaintiff's father was in George's house on the right side.
    
20. She denied that the first and second defendants picked him up.
    

PW3,(Sanjay Prasad, Police Officer)

21. PW3, in evidence in chief said that he interviewed the plaintiff, his sister,(Shayal Ram)and both the defendants. He took their statements. The statements and his sketch were produced.
    

5. He was referred to Shayal Ram's statement to the Police, where she had stated that the plaintiff " did cross the road". PW3 said that it should read he didn't cross the road.
   

23. He spoke to the plaintiff's mother. She told him that she picked up her son on the right side of the road(when looking towards Savusavu).

10. PW3 said that the first defendant came on her own accord to the Police Station. He went with her to the scene. He had drawn an imaginary sketch plan, according to the first defendant's version of what had happened. The second defendant was present when he drew the sketch plan. The first defendant pointed out to him the spot where the plaintiff was lying on the road. He did not independently verify whether it was correct.
    

25. He was asked why he served a "TIN" (Traffic Infringement Notice) on the driver. He said that according to the statement of the victim,(PW1) made in hospital, the driver of the vehicle came on the wrong side and bumped him. He told her the procedure to be followed, namely, that she has the right to pay the fine or if not, she can go to Court.
    
26. In cross-examination, the point of impact as depicted in his sketch plan was shown to him.
    
27. He said the first defendant told him that there was no collision. The second defendant told him that the boy ran across the road and when his wife slowed down, he saw the boy lying on the road. The car did not bump the plaintiff.
    
28. Mr Ram asked PW3 how he could say that Shayal Ram in her statement to the Police meant that the plaintiff didn't cross the road, when the statement stated the plaintiff "did cross the road". PW3's response was that it was a "writing mistake" on his part. He overlooked to correct it.
    

0. PW3 accepted that he issued the TIN before obtaining the written statements, but denied that he told the first defendant to pay the fine, so that the matter could be concluded.
   

30. He said that there were no dents or scratches on the car. The LTA examined the car.
    
31. In re-examination, PW3 said that he received a verbal complaint against the first defendant from the plaintiff at hospital. He reiterated that he did not tell the first defendant to pay the fine so that the case can be concluded.
    

PW4,(Dr Maloni, Surgeon, Labasa hospital)

32. PW4, in evidence in chief agreed it was a "fair statement" to make that the injuries received by the plaintiff, as contained in his medical report of 19 January,2015, was consistent with being infected by a "blunt force". He said that it was "possible" that the abrasions in his knees could be a result of him falling on the ground. He prepared the plaintiff's medical report.
    
33. In cross-examination, in answer to the question whether the injuries sustained by the plaintiff could be the result of him darting across the road suddenly, as a vehicle was coming and he fell hitting himself on the gravel, PW4 said that "I guess that it is possible". There were no fractures.
    
34. In re-examination, he gave an affirmative answer to the question whether it was "possible that he was hit by a vehicle and fell on the gravel and sustained injuries by being hit and fallen on the road".
    

DW1,(the first defendant)

2. In evidence in chief, DW1 said that as she was driving along Nukubalavu Road towards Savusavu, she saw a small girl running across the road from the right side of the road to the left, when she (DW1) was 30 to 40 kilometers away from George's house. She ran from the bushes on the right side of the road and went inside the house. She slowed down her car and then as she was proceeding, she suddenly saw a little boy running across to the left side of the road from the same bushes. She applied the brakes and stopped the car.
   

36. She said the boy fell down on the left side near the drain. Her car did not touch the boy. Her car was on the left side of the road.
    
37. The boy was bleeding from his forehead. She picked him up and put him in her car. He was "unconscious". Nobody else was present, except her husband who was in the car. When she was about to go to hospital, the plaintiff's parents came. She told them to get into the car .
    

0. She said that she did not go to the right side of the road. The plaintiff ran across the road, fell and injured himself on the loose gravel road. He fell on the stones. There was no collision.
   

39. DW1 said that she left the hospital and went to the Savusavu Police Station. She took the Police Officer to the site in her car. She showed him the place the accident occurred. She told him that the plaintiff crossed the road from George's house to the left side of the road.
    
40. The Police Officer asked her to pay $200 fine for careless driving or go to Court. She was so frightened that she paid the fine, as she had never met with an accident nor been to a Police Station before.
    
41. In cross-examination, DW1 said that she first saw the plaintiff's sister when she came out of the bushes outside George's house. Her car was 40 to 50 meters away. DW1 said that her speed was 30 to 40 kmph. As soon as she saw the girl coming out of the bushes, she slowed down. By the time she(the plaintiff's sister) started crossing the road, DW1 said that the speed of her vehicle was 20 kmph. It would have taken her approximately "4 seconds" to run across the road.
    
42. She was asked if she saw the plaintiff's sister going inside her house. She said that she disappeared, her eyes were on the road.
    
43. Next, she was asked how far she was from the plaintiff when she first saw him. She said that she was "far away" and he ran across the road from the bushes.
    
44. She maintained that there was no contact between her car and the plaintiff. She could not remember whether she saw him falling down.
    
45. She was questioned on her statement to the Police whether she said that "I am not sure" if she bumped the plaintiff, as alleged by him. DW1 confirmed that her statement was read back to her, after another pause.
    
46. DW1 was next asked why she went to the Police Station, if she was not at fault and there was no accident. Her answer was that it is every citizen's duty is to report an accident.
    
47. Finally, it was put to her that paragraph 8 of her defence does not say make any allegation against the Police and provides that " she pleaded guilty and was fined for careless driving ..but.. this is not in itself proof of negligence and the plea was taken as she did not wish to defend the matter and incur legal costs".
    

DW2,(the second defendant)

0. DW2 said that on 12th October, 2013, he was going to work. His wife DW1 was driving. He was in the passenger seat. While they were proceeding along Nukubalavu Road, they saw a girl running across the road from the right side of the road to the left, at a distance of 30 to 40 kilometers away. DW1 reduced her speed to 20kmph.She ran from the bushes on the right side of the road to the left and went inside the house.
   

49. DW2 slowed down the car and then "suddenly" they saw a boy running from the right side of the road to the left. They stopped the car. Next, they saw the boy lying near the drain.
    

20. DW1 picked the boy and put him in the car to take him to hospital. His parents then came, and they took them too to the hospital.
    

51. DW2 said that the vehicle did not hit the boy. His wife applied the brakes and the car came to a halt. The car did not veer to the left side. The car did not come into contact with the boy. There was no dent or scratch on the car.
    
52. They reported the accident to the Police and took the Police to the scene, as the boy and girl ran across the road.
    

aaa. The Police served a TIN on the first defendant. The Police said that if they pay the $200 fine, the entire matter will be finished.
bbb. In cross-examination, it transpired that DW2 was a Director at "Rahis Ltd". DW1 and his son were the other Directors.

0. He was asked why he paid the fine for careless driving, if DW1's vehicle was travelling on the left side, not over speeding and did not come into contact with the plaintiff.
   

ddd. DW2 said that he had been in business for thirty years, but never spoken to any lawyer as he never had a mortgage. He said he knew several lawyers. Mr Koli posed the question why he did not seek his advice on the TIN, when they knew each other well. He was also asked whether it is the policy of his Company to give things free.

eee. Mr Koli put it to DW2 in Hindustani that he did not tell his wife "dekho, dekho hey ladaka",(look, look, there is a boy) for the reason that he had not seen the plaintiff. At first, he said that he does not remember. He paused and took time to answer. He said that he told DW1 to apply the brakes. It was put to him that he asked her to apply the brakes, as she had not applied it. He then said that he did not see the boy and saw him first in hospital.

fff. In re-examination, DW2 said that he saw the boy running across the road.

ggg. On a review of the evidence as a whole, I am of the view that the plaintiff ran across the road from George's house to his house on the left side and was knocked by the first defendant's vehicle, when he was crossing the left lane of the road. I reach this conclusion for the following reasons.

hhh. Firstly, the sketch drawn by PW3 depicts that the point of impact was on the left lane of the road. PW3 said DW1 told him shortly after the accident that the plaintiff came on to the middle of the road. PW2 too said that when she asked DW2 how the accident occurred, DW2 replied that he came on to the middle of the road.

3. Secondly, the contemporaneous statement given by the plaintiff' sister to the Police provides that the plaintiff crossed the road. PW3's evidence, that he had made a mistake in writing that statement and that he meant he "didn't" cross the road is unacceptable. The plaintiff's sister was not called to testify.
   

jjj. Thirdly, the plaintiff said that he was injured on his right side. That could not possibly be, if he was standing on the right side with his left facing the approaching vehicle.

kkk. I find incredible the evidence of PW2 that she picked her son from the right side of the road, in front of George's house and took him to the left side. As Mr Ram pointed out in cross-examination, there was no reason for PW2 to have done so, when the plaintiff's father was in George's house. I reproduce excerpts of her cross-examination on that point:

Q. They(defendants) came to the right hand side and hit her son. And then reversed or did something and then parked this side?

A. When I picked up my son and I was taking it to my – the other side towards my home they had parked the vehicle that side.

Q. So that means you did not see where the vehicle, how it hit, where the vehicle was because when you came the parked vehicle was parked on the left hand side?

A. Yes My Lord I did not see accident happen but the vehicle was on the other side.

Q. Right so the vehicle was parked on the left hand side of the road right, correct?...

A. My Lord when the accident happened I picked up my son and my daughters went to call my husband.

Q. Yes can you see there is no reason to pick your son up and take him to your home side everybody is this side?

The father was just next door just at that house the accident happen in front of that house right, you already come to that side of the house I mean to that side of the road according to your story there's not been to pick the son and go this side right.

1. I had picked up the son and brought him this side so that my husband would come and I take him to the hospital.
   

Mr Ram: Yes I'm saying there is no need to do that. There is no need. (emphasis added)

0. Finally, I note that Mr Koli, in his reply to the closing submissions of the defendants concedes that the plaintiff had begun to cross the road and come a few steps on the road.
   

mmm. That disposes of the plaintiff's contention that the first defendant came on the to right side of the road from the left.

nnn. I turn to consider the defendants' contention that the plaintiff fell on the loose stones on the gravel road.

ooo. In the aftermath of the accident, the plaintiff was unconscious as testified by DW1. Mr Koli points out in his closing submissions, this could not have occurred by a mere fall.

ppp. In my view, the impact of being knocked by the car rendered him unconscious.

qqq. The first defendant, when asked by the Police how the plaintiff fell had replied " I don't know". The next relevant question and answer in her statement to the Police reads:

According to Rishal .. your vehicle bumped him what you have to say about this.?

Maybe. I am not sure.(emphasis added)

rrr. When Mr Koli asked DW1 if she gave that answer to the Police, she took an unusual length of time to answer that question. She then said that she was "not sure" whether she gave that answer.

sss. It was next put to her that the reason she said that she was not sure, is because she did not know that her vehicle hit the boy on the right hand side. Her answer was that her "vehicle did not hit the boy on the right hand side".

ttt. I have also noted that DW2 took time to answer the questions in cross-examination as to when he first saw the boy and gave contradictory answers.

uuu. I observed the demeanour of DW1 and DW2 in the witness box, as they were cross-examined on this crucial issue. I found them to be evasive and give untruthful evidence.

0. Moreover, if the first defendant did not bump him, as Mr Koli repeatedly asked DW1 and DW2 in cross-examination, what was the necessity for DW1 to (i) report the accident to the Police and take PW3 to the scene of the accident, and (ii) pay $ 200 fine for careless driving. That is an admission of her liability. It is an agreed fact that DW1 was charged with the offence of careless driving and paid the penalty of $ 200.
   

www. I need hardly deal with DW1's contention that she was frightened and PW3 told them both that the matter would be concluded, if they pay the fine. Admittedly, DW2 was a businessman and Director of his Company for 30 years. DW1 was a Director too, though she said she was a salesgirl of the Company at the commencement of her evidence.

30. In my judgment, the evidence establishes that DW1 negligently bumped the plaintiff on the left lane of the road. It follows that DW1 is liable for the injuries suffered by the plaintiff. DW2 is vicariously liable for her negligence.
    

yyy. The defence has pleaded contributory negligence on the part of the plaintiff.

zzz. The closing submissions of the defendant argues that the plaintiff failed to keep a proper look out.

aaaa. The plaintiff was six years old, a little boy who did not know his age, as Mr Ram pointed out in his cross-examination. A boy of that age lacks knowledge and experience. Running across the road was characteristic of a boy of that age.

bbbb. DW1 said that the plaintiff "was far away, inside the bushes"(emphasis added), when she first saw him. Her evidence that followed reads:

Q. Was the plaintiff walking or running towards the road

when you first saw him?

1. He ran. He was running towards the road...

Q. Did he run faster or slower than his sister?

A. Same.

Q. Did you apply brakes when you first saw the boy?

A. Yes.(emphasis added)

0. DW1 states that when she first saw the plaintiff, he was far away and was running towards the road. She ought to have known that a boy of that young age had the propensity to continue to run across the road.
   

dddd. The plea of contributory negligence fails.

eeee. The closing submissions filed on behalf of the plaintiff has claimed general damages of $ 15000.

ffff. In KEMP & KEMP,(Vol. 1 p.2007 2-010), as cited by Mr Ram, it is stated:

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. (emphasis added)

gggg. In Anisa Tuberi v Simon Gopal and Anor, (2001) 1 FLR 47 at pgs 50 -51 Gates J(as he then was) stated that the "category of miscellaneous minor injury is not an easy area is not an easy area in which to arrive at a fair and just award. The court however has to do its best. ..Inflation over the years mean that any award today must be more generous. Additionally the Court of Appeal in the early 1990s often commented on the low level of awards in Fiji, recommending a more generous approach".

hhhh. The plaintiff's medical report reads as follows:

The above named is known to this facility being admitted under the care of the Surgical Department at the Children's Ward in-patient over the period 12 – 14/10/13.

..He was duly seen at Savusavu Hospital and referred to Labasa Hospital for further care on the very same day.

The youngster was admitted for Mild Head Injury secondary to the injuries sustained from the MVA. He was accorded neurology observation, analgesia and assessment of his injuries. No invasive surgical procedure was required during his admission.

He was noted to have left eye swelling which was reviewed by the Eye Unit on 14/10/13 and cleared of any concerning issues in relation to function.

Furthermore, it was observed that he had sustained abrasions to his Left loin/lumbar region and both his knees.

He was reviewed on 24/10/13 with no actionable surgical issues exhibited. On 14/11/13 symptoms of hearing deficiencies attributed to wax was voiced and treated accordingly.

He was no longer required to be reviewed at this facility.

0. The plaintiff was admittedly rendered unconscious. He was two days in hospital. His forehead was bleeding. He suffered a mild head injury and had abrasions to his left loin/lumbar region and both his knees PW4 said that he would have sustained pain for a week.
   

jjjj. I award the plaintiff $ 10,000.00, as general damages for pain and suffering.

kkkk. The claim for special damages has been pleaded and particularized, albeit no schedule has been filed thereafter. The closing submissions of the plaintiff claims a sum of $ 1500 as special damages comprising of $1000 for travelling expenses and $ 500 as nursing care by his mother.

0. I allow a sum of as $600 for travelling expenses from Savusavu to Labasa hospital and $ 250 for nursing care by his mother.
   

mmmm. In Rokodovu v Rokobutabutaki (1998)FJHC 151 it was held that care given by parents are recoverable.

nnnn. The plaintiff has claimed interest. In the exercise of my discretion, I award interest at 6% per annum on general damages of $ 10,000.00 from the date of service of writ, 26th May,2015 until date of trial,20th October,2015, and 3 % per annum on special damages on the sum of $ 850.00from 12th October, 2013, to 20th October,2015.

5. Orders
   
   • (a) I make order that there shall be judgment for the plaintiff against the first and second defendants in a sum of $11,126.50 made up as follows:
     

(b) The plaintiff is entitled to post judgment interest.

(c) The first and second defendants shall pay the plaintiff costs summarily assessed in a sum of $ 2000 .

A.L.B.Brito-Mutunayagam
Judge
9th February, 2016