IN THE HIGH COURT OF FIJI AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 27 of 2018

BETWEEN

USEBIA CIBA of Vinivau, Labasa, Student Nurse, ANASEINI DIROKO of 
Namara, Labasa, Student Nurse and ROSA RAIVUKICI 
TUNABUNA aka ROSA TUNABUNA of Vunivau, 
Labasa, Student Nurse.

PLAINTIFFS

AND

BALE FRANCIS LEE of Namara, Labasa, Driver.

FIRST DEFENDANT

AND

GORDON LEEWAI of Mudaliar Place, Namara, 
Labasa Town.

SECOND DEFENDANT

AND
THEN INDIA SANMARGA IKYA SANGAM trading as 
SANGAM SCHOOL OF TECHNOLOGY / 
SNAGAM SCHOOL OF NURSING of 
Park Street, Nadi.

THIRD DEFENDANT

Counsel			:	Mr. Prasad S. with Mr. Dayal R. for the Plaintiffs
					Mr.Krishna S with Mr Kumar N. for the 3rd Defendant

Dates of Hearing		:	22nd June 2020 to 24th June 2020

Date of Judgment		:	07TH August 2020

JUDGMENT

[1]	The plaintiffs in these proceedings sued the defendants seeking damages for the injuries caused to them due to the negligence of the defendants.  
[2]	The plaintiffs’ case is that at the time of the accident they were students of the 3rd defendant. On the day of the accident the plaintiffs were travelling in the vehicle bearing registration No. EM 369 (the vehicle) driven by the 1st defendant. The 1st defendant while driving the vehicle fell asleep and the vehicle went off the road causing injuries to the plaintiffs. 
[3]	Apart from general damages for pain and suffering the plaintiff also claimed special damages as follows:
1st Plaintiff –
(a)	Medical expensed and cost of medicine		-	$ 250.00
(b)	Travelling expenses					-	$ 400.00
(c)	Costs of Police and Medical Reports			-	$  80.00
(d)	Other miscellaneous expenses				-	$ 500.00
(e)	Costs of past nursing care				-	$2000.00
2nd Plaintiff –
(a)	Medical expensed and cost of medicine		-	$ 250.00
(b)	Travelling expenses					-	$ 500.00
(c)	Costs of Police and Medical Reports			-	$  80.00
(d)	Other miscellaneous expenses				-	$ 500.00
(e)	Costs of past nursing care				-	$3000.
3rd Plaintiff –
(a)	Medical expensed and cost of medicine		-	$ 250.00
(b)	Travelling expenses					-	$ 400.00
(c)	Costs of Police and Medical Reports			-	$  80.00
(d)	Other miscellaneous expenses				-	$ 500.00
(e)	Costs of past nursing care				-	$2000.00
[4]	At the pre-trial conference the parties admitted the following facts:
1.	The plaintiffs were at all material times students of Sangam Institute of Technology.
2.	The 1st defendant was at all material times the owner of the motor vehicle registered No. EM 369 and was driving the said vehicle for the 2nd defendants as their servant and/or agent. 
3.	The 2nd defendant was the owner of motor vehicle registration No. EM 369 and the 3rd defendant was the hirer of motor vehicle registration No. EM369 for conveyance of student nurses from one destination to another.
4.	On the 16th day of June 2015, the plaintiffs were involved in an accident while travelling in motor vehicle registration No. EM 369 and were injured. (Extent of which is an issue).
5.	The 1st defendant was charged for the offence of dangerous driving causing grievous harm and was found guilty and had been convicted and sentenced to five (5) months imprisonment and disqualified from driving for a period of four (4) months to be served after the 1st defendant completed his term in prison. 

[5]	The 1st and 2nd defendants did not participate at the trial. They were absent throughout the trial but their counsel Mr. Sarju Prasad informed court that the 1st and 2nd defendants would not participate at the trial and that they admit liability. 
[6]	In my view it is unsafe to act upon a statement made by the counsel admitting liability and enter judgment against them especially when they are not before the court. Therefore, I will now proceed to consider the evidence before this court against the 1st defendant on the issue of negligence.
[7]	The plaintiffs’ evidence is that before the vehicle went off the 1st defendant drove the vehicle very fast and the 2nd defendant testified that after passing the bridge the 1st defendant dozed off and the vehicle went off the road and hit the embankment. He should not have driven the vehicle if he was feeling sleepy. 
[8]	It is a fact admitted by the parties that the 1st defendant was convicted by the Magistrates’ Court and was sentenced to prison. The 1st defendant did not appeal the conviction and/or the sentence. 
[9]	From the above it is well established that the accident was caused due to the carelessness and dangerous driving of the 1st defendant. 
[10]	Before considering the quantum of damages to be awarded to each plaintiff the court must make a finding on the question whether the 3rd defendant is vicariously for the negligence of the 1st defendant. 
[11]	There is no dispute that the 1st defendant was at the time of the accident driving the vehicle as an employee of the 2nd defendant and therefore the 2nd defendant is vicariously liable for the negligence of the 1st defendant. 
[12]	The plaintiffs have averred in paragraph 2 of the statement of claim that the 1st defendant drove the vehicle for the 2nd and 3rd defendants as their servant and/or agent. The 3rd defendant has, in its statement of defence, admitted paragraph 2 of the statement of claim. However, at the pre-trial conference the 3rd defendant has not admitted that the 1st defendant drove the vehicle as its servant or agent. Further, the plaintiff at the pre-trial conference raised and issue to that effect which reads as follows:
Was the 1st defendant driving the said motor vehicle registration No. EM 369 for the 3rd defendant as their agent and/or servant with any authority or permission or instructions from the 3rd defendant?
[13]	Order 34 rule 2(1) & (2) of the High Court Rules 1988 provides:
(1)	The provisions of this rule apply only in proceedings in which all the parties are represented by solicitors.
(2)	Before an action may be set down for trial the solicitor acting for any of the parties shall make a written request to all the other solicitors acting for other parties to the action to attend a conference at a mutually convenient time and place, with the object of reaching agreement as to possible ways of curtailing the duration of the trial, and, in particular, as to all or any of the following matters-
(a)	the possibility of obtaining admission of facts or documents;
(b)	the holding of inspections and examinations;
(c)	the discovery of documents;
(d)	the exchange between parties of reports of experts;
(e)	the plans, diagrams, photographs, models and similar articles to be used at the trial;
(f)	the quantum of damages; and
(g)	the consolidation of trials.
[14]	In this matter there is a discrepancy between the pleadings and the facts agreed by the parties at the pre-trial conference. The question here is whether the court must base its findings on the admissions found in the pleadings or on the agreed facts contained in the minutes of the pre-trial conference. It appears from Order 34 rule 2 of the High Court Rules 1988, the main purposes of conducting a pre-trial conference is to ascertain the possibility of obtaining admissions of fact.
[15]	At the pre-trial conference the parties agreed that the 1st defendant drove the vehicle at all material times for the 2nd defendant as their servant and/or agent and it has not been agreed that the 1st defendant drove the vehicle as a servant and/or agent of the 3rd defendant and the plaintiffs have taken the burden of proving that the 1st defendant at the time of the accident drove the vehicle as an employee and/or agent of the 3rd defendant. It is also important to note that in paragraph 5 of the statement of claim it is averred that at the time of the accident the plaintiffs were travelling in motor vehicle registration No. EM369 which was hired by the 3rd defendant. This means that the 1st defendant, at the time of the accident was not an employee of the 3rd defendant. Therefore, the court cannot make a finding on the admissions found in the pleadings which are contrary to the contents of the minutes of the pre-trial conference. 
[16]	It is common ground that whenever the nursing students including the plaintiffs needed transport, they had to fill a form and hand it over to the administration of the 3rd defendant who then request the 2nd defendant (Leewai Tours) to provide transport. 
[17]	On 16th June 2015 the plaintiffs were traveling in the vehicle driven by the 1st defendant from Sangam Nursing School to Coqeloa Nursing Station and the vehicle veered off the road and landed in a culvert. 
[18]	The evidence of the plaintiffs is that the school provided a supervisor who supervised the driver which fact is denied by the witnesses for the 3rd defendant. Witness Premni is a Senior Executive Officer of the 3rd defendant. She explained how the payments were made to the hirer Leewai Tours. She also tendered in evidence payment vouchers for period from 2009 to 2015. Her evidence is that for payment the 2nd defendant raised invoices and the 3rd defendant school prepared vouchers and paid for hires. The payments have been made monthly. The witness testified further that the 3rd defendant did not pay wages for the 1st and 2nd defendants and that the 2nd defendant was an independent contractor. In cross-examination the witness said the school did not know that the 2nd defendant used private vehicles for passenger transport. 
[19]	In an accident of this nature once the plaintiff establishes the ownership of the vehicle a presumption created that the driver was driving the vehicle for and on behalf of the registered owner under his authority. This principle is not applicable to the 3rd defendant and if the plaintiffs say that the 3rd defendant is vicariously liable for the negligence of the 1st defendant who was, as admitted by the parties, an employee of the 2nd defendant, the burden of establishing that fact is fairly and squarely on the plaintiffs. There is no evidence adduced by the plaintiff to show that the 1st defendant was an employee of the 3rd defendant. 
[20]	Vicarious liability is liability imposed on an employer to a third party for the tort of his employee committed in the course of employment. This means that a relationship of employer and employee, as distinct from employer and independent contractor, has to exist.
	In the case of Honeywill and Stein Ltd v Larkin Brothers Ltd [1934] 1 KB 191, 196 it was held:
The determination whether the actual wrongdoer is a servant or agent on the one hand or an independent contractor on the other depends on whether or not the employer not only determines what is to be done, but retains the control of the actual performance, in which case the doer is a servant or agent; but employer while prescribing to work to be done, leaves the manner of doing it to control of the doer, the latter is an independent contractor.
[21]	In deciding whether the wrongdoer is a servant or an independent contractor the court has to look into various factors. Scope of duty is one such factor. A key difference between the employees and independent contractors is that employees are employed to work for a particular period of time, whereas independent contractors are normally hired to perform a particular job. Another factor to be considered is the mode of payment. Employees are paid according to the time they have worked for their employer. In most cases, they are paid wages (an amount per week worked) or a salary (an amount per month worked). Independent contractors, are normally paid a fee for doing a particular job.   
[22]	The witness Krishan Kumar who had been Acting Head of the School, said when the school was relocated at another place the contract document with the 2nd defendant was misplaced. However, from the bundle of vouchers tendered by the 3rd defendant shows that the 1st defendant’s salary was not paid by the 3rd defendant and the payments have been made to the 2nd defendant for the services provided.
[23]	From the evidence of the 1st plaintiff it appears that she was not aware of the relationship between the 1st and 2nd defendants and the 3rd defendant. Once in cross-examination she said the 1st and 2nd defendants did not work for the 3rd defendant and again she said the 1st and 2nd defendants were employees for the 3rd defendant. She also said Samgam was using the vehicle and paid for it and there was an agreement between the 2nd defendant and the 3rd defendant to provide transport.  
[24]	From the above the only conclusion the court can arrive at is that the 1st defendant was not an employee of the 3rd defendant at the time of the accident but an independent contractor. Therefore, the 3rd defendant cannot be held vicariously liable for the negligence of the 1st defendant.  
[25]	The plaintiffs also say that the 3rd defendant was negligent in providing a private vehicle for the transportation of the student nurses and its failure to provide a supervisor to supervise the driver.
[26]	Section 62 of the Land Transport Act 1971 provides:
(1)	No person shall drive or use any motor vehicle, or cause or permit one to be driven or used, as a public service vehicle unless it is licensed as a public service vehicle.
(2)	No person shall drive or use, or cause or permit to be driven or used, any public service vehicle contrary to the terms of a public service vehicle licence or public service permit relating to that public service vehicle.
(3)	An owner of a motor vehicle that is licensed as a public service vehicle shall ensure that at all times -
(a)	the prescribed licence label is affixed to the motor vehicle; and
(b)	the correct public service vehicle identification number is clearly marked on it.
(4)	A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction to the prescribed penalty.
[27]	Under section 62 of the Land Transport Act it is an offence to use a vehicle as a public service vehicle unless it is licensed as a public service vehicle. However, driving a vehicle to transport passengers without a licence cannot be an act of negligence it is only a violation of statutory provision which is punishable by law. If the plaintiffs say that the vehicle was not road worthy or it did not have the capacity to transport the three plaintiffs they must adduce evidence to establish that but no such evidence was adduced by the plaintiffs.  
[28]	The plaintiffs say that the school provided a supervisor to supervise the driver whenever they go out and in cases on injury the school promised to take the responsibility. In this regard the only document they rely on is the book called “The Companion” given to them by the school. The book was tendered in evidence marked as “P4” and in that book there is nothing to say the school would provide a supervisor to supervise the driver. The evidence of the 3rd defendant’s witnesses is that they provided a clinical supervisor and not a supervisor to supervise the driver. Witness Kirshan Kumar testified that when the students went Rural Attachments the school did not provide clinical supervisors because in those attachments there are lecturers and when the students go there they stayed for one week. He stated further in Rural Attachments they did not provide clinical supervisors because the lecturers and the students go there and stayed for one week.
[29]	The plaintiffs also complains that there were no seat belts in the rear seat of the vehicle. To have seat belts fixed in the vehicle is the responsibility of its owner and not of the 3rd defendant. If they found that there were no seatbelts they could have refused to travel in the vehicle and brought to the notice of the 3rd defendant. 
[30]	From the above, it appears that there is no negligence on the part of the 3rd defendant which contributed to the injuries sustained by the plaintiffs.
[31]	He 1st plaintiff testified that she was 22 years old at the time of the accident and she is now a clinical nurse at Korolosere Health Centre. She is married but do not have children. She said after the accident when she woke up she was in the Intensive Care Unit of the Labasa Hospital and had to undergo several surgeries. She had been in hospital for 53 days. 
[32]	Dr Rajeev Patel testified referring to the medical report prepared by him. According the medical report the 1st plaintiff has suffered to following injuries due to the accident:
1.	Open pubic symphysis diastasis.
2.	Bladder rupture (anterior wall) secondary to avulsion and direct force from pubic sumphysis diastasis.
3.	Large anterior vaginal wall tear communicating with loss foetus vitals.
4.	Left antero-medical thigh laceration.  
[33]	The 1st plaintiff said she was attended by several doctors and she was in the incubator due to lack of oxygen in the body. At the time of the accident she was 5 months pregnant and due to the injuries sustained she lost the baby and since the scan showed that the baby was not breathing she had to undergo caesarean section which according to the doctor, was not a normal caesarean section but was a difficult one and it was done vertically. 
[34]	The 1st plaintiff also testified that two metallic rods were inserted in the pelvic bone and every morning the doctor tightened the screws to bring the pelvic bone to its original position.
[35]	The doctors have also performed a surgery to repair her ruptured bladder and before the surgery she had to go the wash room 4 to 5 times in every hour. The doctor’s evidence was that because of the bladder injury she did not have control over urine leakage. She also said she had difficulties in having sexual relation because of the urine leakage and since the pelvic bones are attached to each other she would not be able to deliver a baby the normal way. 
[36]	The doctor has explained the summary of her urology problems after the accident as follows:
She was initially seen in my clinic In April 2017 with issues of urinary inconsistence. She would leak urine on coughing, laughing, sneezing or strenuous work (lifting patients). She would use 3 to 4 pads per day which would be fully soaked with urine. The situation has severely affected her quality of life. She was diagnosed as having stress urinary inconsistence…
On 03/11/2017 she underwent a rectus fascial sling to treat her stress urinary inconsistence. There was a lot of scarring in her lower abdomen due to previous laparotomies and two caesarean sections.
Her leakage improved considerable post – operatively. She was seen in my clinic on 07.06/2018. On review her leakage has decreased considerably. She only uses 1-2 pads per day compared to 3-4 pads/day previously. The leakage is present when she does strenuous work on a full bladder. 
Her whole person impairment rating is 25% impairment of whole person due to urethral dysfunction resulting in intermittent urine dribbling…. This impairment rating is only for her urology problems. 
[37]	Dr Maloni Bulanauca said the 1st plaintiff was in severe pain and she needed regular pain relievers. The 3rd defendant objected to this medical report being tendered on the ground that it was not discovered under order 25 of the High Court Rules. The court accepted the report subject to the objection. The 1st and 2nd defendants did not raise any objection to these reports. This court has already decided that the 3rd defendant is not liable in damages. Therefore, the court decides to accept the reports in evidence.    
[38]	From the evidence of the 1st plaintiff and the doctors it appears that the 1st plaintiff has not fully recovered from the bladder injury. Considering the seriousness of the injuries suffered by her due to the accident the court is of the opinion that it is reasonable to award $150,000.00 to the 1st plaintiff as damages for pain, suffering and loss of amenities. 
[39]	1st plaintiff’s mother said she went to the hospital to see the daughter by taxi and the taxi fare for a day was $10.00. The witness also said after the 1st plaintiff was discharged from the hospital she looked after her for seven months and was assisted by a relative in looking after the 1st plaintiff who was paid $80.00 per week. 
[40]	The 1st plaintiff by way of special damages claimed $250.00 as medical expenses and cost of medicine but no evidence was adduced to prove he claim. There is also no evidence as to the costs incurred by the 1st plaintiff to obtain the medical reports and the police report. The 1st plaintiff also claims $2000.00 as Costs of Past Nursing Care. Therefore I award $2400.00 as special damages.  
[41]	The 2nd defendant testified and explained how the accident occurred. The evidence of all three plaintiffs as to the manner in which the accident occurred is the same and there are contradictions. She said, she was 35 weeks pregnant at the time of the accident and after the accident she found pieces of glass on her leg and she suffered pain in the lower abdomen. She had to undergo a caesarean section to take the baby out and the baby was put in the incubator. She had stayed in the hospital for about 40 days. She testified further that she could not breast feed the baby because there was no milk and when attempted to feed the baby it was blood that came out.  
[42]	Dr Inosi Voce confirmed that the 2nd plaintiff had to undergo an emergency caesarean section. The 2nd plaintiff said, the first baby was also born by a caesarean section. She also said that she is married again has two babies by the second marriage and the second baby was also born by a caesarean section. Therefore, it cannot be said that the accident was the cause for the plaintiff could not have normal delivery of babies.
[43]	Second defendant’s evidence is that after discharging from the hospital her husband hired a nanny for six months and paid her $80.00 per week which comes to $1920.00. 
[44]	For above reasons I award $60,000.00 as general damages and $1920.00 as special damages to the 2nd plaintiff.
[45]	The 3rd plaintiff testified that she was 27 years old at the time of the accident and when she was thrown out of the vehicle her thigh bone fractured and left shoulder dislocated. She had been in hospital for nine days and after leaving the hospital she was in bed for six weeks and had gone to Savusavu for a massage and the trip costs her $400.00. She also says that she cannot walk as before because her left leg is shorter than the right leg. This was confirmed by the doctor. According to the 3rd plaintiff it had taken 4 to 5 months for her to recover completely. 
[46]	Dr Maloni Bulanauca said the 3rd defendant was in hospital for eight days and on 15.10.2015 she was not working normally and she was limping. The doctor has assessed the WPI of the 3rd plaintiff as 18%.
[47]	In his report dated 20th October 2015 Dr Maloni says:
I foresee that she is destined for challenges physically that will impair her form her duties as a future medical personnel with her current status. As it is, she is likely to continue to have physical impairments that will gravely impair her quality of life, employability and functional/emotional independence. Under these circumstances and the continued dynamic nature of disabilities, she has not reached Maximum Medical Index hence not eligible for WPI assessment.
[48]	In cross-examination the doctor said the 3rd plaintiff opted to seek native treatment. There was a possibility to improve angulation if she was treated at the hospital and it is possible that her WPI would be 8%.
[49]	Third plaintiff’s father testified that he preferred to refer the daughter to a traditional healer. The 3rd plaintiff had been taken out of the hospital against the advice of the doctors and she was treated by a traditional doctor. His evidence is that he paid $2000.00 for treatment and $800.00 for travelling. The 3rd plaintiff tendered passenger ticket to show that she spent $49.00 to go to Suva for treatment. 
[50]	In the circumstances I award $75,000.00 as general damages and $2049.00 as special damages.
[51]	All three plaintiffs claimed that due to the accident their graduation was delayed by one year and therefore they are entitled to recover one year’s salary from the defendants. However, they have not pleaded it in the statement of claim and there is no evidence how much would the salary have been if they were employed one year earlier. 1st plaintiff said it was about $19000.00 per year which is not sufficient for the court to act upon and grant such relief. 
[52]	For the reasons aforementioned the court makes the following orders.
ORDERS
1.	The 1st and 2nd defendants are ordered to pay the 1st plaintiff $150,000.00 as general damages and $2400.00 as special damages.
2.	The 1st and 2nd defendants are ordered to pay the 2nd plaintiff $60,000.00 as general damages and $1920.00 as special damages.
3.	The 1st and 2nd defendants are ordered to pay the 3rd plaintiff $75,000.00 as general damages and $2049.00 as special damages.
4.	The action against the 3rd defendant is dismissed.
5.	The 1st and 2nd defendants are also ordered to pay $3000.00 to each of the plaintiffs ($9000.00 in total) as costs of this action.  

      
Lyone Seneviratne
JUDGE
07th August 2020