Shell Fiji Ltd v Chand [2011] FJCA 6; ABU0038.2008 (8 February 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS
APPELLATE JURISDICTION

CIVIL APPEAL NO.ABU0038 OF 2008

BETWEEN:

SHELL FIJI LIMITED
Appellant

AND:

SUSHIL CHAND
Respondent

Coram: Hon. Justice William Marshall, Justice of Appeal
Hon. Justice William Calanchini, Justice of Appeal
Hon. Justice Izaz Khan, Justice of Appeal

Date of Hearing: Monday, 13th September 2010

Counsel: Mr A Ram for the Appellant
Mr A Sen for the Respondent

Date of Judgment: Tuesday, 8th February 2011

JUDGMENT

William Marshall, JA

1. This is an appeal from Mr Justice Jitoko who, arising out of an incident of 30th December 1999, gave judgment on 27th May 2008 for Sushil Chand against Shell Fiji Limited on account of the negligence of their employee Mukesh Chandra. At first instance the administratrix of Mukesh Chandra's Estate, Mukesh Chandra having been instantly killed in the event, was the first Defendant but she has not chosen to appeal to this Court. In the Court below, the deceased Mukesh Chandra was referred to as Mukesh Chand and I will refer to him as Mukesh Chand in this judgment.
   
2. There is a Shell petroleum products depot in Labasa. A proportion of their workers are vehicle drivers whose job is to distribute Shell products throughout Vanua Levu and adjacent areas. On 30th December 1999 one of Shell's drivers was Mukesh Chand. Mukesh Chand had to drive a Shell tanker vehicle DB261 to Savusavu on 30th December 1999. It was a weekday, it was summer, and no doubt everyone was gearing up not just for the New Year but for the New Millenium that would arrive in Fiji a little more thirty three hours later. The weather was fine and the road surface dry. Earlier in the day Mukesh Chand had asked his life long friend Sushil Chand to accompany him on the drive to Savusavu and back. While forbidden by Shell it was not unknown for persons like Sushil Chand, when they were available, to provide company for the driver and to act as eyes and ears from time to time on the instruction of the driver. Mukesh picked Sushil up close to the Burns Phillip store in Labasa at around 3pm and drove towards Savusavu. Just after Seaqaqa, Mukesh stopped the tanker and asked Sushil to check that the tyres on the rear side were alright. Sushil did so and reported that they were as they should be. Given that Vanua Levu has significant high ground between north and south, after Saivou village the tanker moved uphill. Before that point Sushil was concerned about the speed at which Mukesh was driving and asked his friend to slow down. Mukesh replied that he normally drove at that speed and that it was a relatively new vehicle. Once the high point on the hills had been reached the tanker started to go downhill. There followed a tragic accident which left Mukesh instantly dead at the bottom of a cliff close to the wrecked tanker. It left Sushil so badly injured that he was airlifted to Auckland New Zealand for treatment. At least Sushil survived into the millennium but he did not know anything about it until he regained consciousness some three days later in a strange hospital in another country.
   
3. Neither Mukesh nor Sushil was wearing the seat belt provided in the cabin of the tanker. Once the downhill begins the road is very steep and there is a left hand bend quite far down the hill. Mukesh should have decreased his speed and cautiously proceeded on this dangerous section of the road.
   
4. But he continued downhill at what he misjudged to be a manageable speed but which was much faster than a safe speed with a heavy vehicle on a steep downhill slope. After a straight stretch there is a slight left hand bend and then a sharper right hand bend. Coming out of the left hand bend Mukesh applied the brakes hard and pumped them. This resulted in the vehicle skidding. The skid mark was 120 metres to the point at which the vehicle, now completely out of control, left the road and went over the cliff on the left hand side of the highway.
   
5. Sushil asked Mukesh what was happening and Mukesh replied that he could not stop or control the vehicle even by applying the brake. Just before the vehicle departed over the cliff Mukesh shouted to Sushil "Brother jump". Sushil with great presence of mind and instant action opened the passenger door and jumped out from the doomed but still speeding vehicle. Then the blackness of unconsciousness until he came to some days later in a hospital in Auckland. As for Mukesh he kept saying "God save me" for he knew that the vehicle would go over the cliff. The tanker came to rest some 60 metres from the highway and Mukesh was thrown out of the cab by some of the impacts on the way down coming to rest short of where the wrecked tanker ended up. Mukesh was smashed up and killed probably instantly.
   
6. It is speculative as to whether Mukesh would have survived if he had been wearing the seat belt provided; he probably would not have been thrown out of the vehicle. In the case of Sushil it seems that it is one of those rare cases where not wearing the seat belt assisted him; he had little time in which to act and undoing the seat belt and avoiding being caught up in it might have involved a fatal delay.
   
7. There is no evidence of vehicle failure; it was a quite new vehicle and the skid marks indicate not brake failure but excessive speed in the road conditions as the clear and only cause of the accident. There was no evidence of contributory negligence; indeed the evidence showed that Sushil, without success, tried to persuade Mukesh to drive in a less speedy and safer manner.
   
8. The evidence of Sushil together with the physical evidence of the skid marks and the crash itself could not, in my opinion present a clearer case of Mukesh's negligent and incompetent driving causing serious injury to his long time friend and companion on this ill fated trip out of Labasa. On the facts there was no need for Jitoko J to rely on res ipsa loquitur.
   
9. While the administratrix of Mukesh's Estate was sued as 1st Defendant, she acknowledged service but did not defend and, it seems, judgment was entered against Mukesh's Estate in default of defence and prior to trial in the action.
   
10. At trial the issue of greatest relevance and now strongly contested in this appeal by Mr Ram for Shell is the common law issue of whether an employer is ever liable when his employee being a driver flouts a clear prohibition by the employer which is well known to him and invites a passenger to share the journey that he is obliged to undertake on the employers behalf. Most of the time the journey ends safely; very occasionally, as in the present case, the driver performs negligently and injures or kills his invitee in the vehicle. The employer claims that the invitee of the driver is a trespasser in the vehicle and that Shell Fiji cannot be vicariously liable at the suit of the injured trespasser for the trespasser's injury loss and damage. I now turn to this issue.
    

Are employers of drivers vicariously liable to trespassers injured by the negligence of their employee drivers

11. In the last of the reported cases in the United Kingdom on this point, Lord Denning M.R. in Rose v. Plenty [1975] EWCA Civ 5; [1976] 1 AER 97 at page 101 concludes his judgment by saying:
    

"In parting with the case, it may be interesting to notice that this type of case is unlikely to arise so much in the future, since a vehicle is not to be used on a road unless there is in force an insurance policy covering, inter alia, injury to passengers."

12. The reference is to the fact that in the 1972 Road Traffic Act, the legislature in the United Kingdom further changed the legal framework of the 1930 Road Traffic Act so that passenger liability was no longer excluded from third party liability. At the same time contracting out of statutory third party liability was declared unlawful.
    
13. In Fiji Cap 177 Section 6(1) and the proviso at (b) thereof, introduces token compulsory third party insurance in Fiji. It says, and I summarise, that a maximum of $4000 per passenger on the insured's vehicle is covered under the compulsory third party policy. This amendment seems to have had no impact on litigation in Fiji although it was enacted many years ago.
    
14. It seems that the use of "trespasser" notices in the road traffic industry and reliance on rules developed by the common law in respect of injuries to trespassers sustained on another's land was derived from the advent of compulsory third party insurance enacted in the United Kingdom by section 36 of the 1930 Road Traffic Act. It occurred to the road transport industry that if third party insurance did not cover their driver's invitees on the vehicle who were trespassers to the employers, a written notice to the driver displayed on the vehicle would succeed in preventing successful claims against them, should the "trespasser" in the vehicle be injured by the negligence of their driver.
    
15. The problem is that drivers with tasks to perform over short distances like to take their friends for the ride and some assistance. On long journeys they want minor assistance and some company. So particularly if there is under employment, the instruction and the notices are regularly flouted by the drivers. The employers must be aware of this but will only dismiss the driver when it is done before their eyes and represents a blatant challenge to their authority. It must be again borne in mind that the proportion of accidents injuring these trespassers will be very low compared with uneventful journeys.
    
16. At first the common law was on the side of the employers. In the Court of Appeal in Twine v. Bean's Express Ltd [1946] 175 Law Times Reports 131 at page 132. Lord Greene M.R. with whom Morton LJ and Tucker LJ agreed said:
    

"Was the driver Harrison, in giving a lift to the deceased man acting within the scope of his employment? The answer is clearly, No. He was doing something that he had no right whatsoever to do, and qua the deceased man he was as much on a frolic of his own as if he had been driving somewhere on some amusement of his own quite unauthorised by his employers. His employers, of course, are Bean's Express, Limited: and part of the confusion that has arisen in the argument is caused by treating the driver of the van as though in some way he was employed by the Post Office. Of course he was not. He was the employee of the independent contractor, and when he ran into the omnibus (which was the cause of the deceased man's death) he was of course acting as a driver of the van in the course of his employment. He was employed to drive the van. That does not mean, as Sir Charles Doughty suggested, that because the deceased man was in the van it was within the scope of his employment to be driving the deceased man. He was in fact doing two things at once. He was driving his van from one place to another by a route that he was properly taking when he ran into the omnibus, and as he was driving the van he was acting within the scope of his employment. The other thing that he was doing simultaneously was something totally outside the scope of his employment, namely, giving a lift to a person who had no right whatsoever to be there."

17. In Young v. Edward Box & Co. [1951] 1 TLR 789, the facts were that the company in 1946 was employed by the Government to move and unload stores from one location to another. Because of difficulties in obtaining public transport on Sundays to the inaccessible location where Mr Young and others were employed to load and unload, the foreman arranged for one of the lorries to pick up Mr Young and others close to their homes on Sunday mornings and to return them after work by the same lorry on Sunday evenings. The incident occurred after this routine had become established. On the return trip, the vehicle jerked to a halt and Mr Young was ejected from the lorry and sustained injuries. The company defended on the basis that the driver was not allowed to carry un authorised passengers and the foreman was not authorised to make the arrangements or give the permissions which he had done. Mr Young was a trespasser who could not recover against the company.

18. The appeal was allowed by Somerwell LJ and Singleton LJ on the basis that the foreman had ostensible authority from the employer to allow Mr Young and others to ride as invitees in the lorry.

19. The approach of Denning LJ was to allow the appeal but his reasoning was different. He relied upon whether the driver was acting in the course of his employment. At page 793 to 794 he said:

"In my opinion, when the owner of a lorry sends his servant on a journey with it, thereby putting the servant in a position, not only to drive it, but also to give people a lift in it, then he is answerable for the manner in which the servant conducts himself on the journey, not only in the driving of it, but also in giving lifts in it, provided, of course, that in so doing the servant is acting in the course of his employment. The liability of the owner does not depend on whether the passenger was a trespasser or not; it depends on whether the driver was acting in the course of his employment in giving the man a lift. In determining that question it must be remembered that a servant's act has often been held to be in the course of his employment, eventhough it was not authorised by the master, or even if it has been expressly forbidden by him.

In the present case it would not be in the course of the employment for the driver to give a lift to a hitch-hiker; but I have no doubt that it was in the course of his employment to give the men on the job a lift home, and the employers cannot escape liability by saying that the driver was not authorised to do it. I do not rest my opinion on the fact that the foreman acquiesced in it; for the foreman himself had no authority to let the man travel on the lorry. The men were therefore trespassers, so far as the employers were concerned; but nevertheless the driver was acting in the course of his employment, and that is sufficient to make the employers liable."

20. When the Court of Appeal had to return to this question – as it happened for the last time – Lord Denning was now Master of the Rolls and in the case of Rose v. Plenty [1975] EWCA Civ 5; [1976] 1 AER 97 he sat with Lawton LJ and Scarman LJ.

21. The facts were that those who delivered milk on milk floats were forbidden to take passengers on their vehicles. Leslie Rose a thirteen year old boy was nonetheless taken on the vehicle to assist the milkman Mr Plenty with deliveries and the return of empty milk bottles as well as obtaining money from customers. Mr Plenty paid Leslie a small sum of money for this assistance. Due to the negligent driving of Mr Plenty Leslie Rose sustained a compound fracture to one of his feet. In an action the boy's next friend sued Mr Plenty and his employer Cooperative Retail Services Limited.

22. Lawton LJ dissented and would have dismissed the boy's claim against Cooperative Retail Services Limited. But he did not base his dissent upon Leslie Rose being a trespasser in the vehicle. Lawton LJ did not rely on the duties owed to trespassers or the lack of them. His interpretation of what might be in the scope of the drivers employment was narrow strict and conservative. That is the difference of approach that resulted in Lawton LJ dissenting in the context of the facts of the case. Lawton LJ does not refer to the line of cases going back two hundred years defining the course of employment. The authoritative exposition of this principle is the case of Limpus v. London General Omnibus Co. [1862] EngR 839; [1862] 1 H & C 526. This line is authority for decisions in relation to vicarious liability being ones of public policy which have to be decided in accord with what is "socially convenient and rough justice". These words are taken from the judgment of Willes J in Limpus. Applying the test negatively to deny a claim was appropriate on the facts of Twine v. Bean's Express and Conway v. George Wimpey & Co. Ltd [1951] 2KB 266. So these cases were not situations in which public policy should require a result in favour of the injured person.

23. For this last stated reason Lord Denning MR and Scarman LJ had no difficulty in distinguishing the earlier two cases on their facts. In both cases the driver in giving a lift to someone for that person's own private purpose was not acting within the scope of his employment.

24. The facts in Limpus concerned the days of horse drawn buses in London. There was a clear prohibition upon drivers racing the vehicles of other companies. Yet the driver did so and as a result there was an accident and the Plaintiff's horses were injured. So the Plaintiff, Mr Limpus, sued the driver's employer and obtained damages on the basis that while the driver was disobeying a clear instruction of his employer, he was driving his bus on the employer's business and acting within the course of his employment. The tribunal of fact, in this case a civil jury, were entitled to look at whether the employer was vicarious liability. Should public policy in the context of fact make the employer liable? The matter must be looked at in accordance with what Willes J said in Limpus cited in paragraph 22 above. It was put in a later case that the correct approach was to consider the matter

"broadly, not dissecting the servants task into its component activities"

( Diplock LJ in Ilkiw v. Samuels 1963 1 WLR 1004 )

25. Both Lord Denning M.R. and Scarman L.J., who gave separate judgments which won the case for Leslie Rose stressed the need to move on from no duties being owed to trespassers in a vehicle. Referring to Twine and Conway Lord Denning said at page 100:

"But these cases are to be explained on other grounds; and the statements about a trespasser are no longer correct. Those statements were made at a time when it was commonly supposed that occupiers of premises were under no duty to use care in regard to a trespasser. But that stern rule has now been abandoned, especially when the trespasser is a child: see British Railways Board v Herrington, Southern Portland Cement Ltd v Cooper and Harris v Birkenhead Corporation. So far as vehicles are concerned, I venture to go back to my own judgment in Young v Edward Box & Co Ltd when I said:

In every case where it is sought to make the master liable for the conduct of his servant the first question is to see whether the servant was liable. If the answer is Yes, the second question is to see whether the employer must shoulder the servant's liability.'"

26. Dealing with the law as applied to the facts of Rose v. Plenty Lord Denning MR at pages 100 and 101 said:

"Applying the first question in Young v. Box, it is quite clear that the driver, Mr Plenty, was liable to the boy, Leslie Rose, for his negligent driving of the milk float. He actually invited the boy to ride on it. So the second question arises, whether his employers, Co-operative Services, are liable for the driver's negligence. That does not depend on whether the boy was a trespasser. It depends, as I said in Young v. Box, on whether the driver, in taking the boy on the milk float, was acting in the course of his employment.

In considering whether a prohibited act was within the course of the employment, it depends very much on the purpose for which it is done. If it is done for his employer's business, it is usually done in the course of his employment, even though it is a prohibited act. That is clear from Limpus v London General Omnibus Co., Young v Box and Ilkiw v Samuels. But if it is done for some purpose other than his master's business, as, for instance, giving a lift to a hitchhiker, such an act, if prohibited, may not be within the course of his employment."

And later at page 101:

"In the present case it seems to me that the course of Mr Plenty's employment was to distribute the milk, collect the money and to bring back the bottles to the van. He got or allowed this young boy, Leslie Rose, to do part of that business which was the employers' business. It seems to me that although prohibited it was conduct which was within the course of the employment."

27. Scarman LJ at page 106 applied the law to the facts and concluded:

"The prohibition is twofold: (1) that the first defendant was not to give lifts on his float; and (2) that he was not to employ others to help him in delivering the milk and so forth. There was nothing in those prohibitions which defined or limited the sphere of his employment. The sphere of his employment remained precisely the same after as before the prohibitions were brought to his notice. The sphere was as a roundsman to go round the rounds delivering milk, collecting empties and obtaining payment. Contrary to instructions, this roundsman chose to do what he was employed to do in an improper way. But the sphere of his employment was in no way affected by his express instructions."

28. I have no doubt that the law as so well explained in Rose v. Plenty and Cooperative Retail Services by Lord Denning MR and Scarman LJ represents the law of Fiji on this point.

The law and the facts; is Shell Fiji vicariously liable for Mukesh's negligent driving causing serious injury to Sushil

29. Jitoko J in the court below found

1) that Sushil was invited to provide driver Mukesh with company on his delivery to Savusavu and his return journey.

2) that driver Mukesh used Sushil to check on tyres on the rear side of the vehicle.

3) that driver Mukesh used Sushil to keep an eye on some drums being carried.

4) that driver Mukesh paid Sushil $10 as pocket money for his company and services on the journey.

30. I have no doubt, as Jitoko J held in the Court below that Shell Fiji are vicariously liable to Sushil Chand for the injuries he sustained due to the negligent driving of their servant Mukesh Chand on 30th December 1999. That is because despite the prohibition on taking passengers which he ignored, driver Mukesh Chand was nonetheless acting within the course of and within the sphere of his employment with Shell Fiji on the journey of 30th December 1999 to Savusavu which ended so tragically. The irony is that if Mukesh had listened to his friend and slowed down before and while coming down the steep hill, the tragedy would have been avoided. The appeal on liability should be dismissed.

31. So long as there is no meaningful requirement in Fiji that compulsory third party liability includes passengers carried in the insured vehicle, transport company employers should contract for such insurance. Since it adds little to the substantial risks already covered, it should not cost significant additional premium. Then the employer's only concern would be if a driver was using their vehicle for carrying passengers for his reward. It must be socially acceptable in every way for employers to discover and deal firmly with any such case, - preferably before there is an accident.
Quantum of Damages

32. I am of the opinion that Jitoko J in the Court below erred on the low side in awarding damages to Sushil Chand. Since Jitoko J gave judgment on 27th May 2008 and the Court of Appeal in The Permanent Secretary for Health and Another v. Arvind Kumar and Another Civil Appeal No.84 of 2006 did not give judgment until 20th June 2008, he was unaware of this important decision. This largely accounts for the view the learned judge took in the Court below.

33. As was said in Arvind Kumar:

"The task of the Court must be to arrive at a proper figure in current Fiji Dollars which will properly compensate a person who has suffered pain and suffering and loss of enjoyment of life."

I agree. I also accept from Arvind Kumar:

"Of course to some extent, the so called social-economic conditions of Fiji must be relevant but in our judgment they should not be an overriding factor in the assessment [of general damages]."

34. I agree with Calanchini JA in respect of his analysis and reasons and conclusions

(a) that the general damages should be increased from $20,000 to $60,000

(b) that the award of special damages should be increased from $6200 to $12,400

In my view interest at 6 percent per annum should be awarded from the date of the writ until the date of judgment of this court.

35. I also agree with Calanchini JA in respect of the costs orders here and below as he proposes.

William Calanchini, JA

36. I agree with the judgment and reasons of William Marshall JA on liability. I now consider the question of damages. The Appellant has not challenged the quantum of damages awarded by the learned Judge.

37. In his Notice the Respondent seeks an order from this Court affirming the judgment on the question of liability and varying the quantum of damages awarded by the learned trial judge as follows:

"(a) The award of $12,000.00 as general damages for pain and suffering be varied and increased to $80,000.00.

(b) The award of $5000.00 for loss of earning capacity be varied and increased to $75,000.00.

(c) The award for loss of amenities for past and future care of $3000.00 be varied and increased to $20,000.00.

(d) The Respondent be awarded a sum of $50,000.00 for sundry expenses as part of the award in general damages.

(e) That the rate of interest awarded on the general damages be increased to 8% from the award of 6% from the date of issue of writ to the date of judgment.

(f) Interest on past care and special damages be similarly increased to 6% instead of 3% be awarded to the date of judgment.

(g) The cost of the action be increased to $12,000.00 from $650.00."

38. In the Notice the Respondent sets out the grounds of the cross-appeal as follows:

"1. That the Judge erred in law and in fact in not awarding the appropriate damages under the various heads as claimed and made the awards extremely conservatively in all the circumstances of the case having regard to the very serious nature of the injuries.

2. That the learned trial Judge erred in law in failing to make an appropriate award to loss of earning capacity and present and future loss.

3. That the learned trial Judge erred in law and in fact in distinguishing special damages with general damages.

4. That the learned trial Judge erred in law and in fact in failing to make an appropriate order for costs in view of the nature and duration of trial.

5. That the [Respondent] reserves the right to alter or add further Grounds of Appeal on availability of the copy record."

39. In his judgment the learned trial judge set out the injuries suffered by the Respondent as a result of pumping out of the doomed tanker vehicle. In doing so he relied on the report of Dr Krishna dated 16 November 2000. A copy of the report can be found on page 236 and 237 of the Court Record. The signature block on the report indicates that Dr Krishna was Chief Medical Officer and Specialist Orthopedic Surgeon at the Labasa Hospital. The trial judge noted that Dr Krishna had since migrated and his report was tendered through Dr Ogale. As Dr Krishna's report is brief and to the point it can be copied in full:

"The above named was admitted acutely on 30.12.99 after involved in a fatal accident in Savusavu. The injuries sustained were as follows:

1. Head and Face
   
   • (a) 2 small cerebral contusions
   • (b) fracture left lateral wall of orbit
   • (c) fracture Zygoma
     
2. Extremities
   
   • (a) fracture left humerus
   • (b) fracture right clavicle
   • (c) fracture right femur (compound)
     
3. Soft Tissue
   

Facial lacerations

He was medivaced to New Zealand on 31.12.99 after resuscitation and stabilization.

Operative Procedures in New Zealand

He was admitted to intensive care unit of Auckland Hospital.

Surgeries performed were as follows:

1. Open reduction and internal fixations right femur.
2. Open reduction and internal fixations left humerus.
3. Open reduction and internal fixations left molar.
   

He had extensive physiotherapy and hydrotherapy and mobilized on crutches. He returned to Fiji on 25.01.00.

Seen in surgical clinic on 9.2.00 and followed in physio and surgical clinics.

Last reviewed on 26.10.00.

He is ambulant and has headaches, dizziness, walks with a limp, pain in right hip and knee, scarring left arm, multiple scars forehead, deformed left 5th finger and pain in upper jaw. X-rays revealed fractures healed.

He has not worked and being a farmer, is unlikely to return to farming in the near future."

40. At the trial the Plaintiff gave evidence that he regained consciousness in Auckland Hospital. He was unable to get out of bed for two weeks. His right thigh and left hand were in plaster and his left shoulder was immobile for two weeks. He stated that he suffered great pain and was given pain killers by the doctors. He said he still experienced pain.

41. Under cross-examination the Plaintiff stated that he used one crutch for up to one year after suffering the injury. He also stated in cross-examination that two weeks prior to the trial a Dr Isimeli Cakau was supposed to take out a plate that was causing pain. He also told the court that he suffered pain especially with the plate in the upper jaw. It was put to the Plaintiff on page 177 of the Record that as the bones had not properly fused it was not advisable to take out the plates. The Plaintiff agreed. He maintained that from his point of view the fractures were not healing nicely and that he still experienced pain. He agreed that he had seen a physiotherapist. On page 188 of the Record the Plaintiff again refers to the painful presence of "foreign matter" in his mouth (jaw). He admitted that he had stopped using crutches some weeks prior to the trial. He stated that he still experienced pain in his legs, hips, head and chin.

42. Doctor Bhushan Ogale gave medical evidence on behalf of the Plaintiff. He stated that he had examined the Plaintiff two days earlier. He confirmed that the Plaintiff had undergone x-ray examination in February 2000, July 2000. April 2003 and February 2005. Apart from outlining the injuries suffered by the Plaintiff, Doctor Ogale stated that the Plaintiff still had two plates to fix the left side of the face, a plate in the left arm and the right thigh bone had a nail. He also said that the Plaintiff had many scars from the procedures and a deformity of the left little finger. He accepted that the injuries had healed and that he would have removed the foreign matter. He said that in his opinion the pain would have been severe due to the multiple fractures. The Doctor stated that he did not appear to be limping when he saw the Plaintiff two days earlier.

43. Doctor Rosemary Mitchell gave medical evidence on behalf of the Appellant. She was described as a company doctor for Air Pacific and Mobil. She agreed that the Respondent had suffered extensive fractures and injuries. She was of the opinion that he had made a full recovery except for on-going physiotherapy and that there was no residual deformity. She stated that rehabilitation should resolve any mental trauma preventing a return to work.

44. After reviewing the evidence and considering earlier decisions of the Court, the learned trial judge awarded $12,000.00 for pain and suffering, $5000.00 for loss of amenities and $3,000.00 for future medical expenses being a total of $20,000.00. It is apparent that this figure includes an amount of about $5,000.00 for disfigurement resulting from the Respondent's scars.

45. Turning to the written submission filed by the parties, it is appropriate to comment briefly on the Appellant's submissions. In paragraph 13 of its submissions filed on 6 September 2010 the Appellant submits that the award is excessive. However the Appellant has not sought to challenge the quantum of the judgment in its Notice of Appeal. Moreover, what is of some concern is the submission in paragraph 23 which reads:

"The Appellant submits that the award made by the Learned Judge be reduced if not wholly disallowed. Indeed what we have in this case is a "social" or "sympathy" award for which the Respondent should have been grateful."

It is putting it mildly to say that this submission is completely inappropriate. The Appellant may well have paid most, if not all, hospital and medical expenses. As the trial judge has found in favour of the Respondent on the question of liability, those are matters for which the Appellant would have been liable as special damages. To suggest that the Respondent was not entitled to general damages for pain and suffering past and future arising as a result of serious injuries and multiple fractures is to disregard legal reality. To suggest that they represented a social or sympathy award is to ignore the uncontradicted medical evidence.

46. As the Respondent submitted, the starting point for assessing damages for pain and suffering and loss of amenities in Fiji is the decision of this Court in The Permanent Secretary for Health and Another v. Arvind Kumar and Another (unreported Civil Appeal No 84 of 2006 delivered on 20 June 2008). In particular the Court's comments commencing at page 5 should be noted:

"This appeal raises some important questions about the current level of awards of damages for pain and suffering in Fiji because it is said by the Appellants that in arriving at an amount of damages for pain and suffering the Courts must take into account the socio-economic conditions of Fiji. By this the Appellants mean that because Fiji is classed as an "undeveloped country" awards of damages for pain and suffering must be lower than those in more developed countries....

... The Court has been referred to numerous cases in Fiji and overseas which are said to support this contention. In our judgment it is time to review what has almost become dogma in the award of damages under this heading in Fiji ...

... It follows therefore in our view that an under-privileged litigant who suffers injury hurts just as much as a wealthy or socially important litigant who suffers the same injury. Therefore, at least in theory, each is entitled to the same compensation under the law....

... This Court has held constantly over the years ... ... that an "under-developed" or "undeveloped" country cannot afford to pay awards of damages comparable to those in more developed countries. Implicit in this contention is that, were it to be otherwise, the flood gates would open and unsuccessful Defendants would be ordered to pay damages comparably higher than those awarded in more developed countries and would suffer dire financial consequences. ...

... This Court considers for reasons on which we shall expand later, and with great respect to previous decisions of this Court, that this prophecy of doom can no longer be supported in Fiji. ...

... This Court agrees that there should be consistency in the level of general damages awarded in similar cases but we add this rider, that if there has been an error in the approach of the courts to the award of general damages for pain and suffering then it must say so. There should not be consistency merely for consistency's sake. Of course, to some extent, the so-called socio-economic conditions of Fiji must be relevant but in our judgment they should not be an over-riding factor in the assessment of damages under this head. The task of the Court must be to arrive at a proper figure in current Fiji Dollars which will properly compensate a person who has suffered pain and suffering and loss of enjoyment of life... .

We also agree that this Court should refer to other awards "as not more than broad guidelines to ensure that (the judge) is on the right track."

47. In the present appeal the question becomes whether the learned trial judge arrived at a figure for pain and suffering and loss of amenities (past and future) which will properly compensate the Respondent. In answering that question it is necessary to keep in mind the long established principle stated by Greer L J in Owen v. Sykes [1936] 1 KB 192 at page 198:

"Unless we come to the conclusion that the learned judge took an erroneous view of the evidence as to the damage suffered by the Plaintiff, or made some mistake in giving weight to evidence that ought not to have affected his mind or in leaving out of consideration something that ought to have affected his mind, we ought not to interfere."

48. The Respondent's submission refers this court to many previous decisions concerning the award of damages. In considering those decisions it is important to keep in mind two factors that affect the weight to be given to such decisions. First, as this Court noted in its Arvind Kumar decision (supra) those decisions serve only as a broad guideline to ensure that the judge is on the right track. Secondly, the learned trial judge had the advantage of watching, listening to and assessing the Respondent and other witnesses compared with this Court's impression derived only from the trial notes in the Record.

49. The Respondent was 25 years old at the time of the accident, married with three children and was a self-employed sugarcane farmer. There is no doubt that the Respondent suffered serious injuries and multiple fractures. It is apparent that the pain that he experienced when he regained consciousness was severe. He experienced considerable discomfort in hospital and following his discharge. He was required to use at least one crutch for at least twelve months to enable him to move around. However he does not appear to have been left with any residual disability although he may require further surgery for the removal of some of the foreign material in his body. He has been left with substantial scarring.

50. Clearly under such circumstances an award of damages must be more than nominal. The learned trial judge awarded $17,000.00 for pain and suffering and loss of amenities. In this figure he appears to have included a sum of $5000.00 for scarring. Does this award adequately take into account the serious nature of the injuries, the multiple fractures, the necessary presence of foreign material, the pain and discomfort, the period of rehabilitation following discharge from hospital and the inability to do all those activities that he was able to do prior to the collision?

51. In Lawanisavi v. Raj (unreported Civil Appeal No. 50 of 1998 delivered 13 August 1999) this Court considered a number of cases involving injuries that were similar, although not identical, to the injuries in the case before it and to the injuries in the present appeal. The one clear conclusion that emerges from a reading of that decision is that the award of damages for pain and suffering and loss of amenities in the sum of $17,000.00 is well below what is usually regarded as fair compensation by the courts in this country. The amount of $3000.00 for future medical expenses is reasonable. Taking into account the level of awards that were referred to by this Court in Lawanisavi (supra), the cases indicate that $17,000 for the serious injuries suffered in this case was so greatly out of proportion with the damages given for those involving, in some instances, less serious injuries that it is apparent that His Lordship has erred in his approach, and therefore his assessment cannot stand. A proper award of general damages in all the circumstances would be $60,000.00.

52. The Respondent also challenged the award of the trial judge in respect of special damages for loss of wages from the date of the accident. The learned trial judge awarded an amount of $6200.00 to the Respondent as his loss of income for a period of one year up to December 2000. This was a finding based on the learned judge's assessment of all the evidence with particular reference to the evidence of Doctor Rosemary Mitchell.

53. It is clear that the medical evidence on this point was in conflict and the evidence given by the Respondent indicated that he experienced pain well beyond the first twelve months following the collision. Dr Krishna's report dated 16 November 2000 (almost 12 months after the collision) indicated that the Respondent was unlikely to be able "to return to farming in the near future." On balance the totality of the evidence does establish that His Lordship may have erred in his approach and therefore it is proposed to vary his assessment and award a further twelve months loss of income for a total of $12,400.00.

The evidence before the trial judge indicated that the Respondent's injuries had healed and there is no basis for interfering with His Lordship's conclusion that the claim for future loss of earning was without merit. Although the Respondent in the first part of his Notice sought to challenge the rates of interest awarded by the learned trial judge, this aspect does not appear to have been pursued by the Respondent (see page 42 of the submissions). In my view interest of 6% per annum should be awarded on the damages from the date of issue of the Writ until the date on which this judgment is delivered.

54. So far as costs of the trial are concerned, the Respondent challenges the award of $650.00. The trial lasted 15 days. The costs are without doubt inadequate for a trial of such duration. There was no material before this Court to suggest that the length of trial was in any way due to any fault on the part of the Respondent. The Respondent is entitled to reasonable costs. In all circumstances the costs which the Appellant formerly the 2nd Defendant, should pay to the Plaintiff in the Court below should be increased. I would assess these at $7500. The case took fifteen days in the High Court.

The Respondent is entitled to the costs of the appeal which are fixed at $5000.00.

Izaz Khan, JA

55. I agree with the judgments and reasons of William Marshall JA as to liability and of William Calanchini JA in respect of quantum. I also agree as to the orders proposed by William Marshall JA and William Calanchini JA.

William Marshall, JA

The Orders of the Court

56. The Orders of the Court are as follows:

(1) The appeal of Shell Fiji Limited, the Appellants against liability for damages is dismissed.

(2) The orders in the Court below relating to damages interest and costs are set aside.

(3) The Appellant/2nd Defendant, Shell Fiji Limited is ordered to pay to the Respondent/Plaintiff Sushil Chand, general damages of $60,000 plus special damages of $12400, a total sum of $72400.

(4) The Appellant/2nd Defendant is ordered to pay interest at 6 percent per annum from 20th August 2001 (the date of the Writ) until 8th February 2011 (the date of this judgment).

(5) The Appellant/2nd Defendant Shell Fiji Limited is ordered to pay costs of the 15 days hearing in the Court below to the Plaintiff Sushil Chand assessed at $7500.

(6) The Appellant Shell Fiji Limited do pay the Respondent Sushil Chand the costs of this appeal assessed at $5000.

Hon. Justice William Marshall
Justice of Appeal

Hon. Justice William Calanchini
Justice of Appeal

Hon. Justice Izaz Khan
Justice of Appeal