Bokoci v Kumar [1995] FJHC 143; Hbc0374j.92s (14 September 1995)

IN THE HIGH COURT OF FIJI
(AT SUVA)

ACTION NO. 374 OF 1992

BETWEEN:

NANISE BOKOCI
of Nadonumai, Delainavesi, Domestic Duties
suing as the Administratrix of the Estate
of FILIMONE TAKAYAWA (Deceased)
Plaintiff

AND

SASHI KUMAR (f/n Raj Kumar)
ILISONI TABUATAMATA, MICHAEL LOW,
BOB NAICKER (f/n Achudan Nair),
PONIPATE JOJI and TEVITA MARAU
all of Suva, who individually and
collectively organised a boxing
contest on the night of 24.11.90
under the name FIJI BOXING COUNCIL
First-named Defendants

AND

THE ATTORNEY-GENERAL OF FIJI
Second-named Defendant

T. Fa for the Plaintiff
R. Chand for the First-named Defendants
R. Vuataki and I. Wikramanayake for the Second-named Defendant

Dates of Hearing: 3rd - 6th, 11th, 12th, 31st October, 1st, 2nd November 1994,
14th - 17th February, 20th, 22nd February, 26th June, 31st July, 7th September 1995

Date of Judgment: 14th September 1995

JUDGMENT

This is a tragic case; tragic because the evidence satisfies me that had the First-named Defendants individually and collectively performed the duty which the law required of them towards him, a young Fijian Boxer Filimone Takayawa would not have died on the 25th of November 1990 as a result of injuries which he sustained in a professional boxing match held in Suva on 24th November 1990.

Although I make no finding of negligence against the Second-named Defendant representing the Fiji Police Force, at the end of this judgment I make certain recommendations as to the duties which members of the Police Force attending professional boxing tournaments in Fiji should be obliged to carry out.

Critical comments which I make in the course of this judgment against the First-named Defendants will I hope be acted upon in the future by those responsible for the holding of professional boxing matches in Fiji.

The Plaintiff is the mother of the late Filimone Takayawa and is the administratrix of his estate. Before his death the deceased Filimone Takayawa was a welder employed in an unestablished capacity by the Public Works Department and was also a professional boxer who had won his first five fights before his fatal sixth fight. He was 26 years old at the time of his death.

The Plaintiff claims that on the 24th of November 1990 a boxing tournament was organised and held by the First-named Defendants at the National Gymnasium at Suva purportedly under the auspices of a non-existent organisation known as The Fiji Boxing Council.

The Statement of Claim alleges that in his undated letter bearing the letterhead of the Fiji Boxing Council that was sent by the Second-named Defendant Ilisoni Tabuatamata on behalf of the First-named Defendants to the Commissioner of Police seeking a permit, Ilisoni Tabuatamata said that:

(a) The programme was promoted by Sashi Kumar f/n Raj Kumar to whom the permit was to be issued;

(b) The rules and regulations of the boxing programme would be those of the Fiji Boxing Council.

In response to this letter on the 19th of November 1992 Senior Superintendent Jone Waisale issued Sashi Kumar with a permit to hold a boxing contest at the National Gymnasium at 3.00 p.m. on 24th November 1990 under the rules and regulations of the Fiji Boxing Council.

There was no such body registered as the Fiji Boxing Council although it is common ground that there is an organisation known to all boxing fans in Fiji as a Fiji Boxing Council.

The first four First-named Defendants are accordingly sued in their individual and collective capacity as organisers of the boxing tournament.

Amongst the First-named Defendants, Sashi Kumar was the promoter and the person who financed the boxing tournament; Ilisoni Tabuatamata assumed the role of secretary for the defunct Fiji Boxing Council; Michael Low was the treasurer and Bob Naicker f/n Achudan Nair assumed the role of President and the leader of the First-named Defendants with the exceptions of Ponipate Joji and Tevita Marau.

Ponipate Joji was the person who refereed the boxing match between Filimone Takayawa to whom I will henceforth refer as "the deceased" and Jale Ligawai. Tevita Marau is a Medical Assistant employed at the time of the tournament by the First-named Defendants except Joji as a doctor to attend the tournament.

In cross-examination of Mr. Marau and in his submission to me counsel for the Plaintiff made much of the fact that Mr. Marau was not entitled to use the term "doctor" as he has never been a registered Medical Practitioner within the meaning of the Medical and Dental Practitioners Act Cap. 255. I say here immediately that in my judgment the fact, as he admitted, that Mr. Marau was not a registered Medical Practitioner in the sense that he had completed the course at the Fiji School of Medicine required for registration as a Medical Practitioner did not affect his ability first to examine both the deceased and Jale Ligawai 24 hours before their fight and secondly to form an opinion, as he admitted he did, that the deceased was unfit to continue boxing after the sixth round of his contest. I shall have more to say about that later.

Particulars of negligence against all the Defendants are given in the statement of claim. These are against the First-named Defendants:

(a) Failure on the part of all of the First-named Defendants including the referee to intervene or stop the fight when the deceased continued to receive severe and undue punishment from his opponent towards the end of the sixth round.

(b) Failure on the part of the First-named Defendants including the referee to stop the fight at the beginning of the seventh round when the deceased was obviously struggling to continue and was receiving undue punishment until he was knocked unconscious to the floor.

(c) Failure to use the services of a qualified medical officer to ascertain that the deceased in particular was fit or ready to take part in a boxing contest; the First-named Defendants instead relied on the qualifications of Tevita Marau who was not a qualified person.

(d) Failure to have ready and available medical facilities including a qualified doctor for the use of the deceased; the deceased was deprived of the use of a stretcher and an ambulance; he was taken to the hospital in a private car.

(e) Allowing a boxing contest to be organised in the name of the Fiji Boxing Council when in fact that organisation did not exist in law.

Particulars of the negligence against the Second-named Defendant are given as:

(a) Failure to check whether in fact the Fiji Boxing Council was an existing body with which the Commissioner of Police could deal by the issuing of the permit for the Fiji Boxing Council to hold a boxing contest according to its rules.

(b) Failure to act by its representative who was present at the boxing match to stop the fight towards the end of the sixth round when the deceased was struggling to continue and was receiving undue punishment from his opponent.

(c) Failure to act by its representative who was present at the boxing match to stop the fight at the beginning of the seventh round when the deceased was obviously struggling to continue and was receiving undue punishment until he was knocked unconscious.

(d) Failure to demand by its representative whether the deceased had been examined by a qualified medical officer and had been certified fit to participate in the contest.

The Plaintiff says that the failure of all the Defendants as quoted above constitutes negligence in causing the death of the deceased which was of such a gross nature that it fell far below the standard of care expected of those who manage the sport of professional boxing.

Before considering in more detail the particulars of negligence against the Defendants and before giving my reasons for holding that I do not consider the Second-named Defendant represented by the Police Officer present at the contest to have been guilty of any negligence which caused or contributed to the death of the deceased I shall attempt to summarise the evidence given by the various witnesses.

In all the Plaintiff called a total of 12 witnesses and exhibited 15 items to support her case. The Defendants called a total of 5 witnesses.

One of the most important exhibits was tendered by consent by the Plaintiff. This is a video recording of the boxing match which was shown both in full and then in particular the sixth and seventh rounds of the fight in which the deceased suffered the heaviest punishment. I shall refer to the video recording in the course of my general discussion of the evidence.

The first witness called was the Plaintiff who said that the deceased was her son and that she had been the administratrix of his estate, and had been granted Probate by this Court.

The Plaintiff gave no evidence of any dependency by her on the earnings of the deceased either in his work in the Public Works Department or from money received as a part-time professional boxer.

The second witness for the Plaintiff was Aminio Qalovaki who is the brother of the Plaintiff who stated that he attended the office of the Fiji Medical Council and with the permission of the Secretary searched the Council Registry of Medical Practitioners. He could not find the name of Tevita Marau registered in the Register which, somewhat reluctantly, Mr. Marau later admitted when giving evidence.

Aminio Qalovaki also expressed the opinion that the First-named Defendants were negligent because they engaged an unqualified Medical Practitioner to be the ringside doctor on the night of the contest.

Apart from the fact that I disregard this opinion because I consider Aminio Qalovaki was unqualified to express it, I have stated above that I consider Tevita Marau had sufficient professional qualifications to examine the boxers before their contest and to act as the ringside "doctor" on the night of the tournament.

Mr. Qalovaki also gave evidence that with money provided by the deceased's family he hired a Fijian woman to make a video of the fight. He then tendered the video tape. The tape was then shown for the first time and I noted that it took some forty minutes to complete. My impressions at the time which I have since confirmed by a private screening of the tape in my own home were that until towards the end of the sixth round and despite the fact that the deceased was knocked down near the end of the fifth round I could see no reason why the referee should have stopped the fight at the end of the fifth round. Until then in my view the boxers appeared fairly evenly matched.

The fourth witness called for the Plaintiff was Sitiveni Niumataiwalu who said in evidence-in-chief that he was very much involved in boxing in Fiji and had been actively associated for the last 36 years with the Professional Boxing and Wrestling Association of Fiji of which he was the current Secretary.

Mr. Niumataiwalu said that he had never taken part in a public boxing contest but he still spars and trains. He knew the First-named Defendants with the exception of Tevita Marau.

The video tape was then shown again for the benefit of Mr. Niumataiwalu and he commented on it. Before the video was screened for him he stated that he had trained a large number of boxers including two gold medallists at the South Pacific Games and three professional champions. He had managed boxers in Australia, New Zealand, Tahiti, Noumea, Tonga and Western Samoa. He also holds an open licence as a referee and was an internal judge of boxing with the World Boxing Federation and the International Boxing Federation.

He said in the light of his experience he would have automatically terminated the fight at the end of the sixth round when the deceased was knocked down and was apparently saved by the bell. This was because the deceased had taken a number of quite heavy punches by this time and Mr. Niumataiwalu considered that at the end of the sixth round he was unfit to continue. He said that if the referee, being the nearest person to the two boxers, was in any doubt as to the fitness of one of them to continue he should have called the ringside doctor.

He observed that just before the deceased was knocked down in the sixth round his mouthguard had fallen out after which he received a number of punches to his head. Mr. Niumataiwalu said his understanding of the boxing rules was that a referee could then pick up the mouthguard and replace it after first stopping the fight temporarily or kick the guard to the boxer's corner. He said the purpose of the guard is to protect boxers' lips from being cut or injured and as a protection for their teeth.

He said that the video tape showed the deceased was wobbly on his feet towards the end of the sixth round and his knees were buckling several times which showed that he was uncomposed mentally and that only his physical condition of fitness enabled him to keep going.

He criticised the delay in taking the deceased from the ring after he had been knocked out and said that the deceased was unable to get out of the ring without assistance. He also criticised the way in which the deceased was carried from the ring on the hands of various people and said that a stretcher would have been the most appropriate way to remove him.

In cross-examination Mr. Niumataiwalu said that in his view the deceased had not been standing firmly on his feet when moving around the ring and that he believed the punches the deceased had absorbed to his head had affected him so that he continued to fight only from instinct. He also said that he had never seen a referee allow a fight to continue in circumstances similar to those of this fight because in his view the deceased could not and did not defend himself in the sixth round.

He then said that the referee was the best person to know whether the deceased was fit enough to continue and that the deceased's second or corner man knew best the mental and physical state of his boxer.

The fifth witness for the Plaintiff was Dr. Laigia Seruvatu who is now in private practice but who on the 26th of November 1990 was a Pathologist employed at the CWM Hospital. On that day he performed a post-mortem on Filimone Takayawa. I record his evidence-in-chief thus:

"The deceased had suffered an internal haemorrhage which was localised to the brain which weighed 1350 grammes. The normal weight of the brain is 1200 grammes. The brain was markedly swollen and there was both extra-dural and sub-dural haemorrhages of the right cerebral hemisphere. There was also cerebral oedema resulting in flattening of the brain tissue with cerebral coning.

The cause of both was really consistent with blunt force applied to the head. Damage to the brain was more on the right side but the whole brain was generally involved.

By blunt force I would include punches. A fall on the floor would also be consistent with these injuries. I cannot say what the blunt object was, only that it was some object. I was informed that in the evening in question the deceased took part in a boxing bout. If there had been a doctor at the ringside he could help. A doctor would be able to assess the degree of injury and in this case an examination of the person at the time would enable him to assess any damage, for example by examining the pupils of the eyes on the spot. All the head injuries were internal. If I am asked to assume that the deceased had fought six rounds and then was knocked unconscious and was dragged out of the ring and then carried by about six people approximately twenty yards and then placed in a private car without any stretcher and then taken to the hospital I say that it would not help matters.

If I am also asked to assume as a fact that there was a doctor at the scene who had examined the patient and he had then been taken straight to the CWM Hospital by qualified persons and treated on arrival there, I say that this would have helped. It would not worsen the condition. Prompt and qualified medical assistance would have helped.

I do not know Tevita Marau. I qualified as a doctor by receiving the DSM in Fiji in 1970 and I obtained a post-graduate specialist's qualifications in pathology from the University of Otago in 1981.

After graduating I worked in the Pathology Department in CWM Hospital from 1982 to 1993. I was a Senior Government Pathologist. I have testified in many courts in Fiji.

In December 1993 I resigned from the Government and opened a private medical practice laboratory at Cumming Street."

In cross-examination Dr. Seruvatu said that in his opinion the cause of the additional weight of the deceased's brain was the oedema and haemorrhage due to additional fluids and blood. The haemorrhage was quite severe. It was consistent with blow force injuries such as punches and falling on the head.

These injuries were unlikely to have been caused by his being carried by hand-made stretcher from the stadium. It is very unlikely that any haemorrhage was caused by his being placed on a car seat or by his being pulled cautiously over a flat floor. The only cause of the haemorrhage was consistent with forceful blows.

At the ringside proper management would have helped him but proper medical treatment was not possible at the ringside. Proper management would have helped in not worsening the situation. As a result of the heavy blows which caused the injuries his life could have been saved if he had received proper medical treatment quickly. There were no outwardly visible injuries. All were internal.

No treatment was possible at the ringside but he would have received it in the operating theatre.

When Dr. Seruvatu examined the deceased he could see no sign of any operative procedure in the operating theatre. He would have noticed surgical incisions if these had been done when he was admitted. He made no case notes but some may have been given to him. Proper management and treatment at the hospital could have saved his life because of the expertise and the available facilities. He did not say the deceased did not receive proper management and treatment.

Having the professional expertise and facilities which could have saved his life the doctor said one must consider the seriousness of this particular case and he thought the deceased's chances of survival were slim considering the extent of his injuries. His injuries were consistent with forceful blows by blunt force. Therefore if these had been received in the ring only, in spite of any further management his chances of survival would remain slim. Therefore as a result of his receiving blunt force to his head in the ring any subsequent management such as pulling him out of ring and carrying him on hands to a car could not have helped him improve.

A qualified doctor would have given a proper management in the ring but carrying the deceased as described would not have worsened his condition.

The witness said that if he had been the ring doctor at the time, considering the extent of the injuries, proper management would not have worsened the situation any further. He did not know whether there was any worsening of his condition.

In re-examination Dr. Seruvatu said that if he had been the Medical Officer in this fight he may have stopped the fight. If he were the Medical Officer at ringside and a boxer was knocked to the ground he would try to test the level of his consciousness and his ability to continue the bout and he would examine the extent of possible injuries including the state of his eye pupils. In further cross-examination by Mr. Chand for the First-named Defendants Dr. Seruvatu then said that he would have performed such an examination if he had seen the punishment the deceased had received but he would not enter the ring after every knock down.

In answer to a question by me the doctor then said that if he had been the ring doctor and had seen a boxer receive heavy punishment to the extent he made no attempt to defend himself he would have spoken to the referee, and asked for permission to examine the boxer to see whether he was fit to continue. Dr. Seruvatu then said that it would assist him if he saw the last minute of the sixth round. Thereupon I directed that the last minute of the sixth round and all of the seventh round were to be shown again.

After this Dr. Seruvatu said that having seen the film "perhaps they should have medically examined him on the spot before he was carried out on a stretcher".

The sixth witness for the Plaintiff was Ignasio Mow who was the deceased's second on the night of the fight. He said that Tevita Marau did not come into the ring at any stage of the fight. At the end of the sixth round Mr. Mow thought the deceased was able to continue and he did not throw in the towel at any stage in the seventh round because he considered his boxer was in no difficulty or discomfort. Mr. Mow said that after looking at the video tape he realised that before the deceased was knocked down finally in the seventh round he received seven or eight punches in succession. He could not see all of this on the night of the fight because he was sitting in the deceased's corner below the ring and all he noticed was that both boxers and the referee were moving around.

When cross-examined on behalf of the Attorney-General Mr. Mow said that he did not throw in the towel in the seventh round because he thought the deceased was not then defenceless before the knock-out.

When cross-examined by counsel for the First-named Defendants Mr. Mow said that he was sitting level with the floor of the ring in the deceased's corner during the fight. Tevita Marau was sitting in the front row.

He said at the end of the sixth round the referee came to their corner to enquire if the deceased was fit to continue and both the deceased and Mr. Mow said he was. He said that the deceased was aggressive in the fight right to the end and Mr. Mow did not see the deceased's knees buckle during the fight.

In re-examination he said although he had stated in cross-examination that he had not considered the deceased to be defenceless, after looking at the video he had been able to count the number of punches which the deceased received whereas on the night of the fight they had come so fast that he could not do so. Also although on the night he thought his boxer was not defenceless after looking at the video tape he thought that his boxer was defenceless because on the video he could see and count the number of punches the deceased received.

The seventh witness called for the Plaintiff was Bunoa Pauliasi Nadonumai who was a cousin of the deceased. He said that he had been present on the night of the fight and that he was two yards away from where Tevita Marau was sitting. He said when the deceased was knocked down both at the end of the sixth round and the seventh Tevita Marau remained sitting at the ringside even when the deceased's handlers were trying to revive him.

I was not impressed by this witness whom I found somewhat lacking in intelligence and I attach very little credence to his evidence.

The eighth witness for the Plaintiff was Dharam Lingam a Senior Personnel Officer in the Ministry of Health. Mr. Lingam said that he maintained the Register of the Fiji Medical Council and that from this he could say that Tevita Marau was not a doctor but a Medical Assistant.

The ninth witness for the Plaintiff was Rusiate Raiwalui who said he was a former Amateur Boxer who had never refereed a boxing match. In evidence-in-chief he said that the purpose of a mouthguard was to enable a boxer to absorb some of the blows which hit his head and to protect his tongue and teeth. He said that when the mouthguard fell from the deceased's mouth in the sixth round the referee allowed the fight to continue and after this the deceased continued to receive blows to his head until he fell down and was unable to get up until after the bell had rung for the interval between the sixth and seventh rounds. Mr. Raiwalui said that in his view, without a mouthguard all the blows he then received would have done him a lot of damage. He considered that the deceased had been mishandled from the time he dropped to the floor until he was removed from the ring. He could not remember seeing Tevita Marau examine the deceased after he was knocked down in the sixth round and said that in this type of situation after receiving excessive punches the normal thing for the referee to have done was first to completely stop the fight and test the boxer. If he was then confident that the boxer could not continue he should have stopped the fight. If he was not sure whether the deceased could continue he should have called Tevita Marau into the ring to examine the deceased.

He then said that even if the deceased had said that he was fit to continue after the sixth round, in the witness's experience some boxers feel ashamed to say so and this is when the referee uses his experience and decides whether or not to stop the fight.

He later said that Ponipate Joji was one of Fiji's top professional referees.

In the seventh round before he was knocked out the witness saw the deceased receive seven or eight final blows to his head and he thought then he was defenceless.

It was put to him in cross-examination by counsel for the Attorney-General that because everything had happened so fast in the sixth round the referee could not be blamed for taking no action. Mr. Raiwalui said that in his opinion an experienced referee should have noticed that the punches the deceased received were damaging.

When cross-examined by Mr. Chand for the First-named Defendants the witness said that Mr. Mow's role was to look after his boxer when he came to his corner but not when he was in the ring and that even the ringside doctor was not allowed to enter the ring unless the referee ordered him to do so.

He said according to the rules of boxing if a ringside doctor wants to go into the ring to examine a boxer if he considers he is taking excessive punishment he will signal the referee that he wishes to do so. Mr. Rawailui said that at the end of the sixth round when the deceased went to his corner he was very groggy and was walking as though he was drunk. He also noticed that from the time he was knocked down until the time he got to his corner he had to use the ring rope to help him and then took two steps both of which were very groggy.

He agreed that if both a boxer and his second told the referee the boxer can continue then the fight continues. He also said that the deceased apparently went willingly into the seventh round. This was later made the subject of a submission on Volenti non fit injuria by counsel for the First-named Defendants on which I shall comment later except to remark here that Mr. Raiwalui used the word "apparently".

When re-examined the witness said that he would not have thrown in the towel at the end of the sixth round if he had been the deceased's second because of the way he had been fighting. He also said that from the way the deceased went to meet his opponent at the beginning of the seventh round he considered this signified both the deceased's and Ignasio Mow's willingness to continue the fight in the seventh round. I shall comment on this remark also later in the judgment.

The tenth witness called for the Plaintiff was Inoke Marokobau a civil servant employed in the Public Works Department. Mr. Marokobau knew the deceased and said that at the time of his death he was a trade assistant at the boiler shop who had begun work in the Public Works Department on the 6th of November 1989 and received his last pay on the 22nd of November 1990. At the time of his death he was receiving $2.08 per hour in wages. He also said that the deceased was an unestablished employee at the time of his death and that unestablished employees can work until reaching the normal retiring age. However he admitted in cross-examination that an unestablished worker did not have the job security of a civil servant who was guaranteed employment whereas unestablished workers were not.

Mr. Marokobau was the last witness for the Plaintiff. Counsel for the First-named Defendants then opened their case and said that the Defendants proposed to establish that they took into account all that was possible in the circumstances within the means and resources available to them at the time of the fight. Counsel said that the boxing bout between the deceased and his opponent had been conducted within the rules of the Fiji Boxing Council as distinct from any other organisation involved in professional boxing.

Counsel continued that the Defendants would further attempt to establish that both the deceased and his second both willingly and readily made themselves available to allow the deceased to continue boxing until he was knocked out. Counsel said that this was therefore a situation of a voluntary engagement by both the deceased and Ignasio Mow to continue the fight and thus the rule of Volenti non fit injuria applied in this case.

Finally counsel said that the Defendants would contend that those who were involved directly or indirectly in the tournament on the 24th of November 1990 could not have done any more to save the deceased at the end of the seventh round when he was knocked down and later died in the hospital. In addition Mr. Chand said that the evidence showed that the deceased was equally competitive on the day of the fight and that despite two earlier knock downs during the bout he came up to take his chance in the seventh round but unfortunately had "somewhat bad luck at the end".

I shall have much to say about these comments by counsel later in the judgment.

The first Defence witness was the referee Ponipate Joji who said at the time of fight he was aged 56 and had been a professional boxing referee for twenty years. At the end of the sixth round he had noticed the deceased shaking his head but Mr. Joji did not know why. He said that after he had been knocked down he got to his feet again and went to his corner and I here quote his evidence in full: "I went to Takayawa's corner and asked him if he could play again. He said, "I am okay". I also showed him three fingers of my right hand and asked him, "Can you read this?" He said: "1, 2, 3" - he counted the fingers. I then turned to the cornerman and asked him: "You know Takayawa better tn me because you are the trainer. Do you think he is okay to continue the fight?" He said: "He is okay but do not spoil our chance." I then ran back to my corner. I thought he was all right." Mr. Joji said that he had refereed the deceased previously in contests and on this night he thought he was fit to continue because he had never previously lost a fight and the way he fought that night was much better than his previous fights. The reason why he thought the deceased was still all right in the seventh round was because he continued to move around. The witness said that if he had had enough the deceased would have stopped throwing punches. Having seen the video he was certain the deceased was not defenceless which is why Joji had never stopped the fight.

When he was cross-examined he was referred to the evidence he gave at the Inquest into Filimone Takayawa's death. He said that he forgot to mention to the Magistrate that he had lifted his three fingers to the deceased at the end of the sixth round and that this was important because if a boxer could not count then a fight should be stopped. He agreed that the Inquest took place only one year after the fight and that he could remember the fight well now after seeing the video. He agreed that he had instructed his counsel to ask Ignasio Mow whether Joji had asked the deceased to count his fingers but counsel had not done so. He also agreed that towards the end of the sixth round the deceased had received six successive punches to the jaw, that his mouthguard had fallen out and that even before that he had received some very heavy punches. After the guard had come out he had received heavy punches and he said that he had seen five such punches two or three of which were heavy.

Looking at the video now Mr. Joji said he could have stopped the fight because of those punches at the end of the sixth round. In the seventh round he had received a number of punches to the chin which caused the knock out. The last punch he received was heavy and the deceased had not retaliated.

When he was asked why he did not tell the Magistrate presiding at the Inquest that the deceased had received some heavy punches the witness said that this was because the questions the Magistrate asked him were not as detailed as those counsel for the Plaintiff was asking him. He said that the Magistrate did not ask him whether the punches were light or heavy.

Some time later he was asked whether there was any rule about mouthguards in the Fiji Boxing Council rules. The witness replied that there was no such rule and his practice was that if a mouthguard fell out in the course of a fight Mr. Joji never stopped the fight. He said he would either give it to the second or kick the guard out of the ring. He did not consider this dangerous because there was no rule on the subject.

He said then that the deceased had received four heavy punches but that he could have done nothing because they were coming so fast. In re-examination he said that he had told the Magistrate at the Inquest that the punches the deceased received were small because that was his recollection at the time. It was only when he saw the video in court that he realised there had been some heavy punches. As to the allegation that the video film did not show him put up his fingers for the deceased to count the witness said at the time the camera was not directed to the red corner where Mr. Joji had gone.

I accept his evidence on this.

The second witness for the Defence was Tevita Marau who said he was a Medical Assistant and had acted as ringside doctor twice before this fight. He said that he was sitting along the ringside and had a clear view of the boxing match. He then described what he did after the deceased was knocked out in the seventh round. He said,

"Immediately I called out to the cornerman who was getting into the ring to get to Takayawa and pull out his mouthguard and loosen his gloves and boots. I told the cornerman to lay Takayawa on his side. I then went to telephone at the Sports Council's Office at the back of the gymnasium less than ten metres from where I had been sitting. I spoke to the Transport Officer at the C.W.M. Hospital but unfortunately there was no ambulance at the time. I then spoke to the Medical Officer at the Outpatients at the C.W.M. Hospital and explained to him what had happened. He advised me to transport the patient in a private car as soon as possible. I returned to the ring. Takayawa was standing in a corner. Suddenly he sat down; he had laxity in both his upper limbs. He had no control over them and I saw those standing around him bring him to a chair and seat him on it. I stood up and went to the corner. I knew that something very serious had happened and I went right to the boxer and first examined his eyes which showed he had obviously suffered severe brain damage. The pupils were dilated and fixed. I immediately gave the instruction that he be cautiously taken out of the ring on an arm stretcher. Because there was no ambulance there was no stretcher. There was none in the stadium. We put him in a private car and took him straight to the hospital. I could have done nothing to save Takayawa. I do not think any other doctor could have saved him.

Dr. Kurusiqila, Speaker of the House of the Representatives, was sitting near me at the ringside and he told me I had done the right thing."

For reasons I shall give shortly after completing this review of the evidence I must say that I do not agree with Mr. Marau's evidence on this or, if he said it, with that of Dr. Kurusiqila, although of course I am not suggesting that any blame attaches to Dr. Kurusiqila. Mr. Marau's evidence on this is pure hearsay but I mention it because of the view I have formed that something could and should have been done by Mr. Marau if he had fully appreciated his duties and responsibilities towards the deceased as the ringside Medical Officer.

In cross-examination by Mr. Fa the witness agreed that he was not registered as a Medical Practitioner under the Medical and Dental Practitioners Act Cap.255. He said however that he was entitled to practise medicine under the Medical Assistants Act Cap. 255(a). He said that the referee had never called him to come into the ring to examine the deceased after he was knocked down in the sixth round and that his understanding was that he could not be called into the ring unless the referee asked him to do so. For this he relied on Rules 57(2) and 59(2) of the Rules of the Fiji Boxing Council. These read as follows:-

"57(2) The referee shall be in sole charge of the contestants from the time they enter the ring until the conclusion of each contest. He shall stop a contest if in his opinion one or both men are unfit to continue and give such decision as may be proper.

59(2) No second or any other person shall enter the ring during the progress of a round. Should any second do so the referee shall have power to declare against the second's principal."

The witness then said that it had occurred to him that it might be right to check Takayawa's condition at the end of the sixth round but he did not do so because he had not been consulted by the referee. If he had been asked to examine the deceased he would have done so.

At the end of the sixth round Mr. Marau did not think the deceased was fit to continue. The fact that he got to his feet and walked to his corner after being knocked down did not necessarily mean that he was fit to continue in the fight. He then said in answer to a question by Mr. Chand that as a doctor at ringside at the end of the sixth round without examining the deceased he thought he was not fit to continue and everytime his cornerman took out his mouthguard at the end of each round Mr. Marau watched him spitting out. At the end of the sixth round there was no control in the way he was spitting. He said that the deceased had had control up till that time. For that reason alone he thought he should examine him because lack of control in spitting signified he had suffered brain damage. At the end of the seventh round the deceased's eyes were fixed and dilated indicating very serious brain damage. In answer to a question from me later when I recalled him on this question, Mr. Marau said that the fact the deceased could count the three fingers on the referee's hand signified he was fit to continue.

With all respect to Mr. Marau I consider that his previous evidence should be preferred because it is consistent with that of Dr. Seruvatu whom I found a helpful witness. The fact that the deceased could count correctly merely shows in my opinion that he had only momentarily regained control of his senses. This was proved in the next round when his opponent, probably realising the deceased had been hurt badly, promptly resumed his attack and knocked the deceased out barely more than a minute after the round began. For most of the time the deceased was powerless to defend himself as the event showed.

The next witness called in the case was for the Second-named Defendant, namely Meli Balenivalu. He said that he was a retired Police Officer who had resigned from the Police Force in 1981 after 31 years of service. He attended the boxing tournament on the 24th of November 1990 when he was an Inspector stationed at the Central Police Station in Suva. His duties at the tournament were to check the ring to see whether it was safe; he found it to be so. He also had to ensure that no boxer suffered undue punishment so as to constitute a breach of the peace or an assault.

He had observed the fight between the deceased and Jale Ligawai and said at the end of the sixth round he did not think the deceased was struggling to continue the fight because he had not seen any sign of this from the cornerman. He said that he never thought of stopping the fight at the end of the sixth round but it appeared that this was because both the deceased, his cornerman and the referee had done nothing to prevent the deceased continuing. He said that when he went to inspect the ring he did not enquire about whether the deceased had a medical certificate as to his fitness to fight because he did not consider it his duty to do so unless there was a complaint. He then looked at the video recording the sixth and seventh round and said that this only confirmed his opinion that there was nothing shown which would have caused him to stop the fight.

The next witness for the First-named Defendants was Bob Naicker an electrician who was also the fourth of the First-named Defendants. In evidence-in-chief he said that his responsibility on the day of the fight was to bring the boxers from the changing room to the ring. He said he had been President of the Fiji Boxing Council in 1993 and in 1990 at the time of the fight he was Acting President. He had been associated with boxing for 18 years but had never fought in a bout or refereed a bout. He was asked some questions about mouthguards and stated that he had seen fights in which one boxer's mouthguard had been knocked from his mouth whereupon his opponent seized the opportunity and had hit the other boxer hard on the mouth and then won the fight.

In cross-examination he described the difficulties the Fiji Boxing Council had in getting a quorum for meetings. In fact no formal meetings were held and the practice was for members wishing to stage a boxing tournament to telephone each other and reach agreement. He said he did not realise that this was in breach of Rule 19 of the Rules of the Fiji Boxing Council. This rule provides that the Committee shall at least meet once a month. At all meetings five shall form a quorum and if a quorum is not present within fifteen minutes of the appointed time the meeting may be adjourned to another date.

He said that he did not know before the fight that Tevita Marau was not a doctor in the usual meaning of that term.

He agreed that no medical certificate under Rule 42 of the Rules had been provided in this case.

He was then asked some questions about whether a stretcher was available on the day of the fight. The witness said that he had never arranged for a stretcher or ambulance to be available because there was a doctor in the stadium. He said it was the doctor's duty to arrange for the ambulance but he did not know anything about the stretcher. He said that the provision of a stretcher was the responsibility of the Fiji Sports Council because the Council had arranged for the setting up of the ring and the promoters supplied the boxing gloves. He then said that as Acting President of the Fiji Boxing Council at the time he had never had any discussion about stretchers being available at boxing contests.

He then said that, looking back, his organisation could have done nothing to save Filimone Takayawa's life. He said the referee was the sole judge.

In re-examination he again placed the responsibility for providing stretchers on the Sports Council. He then said on the duty of the ringside doctor that the doctor only entered the ring when a boxer had received a cut and the doctor could not stop a fight himself. He always worked on the instructions of the referee and could not stop a fight himself. If however the doctor thought the boxer was unfit to continue the referee had to stop the fight.

The witness then stated that he did not consider Filimone Takayawa had been punished in the sixth round or even in the seventh round. He said it was just an unlucky punch which dropped him in the last round.

That concludes my summary of the evidence. I shall now refer to the submissions of counsel.

For the Plaintiff Mr. Fa first referred to the Defendant Ponipate Joji and commented on the fact that it was in round six when the deceased's mouthguard came out and that "after this the deceased had received several successive punches to his jaw". Counsel submitted that absence of the mouthguard denied the deceased a protection from punches to his face and mouth. He also commented adversely on the fact that although the Defendant Marau had noticed the deceased spitting inaccurately at the end of that round, Ponipate Joji who was actually in the ring apparently did not or, if he did, attached no significance to it.

Counsel further submitted that at the end of the sixth round Joji should have sought the assistance of Tevita Marau but failed to do so. As to the three-finger test counsel submitted that this was only one factor; the whole evidence had to be considered including the heavy knock-down of the deceased at the end of the sixth round.

Next Mr. Fa turned to the medical examination of the deceased before the contest and spent much time criticising the Defendants for not engaging a properly qualified Medical Practitioner within the meaning of the Medical and Dental Practitioners Act. He also referred to the fact that no certificate of fitness had been given by Tevita Marau in accordance with Rule 42 of the Fiji Boxing Council rules. In the absence of such a certificate signed by a qualified Medical Practitioner, said Mr. Fa, the referee should never have allowed the fight to commence.

In this submission it appears counsel is saying that one of the causes of the deceased's death was the fact that he was not examined by a qualified Medical Practitioner and that therefore the contest should not have been held at all so that presumably the deceased could still be alive today. I have stated on page 4 of this judgment that the fact that Mr. Marau was not a registered Medical Practitioner under the relevant Act did not affect his ability to examine both boxers before their bout and to form an opinion that the deceased was unfit to continue boxing after the sixth round.

Whilst Mr. Fa's submission is strictly correct and that the term "Medical Practitioner" in Rule 42 of the Fiji Boxing Council rules must strictly speaking mean a Medical Practitioner within the meaning of that term in the Medical and Dental Practitioners Act, I think due allowance must be made for the fact that Medical Assistants are recognised in Fiji by law and allowed to perform a considerable number of medical procedures. Ideally the Medical Practitioner appointed for any professional boxing match should be one qualified under the Medical and Dental Practitioners Act but I am prepared to accept that in an undeveloped country such as Fiji that may not always be possible. In my judgment there are stronger grounds for finding the First-named Defendants liable in negligence. I shall refer to those grounds shortly.

Mr. Fa then made a submission on the alleged liability of the Second Defendant but for reasons which will appear when commenting on the submissions made on behalf of the Second-named Defendant, I reject those of Mr. Fa on this question.

On behalf of the First-named Defendants Mr. Chand first submitted that there was no evidence that the deceased was unfit to take part in the fight and I accept this. I am satisfied that the deceased was fit at the time he entered the boxing ring on the day of the fight.

Mr. Chand then referred to the evidence of the deceased's second Ignasio Mow and said that this showed there was no foul play or negligence by the Defendants. As to the evidence of Dr. Seruvatu counsel submitted that this was hard to evaluate but his evidence assisted the Defendants because in re-examination he had stated that the boxer's second would know best the mental and physical condition of his boxer.

As to Rusiate Raiwalui counsel submitted that his evidence as to the mouthguard was not corroborated by any of the Plaintiff's witnesses and that I should view his evidence with suspicion. In any event, said counsel, Mr. Raiwalui's evidence tendered to help the Defendants' case.

Counsel then referred to the evidence of the witnesses called for the First-named Defendants. As to Joji Ponipate counsel submitted that his evidence was not discredited in cross-examination. He maintained throughout that the deceased was fit to continue the fight.

As to Tevita Marau counsel submitted that at the time of the fight Mr. Marau had been in practice as a Medical Assistant for twelve years.

Counsel then claimed that Mr. Marau had said that he did not see fit to stop the fight as the deceased was aggressive at all times. I have no record of such evidence and in any event, if Mr. Marau did say it, it is in direct contradiction to the parts of his evidence which I have quoted earlier.

Mr. Chand then made a submission on the maxim volenti non fit injuria and said that participants in games or sports involving a likelihood of bodily contact, such as wrestling or boxing consent to all the risks ordinarily incidental, though not to undue violence or unfair play. Here it was submitted the deceased himself agreed to continue the fight after the sixth round after the referee had enquired whether he felt fit to do so. Counsel said that all the witnesses for the Plaintiff and the Defendants agreed that the deceased was at all material times fit and eager to carry on the fight and that he was aggressive and had relatiated by exchanging blows.

Finally Mr. Chand submitted that on the question of damages the Plaintiff was not entitled to any damages under the Compensation to Relatives Act Cap. 29 because there had been no evidence given of any dependency by her on the earnings of the deceased. Later counsel for the Plaintiff accepted this and agreed that the only claim the Plaintiff had was under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27 for loss of expectation of life by the deceased. Mr. Chand also submitted that if I found the Defendants negligent I should not allow any religious mourning expenses on the authority of Stanton v. Ewart F. Youlden Ltd. (1960) 1 ALL E.R. 429.

Finally I come to the submissions made by the Second-named Defendant. These were that as far as the Police are concerned their powers under the Boxing and Wrestling Contests Act Cap. 272 do not attract any civil liability. It was submitted there is no duty of care in such a case as this because there was no sufficient proximity between the Police and Filimone Takayawa. Counsel then referred to the Act and quoted Sections 3 and 7 and Regulations 9 and 10. These sections and regulations refer to the power of the Commissioner of Police to grant a permit for a boxing contest, the power to enter any premises in which a Police Officer believes a boxing or wrestling contest is being held, the conditions governing the granting of permits set out in Regulation 9 including 9(h) that every competitor before engaging in a contest must produce for inspection if required to any Police Officer present a certificate dated not more than seven days previously and signed by a Medical Practitioner to the effect that such competitor is physically fit to compete. Regulation 10 gives a Police Officer the power to stop any contest if he considers one of the contestants is receiving undue punishment or there is undue roughness by either of the contestants. Generally I accept the submissions and consider that in this case or in any boxing contest the Police owe no civil duty of care to the contestants. I also agree as submitted by Mr. Vuataki that under Regulation 9(h) it is not mandatory for a Police Officer to inspect a medical certificate given to the boxer. I also agree that there was nothing in the circumstances of the bout between the deceased and Joseph Ligawai to warrant their intervention and stopping of the fight. Generally the requirement of Police intervention comes into play when the Police consider that a breach of the peace has been committed. There was nothing in the evidence in this case to satisfy me either that any breach of the peace had been committed or that the deceased had been subjected to any undue punishment or roughness.

That is not to say however that I do not consider the powers of the Police concerning boxing and wrestling contests should remain as they are. I consider for reasons which I shall give later that they should be strengthened because it seems to me on the evidence in this case that those responsible for the holding of this contest failed to take proper care for the safety of Filimone Takayawa and that in certain respects the Police should be empowered to see that they do in future cases.

It seems to me that as the Police already have the responsibility of ensuring that the boxing ring is safe they should be given the added responsibility of ensuring that at least two stretchers are in the stadium before any tournament begins.

I now consider the relevant law first as to the liability of the Defendants, Kumar, Tabuatamata, Low and Naicker. In my judgment they are liable in negligence to the Plaintiff on three principal grounds. First that they employed a referee Ponipate Joji who despite all his experience apparently thought that the ability of the deceased to count three fingers proved he was fit to continue the fight after the sixth round. In my judgment for reasons on which I shall elaborate shortly, after the deceased had been knocked down at the end of the sixth round any responsible and competent referee would have immediately summoned the ringside doctor to examine the deceased. Ponipate Joji failed to do so and as such I consider he was negligent.

Secondly they should have informed Tevita Marau, in case he did not know, as he obviously did not, that he was entitled to call on the referee to stop the fight at least temporarily if he considered the condition of the deceased warranted it. There is no evidence that they gave any such advice.

Thirdly I consider they were negligent in not ensuring that there was a stretcher in the stadium on the night of the fight. The evidence of Dr. Seruvatu was that carrying the deceased from the stadium on a number of hands could not have helped him improve. It seems to me basic that those responsible for the holding of any contest involving the risk of bodily harm to the contestants should at least have a stretcher available to remove any injured contestant from the stadium. Here it appears the Defendants through Bob Naicker did not know there was any stretcher in the stadium and that in any event they said this was the responsibility of the Fiji Sports Council. In my judgment this is merely an attempt to` pass the buck' and I hold that as a matter of law it is the duty of the promoter of any boxing or wrestling contest to ensure that at least one and preferably two stretchers are available for use should they be required.

Turning now to Ponipate Joji, the first evidence against him was given by Sitiveni Niumataiwalu whose experience in boxing I have set out on pages 7 and 8 of this Judgment and which is to the effect that at the end of the sixth round in his opinion Ponipate Joji should have either terminated the fight then or at least called on Tevita Marau to examine the deceased. He also said, and I agree, that the referee, being the nearest person to the two boxers, should have at least done this.

He also said however that the referee was the best person to judge whether the deceased was fit to continue and that the deceased's second knew best the mental and physical state of his boxer. In my judgment the only person best qualified to form that opinion was Tevita Marau and because he was clearly ignorant of his rights and duties under the law he failed to do so. To a large extent Mr. Niumataiwalu's evidence was corroborated by Rusiate Raiwalui who said that where, as here, a boxer had received several successive punches to his head and been knocked down at the end of a round the referee should have stopped the fight at least temporarily and tested the boxer. Then the witness said that in his experience some boxers feel ashamed to say they can not continue in a fight and this is when a referee should use his experience and decide whether or not to stop the fight. I have little doubt that this comment could also be applied to Ignasio Mow who, obviously ignorant of the damage his boxer had sustained in the sixth round, told the referee, which I accept, that he should not spoil his boxer's chance. I also accept Rusiate Raiwalui's opinion that an experienced referee should have noticed that the punches the deceased received were damaging or should have at least called on Tevita Marau to examine the deceased. If he had, as Tevita Marau later said, at the end of the sixth round he would have advised the referee to stop the fight.

All this in my judgment shows clearly that Ponipate Joji failed in the duty he owed the deceased.

I found Ponipate Joji's own evidence unsatisfactory. When he was cross-examined he agreed that he had not told the Magistrate who conducted the Inquest into Filimone Takayawa's death that the deceased had received some heavy punches during the fight. He had told the Magistrate that the deceased had received light punches but in my opinion the probability is that he said this in an effort to excuse himself.

The last main witness called for the Defendants was Tevita Marau whom I found generally to be honest. Unfortunately he did not appreciate his duties towards the deceased properly. If he had, and had called on the referee to stop the fight at the end of the sixth round at least temporarily to enable him to examine the deceased I believe Filimone Takayawa might still be alive.

On this occasion both boxers were potential patients of Mr. Marau. Therefore regardless of any rule of the Boxing Council, as a Medical Assistant acting as a ringside doctor Mr. Marau owed a duty to the deceased at the end of the sixth round to signal to the referee that he wanted to examine the deceased. This is confirmed in Butterworths Medico-Legal Encyclopaedia, 1989 at page 71 where the authors say: "Appointed doctors are present at the ringside and, while they cannot stop a fight, they will advise on fitness to continue." Mr. Marau thought he was obliged to wait until the referee called him to examine the deceased but I hold as a matter of law that any ringside doctor or as here, Medical Assistant has the right and duty to an injured boxer to call on the referee to stop the fight if he considers it desirable at any time to examine a boxer who has taken heavy punishment as was the case here. This view was also expressed, and I accept it, by Dr. Seruvatu.

Mr. Marau also described his attempt to obtain an ambulance to take the deceased to the hospital and was apparently told there was none available. No evidence was given as to the number of the ambulances available in Suva at the time of this fight nor that the promoter of the fight had alerted the C.W.M. Hospital or the St. John Ambulance Association to the fact that an ambulance might be required, I must presume therefore that no such communication took place although of course an ambulance might still not have been available immediately after Filimone Takayawa was injured. In my view the promoter of any professional boxing contest should inform the relevant ambulance provider which I understand in Suva to be either the C.W.M. Hospital or the St. John Ambulance Association that an ambulance may be required from the time the tournament begins until its conclusion. This would enable the service to have an ambulance on standby. If an ambulance had been available in this case it seems to me the deceased would at least have stood a chance of surviving. In this case tragically he was denied that chance.

I come now to the submission of volenti non fit injuria made on behalf of the First-named Defendants. The maxim which literally means "to the willing or consenting one no wrong is done" can not be taken literally as the cases have shown. It is some times wrongly assumed that the maxim means that one who consents to injury can not be heard to complain about it later. This is an over-simplification for the question really is whether on particular facts a Plaintiff agreed to a breach of duty by the Defendant towards him, or to waive his right of action arising out of such breach.

For the maxim to apply the Plaintiff must have full knowledge of a particular risk through which damage arose and then freely and voluntarily consented to incur it. I can do no better than to quote from the judgment of Wills J. in Osborne v. London and North Western Railway Co. [1888] UKLawRpKQB 115; 21 Q.B.D. 220 at 224 cited by the Privy Council in Letang v. Ottawa Electric Railway Co. (1926) A.C. 725 at p.731:

"If the defendants desire to succeed on the ground that the maxim volenti non fit injuria is applicable, they must obtain a finding of fact that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it."

In the present case there is no evidence that the deceased was informed that there were no stretchers available, probably because none of the Defendants were aware of this nor is there any evidence that the deceased realised that Mr. Tevita Marau did not understand his duties in law to the deceased if he were injured while the fight was in progress. I therefore reject this submission because in my judgment the deceased obviously did not have full knowledge of the nature and extent of the risk he ran on this occasion.

As to Mr. Chand's submission that the deceased and his second both willingly and readily made themselves available to allow the deceased to continue boxing until he was knocked out I say that that willingness and consent could in the circumstances of this case only have been given if Tevita Marau had certified the deceased fit to continue after the sixth round. Neither the deceased nor Ignasio Mow had any medical or I suspect any qualifications even in First Aid so I fail to see how they were able to decide whether the deceased was fit to continue.

Their decision was obviously made without full knowledge of the serious nature of the deceased's medical condition.

In his opening Defence counsel remarked that in the seventh round the deceased unfortunately had "somewhat bad luck at the end". It is clear in my opinion that the deceased did not have bad luck but rather that those responsible for saving him from unnecessary injury, namely the First-named Defendants, failed in that responsibility to him.

For these reasons I find the First-named Defendants negligent and there will be judgment for the Plaintiff. As to the amount of that judgment as I have said there was no evidence of any dependency by the Plaintiff on the earnings of the deceased so that the only claim she has is under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27.

The Fiji Court of Appeal decided in Hari Pratap v. The Attorney-General of Fiji and Om Prakash F.C.A. 14 of 1992 that the standard award under this Act is now $2,500.00 for the deceased's loss of expectation of life. I therefore award this amount together with interest of 8 percent from the date the Writ was issued, 25th October 1990 to the date the trial began, 3rd October 1994, an amount of $800, giving a total award under the Act of $3,300.00.

Although the Plaintiff claimed exemplary damages in her Statement of Claim Mr. Fa made no submission on these and I therefore presume the Plaintiff abandoned her claim for such. In any event, even taking the more liberal view of the Australian and New Zealand Courts as to when such damages may be awarded as distinct from the narrower one of the English Courts beginning with Rookes v. Barnard [1964] UKHL 1; (1964) A.C. 1129, in this case I would not have awarded any such damages.

In addition the Plaintiff is entitled to reasonable funeral expenses. These were stated to be $300.00 for a coffin, $1,500.00 for food for relatives of the deceased who gathered at his home for the funeral and transport expenses of $400.00 used in the hire of taxis and buses for the funeral. I consider that the total of $2,200.00 is a little high and shall award $1,800.00 under this heading.

There will be a judgment for the Plaintiff therefore against the First-named Defendants in the sum of $5,100.00 together with costs to be taxed if not agreed. I also order the First-named Defendants to pay the Second-named Defendant's costs.

I said earlier that I would make certain recommendations as to what I consider requires to be done by the organisers of professional boxing in Fiji in the light of this case and by the Police. There is no rule in the rules of the Fiji Boxing Council requiring stretchers to be available at any boxing contest. The Defendant Naicker clearly recognised the need to have stretchers available at such a contest; I therefore recommend that the rules of boxing in so far as they may be silent on this should state that it is the duty of the promoter of any professional boxing contest to ensure that at least two stretchers are available in the stadium at the time the contest or tournament begins.

I also recommend that Rule 57(2) be amended so as to accord with the rules of boxing in Victoria stated in Pallante v. Stadiums Pty. Ltd. (No. 1) (1976) V.R. 331 at p.342, where the court stated the referee's duties from a medical point of view under the rules in force in Victoria to be:

(1) to prevent any serious or fatal accidents;

(2) to prevent a boxer receiving unnecessary punishment lest there be the risk of his brain being permanently damaged.

As to mouthguards I recommend that a similar rule to that governing the rules of the International Association of Amateur Boxing tendered by the Plaintiff as exhibit P.12 should be included in the rules governing all professional boxing contests in Fiji if it is not so at present. This would provide that if a boxer has his mouthguard knocked out the referee shall take the boxer to his corner, have the mouthguard washed and returned to its proper position. While this is being done the second must not be allowed to talk to his boxer. Time will not be counted while this is being done and will not resume until the mouthguard has been replaced and the referee calls on the boxers to re-commence.

I also recommend that the Police Officer-in-charge of Police at any such contest should in addition to his duty of checking the ring for safety be given the duty of ensuring that at least two stretchers are available. If they are not then I recommend that the Police be given the power to prevent a tournament beginning until they are satisfied two stretchers are available. This will require an amendment to Regulation 9 of the Boxing and Wrestling Contests Act. In my judgment also the Police Officer-in-charge should be satisfied that arrangements have been made with the appropriate authority that an ambulance will be on standby for the duration of the tournament and again if an officer is not satisfied he should have the power to prevent the tournament commencing until he is so satisfied. This would also require an amendment to Regulation 9.

Unfortunately no reasons were offered as to why no ambulance was available on the day of this contest but if the promoters of professional boxing cannot be given guarantees by the relevant hospital or St. John Ambulance Association that an ambulance will be available if required the promoters should also consider the desirability of having a van equipped to take two stretchers at the scene of any contest and available to take any injured contestant to the nearest hospital if necessary.

Finally I recommend that all referees of professional boxing should be obliged to take a course in basic First Aid such as those it is agreed by all counsel are provided at a minimal fee by the St. John Ambulance Association. This would at least ensure that a referee recognised at least the basic symptoms of brain injury. It is clear that Ponipate Joji for all his experience did not recognise those symptoms in the deceased at the end of the sixth round. Had he done so the deceased's life may well have been saved.

JOHN E. BYRNE
J U D G E

Legislation and authorities referred to in judgment:

Compensation to Relatives Act Cap. 29.
Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27.
Medical and Dental Practitioners Act Cap. 255.
Medical Assistants Act Cap. 255A.
Boxing and Wrestling Act Cap. 272.
Butterworths Medico-Legal Encyclopaedia (1989) at 71.
Letang v. Ottawa Electric Railway Co. (1926) A.C. 725 at 731.
Osborne v. London and North Western Railway Co. [1888] UKLawRpKQB 115; 21 Q.B.D. 220 at 224.
Pallante v. Stadiums Pty. Ltd. (No. 1) V.R. 331 at 343.
Hari Pratap v. The Attorney-General of Fiji and Another F.C.A. 14 of 1992.

The following additional cases were referred to in argument:

Agar v. Canning (1965) 14 W.W.R.
Ancell & Ancell v. McDermott & Others (1993) 6 ALR 473.
Australian Law Journal Vo. 63 p.669 article by G.M. Kelly "Prospective Liabilities of Sports Supervisors".
Bolam v. Friern Hospital (1957) 1 ALL E.R. 582.
Christopherson v. Bare [1848] EngR 242; (1848) 11 Q.B. 473.
Clough v. Bussan (1990) 1 ALL E.R. 431.
Condon v. Basi (1985) 2 ALL E.R. 456.
Davies v. Powell Duffryn Associated Collveries Ltd. (No. 2) (1942) A.C. 601.
Daya Ram v. Peni Cama & Others Civil Appeal No. 59 of 1982.
Dorset Yacht Co. Ltd. v. Home Office [1970] UKHL 2; (1970) A.C. 1004.
Hart v. Griffiths - Jone (1948) 2 ALL E.R. 729.
Hill v. Chief Constable of West Yorkshire (1989) 1 A.C. 53.
Hughes v. National Union of Mineworkers (1991) 4 ALL E.R. 278.
Knightly v. Johns [1981] EWCA Civ 6; (1982) 1 WLR 349.
Mallet v. McMonagle (1969) 2 ALL E.R. 178.
Morris v. Hartlepool Navigation Co. (1956) A.C. 552.
Paras Ram v. Ivamere Hotching & Another Civil Action No. 0006 of 1991.
Police Negligence Defined article by Carol Brennan (1992) NLJ p.1118.
Pomfret v. Lancashire & Yorkshire Railway Co. (1903) K.B. 718.
Rookes v. Barnard [1964] UKHL 1; (1964) A.C. 1129.
Roots v. Shelton [1967] HCA 39; (1976) 116 C.L.R. 383.
Smith v. Baker (1891) A.C. 325.
Stanton v. Ewart F. Youlden Ltd. (1960) 1 ALL E.R. 429.
Walker v. Walker (1986) 4 M.V.R. 69.
Wilkinson v. Joyceman (1985) 1 Qd. R. 567.

HBC0374J.92S