Nand v Vatuwaqa Transport Co Ltd [1997] FJHC 207; Hbc0159j.95s (2 May 1997)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 0159 OF 1995

Between:

SHARDA NAND
s/o Ram Sewak
Plaintiff

- and -

1. VATUWAQA TRANSPORT CO. LTD.
2. BINESARI PRASAD
Defendants

Mr. T. Fa for the Plaintiff
Mr. D. Sharma for the Defendants

JUDGMENT

In this action the plaintiff claims damages for personal injuries he sustained when the truck he was driving along Fletcher Road on the 1st of April 1992 collided with a bus belonging to the first defendant company and driven by the second defendant.

The particulars of negligence alleged against the second defendant in the Statement of Claim are pleaded as follows:

"3. The plaintiff says that the collision that occurred between the vehicle he was driving Reg. No: CC 788 and bus registration No: AO 030 was the result of the second defendant's negligence.

Particulars of Negligence

(a) Attempting to drive out of a bus-bay and attempting to enter a lane on the road when it was not clear or safe to do so.

(b) Failing to keep a proper look out at all relevant times for the movement of vehicles on the main road and in particular of the presence of the plaintiff's vehicle.

(c) Failing to give way to vehicles that were using the lane he was entering as a result of which the plaintiff in his attempt to avoid a head-on collision with another, collided into the back of bus driven by the second defendant.

(d) Being careless and inattentive at the relevant time and date."

The defendants for their part filed a joint defence denying any negligence on their part and countered:

"... that the Plaintiff himself was negligent or contributorily negligent in the following manner:

(a) failing to follow at a safe distance

(b) failing to stop

(c) over-speeding

(d) failing to give way to a bus which have already signalled and pulled out onto the main lane ..."

At the trial of the action which occupied three (3) days of court sittings the plaintiff gave evidence in support of his claim and called three (3) witnesses, a passenger in the truck at the relevant time and two (2) doctors. A file containing twelve (12) documents was also produced by consent. The second defendant was the sole witness called by the defence.

In his evidence-in-chief the plaintiff who was employed as a driver at the time testified that on the day in question at about 5.30 p.m. he was driving a company truck along Fletcher Road. In his own words:

"We were going along Fletcher Road at about 1.30 p.m. heading for our bulkstore at Vatuwaqa Industrial. It was raining. I saw a bus at the bus-stop. As we approached the bus it came out of the bus-bay. I was approaching at about 30 kmph. When bus came out of bus-bay at the same time I noticed an on-coming vehicle. I braked my van moved towards the left behind the bus and we collided into the bus. Fletcher Road has 2 lanes but no mid-line provision for 1 car only on each lanes."

and later in answer to counsel's questions, he said:

"Bus did not indicate in any way its intention to pull out of the bus-bay. No signal was given. As result of accident I was injured and taken to hospital. I sustained a broken leg, my hip was dislocated, tooth was broken, cut on forehead. I was admitted in hospital for 6 weeks."

In cross-examination the plaintiff remained adamant that the bus had not indicated its intention to pull out of the bus-bay. He accepted that 'with hindsight he should have been driving slower' and that the 'point of impact' was correctly depicted in the police sketch plan of the scene as being 'inside the bus-bay'.

The plaintiff's passenger PENIASI WAQA described the accident in his evidence as follows:

"I know Fletcher Road at Vatuwaqa. There was an accident involving our vehicle. The other vehicle was a bus.

We were coming along Fletcher Road, it was raining. The bus was parked in the bus-stop. As we neared the bus without indicating the bus turned into the road. There was an on-coming vehicle at that time. Our driver couldn't do anything else but turn our vehicle and hit the bus."

In cross-examination the witness reiterated that "... it was because bus came out that we swerved and hit the back of the bus." He was unable to say how far their truck was from the bus when it began to pull out of the bus-bay but "(the truck) ... struck the rear part of the bus a bit to the right corner."

The second defendant bus driver described how the accident occurred in the following extracts of his evidence-in-chief. He said:

"Recall 1.4.92 I was driving AO 030. Driving along Fletcher Road at around 5.30-5.45 p.m. Bus involved in a collision with another vehicle driven by the plaintiff.

It was raining on that day. It was not so busy on the road at that time. Road surface slippery. Recall the collision between plaintiff's truck and my bus.

I was discharging passengers in a bus-bay along Fletcher Road. My bus was almost empty.

After discharging passengers I started moving. I looked at my rear vision through side window and gave my indicator. I was fully in the bus-bay while discharging passengers. I saw in the side mirror a truck coming. It was a blue 3 ton truck. The truck was about 40-50 metres away. The truck was approaching along the same route I was heading.

I had indicated to pull out. I was moving slowly out of the bay and I saw the plaintiff's truck approaching. I had already come out of the bay and the rear end of the bus was still in the bay area.

I saw plaintiff's truck coming beside me wanting to overtake my bus. Then a car was coming from the opposite direction and the truck swerved to the bus-bay side and collided with the rear of my bus. I heard a 'bang' sound."

On being shown, the police sketch plan of the scene (Exhibit 'B') the second defendant agreed that the designated 'point of impact' was where the accident occurred and was inside the bus-bay although his bus 'was a bit out on the road.'

In cross-examination the bus-driver stated that the plaintiff's truck was about 65 metres away when he first saw it in his rear vision mirror. He also described in more detail the plaintiff's attempted overtaking of his bus. In particular, how the truck had come a quarter way beside the back of the bus when it was already two-thirds out of the bus-bay and despite seeing that, he didn't stop but continued moving out of the bus-bay.

Later in cross-examination the following significant exchange occurred between the plaintiff's counsel and the second defendant:

"Driver this past 15 years. I had put on my right trafficator. I saw a vehicle 50 metres behind me. It is raining and late in the evening.

Q: As an experienced driver what should you do in that situation?

A: With that distance I'd say its safe to move out of bus-bay.

Q: Say vehicle moving at a speed of 50 kmph would you still consider it safe to pull out?

A: Yes with a trafficator signal because the driver would see my signal.

Q: What if vehicle only 30 yds away?

A: Still safe because of indicator.

Finally in answer to the Court's questions the second defendant said:

"In my view once a bus begins pulling out of a bus-bay it has right of way so that on-coming vehicles must slow down to allow me time to complete pulling out. That's why I didn't stop when I saw truck one-quarter of the way up the side of my bus."

Earlier in his evidence the second defendant stated that he considered it 'safe' to pull out of the bus-bay when the road is clear i.e. "when you judge that the distance of any approaching vehicle is sufficient for you to move out." He also accepted that the assessment of whether or not the distance was 'safe' was an assessment he alone was required to make.

That a road user owes to other road users a duty to exercise due care is beyond argument and is succinctly expressed in a passage in Charlesworth on Negligence (6th edn.) where the learned editor writes at para. 865:

"... the duty of a person who drives ... a vehicle on the highway is to use reasonable care to avoid causing damage to persons vehicles or property of any kind on or adjoining the highway. Reasonable care in this connection means the care which an ordinary skilful driver ... would have exercised under all the circumstances and connotes an avoidance of excessive speed, keeping a good look-out, observing traffic rules and signals and so on."

More generally Lord Macmillan expressed it thus in Bourhill v. Young (1943) A.C. 93 at p.104:

"The duty to take care is a duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed.

There is no absolute standard of what is reasonable and probable. It must depend on circumstances and must always be a question of degree."

In my view a driver who is pulling out of a bus-bay into a road is executing a potentially hazardous manoeuvre often in the face of approaching traffic with the right of way and whose speed can only be guessed at through a rear vision mirror, and therefore, such a driver has a clear duty to ensure that he is in a position not merely to begin (as the second defendant appears to suggest in this evidence), but also to safely complete the manoeuvre without endangering other road users that are or might reasonably be expected to be present on the road at the time.

The question that then arises in this case is: Did the second defendant/bus driver's manner of driving in all the circumstances of the case, when viewed objectively, amount to a failure on his part to exercise due and reasonable care? Accepting as I do the evidence of the plaintiff and his passenger and mindful of the second defendant's own 'view', I am driven to only one possible conclusion and that is that the accident was solely caused by the second defendant's negligent driving.

In this case I accept and find as a fact that the second defendant pulled out of the bus-bay in the face of the plaintiff's approaching truck when it was unsafe to do so. I further find given the inclement weather and road conditions at the time, that the second defendant had a limited opportunity to assess and indeed misjudged the speed of the plaintiff's approaching truck, and finally, I accept and find as a fact that the plaintiff's driving at the relevant time in no way contributed to the collision that occurred between his truck and the bus.

I hold that the plaintiff has established to my satisfaction on a balance of probabilities that it was the second defendant's negligent driving that was the cause of the accident and further, having so held the second defendant liable, as the bus involved in the accident was owned by the second defendant company (See: Exhibit 'A') and was being driven at the time by the second defendant in the course of his employment as a bus driver of the first defendant bus company on a route over which the bus company is licensed to operate, I have no hesitation in holding that the first defendant bus company is vicariously liable for the negligent driving of the second defendant its employee.

Having thus decided the question of liability I turn next to consider the issue of damages. In this regard, although not admitted, it is not seriously disputed and I find that as a result of the accident caused solely by the second defendant's negligent driving, the plaintiff sustained multiple fractures and lacerations to his right hip and leg and injuries to various other parts of his body which necessitated his immediate admission to the C.W.M. Hospital where he remained for some six (6) weeks undergoing surgical treatment and immobilisation until he was discharged on the 15th of May 1992. Subsequently he attended the C.W.M. fracture clinic for reviews on eleven (11) recorded occasions (See: Exhibit 'L') between the 17th of June 1992 and the 28th of April 1993.

The plaintiff's total permanent incapacity has been assessed at between 27% and 28.5% (See: Exhibits 'G', 'H' and 'I') and in the latest medical report dated 8th February 1996 (See: Exhibit 'J') prepared by the Orthopaedic Surgeon at the C.W.M., the following prognosis is recorded:

"He is now very disabled by hip pain and this will continue to get worse as time goes on. I recommend that he travel overseas to have a total hip replacement. This will alleviate the pain, however the hip will never be normal again and he will have to greatly restrict the amount of physical activity and heavy work he does."

The Orthopaedic Surgeon Dr. FRANK PISCIONERI further explained in court that: "(the plaintiff) has now developed degenerative osteoarthritis of his hip joint as a result of hip injury." In cross-examination he said: "(the plaintiff's) main disability is 'pain' as a result of osteoarthritis. Furthermore the plaintiff has what the doctor described as an 'antalgic limp' where the patient favours his painful limb and keeps minimal pressure on it despite there being no length reduction of the limb. He also testified (from hospital records) that "the plaintiff attended C.W.M. specialistic clinic on 22 occasions for his injury." Dr. Piscioneri like Dr. WELBY KORWA (P.W.2) accepted that assessment of 'pain' is 'a difficult subjective area' on which even doctors could differ in their professional opinions.

On this aspect the plaintiff testified:

"My right leg is shorter as a result of this accident. I experience considerable pain, more so in cold season. Pain in my right hip, knee and ankle. I cannot walk long distances without resting. I cannot carry any weight or play soccer which I love and can't run now. All were the result of this accident.

I ask for special damages for taxi fares to and from hospital; loss of wages as a result of accident."

As for his future prospects of obtaining employment the plaintiff said:

"In June 1993 I returned to work while still limping but my employer told me to go home and rest. Since accident not been able to do any work. Besides being a driver I used to work as a machinist in a sawmill ripping timber. I can't do that now nor can I drive."

He has not been able to find alternative sedentary employment such as office work 'because (his) level of education is up to Class 2'.

SPECIAL DAMAGES

Under this head counsel for the plaintiff submits that the plaintiff is entitled to claim for the following three (3) items:

(1) Transportation expenses;

(2) Purchase of crutches; and

(3) Loss of wages.

Despite the absence of any documentary evidence of expenditure to support items (1) & (2), I am satisfied that they are claimable as expenses actually and reasonably incurred and directly attributable to the second defendant's negligence and have been sufficiently proved. I therefore allow for item (1): twenty two (22) return trips at $4 per trip making a total of $(22 x 4) = $88.00; and for item (2) I allow the cost of a pair of crutches at $30.

As for item (3) counsel submits that the plaintiff is entitled to claim a total of $13,237.00 calculated on the basis of 217 weeks i.e. from the date of the accident to the date of hearing, at a weekly income of $61.00 nett. From this is deducted the sum of "... $4,773.00 paid under the Workmen's Compensation Act and a further sum of $351.54" which represents a reduced weekly income of $39.06 paid to the plaintiff by his employer over a period of nine (9) weeks whilst he was recuperating in hospital and at home.

Having considered this matter in the light of defence counsel's submissions I am satisfied that plaintiff counsel's submissions are incorrect in several respects. Firstly, in the total number of weeks claimed for lost wages; secondly, in making no deduction for personal expenses that would necessarily have been incurred by the plaintiff in attending work; thirdly, in deducting the Workman's Compensation awarded to the plaintiff from 'special damages' as opposed to general damages with which in my view it has a greater affinity; and fourthly, the total number of the reduced weekly payments deducted (i.e. 9) is significantly less than otherwise stated by the plaintiff in his own sworn evidence.

In my considered view the plaintiff's claim for in excess of four (4) years lost wages is quite unjustified and in any event is misconceived. Firstly, he was only hospitalised for a total period of six (6) weeks; secondly, he continued to receive from his employer a weekly wage (albeit reduced) for over a year from the date of this accident; and thirdly, he was finally laid-off work by his employer in June 93 and became effectively unemployed thereafter.

Furthermore notwithstanding the plaintiff's criminal prosecution and his claim for Workman's Compensation, I am not persuaded that the plaintiff was justified in instituting his claim as late as he did in March 1995 a fortnight short of the statutory limitation period, or that he has made any serious attempts to obtain alternative employment or sought through other means to mitigate his losses in this regard.

The Court of Appeal (U.K.) in reducing an award of 'special damages' for 'loss of earnings' between the accident and the trial in James v. Woodall Duckham Construction (1969) 1 W.L.R. 903

"held: ... that it was the duty of a plaintiff whose pain or incapacity for work would continue ..., to prosecute his claim with reasonable diligence and if such a plaintiff unnecessarily prolonged the period of his incapacity for work he could not recover loss of earnings for the period in respect of which he delayed his return to work."

Similar observations may be made in this case where the plaintiff delayed the issuance of his Writ for two (2) years after being laid-off and when the permanency of his incapacity was already well-known to him (See: Exhibit 'G' dated 15.2.93).

Needless to say, on principle an employee who has been laid-off by his employer is prima facie no longer entitled to wages and logically therefore such an employee has no claim for 'loss of wages'. The accident in such circumstances is only indirectly and remotely connected to the employee's 'loss of wages' which is the direct and immediate result of his employer's action in laying him off. Why then should the negligent driver be held liable in a claim for special (not general) damages for 'loss of wages' directly arising out of another's actions and in this case, marked by inexcusable delay? Of course 'loss of future earnings' is quite a different matter which will be dealt with later in this judgment under the appropriate head of general damages.

In light of the fore-going I award the plaintiff 55 weeks 'loss of wages' calculated on a nett weekly earning of $61.00 giving a total of $(61 x 55) = $3355.00. Deducting therefrom the amount actually paid by the plaintiff's employer $(39.06 x 55) = $2148.00 the amount awarded under this head of 'special damages' is $(3355-2148) = $1,207.00.

In summary the total awarded for 'special damages' are as follows:

(1) for transportation costs incurred: $88.00

(2) for the purchase of crutches: $30.00

(3) for 'loss of wages': $1,207.00

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Total: $1,325.00

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I also award the plaintiff 'interest on special damages' calculated on a rate of 3% p.a. from the date of his accident until the date of trial, which rounds-off to four (4) years and amounts to $159.00.

GENERAL DAMAGES

Under this head the plaintiff claims:

"(1) Loss of Future Earnings;

(2) Pain and Suffering and Loss of Amenities;

(3) Overseas Medical Treatment."

(1) Loss of Future Earnings

In this regard counsel for the plaintiff adopts the 'favoured method of assessing the sum' by the application of a 'multiplier' of '15' and a 'multiplicand' of '$17.39' per week (i.e. 28.5% of $61.00 his pre-accident weekly earnings).

Defence counsel on the other hand whilst agreeing with the proposed 'multiplicand' submits that 'a multiplier of 6 is reasonable in the circumstances'.

I prefer however to follow what the learned editor of Charlesworth on Negligence (6th edn.) has to say about the assessment of damages for future loss of earnings at para. 1440:

"... the normal method of assessment used by the courts is first to calculate as accurately as possible the nett annual loss suffered, which is usually based on an average of the plaintiff's pre-accident 'take-home' pay, as the multiplicand. Next a figure for a multiplier has to be chosen which will be appropriate in all the circumstances having regard to such matters as the age, the pre-accident state of health, the past work record and the important factor that the plaintiff will be receiving a lump sum payment, which it is expected will be invested."

As for the 'multiplicand' the clearest, most reliable evidence in the case concerning the plaintiffs 'pre-accident take home pay', confirms the plaintiff's pleading that: "... whilst he was still working for Bajpai as a driver he was earning an income of $61.00 per week ..." Of this sum he would have spent about $11.00 on his own personal expenses leaving a sum of $50.00 per week for the maintenance and upkeep of his family which latter sum I adopt as an appropriate starting figure.

The 'nett annual loss' suffered by the plaintiff on that basis would be $(50 x 52) = $2600.00 which figure I would further reduce having regard to his assessed 'permanent incapacity' thus giving a rounded figure of $1,900 as the appropriate 'multiplicand'.

The choosing of a 'multiplier' is more difficult however having regard to the numerous imponderables that may or may not eventuate in the plaintiff's future life and which the court must necessarily consider in its choice. Doing the best I can, I adopt a figure of thirteen (13) as 'appropriate in all the circumstances of the case'.

The lump sum award for 'loss of future earnings' is accordingly $(1,900.00 x 13) = $24,700.00. This figure must be reduced however by the amount already paid to the plaintiff under the Workmens' Compensation Act (Cap. 94) i.e. $4,773.00 so as to avoid any possibility of a double compensation. The final figure therefore for 'loss of future earnings' is:

$(24,700.00 - 4,773.00) = $19,927.00.

(2) Pain and Suffering and Loss of Amenities

In this regard the learned authors of KEMP & KEMP on the Quantum of Damages (Vol. 1 p.2007, 2-010) states:

"... the court must take into account, in making its assessment in the case of a particular plaintiff, the pain which he actually suffered and will suffer and the suffering which he has undergone and will undergo."

and later in dealing with 'Loss of Amenities' the learned authors state (Vol. 1 p.2009, 1-008):

"There is a head of damage which is sometimes called the loss of amenities; the man made blind by the accident will no longer be able to see the familiar things he has seen all his life; the man who has had both legs removed will never again go upon his walking excursions - things of that kind - loss of amenities."

I am mindful however that any assessment of pain is inevitably and largely a subjective matter. As Dr. WELBY KORWA said in his evidence:

"Pain is a subjective analysis and doctors too differ on their view in awarding for pain and limb."

and later in cross-examination he said:

"We may be at the mercy of our patients as to what they tell us about the pain they are experiencing."

In somewhat similar vein Salmon L.J. said in James v. Woodall Duckham Construction (op. cit.) at p.905:

"It is well known that, although there may be no physical cause for a pain, a man may in reality feel pain. I am never quite sure what the correct medical term is, but he suffers, for some psychosomatic or neurotic reason, from pain, although as far as his physical condition is concerned, he ought not to be suffering. Nevertheless he does suffer and it is just as real a pain as is produced e.g. by a broken leg."

Bearing the above in mind I turn then to consider the evidence in this case which is conveniently summarised in plaintiff's counsel's written submission as follows:

"The plaintiff spent six weeks in C.W.M. Hospital as a patient during which time his right hips and right legs were plastered. His right leg is now shorter. He experiences pain all over his body whenever there is a change of weather; there is still considerable pain coming from his right hip, right knees and ankle; He cannot carry any weight. Dr. Frank Piscioneri in his report dated 8.2.96 says as follows on the matter:

'He is now very disabled by hip pain and this will continue to get worse as time goes on.'"

Defence counsel however, whilst accepting that damages are claimable under this head, emphasises the subjective nature of any award and warns the Court to guard against '(being) fooled and conned by claimants who have a tendency to exaggerate' and counsel lists various items of the plaintiff's claim and evidence as concrete examples of exaggeration in this case.

I am satisfied however that the plaintiff is entitled to an award under the head of 'Pain and Suffering' only. The collision between his truck and the bus was on all accounts a violent impact in which both vehicles became entangled with the plaintiff trapped inside the cab of the truck.

In the words of PENIASI WAQA the passenger in the plaintiff's truck:

"Plaintiff couldn't move out of his seat after the collision because both his legs had been trapped by the front of our vehicle which had been pushed into the cab. We had to pull the crushed front of our truck out using another vehicle and after that we got plaintiff out."

On admission at the C.W.M. Hospital the plaintiff had the following injuries:

"(1) Fracture of the right hip (Acetablum) and dislocation of the joint (fracture dislocation).

(2) Comminuted fracture of the right tibia at its upper, middle and lower 1/3 rds with lacerations.

(3) Fracture of the neck of the right fibula with associated shock."

There is not the slightest doubt in my mind having regard to the nature, extent and location of the numerous fractures sustained by the plaintiff, that he would have suffered excruciating pain at the time. Furthermore as early as February 1993 (See: Exhibit 'G') and as late as February 1996 (See: Exhibit 'I') the reviewing doctors noted that the plaintiff walked with a limp and complained of 'recurrent pain'. In Dr. PISCIONERI's view "(the) Plaintiff's main disability is 'pain' as a result of osteoarthritis ..."

Counsel has referred me to two (2) local High Court decisions in which sums of $20,000 and $10,000 were awarded under this head of claim but if I may say so they have been of little guidance or assistance to me.

I have also considered the more recent judgments of the Fiji Court of Appeal in A.G. v. Waisale Naicegulevu Civil Appeal 22 of 1989; Usha Kiran v. A.G. Civil Appeal No. 25 of 1989 and A.G. v. Paul Praveen Sharma Civil Appeal No. 41 of 1993 in which the Court upheld awards of $25,000; $30,000 and $50,000 respectively, for pain and suffering and loss of amenities.

In all the circumstances the most fair, reasonable and proportionate award that I am able to grant to the plaintiff is a sum of $15,000 for pain and suffering together with interest at the rate of 4% p.a. from the issuance of the Writ until the date of judgment (i.e. approx. 2 years) giving a total sum of: $16,200 under this head.

(3) Overseas Medical Treatment

In so far as this claim is concerned there is no mention of it in the Statement of Claim nor from the evidence does it appear to have seriously occurred either to the plaintiff or his counsel as even a remote possibility until such treatment was recommended in Dr. PISCIONERI's report (See: Exhibit 'J'). No effort was made to amend the Statement of Claim to reflect this claim.

Indeed the first inkling of such a claim was first raised at the trial of the action during the evidence of Dr. PISCIONERI and the plaintiff himself. Such evidence as was proffered was necessarily sketchy and in any event Dr. PISCIONERI testified: "(the plaintiff) can survive without hip replacement surgery" and even with the operation '(the plaintiff's) hip will never be normal again'.

There is also a good deal of force in defendant counsel's submission:

"... that the Plaintiff has made no effort to get a hip replacement when he was given a lump sum in 1993 of $4,773.00 and ... has attributed (sic) to his circumstances."

In the circumstances the plaintiff's claim under this head is disallowed.

In summary the court's award under the various heads is as follows:

(1) Special Damages

(a) Transportation Costs: $88.00

(b) Purchase of Crutches: $30.00

(c) Loss of Wages: $1,207.00

(d) Interest on (a); (b) & (c): $159.00

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Total: $1,484.00

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(2) General Damages

(a) Loss of Future Earnings: $19,927.00

(b) Pain and Suffering: $15,000.00

(c) Interest on (b): $1,200.00

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Total: $36,127.00

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Judgment is accordingly entered in favour of the plaintiff against the defendants in the sum of $37,611.00 with costs to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Suva,
2nd May, 1997.

HBC0159J.95S