IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC0024 OF 1997S

Between:

SHAKUNTLA WATI
Plaintiff

And:

VINOD PATEL & COMPANY LIMITED
1st Defendant

And:

BISWA JEET LAL
2nd Defendant

Ms P. Narayan for Plaintiff
Mr W. Clarke for Defendants

Hearing: 22nd August 2001
Judgment: 20th September 2001

JUDGMENT

On the 21st of January 1996, the Plaintiff, a former garment factory worker, issued a writ of summons for negligence, against the two Defendants. The writ claims that on the 25th of May 1994, the Second Defendant, an employee of the First Defendant, drove a motor vehicle, Registration Number CB362 in a negligent manner on Fletcher Road, Vatuwaqa, and hit the Plaintiff thereby causing her injuries. The particulars of injuries are a skull fracture, cerebral contusion, headaches, knee injury, injury to both legs and brain damage. The Plaintiff claims special damages to the total sum of $3,420.00, general damages and costs.

The Defendants’ Statement of Defence, filed on 29th September 1999 denies negligence and states that the accident was caused by the Plaintiff’s negligence wholly, or in part. The Defendants deny damages claimed, both special and general, and do not admit to vicarious liability.

The trial in this case was hampered by the political crisis of May 2000, and by the unavailability of counsel, witnesses and the court. It was agreed that the issues to be tried were:

1.	Whether the Second Defendant’s negligence caused the injuries to the Plaintiff;

2.	What injuries were suffered by the Plaintiff;

3.	What special damages, general damages and interest, if any, should be paid by the Defendants to the Plaintiff;

4.	Whether the Plaintiff caused and/or contributed to the accident and/or her injuries;

5.	If so, by what amount.

By consent, the evidence of Dr Jude Ohaeri, Consultant Psychiatrist at the St Giles Hospital, was called first. He is a Fellow of Physiatry of the Nigeria and West African College of Physicians. He also holds a doctorate in medicine from Nigeria. He has practiced as a psychiatrist since 1986. His evidence was that he examined the Plaintiff on 12th June 1999 and found that she was unable to walk properly. He found her to have a psycho-motor problem, and to be suffering from severe depression. She had psychotic symptoms including the hearing of voices. He treated her for depression and found that her symptoms improved dramatically over a period of three weeks. He assessed her permanent disability after treatment, to be 30%.

Under cross-examination Dr Ohaeri agreed that after treatment, she had made an excellent recovery anatomically, but that there was a psychological abnormality. He agreed that she was no longer under treatment, and that he had not seen the Plaintiff recently.

The trial then proceeded on 22nd January 2001, with the evidence of the Plaintiff. Her evidence was that she could not recall her birthday, nor when she got married. However she did recall that three days after her “registry marriage” she was crossing a road near her garment factory when she was bumped by a car from behind as she stood on the footpath. She did not recall anything else about the accident, or about her hospitalization thereafter. She did recall that she was employed by Mark One Apparel, and that her workmates were with her when she crossed the road. She also recalled that the road was clear when she crossed.

She also gave evidence of her loss of interest in sexual intercourse, of her husband’s care of her since the accident, of the fact that she can no longer work and instead does household chores, of the fact that she is not sure if she can ever bear children and of the pain she still suffers from the injuries sustained in the accident. She said she earned $1.20 per hour prior to the accident.

Under cross-examination, she agreed that much of her evidence as to the time and date of the accident was told to her by her husband. She maintained however that when she was bumped, she was standing on the footpath. She said she was standing 30cm away from the side of the road. She couldn’t recall how many cars were on the road when she crossed, but she marked as “A” on the sketch plan, as the place she was standing when she was bumped. She later said she could not recall where she crossed the road and where she was hit, when asked why she was so sure that she had crossed the road when she was hit, she said:

“I had crossed the road. My workmates told my husband that.”

Under further cross-examination, the Plaintiff said she could not recall how much she earned prior to the accident, nor could she recall being examined by Dr Ohaeri. On being asked whether her evidence was untruthful, she said (after a long pause) that she did not know.

Under re-examination she said that she recalled that she had crossed the road, but not exactly where she crossed it.

The next witness for the Plaintiff was Mr Deo Narayan, the Plaintiff’s husband. He gave evidence that his marriage with the Plaintiff was his second marriage, and that on the Wednesday after their wedding, he was told that his wife was in hospital. When he saw her, she was unconscious and admitted as an in-patient for two weeks. After several months with her relatives, she then came home and he took care of her for two years after the accident. He gave evidence of her mood swings and moments of violence, and of her lack of interest in sexual intercourse.

Under cross-examination, he agreed that he did not know the Plaintiff prior to their marriage and did not know if she suffered from mood swings or violent outbursts before the accident. He said he married her so she could look after his children.

The next witness was Mr Subrail Reddy, a private contractor. He said on a Friday afternoon in 1996, he was standing on the side of Fletcher Road when he saw a van bump the Plaintiff on the footpath on the left side of the road facing Nasese. He said the road had only two lanes and that the van drove to the left side of the left lane and hit the Plaintiff. He said the van stopped and the driver and a Fijian man loaded the Plaintiff onto the van and drove away with her. He said the side of the road was marked with a white line. He said he never gave a statement to the police, but that he met the Plaintiff’s husband at the temple and told him what he saw. He said there is now a proper kerb on the road but that at the time of the accident, there was only a rough walkway on the side of the road.

Under cross-examination, Mr Reddy said that the road was not busy, and that he did not notice if there were any vehicles turning right into Karsanji Street which he said was 3 to 4 chains away from the scene of the accident. He said that he saw the Plaintiff with another lady, come out of Karsanji Street, walk along Fletcher Road, and cross together. He said there was no traffic coming from Nasese towards Nabua but that there were cars coming from Nabua further away.

He said that although the van was between him and the Plaintiff when it hit her, he could easily see over the van because he is 6 feet tall. He said he saw the van overtake other vehicles from the left side of the lane near the bus shelter. He then said that in crossing the road, the Plaintiff had already passed the vehicle being overtaken.

Under re-examination Mr Reddy said that there was a mini-market ahead of the bus bay and that the Plaintiff was hit directly in front of the mini-market. He said that the van started to overtake other vehicle not at the Karsanji Road junction, but two chains ahead at the bus shelter. He said he was not sure what type of vehicle was being overtaken.

In response to the court’s questions, Mr Reddy said there was not much traffic on the other side of the road, and that the Plaintiff had time to cross the road before the overtaken vehicle had passed.

The next witness was Mr Atish Prasad, who said that he was standing at the bus stop on Fletcher Road when he saw the accident. He said he was sitting at the bus shelter with a Fijian man when he saw a white Vinod Patel van going towards Vatuwaqa, overtaking from the left side of a vehicle next to the bus shelter. He heard the sound of someone being hit and the Fijian man sitting in the bus shelter helped to load the Plaintiff onto the van. He said he didn’t see the accident but only heard the noise of the impact. He said he thought the van was going to turn in Vidhal Street, to the left of the bus stop. He said that there is no marked footpath but that people often walked by the side of the road where the tarseal ended.

Under cross-examination, he agreed that he lived on the same street as the Plaintiff but said that his house was far away from hers. He said he had not given any statement to the police and had been asked by the Plaintiff to give evidence for her. He described the Fijian man in the bus stop as being about 30 years old and thin. He denied that in fact the Fijian man was 50 years old, and fat. He said that the Vinod Patel van overtook a moving vehicle opposite the bus shelter, and that he bumped the lady as he was overtaking. He said he was not aware if the Plaintiff was on the footpath but that he did see 3 or 4 taxis turning into Karsanji Street. He later contradicted himself and said that there was no car turning into Karsanji Street. He also said later in cross-examination that he saw the Plaintiff on the footpath, then later again agreed he had not seen the Plaintiff. He further said that he had been told that he would receive money from the Government, for giving evidence.

Dr Pravin Kumar gave evidence next and tendered the medical records of the CWM Hospital of Shakuntala Wati. This evidence had not been disclosed to the Defendants and I then adjourned the trial further. There were several adjournments on the basis of the unavailability of witnesses, and the trial eventually proceeded on 22nd August 2001. 

On that day, the Plaintiff called her final witness Dr Isaac Afolabi who tendered Shakuntala Wati’s medical report. His evidence was clear and detailed and referred to the head injury suffered by the Plaintiff. He said that there are depressed fracture of the skull, and a possible injury to the frontal lobe of the brain. This is the part of the brain which affects personality. He said that the Plaintiff suffered from a severe cerebral concussion on the left side of the brain with a depressed right frontal bone. She was kept under observation and given painkillers. Her mobility improved and she was discharged on 7th June 1994. In her subsequent visits to the hospital she was found to be alert and coherent although there was some difficulty in her upper and lower limb movements. She continued to improve and on 18th August she was eating well, had no headaches or vomitting. She had poor vision however and was referred to the eye department. On 29th September she complained of joint pains and was given painkillers and analgesics. On 19th January 1995 she complained of general body pains but there appeared to be no obvious cause for the pains.

Under cross-examination, Dr Afolabi said that the crack in the skull had a corresponding effect on the brain, but that no scan was carried out to confirm this diagnosis. He agreed that the doctors examining the Plaintiff could find no cause for the complaints of body and joint pains. Counsel for the Plaintiff then closed her case.

The Defendants called Dr Eddie McCaig to give evidence. He is a Fellow of the Royal Australasian College of Surgeons and has been an orthopaedic surgeon for eleven years. He is the Head of School of Medicine at the Fiji School of Medicine and is the only internationally recognised orthopaedic surgeon in Fiji.

He gave evidence that he saw the Plaintiff on 12th January 1999. He found that she had no measurable anatomical abnormality and could detect no objective problems with her. In his written report he said that the Plaintiff complained of body pains, and tiredness. She took no regular medicine. Her husband told the doctor that she was irritable and often confused.

Dr McCaig found that the Plaintiff had a normal gait, with no measurable neurological deficit. She had made an excellent recovery from the accident although he could not assess the mental stress she had experienced. He said she had no permanent functional disability and required no surgical management.

Under cross-examination Dr McCaig said that the Plaintiff looked depressed, and that he was aware that she had been examined by a psychiatrist.

The Second Defendant then gave evidence that in 1994 he was employed by Vinod Patel Company Limited as a construction supervisor. He said that on 25th May 1994 at 5pm he was driving along Fletcher Road. He said that when he passed the Karsanji Road junction on the right, there were two vehicles ahead of him, indicating that they were turning right into Karsanji Street. One was a Hiace van, the other was a 3 ton truck. He then drove past them on the left. He said the road ahead was quite clear and both vehicles had stopped before turning. He said that when he overtook the vehicles, a Fijian man ran across the road from right to left. The Defendant tooted his horn and swerved to his right and braked. The Plaintiff then ran across the road and got bumped by his car. He said he was travelling at 40 kmph. He marked the point of impact on the map, as being on the road in front of the bus shelter. He then took her to hospital with the help of a Fijian man standing at the bus shelter. He said he did not see anyone else in the bus shelter. He said he reported the accident to the Samabula Police Station, and that he was interviewed by the Raiwaqa Police the next day. He was not charged with any offence.

He said he was not overtaking a moving vehicle and that he was not driving at excessive speed. He said that there was a bus parked ahead of the bus shelter and that he could not have overtaken on the left without hitting the bus. He said that if he had hit the Plaintiff on the footpath, he would have hit the bus shelter.

Under cross-examination the Defendant said he had not swerved to avoid the Fijian man, but had only tooted his horn. He also agreed that the bus he saw was travelling slowly along the road and was not parked. He said that the Plaintiff ran across the road and that he had slowed down to 30-35 kmph after he saw the Fijian man. 2 or 3 seconds later he hit the Plaintiff. He denied that he was overtaking two vehicles when he hit the Plaintiff and that he hit the Plaintiff on a grass verge.

The next witness for the Defendants was Mr Kayaca Qio, who said that he was at Fletcher Road at the time of the accident. He said that he crossed from the right side to the left side of the road. He knew the Plaintiff was following him across the road. He said that the road was busy and that the Vatuwaqa bus was coming towards the bus shelter, followed by the Defendant’s white van. He said that the van was being driven slowly but that it hit the Plaintiff in the middle of the left lane. He marked a point (KQ3) on the plan in front of the bus shelter on the road.

Mr Qio said that when the Plaintiff was hit, he was in the bus shelter. No one else was standing in the bus shelter. He ran to help the Plaintiff and helped to load her into the Defendant’s van. He said that the accident occurred on the road and if the van had come onto the footpath, he, the witness would have got hit.

Under cross-examination he said that he saw the bus and the van coming after he had already crossed, and that the van was overtaking the bus. He said he also saw 2 vehicles waiting to turn into Karsanji Street. He said he saw the van hit the Plaintiff in front of him as he stood at the bus stop.

The next witness was Mr Paula Seruvatu, an insurance investigator, who investigated the incident for National Insurance Co. Ltd. He conducted his own investigations and drew a sketch plan to show how vehicles normally stop at the Karsanji Road junction to turn in, leaving enough room for vehicles to drive past on Fletcher Road.

Under cross-examination, Mr Seruvatu said that he investigated the accident in 1997 and did not know the condition of the road in 1994. He agreed that the markings on the road in 1997 were such that people could walk 3 abreast on the side of the road.

The Defendants then closed their case.

Counsel for the Defendants submitted that the Plaintiff had failed to show on a balance of probabilities, that the Second Defendant was negligent. He said that the Land Transport (Traffic) Regulations provided that a driver must overtake to the left of a vehicle when that vehicle was about to make a right turn. He said that the evidence of the point of impact being on the footpath was unsatisfactory and that the best evidence of the collision came from Kayaca Qio. He further submits that the Plaintiff’s witnesses were contradictory and unreliable, and that the Plaintiff herself was of no assistance at all.

Counsel for the Plaintiff, made no submissions.

Liability

As in all personal injury claims, the onus is on the Plaintiff to show, on a balance of probabilities that the Defendant was negligent, in that he owed a duty of care to the Plaintiff, that he was in breach of that duty and that the harm inflicted was reasonably foreseeable. There can be no doubt that if the Second Defendant is liable, then, because he was driving in the course of his employment, the First Defendant is vicariously liable. Nor can there be any doubt that the Second Defendant as the driver of a car, owed a general duty of care to all other road users, using the road at that time.

In Laitia Koroi -v- Sebar Ali [1966] 12 FLR 108, the then Supreme Court held that where the plaintiff was walking on the side of a road with no marked footpath, and was injured by a motor vehicle driven by the defendant, the defendant had a duty to look out for pedestrians walking on the side of the road, and that the plaintiff had a duty to look out for traffic on the road. In that case the defendant was liable because he did not exercise due care and attention in the manner and speed in which he was driving.

Was the Second Defendant negligent? A canvassing of the Plaintiff’s evidence and that of her witnesses reveals a case which is riddled with doubts and inconsistencies. The Plaintiff herself appeared to have a selective memory about the accident and its consequences, contradicting herself hopelessly during cross-examination. On being asked about her own truthfulness, she appeared to harbour considerable doubt before she said she did not know if she was telling the truth. Her husband did not witness the accident but his evidence about his wife’s condition after the accident was contradicted by Dr Jude Ohaeri who gave evidence of the Plaintiff’s excellent recovery, and who clearly found it unnecessary to follow up on her treatment. Further, the evidence both from the Plaintiff’s medical witnesses, and from the Defendants’ medical witnesses, suggests that (depression apart) the Plaintiff no longer suffers from any discernible physical condition. This contradicts the Plaintiff’s own evidence, and that of her husband.

The evidence of the Plaintiff’s eye-witnesses were similarly unreliable. Their manner in giving evidence was not such as to inspire confidence in them. Further Mr Reddy gave evidence about the presence of other vehicles being overtaken by the Defendant which was contradicted by the next witness, and also that he saw the collision over the vehicles being overtaken to the other side of the road.

Atish Prasad said he was sitting at the bus shelter (which is denied by Kayaca Qio who was also allegedly sitting there) and described Mr Qio as a thin 30 year old man. Mr Qio later gave evidence. He is an elderly heavily built man. Further Atish Prasad said that the collision was near a lamp post near Vidhal Street and that he only heard the sound. He later contradicted himself and said he saw the actual collision and that the Defendant hit the Plaintiff whilst overtaking a moving vehicle.

Neither of these witnesses offered to make statements to the police. Both witnesses had a manner which was unsatisfactory and both contradicted themselves in the witness box.

The Second Defendant gave evidence that he overtook two stationary vehicles at the Karsanji junction, on the left side of his lane. He said that he saw Mr Qio cross, and then saw the Plaintiff too late to avoid her. He said he was driving at between 30-35 kmph when he hit her. Mr Kayaca Qio confirmed this in his evidence. According to him, the accident occurred a few yards in front of him as he sat at the bus stop. He said that no one else was in the bus stop. Although there was some contradiction between his evidence and the Defendant’s on the position of the Vatuwaqa bus, their versions were consistent and credible.

In all the circumstances I find no credible evidence that the Second Defendant drove in a way that fell below the standard expected of a reasonable driver. I believe him when he said that he overtook two parked vehicles on the Karsanji Road junction, but that he continued to drive on the road after overtaking. I believe him when he said that the Plaintiff suddenly ran across the road and that he could not avoid hitting her. I believe him when he said that he was driving at about 30-35 kmph at the point of impact. I believe him when he said that the accident took place on the road and not on the gravel walkway on the side of the road. The fact that he immediately took the Plaintiff to hospital, reported the accident, and asked Mr Qio to similarly make a statement suggests he acted throughout in an open and honest manner. In all the circumstances I do not consider that he acted in a negligent manner in driving his vehicle. He was not in breach of his duty of care to the Plaintiff because he could not have reasonably foreseen that she would run suddenly across the road in the way that she did. He is not liable for the injuries caused to the Plaintiff. On the facts the Plaintiff has failed to show on a balance of probabilities that the Second Defendant is liable for her injuries. It follows that the First Defendant is not vicariously liable.

The Plaintiff’s claim is wholly dismissed. The Defendants are entitled to costs which must be taxed if not agreed.

Nazhat Shameem
JUDGE

At Suva
20th September 2001