Prasad v Suva City Council [2003] FJHC 331; HBC0291.2002 (19 November 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0291.2002

BETWEEN:

PRATIBHA KUMARI PRASAD
PLAINTIFF

AND:

SUVA CITY COUNCIL
DEFENDANT

Mr. D. Sharma with } - For Plaintiff
Mr. D. Prasad }
Ms T.M. Waqanika - For Defendant

JUDGMENT

ISSUES:

The core issue in this action is what is the duty of care and standard of care owed by town councils to pedestrians who use their footpaths and what precautions or care the pedestrians should take for their own safety when using such footpaths.

PLEADINGS:

The facts are not much in dispute. The plaintiff who was just over 55 years old was walking with a friend along Renwick Road just before 2.00 p.m. on 28th February 2001. She tripped and fell as a result of an elevation on the footpath and fractured her left distal radius. She was attended to initially by a private doctor and then referred to CWM Hospital. The claim is for damages arising out of the said mishap.

In her statement of claim the plaintiff says she suffered fracture of left distal radius, lacerations on the left knee and lacerations on the left hand. If I may say now neither in her evidence nor in the medical certificate tendered on her behalf is there any mention of the lacerations on the knee or hand. She alleges she suffered pain, her hand was cast in plaster until 20th March 2001. She alleges in her statement of claim that she suffers constant pain in her left hand, is unable to lift heavy objects with her left hand, left hand gets swollen, has difficulty in carrying household chores and finds it difficult to do typing. Her statement of claim says that she suffered injuries as a result of defendant’s negligence in failing to repair footpath, failing to have adequate system for inspection, failing to warn pedestrians of the elevation in the footpath and failing to display notices around the footpath.

The defendant in its statement of defence denies negligence and says the plaintiff suffered injuries as a result of her own negligence or negligence of parties other than the defendant. It also alleges that the plaintiff had earlier claimed she had stepped into a manhole, an allegation which the counsel for the defendant told the court was not being pursued at trial and therefore not an issue. The defendant also pleads contributory negligence in plaintiff failing to keep a proper lookout and to avoid any bumps on the footpath.

EVIDENCE FOR PLAINTIFF:

PW1 SITIVENI TRAILL is the Orthopaedic Registrar at CWM Hospital. He prepared the medical report in respect of the plaintiff based on hospital records. He explained various medical terms. According to him the plaintiff suffered closed impacted fracture which means the skin was not broken. At time of fracture patients suffer pain. Once plaster is put on, the pain eases. The movement of fingers would be affected as fingers are static while plaster is on. Osteo arthritis could set in after years. However the plaintiff had good movement of limbs.

Pain around fractures during cold weather is a common complaint amongst fracture patients. Normal palmar flexion is 700.

In cross-examination he said he only saw the plaintiff on 7th March 2002 when he wrote the report. By then the fracture had healed and was expected to recover well. Her hand had good range of movements and he expected the plaintiff to get the normal range of movements.

PW2 MS SIMPSON was plaintiff’s co-worker and friend. They both worked for Tower Insurance in February 2001. She said that she had gone with the plaintiff to church during lunch hour. They were returning to work along Renwick Road where the plaintiff suddenly tripped and fell. There was raised concrete on footpath. She did not notice the elevation. There were no drums or flicking lights or signs warning of the elevation. From a distance one could not say there was elevation on the footpath. The plaintiff returned to work ten weeks later.

In cross-examination she said retiring age at Tower Insurance is 55. Both the plaintiff and she use glasses to read. They were walking and talking. There were people in front of them, behind them and beside them.

To question put by court she said people in front would only be a yard in front of them. The elevation would be an inch high right across the footpath.

PW3 PAUL ABSEL is the General Manager at Tower Insurance. The plaintiff was his Secretary at the material time. He said after the plaintiff returned to work from her injury she did not enjoy work and retired in June. He offered her additional work but she declined. He wrote to the Lord Mayor complaining about the footpath and his secretary getting injured. He said he also sent two photos of the footpath. He said the retiring age of 55 is not compulsory and may be extended by the Manager.

PW4 is the plaintiff who said she is 57 years old and is left-handed. Before injury she did gardening and was in good health. Had it not been for injury, she would not have retired.

On 28th February 2001 about 1.45 p.m. while walking along Renwick Road she tripped and fell. Her friend helped her get up. It was lunch hour and quite busy. She cannot recall hitting elevation. There were no warning signs of work being in progress. She did not fall as a result of her own fault.

She was told by a doctor after X-rays were taken that she had a fracture. She was referred to CWM Hospital where plaster was placed around her arm. She was disabled and could not do anything for four weeks. She could not brush her teeth. She employed someone for housework. The husband helped her with shower and dressing up. The plaster was taken off after six weeks. It was followed by physiotherapy for a month.

She felt pain in air conditioned office. She had difficulty typing. She left work because she could not give her 100% to the company.

She finds it difficult to make rotis and cleaning windows. She could have worked for a couple more years had it not been for the injury.

She used to visit hospital in taxis. She takes pain killers when necessary which costs $10.00 per packet.

In cross-examination she said the street was crowded. No one else fell. She was not looking down. She had no X-ray reports with her even though a number of X-rays had been done.

She does cooking now but cannot lift pots or turn stove off.

She continued working after age 55 on verbal contract. She does not do gardening now.

PW5 VIJAY PRASAD is the husband of the plaintiff. He said that prior to 28th February 2001, the plaintiff did cooking and cleaning at home. His children are all grown up. Both prior to and after the incident they had house assistance three days a week. After the incident the plaintiff was very depressed. The plaintiff is left-handed and the fracture placed restrictions on what she could do. He had to assist her to take a shower and they had to employ a house girl a few extra days.

The plaintiff still suffers pain. She had difficulty dressing and combing her hair that was cut short as a result. She does not do gardening now.

He took photographs of the scene. The elevation in the footpath would be from one inch to one and a half inch. He saw no warning signs.

EVIDENCE FOR DEFENDANT:

The defendant called two witnesses. DW1 EMOSI TALOGA is an Orthopaedic Surgeon. He examined the plaintiff on 30th September 2003. After examining the plaintiff and the X-rays, he made a report. He found no swelling or tenderness when he pressed the fracture site. Palmar flexion is downward movement of the palm. The normal palmer flexion is sixty degrees. He found no evidence of osteo arthritis. He has taken out the figures in his report from the American Guide to Evaluation of Permanent Disability.

In cross-examination he said fractures normally heal in two years. The plaintiff was wearing wrist support for comfort. He found it unusual for plaintiff not to be able to type or lift pots. He said most fractures heal and people go back to normal life.

DW2 JAGDISH SINGH is an engineer with the Suva city Council for last three years. He has four officers reporting directly to him. They carry out investigations. When a complaint is received by Council it is investigated and implementation is done on priority basis. There are areas where tasks cannot be carried out due to financial constraints.

The council carries out inspections of footpaths and roads on a two months basis. Four officers are in charge of that.

He was shown the photographs. He said in February 2001, Posts & Telecommunications chambers were protruding out of footpaths so Council carried out plastering work. Council puts up portable signs when works are in progress.

In cross-examination he said he was not aware of the accident until informed of it about two weeks prior to the trial. He said warning signs are put up but at times people take them out. These signs are put to warn pedestrians. The works shown in photographs are incomplete. He did not check this project to see if warning signs were in fact put.

He also told the court that the Council looks after 150 kilometres of roads and 30% of roads have footpath.

The plaintiff has to prove her case on the balances of probability. Certain facts are not in dispute. It is not disputed that Renwick Road is in Suva and the responsibility for maintaining it lies with Suva City Council. DW2 Jagdish Singh, the City engineer, admits that. He also admits that certain works were carried out on Renwick Road. In the Statement of defence the defendant denied the existence of elevation in the footpath, the fact of the fall and that the plaintiff received injuries. However the defendant led no evidence to rebut evidence of the plaintiff regarding those matters. Even in the cross-examination of the plaintiff and her companion there was no suggestion made that the plaintiff in fact did not fall. The court had before it the evidence from the plaintiff and Ms Simpson PW2 of how they were walking along Renwick Road and the plaintiff tripped and fell. They both mention injury to the hand and the fact that the plaintiff had to be taken to a doctor initially at Boulevard. I accept the evidence of the plaintiff and her eye witness that the plaintiff fell as a result of tripping on the elevation in the footpath and fracturing her left hand. The fact of fracture is borne out by the medical reports tendered both on behalf of the plaintiff and the defendant. I also accept that the plaintiff’s hand was cast in plaster and which remained in cast for six weeks and she returned to work ten weeks later.

DUTY OF CARE:

That the defendant, Suva City Council is responsible for maintaining and repairing footpaths in the city is not an issue. That is a statutory duty under Section 108 of the Local Government Act Cap 125. The footpath concerned is in the heart of Suva City so a vast number of people including young children and elderly would use it daily. I can safely assume that the Council would be aware of this fact or ought to be aware of it. Accordingly there is an obligation on the Council to keep its footpaths especially in the business area in a reasonable state of repairs. However, no one can expect to have footpaths as smooth as Council’s chambers as that would be too onerous an obligation financially. Some unevenness in the footpaths can be expected. Nor can we expect our footpaths to be of the standards of those in some more advanced foreign countries like Australia, New Zealand or the United States of America. The standard expected must be harnessed to the economic standards of Fiji and in conformity with the financial constraints of Suva City Council. It is not an uncommon occurrence in Fiji for Telecom, the FEA, and the PWD to dig up footpaths to carry repairs to their own cables, pipes and works running under the footpaths without often putting them back to the original state. It is against background of such factors that the standard of care of the Council has to be assessed.

In Littler v. Liverpool 1968 2 ALL E.R. 343 at page 345 Cummins Bruce J commented that pedestrians have to accept certain imperfections on a pavement. He said:

'It is a mistake to isolate and emphasize a particular difference in levels between flagstones unless that difference is such that a reasonable person who noticed and considered it would regard it as presenting a real source of danger. Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. A Highway is not to be criticized by the standards of a bowling green.'

DW2 Jagdish Singh who is the city engineer said that the Council was carrying out works. The procedure he said was for Council to place portable signs to warn pedestrians of works in progress. It is an adopted procedure. By adopting a set procedure, the Council must have considered that these precautions are adequate and necessary to eliminate or reduce risk of mishap to pedestrians. Simply because a procedure was laid in place and followed over the years does not necessarily mean that it was followed in the present situation. The Court cannot presume it was followed. DW2 Jagdish Singh could not testify conclusively to that fact. To show that, the defendant would need to bring a workman or a supervisor who attended to the works to testify that adequate signs were placed by him or under his directions and describe the signs, the contents and the size of writing on them and where they were placed. The plaintiff and the witness Nover Simpson did not see any sign. I find that there were no signs placed about the work in progress on the day in question.

Failure to comply with an adopted practice or a procedure is a strong indication of want of care because it suggests that the defendant did not do what it considered to be proper. On balance of probability the defendant has failed to prove that the portable signs had been placed.

The defendant also submitted that the court must balance the gravity of the risk posed to pedestrians against the costs and expenses and other priority areas in assessing whether the defendant failed in its duty. It relied on Spencer v. Council of the City of Maryborough [2002] QCA 250 at paragraph 16 where Justice Jerrad J.A. states the court must consider the 'magnitude of the risk and the degree of probability that it would occur; the expense, difficulty, and inconvenience to the authority in taking steps to alleviate the danger, and any other competing or conflicting responsibilities or commitments of the relevant authority.'

DW2 Jagdish Singh said works around Posts and Telecommunications chambers were carried by the Council. As a result there is drop in footpaths. The Council workers it is apparent left a sudden perpendicular drop in footpath. It would not have required a lot of time, work and expense to shave off the perpendicular height. It would have required a small mix of plaster to do that. It would not be a significant burden on Council’s resources or time.

I therefore conclude that the defendant owed the plaintiff a duty of care to warn her of works in progress or any incomplete works which might be a hazard to pedestrians and that it failed below the standard of care required so there was a breach of duty.

CONTRIBUTORY NEGLIGENCE:

The plaintiff was a pedestrian. The event in question occurred in broad daylight. As such she should have been able to observe defects or elevations in the footpath and avoid them. The Council can expect pedestrians to use reasonable care for their own safety and avoid such defects that are obvious to someone who exercises reasonable care. In Brodie v. Singleton Shire Council and Ghantous v. Hawkesbury City Council (2001) 206 CLR 572 the High Court of Australia at 581 stated that pedestrians are 'more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Culinan J. points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, trees roots or holes. Of course, some allowance must be made for inadvertence.' According to Ms Simpson, PW2, the elevation was about an inch. The plaintiff’s husband PW5 put it one inch to one and a half inch. The elevation is clearly shown on the photographs. It runs right across the footpath. Both PW2 Nover Simpson and the plaintiff say they did not notice the elevation. The plaintiff said she was not looking down. In the photographs the elevation is obvious. It is quite a significant elevation and would be visible during daylight from quite a distance. No one else fell. I am of the view that the plaintiff by not looking down failed to exercise the care required of a pedestrian for his/her own safety. She contributed to the fall by such failure. I assess her contribution at 50%.

DAMAGES:

Special Damages: The plaintiff submits that there was no challenge to special damages so they should be allowed. In its defence, the defendant had put plaintiff to strict proof of its damages. The special damages sought are $1000.00 for medical and transport expenses and $5.00 for medical certificate.

The plaintiff said she saw Doctor De Asa and had X-rays done and used taxi to come to hospital which I believe were on five occasions as stated in the medical report. She did not say what the taxi fare was from home to hospital. Those who seek special damages must tender some evidence and not throw figures at the court and expect the court to unquestioningly accept them.

The writ was filed on July 2002. At that time the plaintiff would have known she was claiming $1080.00 for costs of future care being for medicine. The plaintiff said she takes Phelidine tablets. A packet costs $10.00 if plaintiff is correct or $15.00 to $20.00 per packet if the husband is correct. A packet lasts a month. By the time of trial the plaintiff would have finished about 15 packets since filing of the writ. None of those packets not even one were brought to court. It would have helped her case immensely if packets were produced. I find that she does use some form of pain reducing tablets but have reservations about the amount.

Accordingly for medical and transport expenses and costs of future care I accept plaintiff’s evidence with a great deal of reservation. I allow her $500.00 for medical and transport expenses and a like sum for costs of future care.

Costs of medical certificate are expenses incurred in preparation of a case and do not arise out of injury and hence not claimable – Abdul Rauf v. Hussain C.A. 126 of 1978.

General Damages: The parties have submitted this under two broad headings of Pain and suffering and loss of amenities of life.

Pain and Suffering: The plaintiff submits that an award of $45,000.00 as proper under this heading. The defendant submits that the plaintiff is not entitled to any sum on the basis that the injury does not have a permanent effect on the plaintiff. At the outset I must say the defendant’s submission is legally untenable as the possible duration of effects of injury affects quantum and not the entitlement for award under this heading.

The plaintiff’s submission drew the court’s attention to awards made in number of decisions copies of which were helpfully attached. These were for guidance of the court.

However, I also take note of comments made in two recent Court of Appeal judgments in reaching my decision.

In Jovesa Rokobutabutaki & Attorney-General of Fiji vs. Lusiana Rokodovu – FCA 88 of 1998 (unreported) the Court at page 5 said:

'Each case must depend on its own circumstances, but pain and suffering and loss of amenities of life are not susceptible of measurement in terms of money and a conventional figure derived from experience and awards in comparable cases must be assessed.'

Reference to other awards in comparable cases is done for purposes of fairness and consistency. It also warned of using figures from jurisdictions with different socio-economic conditions. It further recommended that inflation should be taken into account to adjust awards used for comparison.

More recently in Plantation Village Limited & Others vs. Guy Anderson – FCA 7 of 2003 (unreported) the court expressed broad agreement with the comments of the High Court of Australia in Planets Fisheries Pty. Limited vs. La Rosa [1968] HCA 62; (1968) 119 CLR 118.

The Planet case commented that –

'It is the relationship of the award to the injury and its consequences as established in the evidence in the case in question which is to be proportionate' and later –

'The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disability caused. It is to be proportionate to the situation of the claimant party and not the situation of other parties in other actions even if some similarity between their situations may be supposed to be seen.'

The plaintiff referred to the local case of Dinesh Kumar v. John Elder – HBC 560 of 1995 where an award of $45,000.00 was made for pain and suffering. The injury there was for a fracture of left tibia and fibula. There the similarity ends. The plaintiff in that case was 14 years and 4 months old and had virtually whole life to live. The fracture was compound. Unlike in present case where there is no hospitalization, the plaintiff there was hospitalized for 11 days and on crutches for 21 months and the wound discharged pus for further 3 years and at time of trial about 6 years later his leg was still swollen. His one leg became an inch shorter than the other and resulting in him walking with a limp. His injuries therefore had severe effects.

The plaintiff no doubt suffered a serious injury. Both doctors confirmed that the fracture is a serious injury. Her dominant hand had been injured. In the day to day life she was greatly handicapped; she could not brush her teeth, put on a sari or comb her hair which had to be cut short. The plaintiff uses a wrist band to ease pain which comes now and then especially in cold weather. She says she is unable to do gardening or roll rotis. There is reduce palmar flexion which is downward movement of palm from wrist as stated by Dr Taloga. On the other hand the plaintiff’s doctor, Dr. Traill’s certificate’s says she had full range of motion of fingers and wrist. Doctor Taloga’s report says loss of motion equals to an impairment of 3% of upper extremity or 2% of whole person. He used the American Guide to Evaluation of Permanent Disability. Dr Traill who saw her on 7th March 2002 in cross-examination said that 'her fracture had healed and is expected to recover well.' Dr Taloga DW2 had examined her on 30th September 2003 and found no tenderness or swelling and no evidence of osteo arthritis at the joint.

In Govind Sami v. Karl Francis O’Brien & Seru Serevi – HBC0349.1997 at Lautoka High Court the plaintiff was 62 at the time of accident and he suffered bodily lacerations and fractured left ankle, fractured heel bone and fractured ribs and was hospitalized for four days with one of the doctors assessing his disability at 18%. Justice Gates awarded him $40,000 for pain and suffering and loss of amenities of life.

I am mindful of what the Court of Appeal has said in two aforesaid cases. Having considered the nature of injury and its consequences I consider a sum of $12,000.00 as fair for pain and suffering and loss of amenities of life.

LOSS OF FUTURE INCOME:

The plaintiff did go back to work after the injury but said she gave up employment after three weeks as she could not give 100% to the company. Her employer Paul Absel PW3 said that after she retired, he offered her additional work but she declined.

In assessing this aspect of the claim I cannot ignore the medical reports. The medical report dated 7th March 2002 and exhibited by plaintiff says she 'has attained full range of motion of fingers'. Doctor Taloga DW1 who compiled a report on 2nd October 2003 a report generally more favorable to her case says 'All motions were normal except a reduced palmer flexion'.

During cross-examination he said:

'I consider it unusual for her not to be able to type or lift pots. Most fractures heal and people go back to normal life.'

Doctor Taloga had given his evidence in a very careful considered manner. Both Dr Traill and Dr. Taloga had been told by their counsels at the beginning of their testimony that they are to consider themselves as independent witnesses who are to assist the court and not to align themselves with a party. They were truly independent witnesses and whose testimony I prefer to that of plaintiff in this respect of her ability to work.

I come to the conclusion that the plaintiff hastily withdrew from employment. There may have been some minimal inconvenience. She sought no medical advice before she elected to give up employment. She did not even take her employer’s offer of an alternative. On the basis of medical reports I have no hesitation in finding that as far as movements of fingers was concerned she had full range of movements. It is the fingers which are the primary organs used in typing and other secretarial duties and as such the injury could not be an impediment to her work. I do not believe her that she gave up her employment because of this injury. It was not an incapacitating injury as far as her work was concerned so I do not allow any damages under this head.

Interest: The court has discretion to award interest under the provisions of Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27 either for the whole of the period or for part of the period when the cause of action arose to the date of judgment. The plaintiff is asking interest at the rate of 6% per annum. I allow plaintiff interest at 6% per annum from 28th February 2001 to the date of judgment.

Summary of Damages:

(a) Medical & Transport Expenses - $500.00
(b) Costs of future care - $500.00
(c) Pain suffering and loss of amenities of life - 12,000.00
(d) Interest on ‘A’ and ‘C’ from 28/02/01 to date of

Judgment (993 days) at 6% - 2,040.41
------------------
TOTAL = $15,040.41
===========

Plaintiff’s contributory negligence is 50% thereby reducing the total by half. Accordingly I enter judgment for the plaintiff for the sum of $7,520.21 together with costs to be taxed if not agreed.

[ Jiten Singh ]

JUDGE

At Suva

19th November 2003