Khan v Vunisinu [2004] FJHC 324; HBC0455J.2000S (2 April 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0455 OF 2000

Between:

1. MOHAMMED AYUB KHAN
f/n Mohammed Hanif

2. SAFIA JHAN KHAN
f/n Nasrullah

3. ZAKIA SHENNAZ KHAN
f/n Mohammed Ayub Khan

4. RUSULAN BEGUM
f/n Dildar Khan
Plaintiffs

and

1. APIMELEKI VUNISINU

2. THE PERMANENT SECRETARY FOR
AGRICULTURE FISHERIES AND FORESTS

3. THE ATTORNEY GENERAL OF FIJI
Defendants

Mr. D. Sharma with Mr. D. Prasad for the Plaintiffs
Mr. Y. Singh for the Defendants

JUDGMENT

By writ of summons the plaintiffs have brought this action claiming damages, interest and costs for personal injuries received by them in a traffic accident on 10 October 1998 at the junction of Saqa Road and Daniva Road, Valelevu, Nasinu.

Although the hearing of this action commenced 5 August 2001, both counsel had it adjourned to 30 April 2003 and eventually the last of the written submissions were filed on 6 June 2003.

Background facts

The background facts are well set out in the plaintiffs’ written submissions which are as follows:

The First Plaintiff was the driver of the vehicle registration No. CQ 437 and the Second, Third and Fourth Plaintiffs were passengers in the said vehicle. The First Plaintiff hired the said vehicle from Central Rental Company on 10th October 1998 to travel to Lautoka to visit one of their relatives who was sick.

They left Lautoka at about 5 p.m. and arrived in Suva at about 9.30 p.m. They then travelled to Valelevu to pick the house keys from the First Plaintiff’s brother. As they reached the junction of Saqa and Daniva Road at about 10 p.m. a government vehicle registration No. GL 283 which was travelling on Saqa Road failed to stop at the junction and went into Daniva Road and collided with the Plaintiffs vehicle. All four Plaintiffs were injured and were taken to CWM Hospital in a Police vehicle.

The First Defendant was at the material time of the accident employed by the Second Defendant Ministry of Agriculture, Fisheries and Forest and was driving the vehicle registration No. GL 283. The said vehicle belonged to the said Ministry. The Third Defendant is joined pursuant to Section 12 of the Crown Proceedings Act.

The injuries alleged to have been suffered by each of the plaintiffs is set out fully in the Statement of Claim as well as in this judgment.

Consideration of the issue

As ordered both parties made written submissions and these were considered by me.

Evidence was adduced on behalf of the plaintiffs but the counsel for the defendants decided not to call any witnesses.

It was agreed that if liability was established against the defendants the Court is to assess damages for personal injuries received by the plaintiffs.

Liability

This case concerns a motor vehicle accident which took place on 10 October 1998 at the junction of Saqa Road (minor road) and Daniva Road (major road) at Valelevu.

There was a collision between the car of the defendant and the first plaintiff’s rental car as the result of which the defendant’s car which came out of the minor road struck the plaintiff’s car which was on the major road resulting in injuries to the four plaintiffs who were in the car.

The first defendant who was the driver of the Government vehicle was charged and convicted for dangerous driving and driving a motor vehicle without a valid driving licence. Although contributory negligence was raised by counsel for the first defendant no evidence was adduced in this regard. On the other hand I have the evidence of the first plaintiff as to how the accident happened.

On the evidence before me I find that the first plaintiff was driving in a perfectly normal manner along what I call the major road approaching the minor road on his left, when the first defendant emerged on to the major road went across without pausing and struck the plaintiff’s car on its near-side injuring the four plaintiffs who were all in the car.

In the absence of any evidence from the defendant (D1), the Court is left with the evidence of the plaintiff and his witnesses as to how the accident happened and also what the nature of the injuries were as a consequence of the accident.

So here we have a picture of the 1st plaintiff driving on a major road and the defendant driving along a side road. As Russell L.J. said in Humphrey and Another v Leigh and Another [1971] RTR C.A.], the plaintiff (as in this case):

“must, of course, keep a look-out at cross-roads, but to say that he must so drive his car as to be able to stop short in case a car is coming, driven dangerously, straight across out of the side road, is not, and certainly should not be, in my judgment, the law. To hold otherwise would lead to a state of the law which is completely contrary to the experience of anybody who drives as to what in fact 100 per cent of people who drive do. It would lead, I imagine, if that were the law, to even worse traffic conditions than we find on the roads at present.”

It is the defendants’ counsel’s submission that there was contributory negligence on the part of the plaintiff (P1) because there was ample space on the plaintiff’s left to avoid the accident.

On the evidence before me I do not find that there was any contributory negligence on the part of the 1st plaintiff who was driving normally on the ‘main road’.

Assessment of Damages

Having established that the defendants were liable for the injuries suffered by the plaintiffs who are wife (P2) of P1, daughter (P3) and mother (P4) respectively as Plaintiffs, it is now left for me to assess damages sustained by them.

Heads of damages

The plaintiffs claim damages under the heads of (a) General damages, (pain and suffering, loss of earnings, cost of future care and medication), (b) Special damages, (c) Interest and (d) Costs. I shall now consider the assessment of the appropriate damages and in doing so I have considered both counsels’ submissions in writing.

In regard to damages, counsel for the defendants in his written submission stated that “should liability be found, then the agreement, the counsel for the defendants had with the counsel for the plaintiffs on the 30th April 2003 that in that scenario, the sum of $50,000.00 is the figure that should be awarded.”

Injuries to plaintiffs

The condition of the plaintiffs and the injuries received by each of them are set out below.

Injuries to First Plaintiff (Mohammed Aiyub Khan)

Medical Report on the first plaintiff as per Medical Report of 23/7/99 is as follows (vide Exhibit P2(7):

He suffered injuries to his right collar bone

Diagnosis:

Fracture right clavicle with no neurovascular deficits.

Treatment:

He was treated on outpatient basis.

He was given pain relief and put on broad arm sling.

He was followed up in the orthopaedic clinic.

Follow Up:

He was seen in the Orthopaedic clinic on 5/11/98 and 3/12/98 and noted to be progressing well.

Complications:

No complications were encountered.

Prognosis:

He is expected to make a full functional recovery. However, a lump will persist over the fracture site.

The P1’s right hand was in sling for 6 months.

He was employed as a driver for Ministry of Commerce and was the only breadwinner in the family which comprised of the second, third and fourth plaintiffs in this action.

The plaintiff was not given the same job when he returned to work because of his injuries.

Injuries to second plaintiff (Sofia Khan)

The medical report on the second plaintiff Sofia Khan is contained in Dr. Fred Merchant’s Report of 10 October 2000 which is as follows:

I examined the above named patient on 10/9/00 for complaints referable to injuries sustained in a motor vehicle accident in 1998. The patient was a front seat passenger wearing a seat belt at the time and sustained several superficial lacerations of the left knee and patellar area. She reports no allergies or diabetes and had a hysterectomy in 1989. She sees a private physician for routine care and is a homemaker.

She reports pain and tenderness in the left lower leg and left iliac crest area after walking 50 to 100 meters. BP 110/70 P 84

Examination reveals some evidence of soft tissue tenderness in the above mentioned areas upon deep palpation. I do not appreciate any evidence of recent trauma. The limbs are otherwise within normal limits. There is not limitation in range of motion. The abdomen is within normal limits as well with a normally healed Pfannanstiel incision.

Review of x-rays does not reveal any bony or soft tissue abnormalities.

Conclusion: It is entirely possible that the patient has residual tenderness secondary to the 1998 trauma because pain and tenderness are subjective and patient dependent subject to many variables. I attest that the patient had the injuries but cannot say that there is any specific current residual.

This plaintiff, who is the wife of P1 was sitting in the front passenger seat. After she received the injuries she could not walk for about 3 weeks.

Injuries to the third plaintiff – Zakia Shenaaz Khan

The doctor’s Medical Report on Zakia Khan is as follows:

I examined the above named patient on 10/9/00 for complaints referable to injuries sustained in a motor vehicle accident in 1998. She states she was in the left rear passenger seat and wearing a seat belt. The accident occurred on or about 10 pm. She has no known allergies or previous surgery. Sports history includes volleyball at college. She wears reading glasses for studying.

She currently complains of mild tenderness in the left lower leg over the calf and Achilles tendon. She is able to stand and jump on toes.

Examination does not reveal any specific evidence of residual injury though the patient consistently complains of discomfort in the above mentioned anatomic regions.

Likewise, review of patient x-rays does not reveal any gross abnormalities.

Conclusion: I find no demonstrable evidence of injury that might be compatible with the previously sustained injuries. It is entirely possible that the patient does experience intermittent discomfort however I cannot prove or disprove same.

The P3 is the daughter of P1 and P2 and was at the time of the accident setting at the back seat of the vehicle P1 was driving. The P3 missed school for about 4 days and found it difficult to play sports at school as the leg gets painful. According to doctor’s Report she does experience intermittent discomfort.

Injuries to the fourth plaintiff (Rasulan Begum)

The injuries suffered by Rasulan Begum, the fourth plaintiff is as follows as contained in the Medical Report dated 31 August 1999 from the CWM Hospital:

D.O.A. 11/10/98 [8.15 AM]

D.O.D. 07/11/98

Length of Stay: One month

PC: Swelling right arm

right ankle

History

Patient sitting at the back seat

When another vehicle hit the rear end.

Resultant

Tenderness + swelling

[Right] arm and ankle

She could not walk nor lift her arm.

She was previously well.

On Examination:

1. Swelling of right arm/right ankle.
   

Tenderness and decreased range of movement and inability to walk.

Investigation:

X-Ray fracture of right humerus and right fibula.

The P4 is the mother of P1 and was also sitting at the back seat behind P1. In hospital she could not walk; her right arm was cast in plaster and her right leg was bandaged. After being discharged she had to attend regular fracture clinic at the hospital.

Her right hand was in plaster for 4 months. This hand has become very weak and she is unable to do housework and wash her own clothes as she used to do before.

GENERAL DAMAGES

Assessing general damages is fraught with difficulties.

This problem has been stated by Earl of Halsbury LC in The Mediana (1900) AC at 116 thus:

“You very often cannot even lay down any principle upon which you can give damages...... Take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident..... But nevertheless the law recognises that as a topic upon which damages may be given.”

The injured person is entitled to compensation and the Court does its best and this process is described by Megaw LJ in Fuhri v Jones (1979 C.A. unreported) in the manner following:

“It will be appreciated, of course, though it is not always fully understood by persons who are not directly concerned with the law, that the law cannot attempt to attribute any particular figure of damages to any particular physical injury, serious or trivial. There is no way in which it can be said that such-and-such an injury is worth so much in terms of money. Indeed, in most cases for most injuries, anybody would say ‘I would rather have avoided this injury than have any amount of money whatever in compensation.’ But the court has to do the best it can by way of what are really conventional figures in relation to injuries, the court assessing, of course, on the individual facts of the case, what is sometimes called the tariff, making adjustments for particular facts of the particular case.”

In making awards which are fair and reasonable the Court does fall back on previous amounts so that the figure arrived all are in proportion to amounts in other cases of those who have suffered injuries of comparable severity.

In ‘general damages’ are included pain and suffering, cost of future nursing and attendance and medical expenses, loss of amenities and loss of future earnings. It is a convenient list but not conclusive.

Pain and Suffering

In this case the plaintiffs are entitled to damages for pain and suffering as stated in Kemp & Kemp (Vol I p200) 2 - 010):

“... the court must take into account, in making its assessment in the case of any particular plaintiff, the pain which he actually suffered and will suffer and the suffering which he has undergone and will undergo. Pain and suffering are not measurable by any absolute standard and it is not easy, if indeed possible other than in the most general way to compare the degree of pain and suffering experienced by different people, however, the individual circumstances of particular plaintiffs clearly have a significant effect upon the assessment of damages”.

As for loss of amenities, damages under this head will compensate the plaintiffs for loss of employment resulting from the accident, namely, when the plaintiffs can no longer do the things that they were accustomed to doing.

I have considered the awards that should be made bearing in mind the nature of the injuries, as already stated hereabove resulting from the accident and have taken into account the pain and suffering that each one has gone through.

Bearing in mind the principles and guidelines in assessing general damages, I make awards in respect of each plaintiff as follows:

(a) To first-plaintiff

The first plaintiff’s main injury was fracture of the right clavicle and lacerated wound to the right wrist and little finger resulting in the right shoulder instead of being cast in plaster was put in sling for 6 months. While he was on sick leave for 6 months he was paid sick leave. After that he resumed work but could not continue and took leave without pay. He ended up with a lump on his right shoulder and heavy weight put on it would affect it. He cannot play soccer or go for evening walks anymore due to ongoing pain to his shoulder.

When he returned to work he was not given overtime work which he did before the accident.

I assess general damages in this case in the sum of $12,000.00 (twelve thousand dollars)

(b) To second plaintiff

The second plaintiff suffered injury to her left leg. According to doctor’s report “the patient had the injuries but cannot say that there is any specific current residual” The injuries were several superficial lacerations of the left knee and patella area.

In the circumstances of this case I award general damages to the second plaintiff in the sum of $2000.00 (two thousand dollars)

(c) To third plaintiff

Bearing in mind the doctor’s report on the third plaintiff I award her the sum of $1500 (One thousand five hundred dollars) by way of general damages.

(d) To fourth plaintiff

Injuries to the plaintiff was to right arm and ankle. There was fracture of right humerus and right fibula.

Bearing in mind the nature of the injury I award general damages in the sum of $15,000.00 (Fifteen thousand dollars).

SPECIAL DAMAGES

Special damages are accrued and ascertained financial loss (per Edmund Davies L.J. in Cutler v Vauxhall Motors 1971 1 Q.B. 418 at 426) which the Plaintiffs have incurred. Subject to what I say hereafter unless agreed by the parties special damages should be expressly pleaded. They must be claimed specially and proved strictly.

The absence of receipts and other acceptable evidence have variously been dealt with by the Courts. Where there have been agreements there is no problem. However, it is proper to make a calculation based on sufficient evidence.

On this aspect I note the following statement of Palmer J in Narendra Kumar f/n Shiu Kumar and Sairusi Drawe (Action No. 60/89 at p.12):

“Notwithstanding that not a single receipt has been produced in evidence I am satisfied from the Plaintiff’s evidence that he paid those amounts and I propose to allow the sum of $255 accordingly.”

Some Courts have taken a very hard line like in Mahendra Naidu s/o Adiappa and Ravindra Patel s/o Motibhai Patel C.A. No. 105/99 (West Div) where Williams J said:

“No receipt or evidence has been tendered to show that hospital fees amounted to $50.00 and I do not accept that figure. I am unable to guess what it would be and I do not allow it. As Lord Goddard and the F.C.A. have pointed out claimants are expected to call evidence supporting their claims and not simply to say this is what I have paid or suffered in losses expect to be awarded those sums”.

The Fiji Court of Appeal in Tacirua Transport Company Limited and Virend Chand f/n Ragho Prasad (Civ. App. No. 33/94) went to the extent of commenting on the desirability of strict proof when it said at p.3 that:

“While we realise that the Judge was endeavouring to give some recognition of the fact that the Respondent must have been put to some expense, we are unable to see how there was any basis for him to make the award that he did.”

Bearing in mind the above observations I award ‘special damages’ to the respective plaintiffs despite absence of receipts.

To first plaintiff

The plaintiff had to go to hospital for treatment by taxi and had to pay for treatment there. He has not produced any receipts for this expenditure. I therefore had to assess it on the evidence and what I consider reasonable. Because he earned more in wages as he worked overtime before the accident, I accept that he has incurred loss in earnings.

To the first plaintiff I assess special damages amounting to $9,900.00
being made up as follows: medical ($400.00), transport ($100.00), $9,400.00 being loss of earnings $100 per week from 30.10.98 to 8.9.2000 (94 weeks). I disallow claim for medical report ($5.00) and police report ($22.00).

To second plaintiff

I allow the sum of $150.00 being made up of hospital and transport expenses ($100.00), medicine ($50.00); I disallow claim of $5.00 for Medical Report.

To third plaintiff

I allow the sum of $100.00 being for hospital and transport $50.00 and medicine $50.000, but disallow for medical report ($5.00).

To the fourth plaintiff

The plaintiff was hospitalised for a month. She is unable to do all the housework which she was doing before as her right hand has become very weak. There is no evidence before me to support the claim of costs of future nursing care. In this regard I refer to the following passage from the judgment of Court of Appeal in Rothmans Pall Mall (Fiji) Limited v Edward Narayan (Civ. App. No. 65/953 disallowing claim for future care:

“With respect His Lordship seems to have been persuaded by speculation rather than proof that such a sum – or indeed any sum – was likely to be required to cover future nursing services. There was no claim to this effect and no evidence to support it, and Mr. Sweetman rightly complains that the defendant had no notice of it and no opportunity to contest it”.

Although, I am minded to disallow the $10,000.00 claim under costs of future care, I will, bearing in mind the disability she suffers and will suffer in future for which care may be needed I allow an ex gratia payment of $2000.

I also allow by way of special damages the sum of $180 for transport and $300 for medicine.

The total for special damages therefore is $2480.00.

INTEREST

There is a claim for interest and this has been pleaded as required (vide Usha Kiran v Attorney-General of Fiji F.C.A. 25/89 and Attorney-General of Fiji v Waisale Naicegulevu FCA 22/89).

The plaintiffs are therefore entitled to interest on general and special damages.

It was held in Pickett and British Rail Engineering Ltd (1980) H.L. 136 at 137, which was a case of personal injuries, that “interest on general damages was awarded for the purpose of compensating a plaintiff for being kept out of the capital sum between the date of service of the writ and judgment ...” As for interest on special damages it was held in Jefford and Another v Gee [1970] EWCA Civ 8; 1970 2 WLR 702 at 703 that “in general interest should be allowed on special damages from the date of accident to the date of trial at half the appropriate rate”.

In Rothmans (supra) at p.8 there was some discussion on the date the interest at 4% should start. It went as follows:

“His Lordship awarded it from the date of the accident but Mr. Sweetman informed us that Fiji practice is to take the date the proceedings were issued as the starting date, and we did not understand Mr. Shah to disagree, although he said there were cases when by agreement it ran from the accident date. Mr. Sweetman referred us to the decision of the House of Lords in Wright v British Railway Board [1932] 2 All ER 698, in which the date of commencement of the proceedings was taken. There are arguments for selecting either date. Counsel did not dispute that interest was a matter in the discretion of the trial judge and we are not disposed to interfere with his decision that it should run from the date of injury to the date of trial.”

Under section 3 of the Law Reform (Miscellaneous Provisions (Death and Interest) Act Cap. 27 there is discretion in the Court to fix rate of interest which should be paid. The section provides (inter alia):

“3. In any proceedings tried in the High Court for the recovery of any debt or damages the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment:

Provided ......... ...”

There will be interest on general damages at 4% as claimed from the date of writ (13 October 2000) to date of judgment [AG & Anor v. Jainendra Prasad Singh Civ. Appeal FCA ABU001.1998A; 21.5.99). Also interest is awarded on special damages from the date of accident to date of judgment at 2% [Jefford v Gee] supra, cited with approval in A.G. v Charles Valentine (Civ. App. ABU0019.1998S FCA, 28.8.98).

ORDER

I summarize the awards, interest and costs as follows:

(a) General damages $

(total for all four plaintiffs) 30,500.00

(b) Special damages

(all plaintiffs) 12,630.00

(c) Interest on General Damages

at 4% [from 12.10.2000 (date of writ)

to 2.4.04 (date of judgment)] 4,100.00

(d) Interest on Special Damages at 2%

[from 10.10.98 (date of accident) to

2.4.04 (date of judgment)] 1,420.00

(e) Costs 750.00

________

$ 49,400.00

________

There will therefore be judgment for the plaintiffs against the defendants for the sum of $49,400.00 (forty-nine thousand four hundred dollars).

D. Pathik
Judge

At Suva
2 April 2004