Lal v Permanent Secretary for Public Works [2005] FJHC 514; HBC0564j.2000s (7 September 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0564 OF 2000

Between:

KISSUN LAL
f/n Ram Narayan
Plaintiff

and

1. THE PERMANENT SECRETARY FOR PUBLIC WORKS
2. THE ATTORNEY-GENERAL OF FIJI
Defendants

and

K. LAL & SONS LTD
Third Party

Mr. V. Maharaj for the Plaintiff
Mr. J. Udit for the Defendants
Mr. G. O’Driscoll for Third Party

Date of Judgment: 7.9.05

JUDGMENT

By writ of summons the plaintiff Kissun Lal commenced this action against the defendants. The first defendant is the Permanent Secretary for Public Works (The ‘D1’) and the second defendant is the Attorney-General of Fiji (the ‘AG’) who is the nominal defendant.

The plaintiff was at all material times employed by D1 in the capacity of labourer for 26 years. Whilst in the course of his employment he was injured. He therefore claims special damages, general damages and costs and alternatively he claims compensation under the Workmen’s Compensation Act, Cap. 94.

Chronology of events (on pleadings)

On 17 January 2001 the Statement of Defence was filed; leave was granted to the defendants to amend their defence when whilst denying negligence, alleged that the defendant had contracted out execution works to an independent contractor, namely, K. Lal & Sons and stated that the Third Party (K. Lal & Sons Ltd) for the negligence, if any.

In the process of getting the case ready for trial, on 14 October 2002 the defendants sought adjournment of the trial to enable it to join the 3^rd Party. On payment of $20,000 (interim payment for compensation) leave was granted.

The 3^rd Party filed its Defence on 20 January 2003. On 6 May 2003 an amended Minutes of Pre-trial Conference was filed.

The hearing commenced on 17 July 2003 and concluded on 23 October 2003. It was a lengthy trial comprising of 230 pages of record.

The last of the written submissions was filed on 20 July 2004 after reminders were sent to defendants’ counsel.

Background facts

The background facts are as follows (as stated by Mr. Maharaj) in his written submissions:

The Plaintiff was a labourer working for P.W.D. He had given approximately 26 years of continuous service to the P.W.D.

On 25^th April 2000 he was working on the Roadside near DRAVO Village at Bau, Nausori. There was drainage excavation works being carried out on that day. The Defendant P.W.D. had contracted out this drainage construction works to K. Lal & Sons Ltd (Third Party) herein. The Plaintiff alleged that the driver of the digger swung the bucket of the digger towards the wrong side i.e. on the side where the Plaintiff was standing and the Plaintiff was knocked unconscious when this excavator bucket hit his right temporal region of his head. He became unconscious and was subsequently treated at the Nausori Health Centre and also C.W.M. Hospital.

It is alleged by the plaintiff that the accident happened due to the negligence of his employer in its failure to provide proper supervision. He further alleged that his employer failed to provide crash helmet, which if provided, may have prevented such serious injuries to him.

The defendant (D1) denied negligence. He went on to assert that if there was any negligence, then it was the Third Party which was negligent and that he had no control how the Third Party carried out its duties.

The issues

The issues for Court’s determination are:

1. Whether the Third Party by virtue of the contract is liable to indemnify the defendants for the damages claimed by the plaintiff?
   
2. If the Third Party is liable, then the quantum?
   
3. Did the Third Party breach the contract and its duty?
   
4. Did the accident occur due to the sole or contributory negligence of the plaintiff?
   

Both the defendants and the Third Party denied liability for the accident.

Consideration of the issues

In short it is the plaintiff’s evidence, inter alia, that he was hit by the bucket of the excavator.

He was directing the excavator operator. At the time of the accident, soil was being loaded onto a white truck from the bucket of the excavator.

The plaintiff alleged that the bucket of the excavator was about to touch the overhead electric wires. The plaintiff yelled out to the operator warning him of the imminent danger of electrocution when the operator allegedly swung the arm of the digger with considerable speed and force, when its bucket struck him on the head. It is alleged that had he been wearing a helmet he would not have been injured as much.

In his evidence the plaintiff described how the accident happened. He said:

“My Lord the digger operator was unloading the bucket of mud on to the vehicle and after unloading he did not watch the wire carefully and was about to collide with the electrical overhead wire. To avoid that I approached the operator by yelling out to get his attention. When I yelled out he got shocked and he straightened the arm of the digger. Instead of going out the other way, he rotated it towards me which got me injured. I was at the distance say from the witness dock to the light stand.”

In cross-examination by Mr. O’Driscoll although it was put there was no ‘white truck’ on which the ‘dug soil’ was loaded, the plaintiff disagreed and fully described it.

It was further put to the plaintiff in cross-examination that at the time of the accident the digger was stationary and the plaintiff somehow walked into or fell on the bucket, the plaintiff denied that proposition.

I agree with Mr. Maharaj’s submission that this is an incredible story given by the Third Party judging by the extent and the nature of the injury on the plaintiff and also in the light of the foreman’s evidence.

The defendants’ evidence in brief is as follows in rebuttal (as stated at p3 of the defendants’ written submission):

(a) there was no white truck;

(b) there was no need to cart the soil which was dug as the same was placed adjacent to the drain which was being dug;

(c) the electric wire was high as such the arm of the digger would not have touched it in the manner in which the digging was conducted;

(d) the plaintiff was not assigned the task by his immediate Supervisor to direct the digger driver;

(e) under the circumstances, at all material times, the accident would have occurred through the fault or negligence of the plaintiff and not of the defendant.

Briefly, the Third Party’s evidence through the digger driver is that he did not see how the plaintiff got injured. He testified that at the time of the accident the excavator was stationary.

Both Mr. Maharaj and Mr. Udit analyzed the evidence of the various witnesses who testified in this case. They did it very well and I do not wish to repeat them here unnecessarily but would like to refer to them and to say that I have taken all their submissions into account.

As Mr. Udit says the entire issue of liability depends on the credibility of the witnesses. I agree.

Mr. Udit’s submissions on the evidence are contained in pages 5 to 7 of his submissions. He has also analysed the evidence. He submitted that the plaintiff was not an honest witness and lied in several places.

After carefully analyzing the whole of the evidence before me, subject to what I saw hereafter on ‘contributory negligence’, I accept the testimony of the plaintiff and his witnesses in regard to the material particulars to that of the defendants and their witnesses.

I find as fact that on the day in question the digger driver who was in the employ of the Third Party operated the digger so negligently that the bucket hit the plaintiff’s head as a consequence whereof he received certain injuries.

I find both the defendants and the Third Party liable for the accident.

It had been agreed in the Pre-Trial Conference Minute that K. Lal & Sons Limited (the Third Party) was the proprietor of the excavator and the Public Works Department contracted the Third Party to carry out the said drainage/excavation work at Dravo Road, Nausori on its behalf. The driver of the excavator was at all material times an employee or agent of the Third Party known as Yankut. It was also agreed that in the due execution of the works, it was a term of the contract that the Third Party’s obligation was to carry out the said works with all due care and diligence that was expected of a contractor carrying out execution works on a public road.

The defendants say that the plaintiff was given safety instructions adequate for the purpose of the work that day and that the plaintiff was part of the team, was present, and participated that morning when similar instruction was repeated at the work site for the benefit of the villagers.

The defendants further state that the plaintiff without authorisation and in wilful disobedience of lawful instruction went over to the excavator from the rear as a result of which he ran into the same.

The defendants further submit that adequate supervision and safe working system was provided for a relatively simple work, which was also a routine job for the plaintiff as such he should have been aware of or have actual or constructive knowledge of any danger. As such, the defendants submit that they are not negligent in any aspect of the claim.

On a careful analysis of the evidence before the Court, the plaintiff as an employee of the defendants was working on the site while the excavator was in operation.

I find that the driver was negligent in the manner in which he operated resulting in the ‘bucket’ hitting the plaintiff on the head. The driver should have been keeping a proper look out and he should not have blindly swung the arm of the excavator in disregard of who is working in the vicinity. The plaintiff was warning the driver of the danger of the arm touching the live electric wires. The supervisor neglected his duty; he should have been close to the site instead of going into the village talking to the villagers.

Defence of Contributory Negligence

This leads me on to consider the defence of contributory negligence on the part of the plaintiff.

To establish the defence of contributory negligence the defendant does not have to prove that the plaintiff owed a duty of care for in Nance v British Colombia Electric Ry. Co. Ltd [1951] AC 601 at 611 it was said:

“...when contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury.”

It is a question of fact whether the plaintiff has been lacking in care for his safety.

No doubt the plaintiff should have been more careful of his movements when he was close to the excavator. He should have realized accidents could occur if he goes close to where the excavator was being operated. It goes without saying it would be difficult for the driver to hear because of the noise if someone was shouting as in this case trying to warn the driver of the likelihood of the arm touching electric wires overhead. But the driver should have been keeping a proper look out and not strike someone as he did in this case.

Having found liability in the defendants and the Third Party, damages are therefore recoverable from the defendants.

The following passage from the judgment of Lord du Parcq in the House of Lords case of Grant v Sun Shipping Company Limited & Another [1948] AC 549 at 565 is apt holding that ‘the person injured may recover damages from any one of the wrongdoers, or from all of them’:

“If the negligence or breach of duty of one person is the cause of injury to another, the wrongdoer cannot in all circumstances escape liability by proving that, though he was to blame, yet but for the negligence of a third person the injured man would not have suffered the damage of which he complains. There is abundant authority for the proposition that the mere fact that a subsequent act of negligence has been the immediate cause of disaster does not exonerate the original offender.”

Lord du Parcq goes on to say:

“In the well-known case of Burrows v. March Gas & Coke Co. (4) the defendant company broke a contract with the plaintiff by supplying him with a defective pipe, but the immediate cause of an explosion which caused damage to the plaintiff was the negligence of a third party, a gas-fitter who having been called in to look for the source of an escape of gas searched for it with a lighted candle. The company was held liable. Cases in which independent acts of negligence on the part of two drivers cause injury to a third person must be heard almost daily, and they are not, in my experience, decided by considering whose act of negligence was the last link in a chain of causation. As Lord Herschell said in your Lordships’ House in Mills v. Armstrong (The Bernina) (I): “If by a collision between two vehicles a person unconnected with either vehicle were injured, the owner of neither vehicle, when sued, could maintain as a defence, ‘I am not guilty, because but for the negligence of another person the accident would not have happened’.” In the same case, The Bernina (2), Lord Esher M.R. in the Court of Appeal, discussed the question “what is the law applicable to a transaction in which a plaintiff has been injured by negligence, and in the course of which transaction there have been negligent acts or omissions by more than one person?” The learned Master of the Rolls said that upon many points as to such a transaction the common law was clear, and stated the first of these points in these words (2): “If no fault can be attributed to the plaintiff, and there is negligence by the defendant and also by another independent person, both negligences partly directly causing the accident, the plaintiff can maintain an action for all the damages occasioned to him against either the defendant or the other wrongdoer.”

In all the circumstances of this case I find that there was contributory negligence on the part of the plaintiff to the extent of 20%.

Assessment of damages

Having found liability established I shall now consider the quantum of damages which ought to be assessed as the plaintiff is entitled to it for the injuries he received as a consequence of the accident.

The heads under which damages claimed are: (a) general damages, (b) special damages, (c) loss of wages, (d) interest and (e) costs. I shall now consider the assessment of the appropriate damages and in doing so I have considered both counsels’ submissions in writing.

Injuries to the plaintiff

There are two Medical Reports on the plaintiff before the Court. One is from Dr. P. Kumar, Consultant Surgeon, CWM Hospital and the other dated 5 August 2002 from Dr. S. Narayan, Medical Superintendent & Consultant Psychiatrist St. Giles Hospital.

I set these Reports out in full for a better understanding of the plaintiff’s condition. The Reports are as follows:

Report of Dr. Kumar

“Kissun Lal was hit on the right side of his head on 25/4/00 by a shovel of an excavator machine whilst at work.

The impact was serious and potentially life threatening. He lost consciousness at the impact and started bleeding profusely from laceration on that side of the head. He was taken to Nausori Health Centre and subsequently transferred to Suva.

Examination at CWM Hospital revealed significant head injury. Kissun was drowsy and had a deep wound on the head. CT scan of the head revealed contusion (damage) to both frontal lobes of the brain. This was treated appropriately with close observations and no surgical intervention was required except closing the scalp laceration. He was discharged on 1/5/00.

On follow up in the clinic he has persistent problems of severe headache, unsteadiness, intermittent drowsiness, impaired speech and serious memory impairment. All these symptoms are due to the significant head injury.

Kissun is not fit for any employment. His permanent incapacity is 40%.”

Report of Dr. S. Narayan

“Kissun Lal has been attending St. Giles Hospital since November 2001 after being referred to us from the CWM Hospital. We have had the opportunity to review and assess him serially over the past ten months. He has been seen here in the company of his wife and children.

His functioning Prior to Injury

Prior to the head injury Mr. Lal was gainfully employed by the PWD. He worked there for 26 years as a labourer and performed well. He was well behaved and he was respectful as well. He was a responsible person who looked after the well being of his family.

Action Taken

Mr. Lal was commenced on Antidepressant medication initially. He was also put on Antipsychotic medication so as to control his hallucinations. Int the last ten months he has made some improvements. He will continue to be followed in our clinic in future.

Assessment of disability after Treatment

At present both his GAF Score and SOFAS stand between 61 – 70%

In other words, he still has an occupational, social and psychological disability of between 30 and 39%.”

The plaintiff’s condition

Mr. Maharaj has pointed out in his written submission in a summary form the salient features of the plaintiff’s condition deduced from the evidence of the said two doctors and I set them out hereunder in his own words:

Two Doctors gave evidence in relation to the injuries suffered by the Plaintiff. First being Dr. Rotimi Isac Afolavi who at the material time was a consultant surgeon at the C.W.M. Hospital. He said he saw the report of Dr Pravin Kumar dated 1^st November 2000 in which report it is stated that Kissun Lal (Plaintiff) was not fit for any employment. This report was tendered by consent in evidence. He confirmed that Kissun Lal suffered head injury as a result of shovel of an excavator machine which hit him on the right side of his head. He confirmed that according to the report he was brought in the Hospital in an unconscious state. He was treated with interveners fluids and antibiotics. His laceration was stitched. He continued to be treated. Oxygen supplementation was given. He was in the Hospital from 25/4/2000 and discharged on 1/5/00 (6 days). He was continued to be seen as an outpatient thereafter. He confirmed that he probably suffered a lot of pain and suffering. He said medicine was given to suppress the pain. He said from the Report he could say, that this was a case of severe head injury. He was shown a photo of a digger and said that “the bucket would have to swing to hit his head to create the impact.” (This piece of evidence would create serious doubt on the evidence given by the digger driver, that Plaintiff fell or walked onto the bucket).

Dr Sish Narayan gave evidence and said that he was of the view based on his own assessment of Kissun Lal’s mental state, he would not be able to take up the kind of job that he did previously.

In answer to a question by Mr. O’Driscoll for Third Party, Dr. Narayan when asked whether the plaintiff would be capable of continuing a job as a ‘road digger’ the doctor said:

“Factors that would be taken into consideration when answering this question is the level of his concentration, how much he is forgetful will be taken into consideration especially going back to the job in which he had been injured and can be very traumatic as well.”

The plaintiff’s wife Bhan Mati testified that her sexual relations with the plaintiff has been completely destroyed ‘as he is very sick’.

She also said that he was unable to do any work, such as gardening etc around the house. He tries to do some work but ‘most he will do is for 10 minutes before he feels dizzy and sits down’. She said that he does not like noise, becomes violent, does not sit through Ramayan (religious) recital.

General damages

There are difficulties in assessing general damages.

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 an 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 L.J 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 way ‘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 figures arrived at are in proportion to amounts in other cases of those who have suffered injuries of comparable severity.

Certain amount of consistency has to be maintained in awarding damages as stated in Attorney-General of Fiji v Paul Praveen Sharma (Civil Appeal No. ABU0041.1993) where it is said:

“The third ground of appeal concerns the level of the general damages awarded in relation to the circumstances of the case and the previous decisions of the courts in Fiji. There is no doubt that in fixing the quantum of general damages a Trial Judge, having calculated the amount which appeared to be appropriate under the various heads of such damages, must than consider whether the total of those amounts is itself appropriate in all the circumstances of this case. In coming to a conclusion on that matter he should have regard to the need for consistency in the level of general damages awarded in similar cases.”

(emphasis added)

The plaintiff is also entitled to damages for pain and suffering and on this Kemp & Kemp (Vol 1 p200, 2-010) states:

“...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.”

The law

On the law involved both counsel referred to the case of Ajay Kumar v Fletcher Construction (Fiji) Limited HBC00316 of 1997 where I dealt with a somewhat similar situation: There I stated:

“It is the common law that a employer has a duty to take reasonable care of the safety of his workman in all the circumstances of the case. This duty exists whether the employment is inherently dangerous or not. The employer’s duty of reasonable care is the ruling principle.”

I went on to say:

“The law as I see it from the authorities is that if a person is under a duty then responsibility does not cease upon delegating the work to someone else whether it be a servant or to an independent contractor.”

Further in Charlesworth on Negligence 6^th Ed. on p74 in para 114 it is stated:

“If an employer who has a duty to perform, either by statute or at common law makes a contract with an independent contractor, for the performance of that duty instead of doing it himself he is liable for the negligence of the independent contractor in the performance of the duty”.

Bearing in mind the law, in the case of the plaintiff who was an employee of the defendants, in the circumstances of this case, the employer had a duty to ensure the safety of the plaintiff in the course of his employment. There was a breach of that duty, hence the defendants are liable to the plaintiff in damages for injuries suffered by him.

In actions for personal injury, damages are conventionally divided into ‘special’ and ‘general’. They are defined thus (Law of Torts by John F. Fleming 9^th Ed. 1998):

“ ‘Specials’ refers to all items of damage capable of (more or less) precise qualification, comprising medical and other expenses as well as lost earnings up to the date of trial..............

‘General damages’ on the other hand, comprises all non-pecuniary losses, past and future, as well as future earnings (earning capacity)”

Both counsel referred the Court to a number of decided cases to assist in assessing general damages.

In Renuka Shankar v Chandar Gopolan Naidu (Civil Appeal No. 3 of 2001) which bears close relationship to the present case the Court upheld the award of $60,000 by Scott J (now Judge of Appeal).

In Renuka Shankar a psychiatrist examined Renuka’s mental state and assessed her Global Assessment of Social functioning at 25% but which subsequently improved to 60%. Kissun Lal’s rating, however, was lower than Renuka Shankar, in that, he was assessed at 40-49% by Dr. Sish Narayan. Kissun Lal will not be able to go back to his job nor will be able to take any other job, even simple gardening, now, as well as beyond his retirement. His sexual employment has also been affected.

Bearing in mind the authorities and the plaintiff’s condition I agree with Mr. Maharaj that $60,000.00 would be an appropriate award by way of general damages. This amount I award. At the date of the trial he was 56 years of age.

Special damages

The agreed sum of $300.00 for taxi fare is awarded.

Loss of Wages

On loss of wages I agree with Mr. Udit that it should be assessed for four years which comes to $27,722.56 made up as follows:

$115 per week x 52 weeks x 4 = 23920.00

8% FNPF (on $23930.00) = 1913.00
1/3 Wages, Workmen’s Compensation = 1899.50

________
Total 27222.56

________

Interest

The plaintiff is entitled to interest on general damages at the rate of 6%
From the date of issue of writ to date of judgment. Interest on special damages is to be paid at 3% from date of accident to date of trial.

On rate of interest to be paid this is what the Court of Appeal said in AG v Charles Valentine (Civil Appeal No. ABU0019.1998):

“(a) Special damages. Interest should be awarded from the date of the accident to the date of trial at half the appropriate rate. (Usually special damages such as hospital expenses, loss of wages, etc, accrue on a day-by-day basis. Rather than the Court making a series of interest calculations from the time each was incurred, it can achieve a broadly appropriate assessment taking a figure representing a mean or average for the period. Half the interest over that time may be accepted as a suitable compromise figure in most cases.)

(b) Loss of future earnings. No interest should be allowed.

(This is because the plaintiff does not become entitled to this

money until the award is made and so has not been kept out

of it to justify giving in interest.)

(c) Pain and suffering and loss of amenities. It should be awarded at the appropriate rate from the date of service of the writ to the date of trial”.

Costs

The costs are to be taxed unless agreed.

On ‘defendants’ claims’ to be indemnified by the Third Party

It is not disputed that the plaintiff was employed by the defendants. However, the defendant entered into a contract with the Third Party to do the excavation work. The defendant’s own workman (the plaintiff) was also working on the said project at the same time.

As far as the acceptance of liability on the part of Third Party for ‘damages or loss to any possession or property’ the following paragraphs 5 and 6 of the Statement of Claim are relevant:

That under the terms of the said contract the Company was responsible to avoid any damage or loss to any person or property either wilfully or negligently, so as to expose the Defendant to any liability under common law and/or any Statute.

That the Company had duly agreed under the said contract that if at any time the defendant would become liable itself, due to the Company’s neglect or misconduct by any act or omission by its employees or agent, it would indemnify the defendant of any such liability absolutely.

The defendants rely on the following clause 15 of the Agreement for ‘liability for damages or injury’ and I find that they are quite justified in doing so on all the facts and circumstances of this case:

Neither the Government nor any of its servants or agents shall be liable in any way whatsoever for any damage or injury whether to any person or property, sustained by the Contractor or any person or property, sustained by the Contractor or any of his servants or agents or by any other person occasioned during the delivery of any articles or otherwise in the course of performance of the contract, unless due to any act or neglect on the part of Government or of its servants or agents, and the Contract shall at all times keep Government fully and sufficiently indemnified against all actions claims, demands and damages arising or resulting in any way whatsoever from any such damage or injury as aforesaid.

It is quite clear from the above clause what the contract is between the parties and hence no extrinsic evidence is required for its interpretation. The parties have spelled out in their contract their obligations, rights and responsibilities.

In this case I find as fact on the civil standard that it was through the negligent handling and fault of the Third Party’s excavator driver that the accident happened and caused injuries to the plaintiff’s head. As stated by Mr. Udit the plaintiff would still have been injured with or without the wearing of a ‘helmet’ from the force with which the ‘bucket’ hit the plaintiff’s head.

For these reasons, it is ordered that the defendants be indemnified by the Third Party for any award made herein against the defendants.

Orders

I make orders as summarized as follows:

$

(a) General damages 60,000.00

(b) Loss of wages

(as stated hereabove) 27,722.00

(c) Special damages

(agreed) 300.00

(d) Interest on General Damages at 6% from

18.12.00 (date of issue of writ of summons)

to 7.9.05 (date of judgment) to be calculated.

(e) Interest on special damages at 3% from

18.12.00 (date of issue of writ to 7.9.05

(date of judgment) to be calculated

(f) Costs to be taxed unless agreed as between

the plaintiff and defendants and between

the defendants and Third Party.

(g) From the total of awards for general and

special damages and interest thereon, 20%

is to be deducted for contributory

negligence on the part of the plaintiff.

That will give the figure for payment to

the plaintiff by the defendants.

(h) The defendants are to be indemnified by

the Third Party in the sum awarded against

them for loss suffered by the defendants in

terms of the said agreement between them.

There will therefore be judgment for the plaintiff in the abovementioned sums with interest to be calculated AND further 20% deductions from the total sum for contributory negligence as well as deduction of $20,000.00 being interim damages already paid to the plaintiff by the defendants to arrive at the final sum of money to be paid as damages etc. to the plaintiff by the defendants. The defendants are to be indemnified by the Third Party in the sum awarded against them for loss suffered by them. I award costs against the defendants to be taxed if not agreed, similarly costs is awarded against the Third Party in favour of the defendants to be taxed if not agreed.

D. Pathik
Judge

At Suva
7 September 2005