Chand v Shahim [2005] FJHC 577; HBC0300.2001L (26 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0300 OF 2001L

BETWEEN:

RAKESH CHAND
s/o Jagjiwandas
Plaintiff

AND:

MOHAMMED SHAHIM
s/o Imam Mohammed
Defendant

Counsel: Mr. R. Chaudhary for the plaintiff
Mr. S. Maharaj for the defendant

Date of Hearing: 20 & 21 July 2005
Date of Judgment: 26 August 2005

JUDGMENT

The plaintiff by Writ of Summons claims damages for injuries sustained by him as a result of a motor vehicle accident on the 12^th April 2001 on the Kings Road, Tavarau, Ba.

Background

The plaintiff was born on the 29^th April 1964 and he was 36 years of age at the date of the accident and he is 41 years of age at the date of trial. The plaintiff left school in 1983 after completing 2 months of Form Seven, he then attended the Fiji Institute of Technology and completed a Diploma in Management in 1985.

The plaintiff’s employment commenced with a six months temporary term at the Ba Magistrates Court, following which, he commenced his employment with Lees Trading, Lautoka as a baker in mid 1985. He moved to a salesman at Lees Trading and was then required to travel of the Western Division from Sigatoka to Rakiraki. He travelled in a small Suzuki van and remained in the employment of Lees Trading for about 20 years.

The plaintiff was married on the 12^th April 1993. His wife is not in employment and there are no dependent children.

The Accident

On the 4^th April 2001, the plaintiff had left Rakiraki at about 11.15am and was travelling to Lautoka. He encountered heavy rain around Tavarau where he slowed to 40 kmph. It was a 60 kmph zone. It was about 1.30pm. The plaintiff says that a white taxi overtook him, following which a maroon four wheel drive travelling in the opposite direction came onto the plaintiff’s side of the road. The plaintiff says that he tried to swerve to his left and applied the brakes but the maroon four wheel drive hit the middle of his van and turned it to face Ba. The plaintiff says the impact occurred in the lane in which he, the plaintiff, was travelling. Following the impact, the windscreen of the plaintiff’s vehicle came out and he was trapped in the vehicle with his head bleeding.

The driver of the tax stopped and he and his passengers tried to free the plaintiff by pulling his vehicle and ultimately by using a crowbar to break the door and free him. The plaintiff says that he was trapped in his vehicle for about half an hour and that his vehicle was moved on the road whilst he was being freed.

Upon being freed from the vehicle, he was taken in a carrier to Lautoka Hospital where he arrived sometime after 2.00pm. His leg was plastered and his forehead was treated and he was in hospital for 2 weeks and was ultimately discharged on the 27^th April. Whilst he was in hospital he was receiving injections for the pain. On discharge he could not walk and was in a wheelchair, his left leg was broken in two places and he had a right toe cracked. Following discharge, he was wheelchair bound for about 2 weeks, following which he was able to use crutches for 7 or 8 months and ultimately returned to work on the 11^th December 2001. On return to work he performed light duties, sitting in an office doing invoices.

The taxi driver, Jagdish Prasad, gives evidence of his observation of the maroon vehicle coming towards him, the driver having lost control but he swerved to the left to avoid an accident, the vehicle then hit the plaintiff’s van and he heard a big noise. He says he observed the collision in his rear vision mirror and then stopped and went to offer assistance. He says that the impact with the plaintiff’s van was on the left hand side of that vehicle. He, Jagdish Prasad, and his passengers brought the plaintiff out of the vehicle. He says at the time he was travelling at 40 to 45 kmph that the visibility was about 1 to 2 chains due to the rain, that he had left the scene when the police arrived and his passengers left with him.

The defendant says that there was water on the road, on his side of the road, but denied that he lost control of the vehicle and says that the accident occurred in the center of the road. He was only travelling at about 40 kmph and the visibility was only 8 to 10 metres. He describes the plaintiff’s vehicle as having collided with his vehicle and he denies any knowledge of the presence of the taxi and says he didn’t see it.

Liability

On the basis of the evidence given to the court by the plaintiff and the taxi driver, Jagdish Prasad, I accept the fact that the accident occurred on the plaintiff’s side of the road and that the defendant’s vehicle has veered from its correct side of the road to its incorrect side of the road and then it came in to collision with the vehicle being driven by the plaintiff.

The defendant was charged with Dangerous Driving and was convicted of that offence at the Ba Magistrates Court.

By virtue of section 17 of the Civil Evidence Act, the fact of the conviction is admissible in evidence for the purpose of proving that the defendant committed the offence and the defendant is taken to have committed that offence unless the contrary is proved.

As was pointed out by the Fiji Court of Appeal in Jag Prasad & Ors v Mano Lata – Civil Appeal No. ABU0026 of 2004, the House of Lords characterized as “uphill” the task of the defendant to persuade the court to the contrary of a verdict beyond reasonable doubt – Hunter v Chief Constable of West Midlands [1981] UKHL 13; [1982] A.C. 529 at 544. In Stupple v Royal Insurance Co. Ltd [1971] 1 Q.B. 50 at 72 Lord Denning in dealing with the English equivalent pointed out the impact of the section and said:

“If the defendant has not been convicted, the legal burden is on the plaintiff throughout. But if the defendant has been convicted of careless driving, the legal burden is shifted. It is on the defendant himself. At the end of the day, if the judge is left in doubt the defendant fails because the defendant has not discharged the legal burden which is upon him. The burden is, no doubt, the civil burden. He must show, on the balance of probabilities, that he was not negligent: otherwise he loses by the very fact of his conviction.”

The situation in the present case is that the defendant has failed to satisfy the court on the balance of probability and accordingly, I find for the plaintiff as to liability.

Medical Evidence

The plaintiff, following the accident, was admitted to Lautoka Hospital where the injuries he sustained were described as being head injuries with laceration, right foot injury and left leg injury. He was treated with bed rest, analgesics, antibiotics, head injury observation, suturing of scalp laceration and manipulation of fractures. The facture to his tibia and fibula did not align properly and the then treating doctor sought to re-operate on the leg in 2001. The plaintiff refused any further operation at that time. In the opinion of Dr. Mareko, Consultant Orthopaedic Surgeon at Lautoka Hospital, the plaintiff currently suffers from shortening of the left leg diminished, range of movement of the left ankle and left knew, headaches and dizziness and he assesses his total disability at 30%.

The defendant caused the plaintiff to be examined by Dr. Eddie McCaig at Suva Private Hospital. Dr. McCaig gave evidence and a report was tendered, Exhibit D-1, as to his assessment of the plaintiff following an examination which took place on the 25^th June 2005. Dr. McCaig concluded that the plaintiff has a malunited tibia fracture. That he lacks approximately 30 degrees of left knee flexion and that he has no knee effusion and the knee is stable and that he lacks ankle dorsillexion of 20 degrees on the left. He dismisses the plaintiff’s claim that he has suffering continuous headaches and found no anatomical explanation for these symptoms and assesses the plaintiff as having a 12% disability. It is acknowledged that the difference in percentage disabilities assessments by the two orthopaedic specialists is the lack of any consideration of the headaches in Dr. McCaig’s assessment.

The plaintiff in his evidence complained of difficulty in driving long distances and indicates that on a journey from Lautoka to Suva, he had to stop several times due to the pain in his left leg. Both doctors confirmed that driving a manual vehicle for time would cause the plaintiff pain and that the need to stop was consistent with the injuries and resultant disabilities suffered by the plaintiff.

The defendant engaged an insurance investigator to observe the plaintiff from time to time. He suggested that the plaintiff had in the past moved more freely than he was moving at the time of his court appearance.

The plaintiff has recently taken an “easier job” to minimize the need to walk on his leg.

Loss of Earning Capacity

No claim is made by the plaintiff for any loss of earnings and his earnings having in fact increased as a result of his changed occupation in recent times. The claim is however made for loss of earning capacity in accordance with the principles expressed by Henry J.A. in Appal Swamy Naidu v Bechai - Civil Appeal No. 43 of 1994. Whilst the plaintiff has been able to better himself so far as his employment is concerned, there must be some doubt that should he loose that employment that he is now less employable than he would have been prior the accident. His inability to drive long distances without rest and his inability to walk or stand for a long period must limit the available employment options. Dr. McCaig acknowledges that the defendant’s injuries would affect a walking around job. In these circumstances, it seems appropriate that in the light of the principles referred that there be some allowance for the loss of earning capacity.

Special Damages

The plaintiff’s claim particularizes the sum of $431.00 by way of special damages and there seems to be no reason why they should not be allowed as claimed.

General Damages

The plaintiff submits that the pain suffered by him in the past and the disabilities to be suffered in the future warrant an award in the order of $60,000.00 by way of general damages. The authorities to which the defendant refers the court as to quantum of general damages are all indeed more than 12 years old and I get little assistance from such authorities due to the difficulty in equating those awards with today’s dollars, so far as to say than bringing those awards to today’s dollars would significantly increase the amount of the award.

If I accept that the plaintiff has a permanent disability somewhere between 12% and 30% some assistance is gained from Sunil Chand v J.S. Hill & Associates Ltd & Anor – HBC0154 of 1998L where a plaintiff with an incapacity of 20% was awarded the sum of $30,000.00 by way of general damages.

Interest

Interest is claimed by the plaintiff and there would appear to be no reason why it should not be awarded at a rate of say, 6% in accordance with the provisions in Jefford v Gee as adopted in Fiji in the Attorney General v Charles Valentine – Civil Appeal No. 19 of 1988.

Schedule of Damages

General Damages:

Past .. .. .. .. .. .. .. $30,000.00

Interest @ 6% from 4/10/01 – 26/8/2005 .. .. .. $ 7,000.00

Future .. .. .. .. .. .. .. .. $20,000.00

Loss of earning capacity .. .. .. .. .. $ 15,000.00

Special Damages .. .. .. .. .. .. $ 431.00

Interest @ 3% from 12/4/01 – 26/8/05 .. .. .. $ 53.00

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TOTAL .. .. .. .. .. .. $72,484.00

Orders of the Court

1. Verdict and judgment for the Plaintiff in the sum of Seventy Two Thousand, Four Hundred and Eighty-Four Dollars ($72,484.00).
   
2. Defendant to pay the plaintiff’s costs assessed in the sum of Two Thousand Dollars ($2,000.00).
   

JOHN CONNORS

JUDGE

At Lautoka

26 August 2005