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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC0118 OF 2002L
BETWEEN:
MAIKELI JUNIOR NASOLO
of Tomotutu Settlement, Lautoka, unemployed, a minor by
MAIKELI NASALO BUROGOLEVU
of Tomotutu Settlement, Lautoka his father and next friend
Plaintiff
AND:
EVANGELINE VEENA SINGH
f/n Hari Prasad
1st Defendant
AND:
RAVENDRA NATH SHARMA
2nd Defendant
Mr.R.Singh with Mr.R. K.Prasad o/in by Messrs Krishna & Co. for the plaintiff
Mr. S. Maharaj for the defendants
Date of Hearing: 23 – 25 August 2005
Date of Judgment: 11 November 2005
JUDGMENT
The plaintiff by his next friend brings his cause of action against the owner and driver of a motor vehicle (a taxi) which he alleges knocked him down on the Vunato Bridge on the Kings Road, Lautoka on the 20th April 2000.
The plaintiff was at that time 7 years and 7 months old and he is now 12 years old. He was at the time of the accident in class 2 and the Lautoka Seventh Day Adventist School and he is now in class 8 at the Lautoka Primary School.
The plaintiff says that at about 10.00am on the 20th April 2000, he with his brother and grandmother was walking from the Vunato Village to Lautoka town. They had walked along a track adjacent to the river and on approaching the Kings Road at the northern end of the bridge, he says he looked left and right and saw 2 cars coming from the left (the Lautoka end). He took about 2 steps and then cannot recall what happened. He says there were no cars coming from the Ba end of the bridge.
The plaintiff further says that one of the vehicles approaching was a taxi and it was overtaking another vehicle on the bridge, that it was speeding at the time and they appeared to be racing. I place little credence on much of this evidence as it would appear to be a reconstruction due to the young age of the plaintiff and the speed with which the accident occurred. The plaintiff does most relevantly say however that he and his brother took 2 steps and then recalls nothing until waking up in hospital. Both legs were broken and he suffered a head injury.
The injury to his head required stitches and a steel rod was inserted into his left leg and his right thigh was placed in plaster. He also had stitches to his right hand. He was unable to walk and his mother and grandmother stayed with him in hospital. One would do the night shift and the other the day shift. On discharge from hospital he went home in a wheelchair and continued to use the wheelchair for about one year after discharge from hospital where he spent some 51 days.
The injuries he suffered are best described in the evidence of Dr. Mareko, which evidence includes a report, Exhibit P-1. That report indicates that the plaintiff suffered a fractured left femur and fractured right tibia and fibula together with a head injury.
The accident was witnessed by Aisake Masi who resides on Vunato Road which was described as being on the left hand side of the Kings Road when travelling from Lautoka to Ba.
Mr. Masi gave evidence that he was proceeding to the town between 9.30 and 10.00am when he approached a Kings Road and when about 15 to 16 yards from the accident scene, he saw 2 cars travelling behind each other and then one commenced to overtake on the bridge and that there were 2 children on the other side of the road and he saw the 2 little boys flying through the air as a result of the impact of the vehicle. He says one of the children landed in the ditch and the other one was lying just before the ditch. The children were known to him and he identified the plaintiff. He and another man ran to the children, picked them up, stopped a passing vehicle and conveyed them to the Lautoka hospital.
Mr. Masi says that the taxi stopped about 15 to 20 metres towards Ba from the point of impact. He says that the point of impact was on the right hand lane when travelling from Lautoka to Ba and that the police did not attend the scene of the accident whilst he was there nor have they at any time spoken to him about his observations.
Nowa Qadriua was on the 20th April 2000 between 9.30 and 10.00 standing on the roof of what was at that time the Suncourt Hardware Building at Vunato. He was working on the building and it was his tea break at the time. He noticed 2 children walking to the Kings Road at the Ba end of the bridge. He saw that they were holding hands and he saw them stand beside the road. He then saw 2 cars, one being a taxi which was trying to overtake the other and he yelled out to the boys but it was too late and they were thrown into the ditch.
He says he saw them flying in the air. He says that he started yelling when he saw the taxi commenced to overtake but nobody heard.
On his arrival at the scene, the children were bleeding and he started shouting at the driver of the taxi to come back and then stood beside the road asking for help together with Mr. Masi and stopped vehicle which took the children to the hospital.
The police did not interview Mr. Qadriua. He says the taxi came to rest some 20 metres towards Ba from the point of impact. He says that he doesn’t know the family. He is not a friend of the family.
The 2nd defendant, the driver of the taxi gave a very different version of events and says that he saw 2 children on the road. He saw the children running so he stopped his motor vehicle and that when his vehicle was stopped, the plaintiff and his brother bumped the front left fender of his vehicle and jumped over the vehicle. He says he didn’t overtake any vehicle on the bridge that when he came onto the bridge, he saw the 2 children running on the right hand side near the junction to the Vunato Road and reiterates that he stopped his car and the 2 children bumped into the fender and collapsed there. He says that the accident took place in the middle of the road.
He says that he didn’t get a chance to assist the children and he could not move his vehicle as he was being attacked by a Fijian man that he did not know. He says that he did not see either Mr. Masi or Mr. Qadriua at the scene of the accident. He says that he went to the Police Station that afternoon and reported the accident and the assault.
The damage to his vehicle, he says was occasioned to the fender by the children running into it and to the front of the vehicle when the vehicle was attacked by the Fijian man who kicked and punched the vehicle breaking the light. At the time, the taxi was carrying 4 passengers, 1 in the front and 3 in the back and was travelling to Ba. The passengers left the vehicle after the accident and obtained alternate transport. Mr. Sharma denied that he was speeding and denied that he was overtaking.
The only other evidence as to liability was given by Corporal Abbas Hussain, the investigating police officer, the person who completed Traffic Docket No. 2449/2000. Corporal Hussain gave evidence of having visited the scene at about 10.45am in company with the driver/2nd defendant and that the point of impact was pointed out to him by the driver. He found a flip flop at the centre of the road and prepared a sketch plan of the scene. The corporal produced to the Court as Exhibit D-4, the Fiji Police Traffic Docket No. 2449/2000 and said that the driver was not charged and that he was unable to locate any independent witnesses but that he did interview the 2 boys in the company of their father which fact was denied by the plaintiff. The plaintiff acknowledged being interviewed but stated that his father was not present. Corporal Hussain said that when he visited the scene there were no brake marks on the road in either direction.
The police docket contained the statement of the plaintiff. When that document was shown to the plaintiff he denied that his father was present and denied the contents of it.
The investigation diary in the docket is clearly a reconstruction, dates are changed from 2000 to “22/4/05”. The dates are then reversed to “00” and then in numerous instances what appears to be “05” has been changed to “00”.
The corporal could give no satisfactory explanation and I find that the diary is not as initially reported and has been for some reason reproduced in recent times.
The superior officers instruction sheet within the docket gives instructions to the corporal to “record statements from one of the passengers who was a bailiff officer and he is known to the driver of the taxi. Also records statements from the 2 old people with whom the children were and one of the employees of Suncourt who has seen the accident”. Clearly, this instruction was not carried out.
The evidence of the 2 eyewitnesses is consistent with the evidence of the plaintiff and inconsistent with the evidence of the 2nd defendant and with the evidence of Corporal Hussain.
The point of impact as determined by the corporal in consultation with the 2nd defendant is towards Ba from the point at which the track on which the children were walking meets the Kings Road. It would seem illogical that the children would have proceeded away from Lautoka to cross the road.
The injuries sustained by the plaintiff appear to be inconsistent with him having run into the front right fender of the defendant’s vehicle and appear to be more consistent with that vehicle having come into collision with him.
In considering the whole of the evidence as to how the accident occurred and considering the nature of that evidence, I am satisfied on the balance of probabilities that the accident occurred as described by the two eyewitnesses that is, that the taxi being driven by the 2nd defendant collided with the plaintiff in the northbound lane of the Kings Road.
In Anare Robinson v Joseph Shackley & Another – HBC0022 of 1990L, the Court adopted the words of Underwood J. in the Tasmanian Supreme Court in Bullock v Miller [1987] Aust Torts Reports
“young children have limited perception, foresight and ability to make a recent judgment. Young children lack the capacity to recall and apply previously gained knowledge so as to avoid injury. Imperviousness, selfishness and single-mindedness are idios anchoretic behaviour are all characteristics of children. The extent to which they govern behaviour in situations involving the risk of injury greatly diminishes with maturity.”
It follows therefore that I find for the plaintiff on the issue of liability.
Damages
The plaintiff says that prior to the accident, he was able to run around and play sport as one would expect a child of that age to do. He says that as a result of the injuries to his leg, he feels pain on a regular basis and that he doesn’t participate in sport because of that. He says he feels sad about not being able to play sport and to run around with his school friends.
The plaintiff gave evidence that it is his desire to be a pilot in due course and that he is studying hard to achieve that aim however his mother gave evidence that his school work or school results have dropped since the accident. He was however only 7 years and 7 months at the time of the accident and he is now 12 so to make such a comparison and to attribute it to the accident is indeed very difficult. His treating orthopaedic surgeon, Dr. Joeli Mareko, described the injuries he sustained, the discomfort and the fact that he was immobilized and in a wheelchair for an extensive period of time. He assessed the plaintiff as suffering a 15% disability and says that it is unlikely that he would be able to undertake strenuous work and that he would expect him to experience pain when participating in sport and that in future he would suffer joint stiffness requiring pain relief, physiotherapy or massage.
The defendant caused the plaintiff to be examined by Dr. Eddie McCaig who says that he walks without a limp and that his legs are functioning normally and that everything is pointing in the right direction. He acknowledges that he suffered very significant fractures that would take on average 18 months to 2 years for the patient to recover but he says that it is unlikely that osteo-arthritis will set in. However it is always a possibility but it is a more likely consequence in older patients. He says there is no measurable function deficit in the plaintiff as a result of the injury he sustained.
An investigator engaged by the defendant tendered to the Court (Exhibit D-3) a series of photographs which whilst showing scars to the plaintiff’s legs do little more than show him to be a 12 year old boy who has the capacity to mix with his peers.
The plaintiff’s mother gave evidence as to him missing school as a result of the pain in his legs and confirms that she and her mother looked after him in hospital. She also says that at times he just “freaks out” particularly in the night and when being asleep he will suddenly cry out when he apparently feels pain in his legs. She says that he regularly complains about pain and that she massages his legs using Vicks and takes him to the hospital at times.
It is clear from the evidence that the plaintiff suffered very significant injuries to his legs which caused significant pain and disability for up to 2 years and that he does suffer some continuing disability with respect to the ongoing pain and inability to participate in sport and a degree of absenteeism from school due to pain in his legs.
The plaintiff claims special damages in the sum of $500.00 for medical and transportation costs to and from hospital, which amount the defendant admits.
The plaintiff also claimed for nursing care pursuant to the principles in Griffiths v Kerkemeyer [1977] HCA 45; 139 C.L.R. 161 however this claim was not pursued. In addition to general damages the plaintiff claims for loss of earning capacity. It is difficult to assess a plaintiff of such tender years as to whether there will in fact be a loss of earning capacity in the future. Dr. Mareko assesses that the plaintiff will be unable to perform heavy physical work. The plaintiff has expressed the desire to be a pilot however there is a degree of absenteeism and resultant lowering of his school achievement, which it is said, is due to the residual pain that he suffers. This may be sufficient to result in him not achieving his goal however it may be that he would never have achieved that goal in any event.
I cannot be satisfied that there is indeed a loss of earning capacity for which the plaintiff should be compensated.
The plaintiff suffered scars to his head and legs. These scars are quite visible and some allowance should be made for them. The plaintiff claims interest and I see no reason why it should not be allowed in accordance with the principles set forth in Attorney General of Fiji v Charles Valentine – Civil Appeal No. ABU0019 of 1998 at the rate of 6%.
The plaintiff has referred the Court to various authorities with respect to the determination of general damages. The defendant has not placed any material before the Court to assist in the assessment of damages. In Anare Robinson v Joseph Shackley & Another – HBC0022 of 1990L the Court in 1996 awarded to a plaintiff who had his leg amputated below the knee and who was 14 years of age the sum of $20,000.00 by way of past general damages and $30,000.00 by
way of future general damages together with the interest at the rate of 9%. These amounts were confirmed by the Court of Appeal. Similar amounts were awarded in Repeka Naba v Shameem Buksh – HBC0218J.1990L in a judgment delivered on the 7th July 2000 to a plaintiff who was 6 years old when she suffered head injuries of a severe nature.
Mr. Justice Scott in Litiana Ciri Domokamica v Saiyad Saheem – HBC0492 of 2000S award the sum of $65,000.00 by way of general damages to a 35 year old woman whose left leg was seriously injured to the point where she had a deformed left lower limb with gross swelling, significant pain, osteoarthritis and a need to continue using a crutch.
The Supreme Court of the Fiji Islands in Peter Elsworth & Another v Yanuca Island Ltd - Civil Appeal No. CBV0008 of 2002S accepted the Fiji Court of Appeals assessment of general damages in the sum of $50,000.00 as appropriate after the Court of Appeal had considered the benchmark decisions in Selai Toga v Anderson – Civil Appeal No. ABU0026 of 1994, Kamia v Attorney General of Fiji – Civil Appeal No. HBC0281 of 1996 and Rabutabutaki and Attorney General of Fiji v Rokodove – Civil Appeal No. HBC0088 of 1998.
In the light of the of authorities to which I have referred and doing the best I can, I assesses general damages in the sum of Fifty Thousand Dollars for pain and suffering and loss of amenities of life and apportion that amount as to $30,000.00 for past and $20,000.00 for future.
The apportionment is made based upon the evidence as to the significant pain and disability suffered by the plaintiff during the 2 years immediately following the accident.
With respect to the scar, again doing the best that I can, I award the sum of Three Thousand Dollars ($3,000.00) to the plaintiff.
Summary of Damages
General Damages:
Pain and Suffering and loss of amenities of life .
Past .. .. .. .. .. .. $30,000.00
Interest on past general damages @ 6% .. .. $ 6,300.00
from 18/4/2002 to 11/11/2005
Future .. .. .. .. .. .. .. $20,000.00
General Damages .. .. .. .. .. $ 500.00
Interest on General Damages from 20/4/2000
to 11/11/2005 at 3% .. .. .. .. .. $ 82.50
---------------------------------------------------------------------------------------
TOTAL .. .. .. .. $56,882.50
====================================================
Orders of the Court
JOHN CONNORS
JUDGE
At Lautoka
11 November 2005
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