IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 023 OF 2006

BETWEEN:

RAGHUBIR
s/o Shiu Baran
Plaintiff

AND:

ABID HUSSEIN
s/o Ahmed Hussain
First Defendant

SAUKAT ALI
s/o Sultan Ali
Second Defendant

AND:

ASAELI DONU BILO
1st Third Party

THE PERMANENT SECRETARY FOR HOME AFFAIRS
2nd Third Party

THE ATTORNEY GENERAL OF FIJI
3rd Third Party

Counsels:	Mr. A. Sen for Plaintiff
Mr. A. Ram for Defendants
Ms M. Lord for 3rd Parties

Date of Hearing:		22nd, 23rd, 24th July 2008
Date of Judgment:		25th August 2008

JUDGMENT

[1]	Raghubir was a cane farmer at Seaqaqa. He can no longer farm his land. His life changed on 29th August 2005. On this day he was sitting on the floor of the verandah of a canteen/bus shelter at Seaqaqa. The shelter is situated by the junction of Labasa/Nabouwalu Road and the Navidamu Road/Hospital Road. To be more precise, it is situated at the corner of Hospital Road and Labasa/Nabouwalu Road.

[2]	There was a collision at the junction between an Army Truck registration number GL 928 and a yellow truck registered number CI 569 driven by the second defendant and owned by the first defendant. The army truck was driven by Asaeli Donu Bilo, the first named third party. As a result of the collision at the junction, the truck registered number CI 569 went out of control, collided with a post of the canteen causing the roof to collapse. The truck also hit Raghubir who suffered fracture of right elbow and fracture below the knee of the left leg. The collapsing roof caused lacerations on his head. Another person who was on the verandah died. Raghubir was hospitalized for considerable time. He brought this action against the two defendants for personal injuries caused to him and for consequential economic losses.

[3]	The defendants allege that the collision was due solely by the negligent driving of the army vehicle by Asaeli Donu Bilo. They allege the plaintiff should have claimed against Bilo. They have joined Bilo as a third party. The second third party is sued as being the owner of the army truck and also as Bilo’s employer. The third third party is sued as representing the State under the State Proceedings Act.

Who was at fault?

[4]	The first issue is was the accident caused by the negligence of the driver of the yellow truck or the driver of the army truck. My finding is that the driver of the yellow truck that is the second defendant was the sole cause of this accident.

[5]	He had pleaded guilty to the offence of Dangerous Driving Causing Death in Criminal Case Number 456 of 2005 in the Labasa Magistrate Court. That death had resulted from the same accident. The conviction for that offence is evidence of negligence and is one of the factors I have to take into account in deciding who was at fault. 

[6]	Secondly, it is not in dispute that the army truck was traveling from Labasa towards Savusavu on the major highway. The second defendant came along Navidamu Road to proceed towards Seaqaqa Hospital. He was traveling along a minor road and to go to the hospital he had to travel across the major highway. It was therefore his duty to stop at the junction before proceeding onto the highway. The plaintiff Raghubir told the court that the yellow truck driven by the second defendant did not stop at the junction and proceeded onto the highway without stopping. DW1 Yunus Khan in his evidence in Chief stated that the yellow truck had its hazard lights on and was traveling at 20 kmph to 25 kmph at the junction. In cross examination he told the court that there was no need for the yellow truck to stop at the junction because the road was clear. He too admitted in cross examination that the second defendant did not stop at the junction.
 
[7]	According to the driver of the army truck and a passenger who was sitting in front a bus stopped at the junction of Navidamu Road and Labasa/Nabouwalu Road. The second defendant came past the truck and the next they saw the yellow truck was only about six meters in front of the army truck giving the driver of the army truck no chance to prevent the collision.

[8]	I am of the view that the reason for the second defendant not stopping at the junction was that he was carrying an injured person to hospital. Josefa Naivalu told the court that after the accident he went to the yellow truck and saw a person with a cut wrist inside the yellow truck. This is why Yunus Khan had seen the hazard lights of the yellow truck.

[9]	LALIT VIKASH CHAND (PW4) drew the rough sketch plan of the scene. He was a police officer based at Seaqaqa in the year 2005. He stated that when one is proceeding from Labasa towards Seaqaqa, one can see the intersection from 200 meters out. With this type of visibility, one would have expected the second defendant to be able to see the army truck up to 200 meters away from the intersection. He failed to do so. I believe the driver of the army truck and his passenger when they stated that a bus had come to a stop at the junction of Navidamu Road and the highway. The truck came from behind and came past the bus. It is the presence of the bus which would have blocked the second defendant’s view to the left towards Labasa. I am of the view that the second defendant was in a rush to take an injured person to hospital. Therefore he did not stop at the junction. In his rush he either failed to look to the left or, if he did, he saw the truck but, nevertheless, proceeded across the road in his rush thereby taking a deliberate risk.

[10]	Counsel for the defendants blamed the speed of the army truck as the sole cause of the accident. In his police statement, the driver of the army truck had told the police that he was traveling at 60 to 65 kmph. It is not in dispute that the speed limit both before and after the scene of accident is 50 kmph.

[11]	 DW1 Yunus Khan said that he was sitting under a mango tree by the police station. He told the court the road was clear and he saw the army truck traveling at 75 kmph to 80 kmph. According to him the second defendant’s vehicle had crossed the highway with only two feet of its rear being on the highway when the army truck came and collided with the rear of the truck that is with only one or two feet of the rear. In cross examination he stated the second defendant’s rear of the vehicle was precisely only 2 feet on the highway at the time of collision.

[12]	I have grave reservations about this portion of Yunus Khan’s testimony. He is not a driver. He was trying to judge the speed of a truck traveling towards him. Further if what he told the court, the point of impact would be on the extreme left side of the highway suggesting that the army vehicle was moving at the very edge of the road on the left side. That is highly unlikely. He was shown the sketch plan during the examination in chief and twice he maintained that the collision took place where the police officer who had drawn the plan had marked the point of impact. The point of impact as marked by the police officer was closer to the centre of the road than being two feet from the left. His evidence is therefore inherently unreliable with its contradictions. A lay person may have difficulty understanding the plan but he was explained where the various roads were but even then he persisted in pointing to the area around the point of impact as marked by the officer as being where the collision occurred.

[13]	There is also the evidence of Ram Jattan a retired police inspector. He had also visited the scene of accident soon after the accident with Lalit Vikash Chand. He formed the view that the army truck driver should have been charged because according to him he told the police he was driving at 60 to 70 kmph in a 50 kmph zone.

[14]	However more on the speed later. He had also warned the second defendant of possible prosecution. He told in examination in chief the point of impact should have been more towards co-operative store than where Lalit had marked it. In cross examination he stated that the point of impact should be further away from co-operative store more towards Savusavu.

[15]	Ram Jattan’s evidence is not that of an eye witness but more of a reconstruction after the event. The army truck driver has testified as well so I have to consider the evidence holistically.

[16]	The driver of the army truck and his passenger Josefa Naivalu both testified. They stated that when the truck left Labasa it traveled between 60 to 65 kmph but before reaching Seaqaqa township it had reduced speed to 50 kmph.

[17]	While I appreciate that the driver of the army truck has strong motives to say his speed was 50 kmph and his colleague has motive to assist his friend, I saw these two testify under intense cross examination. They both remained assured in their evidence. The driver explained that he had been interviewed in English. He had difficulty in taking the oath in English so the court intervened and had to call for a Fijian interpreter. He also explained that he was not feeling well when the interview was taken. He had been rendered unconscious in the accident. He also told the court that he only answered question which police asked and in that respect his statement may not be full. Further, the questions asked in court may be more than and different from questions put by police. In some respects therefore a witness in a civil trial may speak of pieces of evidence not stated in his police evidence. His explanation about his speed was that he was responding to the question which was his initial speed and not the speed immediately preceding the accident. I accept that despite what the army driver told the police, I accept his evidence on oath that his speed prior to the accident was 50 kmph.

[18]	Even if I had come to the conclusion that the army truck was traveling at 60 to 65 kmph that would not have assisted the defendants. The defendant was required to stop at the major junction or, if not to stop, then at least to only proceed onto the major road if it was safe to do so. A driver knowing that another vehicle is traveling at high speed, nevertheless proceeds onto its path is taking a deliberate risk.

[19]	Accordingly, the defendants cannot escape responsibility for the accident. The second defendant was entirely to blame for the accident as it was he who proceeded onto the path of the army truck giving the driver of the army truck no time to take any evasive action. The driver of the yellow truck took no part in the court proceedings. His counsel told the court that he had been threatened not to come to court. Who threatened him? When was he threatened and why was no report made to the police. It is the same person who ran away from the accident leaving an injured person whom he was transporting to the hospital unattended. He should have been present in court to explain what happened especially in view of the fact that he had been convicted for careless driving.

[20]	Next I consider the issue of damages. The plaintiff is claiming damages for personal injuries suffered and economic loss.

Personal Injuries:

[21]	According to the medical report the plaintiff suffered open compound fracture of the right elbow joint and closed fracture of left tibia and lacerations on scalp. He was admitted on 29th August 2005 and discharged on 12th September 2005. He was readmitted on 26th September 2005 to attend to wiring of fracture of right elbow. He was discharged on 4th October 2005.

[22]	As far as the leg was concerned, Doctor Abhay Chaudhary told the court that a fasciotomy was done to remove whatever blood had collected around the knee joint.

[23]	A debridegnent procedure had to be carried out for the injury to the elbow joint to remove all dead tissues. Later a K-wire fixation procedure was done. The fractured bone had a one centimeter gap between two parts so a wire was used to bring them together. The fracture was on the joint.

[24]	He further told the court that there is restriction on the movement of the elbow. The K-wire can be removed but considering the patient’s age he would not recommend it. He also told the court that he disagreed with Doctor McCaig’s conclusion that the existence of the K-wire was restricting the movement. He stated that the K-wire was outside the joint not inside it. He explained that osteoarthritis had set in and that cannot be reversed.

[25]	The doctor also told the court that he disagreed with Doctor McCaig’s report stating that limb alignment is good. He stated that a radiologist’s report done after X-ray carried out on 30th March 2006 showed a malunion and the alignment of the bone will not change. Dr McCaig besides making the report did not have the benefit of Labasa Hospital notes. He only saw the plaintiff once whilst the Labasa Hospital treated him right through. Doctor Chaudhary, unlike Doctor McCaig, came to court and testified. He convincingly explained his conclusions and why he disagreed with Dr McCaig’s report. I accept Doctor Abhay Chaudhary’s explanations.

[26]	The plaintiff now walks with the aid of a stick. Doctor Chaudhary confirmed that with a malunion of the fracture, the plaintiff will need a support to walk. The plaintiff would not be able to return to farming now.

[27]	I saw the plaintiff and the difficulty he faced walking and bending his elbow. Fractures are always serious. He will continue to face difficulty walking. His right hand was his dominant hand.

[28]	The plaintiff explained that for first six months he had to be assisted around and the injuries were very painful. He told the court that he still suffered pain in the leg, elbow and on the head.

[29]	In his submissions the plaintiff’s counsel sought $65,000.00 for pain and suffering. The defendant’s counsel submitted that a figure of $10,000.00 was just and fair. The figures given by the defendant do great injustice to someone who has suffered such injuries. In Satish Chand v. Padarath Bros & Sons Ltd. and Satendra Nair – HBC 134 of 1995 (Lautoka) judgment delivered on 29th September 2005 Finnigan J after looking at a number of judgments, awarded a sum of $65,000.00 for pain and suffering to a plaintiff who was 33 years old at the time of accident. He had suffered open comminuted fracture of distal right femur extending to knee joint, comminuted fracture of proximal tibia, and fibula (right) and open fracture of shaft of mid tibia (right). He had shortening of right lower limb by 6 cm with range of movement of right knee being limited. In Ajay Kumar v. Fletcher Construction (Fiji) Limited – HBC 316 of 1997 a carpenter who fell from scaffold was awarded $40,000.00 for pain and suffering for injuries to left elbow with 15% disability for functional limitation and right forearm fracture.

[30]	I saw this old man testify in court. He came away from Seaqaqa to live with his son in law in Waiqele as a result of his injuries. I consider that a sum of $50,000.00 as fair awarded for pain and suffering being $45,000.00 for past pain and suffering and $5,000.00 for future pain and suffering.

What was plaintiff’s loss of income as a result of injuries?

[31]	The medical evidence is clear and that is that with his injuries the plaintiff cannot do farming now. The plaintiff too stated that he cannot farm his land now. Farming for this plaintiff was the only occupation he was knowledgeable about. One cannot expect this man to engage in any other activity with his humble background.

[32]	In his statement of claim he alleged that he produced 500 tons of cane and earned $20,000.00 nett income from cane, rearing of cattle, goats and poultry.

[33]	According to Raghubir, he had a 34 acre cane farm and produced 350 tons and earned a nett sum of $8,000.00 or annually from it. Further that he used to cut about 150 to 170 tons of cane per annum. Additionally he stated that he harvested 25 bags of rice annually which is about 2 tons. Rice costs $1,000.00 per ton. This he said was for his consumption. He also told the court that he planted root crops and earned $2,500.00 to $3,000.00 per annum from sale of these.

[34]	The most reliable evidence about his cane production was given by PW2 Mahendra Chand who is a growers’ affairs clerk at FSC Labasa. He gave farm productions and nett payments for which I shall consider details from 2002 onwards. These are as follows:

YEAR	TONNAGE 	NETT PAID TO PLAINTIFF	
2002	381.91	$8231.00	
2003	217.76	$3726.00	
2004	335.29	$6986.00	
2005	338.32	$9028.00	
2006	238.49	$1349.00	
2007	146.66	$170.00	

On average therefore he received $7,000.00 from FSC for the years 2002 to 2005 inclusive. However, some adjustment has to be done to these figures as he would spend some money on farm labourers to plant cane and work, weedicide and perhaps an occasional use of tractor. All the plaintiff told the court was he spent $100.00 per annum on weedicides, a figure not challenged by the defendants. For all these expenses doing the best I can, I would reduce the annual nett by $400.00 so his nett income from cane would come to $6,600.00.

[35]	However, the matter does not rest here. The defendants called the gang sirdir Divendra Prasad DW3 to testify. Divendra Prasad himself is a farmer, gang sirdir and neighbour of the plaintiff. He had been a gang sirdir for five or 6 years. I was impressed by this man’s testimony.

[36]	He gave his testimony in a calm and assured manner despite being put through some very unfair questioning. He was truly an independent and truthful witness when it came to production figures. He testified from the books of records he kept. He gave tonnage of cane produced by the plaintiff from 2004. His figures matched those provided by the clerk from the FSC. However where his evidence becomes relevant is that of the total cane produced on Raghubir’s farm, part of it belonged to Sumintra, plaintiff’s daughter. According to him the plaintiff had given part of his land to Sumintra upon her marriage. As a sirdir, he was required to keep separate records. According to him Sumintra’s share of cane in 2004 was 129.53 tons from the total of 335.29 tons; in 2005 her share was 124 tons from the total of 338.32 tons; in 2006 her share was 79.99 tons out of total of 238.49 tons. Therefore in these three years she produced a total of 333.52 tons out of the total cane for these years of 912.10 tons. This gives Sumintra average share of about 36% over the three years or broadly speaking one third of the share of proceeds. Hence from the average nett income of $6,600.00 which I calculated earlier, I bring that figure down to $4,400 per annum being plaintiff’s share of cane crops. This would be the plaintiff’s nett annual loss from cane if one were to accept this method for calculating his loss, which I do not, as stated later in the judgment.

[37]	 I do not believe Amrit Prasad the son in law of the plaintiff that they ceased to do share farming after 2001. Even the plaintiff’s own document (page 7 of the agreed bundle) showed the names and tons of Raghubir and Sumintra on it. These figures match with breakdown given by the sirdir for the year 2005. The plaintiff’s explanation that the tonnage is shown for tax purposes or for purposes of assisting Sumintra’s children school expenses does not ring correct. If someone wanted to pay expenses for a child’s education, that philanthropic deed can be easily done by giving money than by tons of cane down to one hundredth of a decimal point.

Cane harvesting:

[38]	The plaintiff told the court that he also cut cane in the gang. The figure he gave was 150 to 170 tons per annum. This figure sounds very reasonable. He would therefore earn about $1,500 to $1,700.00 per annum from harvesting cane. The gang sirdir confirms that the plaintiff used to cut cane. So his annual loss from not being able to cut cane can be safely put at $1,600.00.

Sale of Root Crops:

[39]	The plaintiff claimed to earn $2,500.00 to $3,000.00 from sale of root crops that is monthly income of over $200.00. There is no supporting evidence to this. While I would not expect records for small sums for casual sales in a village, for such large sum the plaintiff would need to do better. To whom did he sell these produce? If he sold them, in the market, then the market master would have been an obvious witness. Further even though he mentions goats and poultry in his statement of claim, he makes no mention of sale of vegetables and root crops. The sirdir had it right I believe when he stated that such crops may have been planted and if ever there was surplus, then they may have been sold locally.

Income from Rice:

[40]	This is yet another item not mentioned in the statement of claim. He stated that he produced 25 bags of rice annually and that was for self consumption while the plaintiff’s son in law stated that the plaintiff also sold rice. Two tons of paddy is a large amount. If the plaintiff was selling rice and he had surplus, then why was the plaintiff buying rice from FSC as told to the court by the growers’ affairs clerk from the FSC. The plaintiff did not mention this fact to court or tell the court that he was buying rice from the FSC. Accordingly I accept the sirdir’s evidence that the plaintiff harvested about 5 bags of rice annually.

[41]	Can the plaintiff claim that just because he cannot farm the land, the court should give him his nett annual loss from the farm? One must remember, the asset producing the income namely the land remained as it was after the accident. The land had not lost its capacity to produce if cultivated. It was not necessary that the plaintiff himself farm the land. Growing of cane, rice, root crops etc did not require some unique skills and expert knowledge which only the plaintiff possessed. He could easily have engaged a labourer to do what the plaintiff did prior to the accident. He could have given instructions to the labourer as to the work to be done. He could then have claimed for wages which he spent on the labourer. That would have been a better option for him. Money spent in mitigating is recoverable and constitutes a separate component of plaintiff’s claim: Tucker v. Westfield Bhagwandei Design (1993) 123 ALR 278. 

[39]	As was stated by Williams J in Bhagwandei v. Yankatash Naidu & Others – HBC 24 of 1976 (Lautoka) in considering a similar type of claim "The farm is the plaintiff’s farm and it did not die with the deceased. It is still there, it can still be cultivated; it can still produce cane, rice, tobacco, vegetables and so on. Labour can be hired in place of the deceased to cultivate it". This reasoning was adopted by the Chief Justice Honourable Daniel Fatiaki in Hem Raj v. Netani Vateitei & Others - HBC 68 of 1994 (Labasa) judgment 22nd February 2005 where he stated that "Likewise in this case the plaintiff’s sand supply business did not die with the deceased. The other ten employees and principal income-producing assets i.e. the boat and barge still existed and the business could have continued to operate under a new manager".

[40]	When cross examined the plaintiff stated "I have left the farm and there is nothing left there now". He went on to say that he had left Seaqaqa permanently. He also stated that one Binesh now lived on the farm and Binesh collected all cane proceeds.

[41]	The plaintiff displayed a very care free attitude. He just leaves the land and expects the defendant to pay him. This failure to hire labourers after the accident to work on his farm would be effective cause of decline in production of cane. I do not allow him any damages for reduction in cane production or for the total loss of production. All I grant him is the $1,600.00 for cane he cut in the gang annually.

Mulitplier:

[42]	The plaintiff was born on 2nd November 1935. At the time of accident he was over 70 years old and is now over 73 years old. In case of multiplier, the closest case I am aware of is George Transport Ltd and Another v. Laisa Vosawale – ABU 35 of 2004. There a 63 years old farmer was killed in a road accident. The Court of Appeal reduced the multiplier from six to three years. In this case the plaintiff is older and I therefore use a multiplier of two. The plaintiff was well past his most productive age by the time of accident.

Interest:

[43]	Section 3 of the Law Reform (Miscellaneous Provisions) (Deaths and Interest) Act Cap 27 gives the court discretion to award interest at such rate and for such period between the date when the cause of action arose and the date of judgment. The parties in their pre-trial conference minutes had agreed to 3% interest on special damages and 6% for general damages and I so order.

Costs:

[44]	There was overwhelming evidence of negligence against the defendants. Once it became clear that the second defendant was not interested to come to court, the sensible approach for the defendants was to accept liability and proceed to hearing on the assessment of damages instead of wasting so much time in challenging liability. Accordingly I award costs which are somewhat higher than the usual in such proceedings. The normal costs on a two day trial would be $3,500 to $4,000.00. I order the defendants to pay the plaintiff a sum of $5,000.00 costs and a like sum to the third party which in effect is the state.

Conclusions:

[45]	Accordingly I make the following awards:

Pain and Suffering

(a)	Past pain and suffering	$45,000.00	
(b)	Future	5,000.00	
(c)	Loss of income from cutting cane for the years 2005, 2006 & 2007	 4,800.00	
(d)	Future loss for cutting cane for 2 years	 3,200.00	
(e)	Special damages agreed by parties	750.00	
(f)	Interest in (a), (c) & (e) at 3% per annum from date of filing of the court on 28/6/2006 to judgment (26 months)	 360.00	
(g)	Interest in (a) at 6%	 5,850.00	
	$64,960.00	

Final Order:

[46]	I order judgment against the defendants for the plaintiff in the sum of $64,960.00 together with costs in the sum of $5,000.00. The second defendant as owner of the truck is vicariously liable.

[47]	In view of the fact that I found the second defendant as the sole cause of the accident, the defendants’ claim for indemnity or contribution from the third parties is dismissed. I order the defendants to pay the third parties the sum of $5,000.00 costs.

[Jiten Singh]
JUDGE

At Labasa
25th August 2008