Kumar v Chief Executive Officer for Ministry of Women, Culture & Social Welfare [2008] FJHC 371; HBC 504.2004 (14 October 2008)

IN THE HIGH COURT OF
FIJI ISLANDS AT SUVA

CIVIL JURISDICTION
ACTION NO.: HBC 504 OF 2004

BETWEEN:

ANUJ KUMAR
Plaintiff

AND:

THE CHIEF EXECUTIVE OFFICER FOR
MINISTRY OF WOMEN, CULTURE
& SOCIAL WELFARE
First Defendant

THE ATTORNEY GENERAL OF FIJI
Second Defendant

Counsels: Mr. A.K. Singh with
Mr. M. Rata for Plaintiff
Ms N. Karan with
Ms K Naidu for Defendants

Date of Hearing: 11^th & 12^th September 2008
Date of Judgment: 14^th October 2008

JUDGMENT

BACKGROUND:
[1] Anuj Kumar was employed as a driver since 1996 by the Ministry of Women, Culture and Social Welfare at its Nausori Office. On 18^th March 2002 during course of his employment, he was transporting two other employees of the Ministry to Bau landing in Nausori. He was driving a government vehicle GL 267. This was soon after 7.00 a.m.

[2] He did not make it to Bau landing as he was involved in an accident on the way. He overtook a bus on a straight stretch of road and went back to his correct side. A vehicle which was coming from the opposite direction suddenly came onto his path. To avoid a head-on collision, he swung his vehicle to the right. But then the other also swung back to its correct side so the plaintiff had to swing to his left. In other words he first swung his vehicle to the right and then to the left. As demonstrated by the plaintiff he first saw the other vehicle on his path when it was only about ten meters away.

[3] As he turned left after swinging to the right his vehicle tumbled with two left wheels up in the air. The vehicle lay on its side in a drain and faced back towards Nausori. His right arm was crushed as the vehicle lay on its side. His arm was later amputated. The two passengers escaped unscathed.

[4] He was first taken to Nausori Health Centre from where he was transferred to the CWM Hospital in Suva. He told the court that he was admitted in the CWM Hospital for nine days. He also told the court that the doctor told him after five days that he wanted to amputate his right arm from the shoulder. He refused as his family wanted to take him to Brisbane for treatment. His family collected $50,000.00 for his treatment. He flew off to Brisbane accompanied by his mother and a doctor. The doctors at Wesley Hospital, Brisbane could not salvage his hand which was amputated from just above the elbow and the stub therefore sticks out of the sleeve of the shirt in a most unsightly manner.

[5] Anuj Kumar brought this action against the defendants claiming damages for pain and suffering, medical costs, loss of FNPF contributions and interest. There is an alternative claim under Workmen's Compensation Act. He has sued the first defendant as the employer and the second defendant as representative of the Government of Fiji by virtue of Section 12 of the State Proceedings Act.

Common Law - Negligence/breach of contract:

[6] The claim is firstly in negligence the particulars of which are as follows:

"(a) Failing to advise the plaintiff of the status of the motor vehicle.

(b) Instructing and allowing the plaintiff to drive the said motor vehicle knowing the fact that it is dangerous and unsafe.

(c) Exposing the plaintiff to a risk of damages or injuries of which they knew or ought to have known.

(d) Keeping the motor vehicle in its yard despite declaring it as "written-off"

(e) Failing to direct and/or request relevant authorities to take away the written-off vehicle for appropriate actions."

Alternatively he claimed that there was an implied term in his contract of employment that the employer would take reasonable care to provide and maintain a safe system of work and ensure that the machines the plaintiff was required to operate and use were safe.

Issues:

[7] The issues in this action are as follows:

(a) Was the first defendant negligent that is whether the vehicle driven by the plaintiff was safe;

(b) If I find that the vehicle was unsafe then was the unsafe condition of the vehicle cause of accident;

(c) If the answer to (b) is in the affirmative then what are the damages the plaintiff is entitled to.

ISSUE (a) -WAS THE FIRST DEFENDANT NEGLIGENT THAT IS WHETHER THE VEHICLE DRIVEN BY THE PLAINTIFF ON 18^TH MARCH 2002 WAS UNSAFE?

Vehicle: Written off:

[8] One of the pieces of evidence the plaintiff relies upon is document 3 vehicle: written off in the agreed bundle of documents. The document originates from within the government. It is headed schedule of unserviceable items. It relates to the vehicle GL 287 - It is dated 10^th May 2000. It recommends "Engine overall, suspension brake and electrical needs services, body work, painting brake system upholstery, tyre needs replacement. Estimated cost of repair $12,000.00. Recommended to be written off and disposed through public tender. Reserve value $5,500.00."

[9] DW2 Anare Vuniwai has been executive officer for last six years with the Ministry of Women and Culture at Suva. He acts as transport officer for the Ministry. He explained that "written off" was not used in the popular sense of the word but rattier done for ministerial convenience to get new vehicles. The Ministry of Finance approves purchase of new vehicles. Hence one of the policies before getting new vehicle is to write off existing vehicles. It does not mean that the vehicle is not road worthy. The Permanent Secretary of Finance can either approve or not approve the recommendations. The relevant Ministry he stated still used the vehicle even after it is recommended it be written off. It does not mean the vehicle is unserviceable.

Running sheets:

[10] The defendants tendered the Vehicle Log Book and the running sheets for 2001 and 2002. The log book is for the period February 1999 to March 2002. The log book contains information about distance done by the vehicle on days it is used and fuel consumption. At the bottom of each months record is the endorsement by the controlling officer which reads: "I have scrutinized the above record and the relevant monthly record entries in conjunction with the record of servicing etc and consider that together they indicate that the performance of this vehicle continues to be satisfactory".

[11] The running sheets show that this vehicle was driven by the plaintiff on many occasions. Counsels had told the court of pages of the running sheet on which plaintiff's signature does not appear. The remainder would therefore be plaintiff's signatures. This record also tells me that at least one other person, if not more, drove this vehicle. Counsels confirmed that none of the signatures from pages 144 to 218 are plaintiff's signatures so from 3^rd October 2001 to 1^st March 2002 the plaintiff did not drive this vehicle and one or more persons must have driven the vehicle.

Plaintiff's evidence:

[12] In his examination in chief the plaintiff told the court that before the accident steering was playing, both the handbrake and foot brake were not good, vehicle pulled to a side, tyres were plain and crooked. He explained that the steering had to be turned one quarter way round before it caught and began to turn the wheel. He said these defects were in the vehicle for over a year and he informed his supervisors about it.

[13] I note that at the start of the journey on 18^th March 2002 the mile meter read 243119 kilometers which is a fairly large reading taken in the context of Fiji road condition. Hence I presume that this vehicle had taken a substantial battering.

[14] As to the cause of the accident the plaintiff explained that he lost control of the vehicle because of suspension, brakes and tyre of vehicle. I do not know how much mechanical knowledge the plaintiff had to be able to pin point the cause. However there is certain other evidence which inferentially cuts across plaintiff's explanation. The plaintiff has explained to the court that he swung the vehicle first to the right and then to the left to avoid head on collision. He had to make these two swings within a very short distance of about ten meters. [from witness box to end of court as pointed by the plaintiff in Magistrate's Court Number 6]

[15] If the steering wheel was not catching unless one turned quarter round, it becomes difficult to see how he could have made these two manoeuvres in such a short distance and time traveling as he was at 50 kmph to 60 kmph. The other vehicle was also traveling in the opposite direction and yet with this steering defect he still did not hit the other vehicle. The plaintiff's evidence about defective steering is entirely unconvincing.

Land Transport Authority Report - post accident:

[16] Further there is a post accident report dated 21^st March 2002 made by the Land Transport Authority - page 36 of the agreed bundle. The report shows that the steering and suspension, brakes and transmissions were serviceable. It also found nothing wrong with wheels and tyre condition as denoted by a tick under the pass column in the form.

[17] The pieces of evidence which favour the plaintiff are his own testimony and the report made on 10^th May 2000 about 22 months prior to the accident for the purpose of writing off a vehicle to acquire a new vehicle. I can also consider the extensive mileage the vehicle done which would point to wear and tear of the vehicle. Opposed to that is a report made by the Land Transport Authority or few days after the accident. The LTA report is from an independent source. There is no suggestion that any one immediately after the accident attended to repairs to the vehicle and before the LTA examined it. Hence there is no evidence of interference with the vehicle after the accident to cover up defects. This report is closest in point of time to the accident and extremely relevant. There is evidence of Thomas Sinclair which touches on this report. He stated that even with the mileage shown the vehicle was still driveable but the risk was something could fail. At the outset I must say he had not physically examined the vehicle after the accident and in that respect the officer from the LTA who compiled the report is at a distinct advantage.

[18] Sinclair stated that if there is defective suspension and one comes across sudden emergency, there is delayed reaction in case of turning. This piece of evidence supports the conclusion that you cannot make quick right and left swings if suspension is defective. The plaintiff managed to do it so the suspension could not have been defective at the time of accident as the plaintiff alleged.

[19] Mr. Sinclair also suggested what is the more thorough way to check vehicles. He stated that the LTA only physically checks vehicle and does not road test or opens and checks vehicle. The LTA officer had in his report stated that the vehicle was not to be driven on the road unless certain matters were attended to so it would be unwise of the officer himself to road test the vehicle.

[20] The plaintiff has a lot to gain. If successful he would be entitled to substantial damages. It is hard to believe that other drivers would keep driving the vehicle with all the defects the plaintiff was describing and for a period of close to two years. I do not accept that the vehicle suffered from defects the plaintiff made out to be. The impression I got from plaintiff's manner of testifying was that he had seen the report of 10^th May 2000 and tried to fit his evidence in line with that report. There was evidence and submissions relating to whether the vehicle had been through the annual checks with Land Transport Authority. This was a fact not pleaded by the plaintiff and evidence regarding it had been brought by one sentence of hearsay through Sinclair. There was some marginal evidence by one Atai Khan retired LTA Officer. Why not somebody from the Land Transport Authority Office, evidence which would be easily obtainable? In view of the post accident report, I see little relevance of this evidence.

Causation:

[21] Vehicles normally do not tumble if properly maintained and operated. This is if there are no sudden emergencies. Here there was a sudden life endangering situation requiring extraordinary quick manoeuvre. This I hold is what caused the accident not the suspension or brakes or tyres. The cause of the accident was the driver of the other vehicle but who for some reason was not sued.

[22] Having come to the above conclusion, there is no need for me to consider issue two and three but advance to consider alternative claim under Workmen's Compensation Act.

Workmen's Compensation Act:

[23] The plaintiff had in his statement of claim prayed for alternative claim under the Workmen's Compensation Act. There can be no doubt that the injury to the plaintiff arose out of his employment and during the course of his work. The injury was work related. He earned $139.39 per week gross. The plaintiff has lost his arm just above the elbow which in terms of the Act is 70% disability.

[24] He cannot do any work which requires the use of two hands. It is total permanent incapacity. I apply the provisions of Section 7 of the Workmen's Compensation Act to calculate the compensation. This section allows for a sum equal to 260 weeks earnings as long as the total sum does not exceed thirty two thousand dollars. He is entitled therefore to 260 x $139.31 which comes to $35,241.40. I award him the statutory maximum of $32,000.00.

[25] The figures were last revised in 1994. With the passage of time and inflation, it is time that the figures be revised upwards again to meet the social objective of this important legislation of providing adequate compensation to injured work persons.

[26] I also award costs summarily fixed in the sum of $4,500.00.

Final Order:

[27] I enter judgment for the plaintiff in the sum of $32,600.00 together with costs in the sum of $4,500.00.

[Jiten Singh]
JUDGE

At Suva
14^th October 2008