Chand v Roko [2009] FJHC 374; HBC0004.2005 (24 September 2009)

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Mr. S Prasad for the Plaintiff
Mr. J Mainavolau with Ms. M Lee for the Defendants

This is a claim by the Plaintiff for damages in respect of injuries suffered in an incident that took place on 15 February 2002 at a location known as Siberia a short distance outside Labasa town on Vanua Levu.

Proceedings were commenced by Writ dated 11 August 2005, some three and a half years after the incident. An amended Writ together with amended Statement of Claim was filed on 26 March 2007 with the leave of the Court.

The hearing took place in December 2008 before the Honourable Madam Justice Scutt. However before judgment was prepared, the Judge had returned to Australia following the abrogation of the Constitution. As a result the action was re-heard over five days between 13 and 26 August 2009. The Plaintiff called four witnesses and the Defendants called six witnesses to give evidence.

As the witnesses were giving evidence about events and matters that had occurred up to seven years earlier, their recollection of relevant detail appeared in most cases to be based more on reconstruction than reliable memory. Apart from the medical witnesses, there were no notes or statements to which reference could be made by witnesses in order to refresh their memory of events that had occurred many years earlier. As a result there were many inconsistencies in the evidence that were not necessarily the result of any attempt by any particular witness to mislead the court. At the outset it should be stated that the evidence given by each witness was a. genuine attempt to recall what had occurred. However, the Court's task of determining on the balance of probabilities what had occurred was made that much more difficult in this case because of the length of time that had elapsed between the incident that had caused the injuries to the Plaintiff and the trial of the action.

The following narrative and sequence of events is based on findings from a consideration of the evidence and assistance derived from the statement of agreed facts that is set out in the minutes of the pre-trial conference.

On 15 February 2002 the Plaintiff suffered injuries as a result of a single vehicle accident. At the time, the Plaintiff was employed as a driver by the Public Works Department and supervised by Second Defendant. On the day in question he was involved in the delivery of water to residents in the Siberia area. He was driving a seven ton short wheel base Hino truck registration number GJ 448 (the vehicle). Although no witness was able to give the year of manufacture, it was accepted by the parties that the vehicle was old. The Plaintiff had driven this vehicle on many occasions and he stated that it was the vehicle that he usually drove. He did state that other drivers also drove the vehicle from time to time. Welded onto the tray of the vehicle was a water tank with a capacity of 1200 gallons. At the time of the incident the water tank contained about 600 gallons.

Before departing the depot in the morning of 15 February 2002 the Plaintiff was handed a Vehicle Job Instruction sheet directing him to cart water to the Batinikama and Siberia areas. After that he was to receive further instructions from Laitia Bika, his immediate supervisor. There were no other details provided on the Instruction Sheet.

With the Plaintiff that morning as a passenger was the First Defendant, Alifereti Roko. He had been employed by the Public Works Department for about 20 years as a fitter. On the day in question he was tasked to assist the Plaintiff by delivering the water to houses. As was the usual practice, the First Defendant received a list of names and addresses that were to receive water that day. The First Defendant's job was to fill house tanks or residents' container with water from the tank.

The First Defendant was one of two or three employees who accompanied the Plaintiff on water delivery tasks from time to time, although on any particular day, the Plaintiff was only allocated one assistant.

After leaving the depot the Plaintiff and the First Defendant delivered water to three or four houses. The next house on the list was the residence of a Mr. Ram Bahadur in Siberia. At this stage the water tank was half full containing about half 600 gallons. Mr. Bahadur's residence was located at the top of a steep dirt track that ran off a slightly wider and flat dirt road. It was apparent from the view by the Court that the condition of the dirt track had deteriorated considerably from the condition described by the Plaintiff and the First Defendant in their evidence:

The events that followed the arrival of the Plaintiff and the First Defendant at the base of the dirt track leading up to Mr. Bahadur's residence were the subject of confusing and inconsistent testimony.

It would appear that as the Plaintiff had driven the same vehicle up this dirt track on previous occasions, he did not consider the question of safety on this particular day. It would appear that, on previous occasions when he had successfully delivered water to Mr. Bahadur's house, the tank contained a similar amount of water to that which it contained on 15 February 2002.

However, on this occasion, the vehicle stalled and came to a stop some distance short of Mr. Bahadur's residence whilst still on a steep part of the dirt track.

The Plaintiff stated that he then applied the handbrake, engaged first gear and kept his foot on the footbrake. He then asked the First Defendant to get out of the truck and look for some stones that could be placed against the rear wheels to prevent the vehicle rolling backwards down the hill.

Both the Plaintiff and the First Defendant agreed in their evidence that this was the first time that the First Defendant had been asked by the Plaintiff to undertake such task,

At this point the evidence given by the Plaintiff was in sharp contrast to the evidence given by the First Defendant.

The Plaintiff's evidence was that the First Defendant told him that he had placed big stones behind the rear wheels and that he the Plaintiff should release the brake slowly. The Plaintiff admitted that he did not see how many stones nor what size stones had been placed behind the rear wheels.

The First Defendant's evidence was that he could only find one stone about one foot in diameter which he placed behind a rear wheel on the passenger side of the vehicle. He also placed two planks behind the rear wheels. He said that he stood on the passenger side of the vehicle and told the Plaintiff that he had placed the stone and told him to "move back a little bit."

It would appear then that the Plaintiff removed his foot from the footbrake and the vehicle commenced to roll backwards, although the Plaintiff stated that both first gear and the handbrake were still engaged.

The stone and the wooden planks were not sufficient to prevent the vehicle rolling backwards. It gathered speed and a short distance down the hill rolled into a ditch on the side of the road. The tank became dislodged forcing the front of the vehicle to lift up. The sudden movement resulted in the Plaintiff falling out of the vehicle which then came to a stop with the front wheel against the Plaintiff's body.

The exact sequence of events as described by both the Plaintiff and the First Defendant was difficult to visualise. However, the Court accepts that with the passing of such a long period of time, the evidence was based more on reconstruction than memory. Reconstruction is unfortunately notoriously self-serving even though the result is usually unintended and sub-conscious.

The Plaintiff was freed by the First Defendant with the assistance of some of the occupants of Mr. Bahadur's residence. The Plaintiff stated that he lost consciousness for a short time and was then taken to the Labasa hospital. He was an in-patient for about one month. The Plaintiff suffered a closed fracture of the pelvis and a fracture of the left foot. In the Statement of Claim the Plaintiff also claimed that as a result of his injuries he is no longer able to enjoy the conjugal benefits of marriage. His evidence was that since the incident he has not been able to engage in sexual intercourse with his wife. The Plaintiff did not return to work. At the time of the incident the Plaintiff was aged 57 having been born on 14 October 1944.

Having considered the evidence I make the following in respect of the question of liability.

I find that seat belts were not fitted to the vehicle at the time of the incident. I have no hesitation in accepting the evidence of the Plaintiff and the First Defendant that the vehicle was not fitted with seat belts at the time. I also accept that the Plaintiff had complained to the employer about this matter on previous occasions. The complaints had been futile.

Secondly, I am not satisfied that the vehicle was in a state of disrepair nor was it mechanically defective. It was fit for the purpose for which it was tasked on the day in question. It had been involved in. the delivery of water to the same premises on recent occasions prior to the incident. There was any one of a number of unexplained reasons why the truck stalled and came to a stop as it approached Mr. Bahadur's house.

On the balance of probabilities I am satisfied that the First Defendant placed only one stone behind one of the rear wheels on the passenger side and two planks behind another wheel. I do not accept that the First Defendant told the Plaintiff that he had placed stones under the wheels. I also accept that the First Defendant was not able to locate any other suitable stones to be placed behind the rear wheels.

Whilst I accept that the First Defendant's duties included assisting the Plaintiff when necessary, responsibility for the manner in which the truck was driven, where it travelled and under what circumstances was the responsibility of the driver, in this case the Plaintiff.

I find that the employer, whether in the form of the second or the third defendant, was negligent in that it failed to provide safe equipment. It. provided a vehicle that was not fitted with seat belts. Except where there is any overlap with that ground of negligence, I am not satisfied on the evidence that any of the other grounds of negligence have been established. There was no evidence before the Court in relation to the condition of the engine nor of any failure on the part of the employer to properly maintain the vehicle.

Whilst it is accepted that one employee owes a duty to take care to a fellow employee when they are working together on a joint task, I am not satisfied that in this case the First Defendant has breached that duty. He simply did as he was asked by his fellow employee. He placed the only stone he could find behind one of the rear wheels. The two planks were the only other items at his disposal, to place behind the rear wheels. The first defendant did not have any training in this area, he had not previously been involved in an incident similar to this and he had never driven a vehicle, let alone a truck with a tank containing 600 gallons of water. By indicating to the Plaintiff that he should release the brake to allow the vehicle to roll back, he was doing no more than indicating to the Plaintiff that he (the Plaintiff) could attempt to implement his plan for attempting to get the vehicle back down the slope. However the experienced and responsible party at this point was clearly the Plaintiff.

I therefore, find that there was no negligence on the part of the first defendant and therefore as a result the employer is not vicariously liable.

I am satisfied that the failure by the employer to provide seat belts was the cause of the Plaintiff falling out of the truck which in turn resulted in his injuries.

Having found negligence against the employer in its own right, it is now necessary to determine whether there was any contributory negligence on the part of the Plaintiff. In doing so I am required to determine whether the Plaintiff failed to use reasonable care for his own safety. The requirement is that the Plaintiff should have acted reasonably.

The issue of the Plaintiff's conduct arises in two contexts. First, the decision by the Plaintiff to attempt to proceed up the steep dirt track in a vehicle that was not fitted with seat belts and was fitted with a tank carrying about 600 gallons of water. It must be remembered that the Plaintiff had made similar deliveries in the same vehicle on a number of previous occasions without incident and without experiencing any difficulty or problem. He had driven the same vehicle in the area for a number of years without any incident. The truck had never been fitted with seat belts. There was no evidence before the Court that any other employee driving the same vehicle or any other vehicle had experienced any problems when delivering water to these particular premises.

Although the Plaintiff took a risk in driving the vehicle up the steep track without seat belts, a risk that was created by the employer's failure to provide safe equipment, it is in my opinion, a risk that a reasonably prudent man in the Plaintiff's position would have taken and did, as a result, not amount to contributory negligence.

The issue was discussed by the House of Lords in A.C. Billings and Sons Ltd. -v- Biden [1957] UKHL 1; [1958] AC 240. Lord Reid at page 252 stated:

"If the Plaintiff knew the danger, either because he was warned or from his own knowledge or observation, the question whether the danger was such that in the circumstances no sensible man would have incurred it or, in other words, whether the Plaintiff's exposing himself to the danger was a want of common or ordinary prudence on his part. If it was not, then the fact that he voluntarily or knowingly incurred the danger does not entitle the defendant to escape from liability."

The second context in which contributory negligence is to be considered concerns the events that occurred when the vehicle's engine stalled. Whilst it may not have been prudent or reasonable for the Plaintiff to place his safety in the hands of a person in the position of the first defendant, it is difficult to identify any other reasonable course of action or option that was available to the Plaintiff.

The truck he was driving had come to a stop whilst it was located on a steep slope of a dirt track with a tank containing 600 gallons of water. The Plaintiff had engaged the hand brake and placed his foot on the on the foot brake. The vehicle was in first gear. He really had no choice under the circumstances but to request the assistance of his passenger, the first defendant. Through no fault of his own, the first defendant's measures were not sufficient to prevent the vehicle rolling backwards once the Plaintiff took his foot off the foot brake.

If the vehicle had been fitted with seat belts the Plaintiff would not have been ejected from the vehicle when it hit the ditch causing the water tank to snap its welded fittings and slip off the back of the vehicle. The only damage would have been to property, i.e. the vehicle and the tank.

From the evidence of the Plaintiff, the medical reports that were tendered as evidence and from the testimony of Dr. Kurabui and Dr. Balram I am satisfied that the Plaintiff suffered serious injuries that prevented him from returning to work before he reached retirement age and left him with a permanent partial disability.

The Plaintiff was initially rendered unconscious as a result of his falling out of the truck. He was then taken to the Labasa hospital and spent one month in hospital as an inpatient. His left ankle was placed in plaster. A catheter was inserted to assist the Plaintiff to urinate. His lower back was bandaged. He was not able to walk for the first three weeks of his hospitalisation. The Plaintiff also stated that his testicles became swollen as a result of the pelvic injury. He experienced severe pain in his back and ankle.

When he returned home he described his condition as bad and his wife was required to take care of him. He still experiences pain in his back and ankle. He still requires the assistance of at least one crutch for walking.

Before the incident he was in good health and apart from his work, he also engaged in vegetable farming as both a hobby and to supplement his income. No claim was made for loss of income from the vegetable farming. He did not return to work between the date of the incident and his scheduled date of retirement when he turned 60 years.

The medical report dated 1 May 2003 from Dr Kurabui stated in the second paragraph:

"Mr. Chand, now 58 years, sustained severe bilateral, displaced, closed fracture of the pelvic bones, as a result of a motor vehicle accident: 15/02/2002 ...."

"With regard to Mr. Chand, the severity of the injury has greatly impair [sic] the function of his pelvic bones and has caused him to be bed-ridden for 32 days at Labasa hospital, after which he was then discharged for surgical clinic follow-ups".

The report does not refer to the ankle injury but does note that the Plaintiff was limping and walking with one walking stick.

"Mr. Chand sustained severe injury to his hip and left ankle following an accident on 15 February (2002). He sustained a closed fracture of his pelvic bones as well as calcanean fracture of his left foot and was confined for 30 days at the Labasa Hospital surgical unit.

Upon examining his musculoskeletal system it was noted that he had a persisting limp and favoured his left leg while attempting to walk without crutches. To keep his body steady he required a pair of crutches for mobilisation. He is on medication (analgesics) since the accident and had developed gastritis as a result of the chronic use of NSIADS.

The left heel showed swelling and was painful when the foot was passively flexed. He also had some limitation of flexion and extension at the hip as pain was elicited on this movement. His left ankle shows signs of arthritis and his pelvic area also shows signs of arthritis. There were no neurological defects noted."

The report also stated that the Plaintiff suffers after effects in the form of limited mobility affecting his posture and resulting in "flexed attitude." The doctor assessed the disability percentage for the pelvis at 50% and for the left foot at 40%. She concluded that there were signs of post trauma arthritis.

An undated Medical Board Report prepared after an examination of the Plaintiff on 14 May 2004 somewhat surprisingly found that the Plaintiff was able "to walk without assistance or crutches and apparently without pain. No pelvic pain at fracture site under vigorous applied stress."

The most recent report was dated 28 November 2008 from Dr Talaga, a Consultant Orthopaedic Surgeon at the CWM Hospital. The report was prepared by Dr Talaga after perusing a bundle of medical records and reports that were provided by Defendants' legal representative. Apart from noting that the Plaintiff was treated conservatively in the ward for his serious injuries, the last two paragraphs of the report are of some assistance:

"The fracture of the left calcaneum has resulted in osteoarthritis of the sub-talar joint. This joint is important especially because it is a weight bearing joint involved mainly when the foot walks on an uneven surface. This is a life-long disability resulting in a limp and occasional back ache.

In my opinion Mr. Chand has fully recovered from his pelvic fractures, but his disability from the left foot is permanent and is equivalent to six percent (6%) of the whole person."

In none of the reports is there any reference to the claim by the Plaintiff that he had suffered a loss of sexual function as a result of his injuries. In her evidence Dr Balram did state that the Plaintiff had indicated on one occasion that he was having a problem with his physical relationship with his spouse. She told the Court that she had told the Plaintiff that he should mention it to his hospital doctors. The Plaintiff acknowledged that he had not raised the matter with any other doctor.

In his evidence Dr Talaga stated that some pelvic injuries can cause impotency. However this was when the pelvic injury included damage to the urethra. Dr Talaga stated that since a catheter had been inserted, it was unlikely that the urethra had been damaged.

On the evidence presented to the Court I find that the Plaintiff's loss of sexual function was not a direct medical consequence of the pelvic injury.

The Plaintiff is now almost 65 years old. Counsel have referred me to a number of decisions of the courts in Fiji in relation to an appropriate award of general damages for pain and suffering and loss of amenities. Having considered Counsel's submissions and some of the comparable recent decisions I consider that an amount of $55,000 is appropriate, of which $30,000 would be allocated to the time up till trial and $25,000 for the future. Interest is to be assessed on $30,000 at 5% from the date of the writ until the date of judgment.

As the Plaintiff reached retirement age on 14 October 2004 at the age of 60, there is no claim for general damages in the form of loss of future earnings, or loss of earning capacity.

Special damages were agreed upon by the parties in the sum of $15,220.21 consisting of past loss of earnings at $13157.61, loss of FNPF contributions at $1052.60, medical expenses at $410.00 and transport expenses at $600.00. The parties have also agreed on the amount of interest payable at 4% from the date of the incident (15/2/2002) up to 15/8/09 at $4566.06.

General damages (past)	$30,000.00
General damages (future)	$25,000.00
Interest on $30,000.00 at 5% from
February 2005 till September 2009	$6,875.00
Special damages including interest	$19,786.27

I award professional costs to the Plaintiff in the sum of $2000 plus disbursements.

High Court of Fiji

Chand v Roko [2009] FJHC 374; HBC0004.2005 (24 September 2009)