Vusonitokalau v New World Ltd [2011] FJHC 132; HBC043.2009L (3 March 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 043 of 2009L

BETWEEN:

APISAI VUSONITOKALAU of Rarawai, Bam, Unemployed.
Plaintiff

AND:

NEW WORLD LIMITED a limited liability company having its registered office at Kings Road, Ba.
1st Defendant

AND:

SOFINA MOREEN BEGUM father's name Hussain Khan of Navatu, Ba, Housewife.
2nd Defendant

Before: Master Anare Tuilevuka
Solicitors: Chaudhary & Associates for the Plaintiff
: N/A for the Defendants
Date of Ruling: 03rd March 2011

RULING
BACKGROUND

[1]. On the 9th of July 2007, Apisai Vusonitokalau ("Apisai") - the plaintiff, was walking along Tabua Place in Ba when he was hit by a car. The registration number of that car was CY591. It was being driven by Sofina Morren Begum ("Begum") - the 2nd defendant. It is alleged that Begum was a servant/agent of New World Limited ("New World") at the time of the accident. Hence, New World is also being sued in this case. Apisai's statement of claim alleges negligence against Begum. The particulars of negligence are set out in the statement of claim.

[2]. Begum was charged for careless driving and on 31st of May 2007, she was convicted as charged under sections 99 (1) and 114 of the Land Transport Act 1988. She was also convicted on one count of driving a motor vehicle without a driver's licence.

[3]. Begum was fined $150-oo (one hundred and fifty dollars). She has since paid her fine at the LTA office. Apisai's claim relies on that conviction on the issue of negligence.

[4]. Apisai suffered severe personal injuries as a result of the accident. The particulars of these are set out in the statement of claim:

Particulars of Injuries

Admitted to Lautoka Hospital

His right leg was deformed painful and difficult to move.

INVESTIGATIONS

Radiological x-rays revealed fracture of the right tibia and fibula.

TREATMENT

Pain relief

Manipulation under Anasesthesia

Long leg cast

Physiotherapy

Walking with crutches

He was discharged on 13th July 2007 and was subsequently reviewed in the orthopedic clinic.

He was last reviewed on 13th August 2008 and was noted to be still walking with crutches.

[5]. The defendants have never bothered to file a statement of defence. And so – on 7th of August 2009, default judgment was entered against them both. That was followed immediately by the filing of notice of assessment of damages on the 12th of August 2009. These – according to two affidavits of service of Rajesh Muni Ratnam, a registered bailiff – have both been served on New World and Begum.

[6]. Thereafter, the matter was called before me on the 7th of September 2009 when Mr. Suresh Maharaj appeared for Sahu Khan & Sahu Khan for the defendants. On Mr. Maharaj's application, the defendants were given 21 days to set aside the default judgment.

[7]. There were to be several call overs of this matter with counsel appearing and informing the court that parties were talking settlement. However, when no settlement happened, I finally set the case down for hearing on assessment of damages to the 17th of May 2010. That hearing did not proceed. After some more adjournments - the hearing finally took place on the 24th of August 2010.

EVIDENCE

[8]. Apisai gave the following evidence on oath.

• (i) he lives in Naidrodro, Rarawai in Ba. He is a farmer.
  
• (ii) on 09/07/07, he was walking along Tavua place in Ba town when he was hit by vehicle CY591 owned by New World.
  
• (iii) he produced in court an extract of an LTA search conducted by his lawyer. This confirmed that CY591 was owned by New World on the day of the accident.
  
• (iv) the driver of CY581 was Sofia M. Begum. Apisai's lawyers had obtained an extract of particulars of accident. This confirmed that Begum was driving without a licence.
  
• (v) after accident, Apisai fell down. When he tried to stand up, he found that his leg was broken. Some people came and picked him up. Begum said she had to go home as her husband has a driver's licence.
  
• (vi) after the accident, Apisai found that both leg bones were broken. He was taken to Ba Mission Hospital. From there, he was then than transported to Lautoka Hospital where he was admitted.
  
• (vii) he recalls he was brought to Lautoka Hospital at 4.00 p.m. of the same afternoon of the day of the accident. He was lying in bed. He was unconscious at hospital. He was in great pain.
  
• (viii) he was admitted at Lautoka Hospital for 4 days. He was told at the hospital to attend regular check-ups every month. They gave him panadol at the hospital and put a cast on his leg. He was in pain in the leg during the 4 days.
  
• (ix) when he was discharged, he went in crutches by car. He was not used crutches before the accident. After accident, I started using crutches. Now I use crutches still. My legs - still feel pain. I can't walk. Will have to used to crutches. His date of birth is 09/10/45. He will be 65 years of age this year (i.e. 2010).
  
• (x) at the time of the accident, he worked at R.C. Manubhai as watchman for 3 nights a week and was paid $58.
  
• (xi) when weather gets bad, he could feel pain in the leg. When it gets cold, he feels pain. He felt pain right now in the court room because of the air conditioning.
  
• (xii) his right leg is shorter then left leg.
  
• (xiii) after the discharge from Lautoka Hospital, he had to make trips to Lautoka Hospital for therapy. 6 trips from Ba to Lautoka - $240 by van. He doesn't have receipts.
  
• (xiv) he spent $100 for pain relief medicine. He still takes panadol for pain relief. He spends $40 per month on these i.e. $10 per week.
  
• (xv) he is married and lives with a daughter who sells kai to support him. He asks for compensation and damages for injury and asks for:
  
  • damages – pain past and future
  • loss of amenties of life, e.g. can't work/use fork, spade, farm. Can't bend. Only can sit. So have difficulty using toilet. Can't run.
  • loss of ability to earn.
  • future costs for medicine
  • special damages - $340-00
  • interest.
    

[9]. Dr. Joeli Mareko also gave evidence. He is a Consultant Orthopedic Surgeon at Lautoka Hospital. He came to court with Apisai's hospital folder and read from a Medical Report on Apisai that he had prepared in March 2009.

[10]. According to Dr. Mareko, when Apisai arrived at hospital, his right leg was deformed and not in proper position. An x-ray revealed that Apisai had a fracture of the bone in the right leg. It was a simple fracture. Apisai was given pathedene narcotics and manipulation under anesthesia.

[11]. Dr. Mareko tried to put the bones in place and then he put a cast around Apisai's right leg. He prescribed physiotherapy for Apisai and also ordered a pair of crutches.

[12]. Apisai's right leg has shortened since the accident. This is because the bone of the right leg is not healing in proper position. Because of the shortness of the right leg, Apisai will now have to walk with a gait. Also, he will feel extra weight on the shorter leg. He would have problems in kneeling, running, walking up steps and even sitting in toilet pits. He assesses Apisai's incapacity at 10% to 15%. He said that Apisai would need pain killer in the future to manage his pain.

[13]. Mr. Chaudhary submits as follows (see middle column). My assessment is on the far right column.

SCHEDULE OF DAMAGES
Head of Damage	Mr. Chaudhary's Assessment	My Assessment
General Damages (pain & suffering, and loss amenities )	$40,000.00 $25,000 for past $15,000 for future	$40,000.00 (agreed after considered in Aklesh Narayan v Vicki Narayan [2009] FJHC 193; HBC22.2003L (8 September 2009)
Loss of Earning Capacity	$5,200.00 (2 years @ $50 per week)	(agree with $50 per week. Also agree with 2 years as multiplier considering his age).
Special Damages	$340.00	Agree. ($240 for transport and $100 for medicine)
Interest
@ 6% on $25,000.00 from date of filing of writ to date of judgment =		$4,500 - 18th March 2009 to 04th March 2011.
@ 3% on $340.00 from date of filing of writ to date of judgment		$ 30.60
TOTAL AWARD		$50,070.60
Costs		$1,500.00

[14] Accordingly, I enter judgment against the defendants in the sum of $50,070.60 plus costs in the sum of $1,500.00

Anare Tuilevuka
Master

At Suva
03rd March 2011.