Devi v Nandan [2011] FJHC 305; HBC121.08 (27 May 2011)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA

ACTION NO: HBC 121 OF 2008

BETWEEN:

SAROJINI DEVI
Father's name Lalta Prasad of Sabeto, Nadi,
Business woman.
PLAINTIFF

AND :

VISHWA NANDAN
Father's name Sitaiya of Qeleloa,
Nadi
DEFENDANT

Before: Priyantha Nawana J.

Plaintiff: In person
Counsel for Defendant: Mr D Gordon

Dates of Trial : 18-19 May 2011
Date of Judgment : 27 May 2011

JUDGEMENT

1. The plaintiff, by her writ of summons dated 01 July 2008, instituted action against the defendant claiming special damages in amounts of $3,467.00 and $ 16, 196.40. In addition, the plaintiff claimed general damages for pain, suffering, loss of amenities of life and future earnings, damages to provide medical treatment and future cost of care, interests on monetary awards, costs of the action and further relief.
   
2. The action of the plaintiff was sequel to a motor car accident that took place on Queen's Road at Wairabetia in Lautoka around 12.00 noon involving two cars bearing Nos. BV 717 and DY 575 driven by the plaintiff and the defendant respectively.
   
3. The claim for special damages in the amount of $ 3467.00 pertained to the matters connected mainly with transport expenses of the plaintiff for the vehicle, while the loss of earnings from 29 August 2007 to 13 August 2008 formed the claim for special damages in the amount of $ 16 196.40. The general damages appear to have arisen from the alleged physical harm caused by the accident to the plaintiff.
   
4. The action was founded on the ground that the defendant failed to exercise necessary care expected of a prudent driver in that he [the defendant] was driving at an excessive speed; failed to keep a proper look-out and slow down or stop or manoeuvre the said vehicle so as to avoid collision with the plaintiff's car and, thereby, failure to pay attention to other road users.
   
5. The plaintiff claimed that, as a result of the collision, she had suffered extensive injuries, the particulars of which were plainly pleaded as neck pain, back pain, left chest pain and tenderness over the neck and back and difficulty in walking. She further averred that she was suffering from injuries which could not be diagnosed within the jurisdiction of this court and that they required overseas diagnosis and treatment.
   
6. The defendant, in his statement of defence, admitted that the respective vehicles were driven by the plaintiff and the defendant on 29 August 2007 at the material time; and, denied the collision was caused by any act of carelessness or negligence on his part and placed the plaintiff on strict proof of it. The defendant further pleaded that the plaintiff suffered 'some minor injuries' and received 'treatment' but denied she had got injuries of which diagnosis was not possible within Fiji and placed the plaintiff on strict proof of the fact that such diagnosis was only possible overseas.
   
7. The defendant further pleaded that as he crossed over a tramline on the highway, the vehicle got veered off to the right side of the road colliding with the oncoming vehicle of the plaintiff and admitted that he failed to manoeuvre his vehicle so as to avoid the collision. It was further pleaded by the defendant that the reason for veering off the vehicle towards the right side was some object crossing the road suddenly and unexpectedly and that it was not his fault to have the vehicle swerved to the right.
   
8. The defendant specifically said that he was not aware of the sufferings of the plaintiff and placed the plaintiff on strict proof of them. The defendant admitted that he was charged for an offence of careless driving for which he was fined only with a sum of $ 100.00.
   
9. At the trial commenced on 18 May 2011 the plaintiff, Sarojini Devi, gave evidence and said that she was returning from Naidu's Poultry Farm on 29 August 2007 after dropping chemicals when she received a call from Nadi Muslim School, Nadi, asking for her presence to get chemicals for the school. The plaintiff met with the accident on her journey to Nadi. After the accident, her car bearing No. BV 717 got turned in the opposite direction. She tendered in evidence Vehicle Registration Certificate for BV 717 marked PE 1 and a report by Lautoka Police Station marked as PE 2 certifying the occurrence of the accident involving the two vehicles. She also produced a photocopy of the receipt for payment of the fine of $ 100.00 as PE3. She testified that, after the accident, she was taken to the hospital in Lautoka.
   
10. The plaintiff stated that she could not walk as she was still suffering from pain. She, in her evidence, asked for damages in an amount of $ 100,000.00 having said that she was unable to work and support her family and could not operate her business and applied to court for justice. The plaintiff, however, did not produce any evidence on her alleged disabilities in the form of a medical diagnosis, prescriptions for treatment or medical reports to support her claim that she was disabled as a result of the accident. Furthermore, she did not offer any material to substantiate her claim for damages in the amount of $ 100,000.00.
    
11. In cross-examination, learned counsel for the defendant produced four photographs marked as DE 1(A) – DE 1(D), depicting the plaintiff carrying a PVC pipe on her left shoulder with a walking stick in her right hand in June 2010. It was suggested to the plaintiff that she was not suffering from any disability to which she answered that she was not normal but disabled. She denied the suggestion that she was faking injuries and medical conditions.
    
12. Answering further, she admitted that she had just added the cost for transportation in an amount of $ 3014.85 for her claim of special damages in the amount of $ 3467.00 and admitted that she has not substantiated her profit or loss to support her claim of special damages for $ 16,196.40. She admitted that she was suing the defendant in High Court, Lautoka, in this case, and in the Magistrate's Courts of Lautoka and Nadi on her statements of claim marked as DE 2 & DE 3 in case No. 23 of 2010 and 189 of 2009 for $ 45,644.40 and $ 19,086.85 respectively for the alleged claims arising from the same accident.
    
13. The plaintiff accepted that she was examined by Dr Emosi Don Taloga, Orthopedic Surgeon, at Suva Private Hospital, Suva, on 7 October 2010 upon which a medical report was issued by the doctor, which was marked as DE 4.
    
14. The plaintiff informed court that she had a doctor, who she claimed to have examined her on her disabilities, as her next witness; but, she was not able to secure his presence for the day. She undertook to call the witness-doctor on 19 May 2011 and enabled the defendant to commence his case reserving the right for her to close her case after placing doctor's evidence.
    
15. The defendant called four witnesses in support of his case. Vishwa Nandan, the defendant, giving evidence admitted that he was driving the car bearing No DY 575 at around 12.00 noon on 29 August 2007. He said that he was driving the car only at the speed of 30 Km. p.h. and the road was clear both in front and behind. As 'something' crossed the road, he swerved the vehicle to right side of the road and collided with the oncoming vehicle of the plaintiff, which was coming from the opposite direction. He said that he got off the veicle soon after the collision and saw that the right fender of the plaintiff's car had popped-up and some more damages on the right side.
    
16. The defendant further said that he did not suffer any injuries and saw the plaintiff standing upright without any signs of pain or distress as she did not scream. Police who visted the scene immediately after the accident took measurements and ordered him only to pay $ 100.00 to the Lautoka Post Office as a fine.
    
17. Answering cross-examination of the plaintiff, the defendant said that what crossed the road immediately before the accident was a dog. The plaintiff, thereupon, specifically put paragraphs 6 and 7 of the amended statement of defence dated 07 October 2008 of the defendant that clearly set-out the circumstances, in which the accident occurred, to the defendant who admitted their truth.
    
18. The next witness, Mohamed Hakeek, who was formerly at Fiji Police Force, was employed by the defendant as an investigator to inquire into the claims of the plaintiff. He said that he took photographs marked as D 1(A)-D 1(D) of the plaintiff in June 2010 as she was carrying a [PVC] pipe on her shouders towards Sabeto Road on a gravel road from her house. He said, as his photographs captured, the plaintiff was walking upright and saw no difficulty in her.
    
19. Divendra Prasad, a neighbour of the plaintiff, was called by the defendant to show that she was not suffering from any disability. He said that she was walking upright and catches buses with no difficulty to move around. Testfiying further, the witness said that he saw the plaintiff plucking coconuts from a rooftop as he went for rituals at her mother's funeral of which the date, however, remains undisclosed.
    
20. After the evidence came to a close on 18 May 2011, opportunity was granted for the plaintiff to summon the doctor to support her claim that she was suffering from physical disabilities as a result of the accident. The plaintiff, having accepted the opportunity, informed court that she would summon the doctor for his testimony on 19 May 2011. The defendant was also in agreement to place the evidence of his doctor in support of his case after the plaintiff concludes hers. The proceedings were accordingly adjourned for 19 May 2011, being the second and the final date of trial.
    
21. On 19 May 2011, the plaintiff informed court that she was not able to contact the doctor and, therefore, unable to secure his presence for the trial. She told court that she would, in the circumstances, be closing the case with her evidence and doucments marked 'PE 1', 'PE 2' and 'PE 3'.
    
22. The defendant, at the conclusion of the plaintiff's case, placed the evidence of Dr Emosi Don Tolaga, Orthopaedic Surgeon at Suva Private Hospital in Suva. Dr Tolaga, having presented evidence on his expertise in medical field on the basis of a curriculum vitae marked as 'DE 7', said that he had examined the plaintiff for a medical assessment as supported by his report dated 07 October 2010 marked as 'DE 4'. The doctor observed no muscle wasting in plaintiff. Instead, she had normal muscle tone and tendon reflexes with all major muscle groups showing signs of normalcy. The doctor stated that the plaintiff did not manifest a medical condition that she was presenting herself. In his conclusion, he expressed the opinion that she was malingering.
    
23. Upon photographs marked D 1(A)-D 1(D) being examined, the doctor said that the plaintiff was walking straight and she could not have done so if she was subject to physical disabilities she was claiming to have. The doctor said that the use of a walking stick, as depicted in the pictures, only helps transfer of weight.
    
24. Answering cross-examination by the plaintiff, Dr Tolaga said that the plaintiff was examined at the request of the defendant and that he had read the reports issued by the Lautoka Hospital on her visit to that hospital after the accident. The doctor explained that an X-ray could have been ordered only to back up findings and he had seen nothing wrong in plaintiff to order an X-ray. The plaintiff suggested to the doctor that she was not pretending to be ill and that she was ashamed herself to walk in a disabled gait in public. The doctor simply answered the suggestions that he was giving evidence on his findings at the examination of the plaintiff.
    
25. The defendant closed his case with the evidence of the four witnesses abovenamed and the exhibits marked as 'DE 1 to DE 7'.
    
26. Upon an analysis of the evidence adduced on behalf of the plaintiff and the defendant, I would consider initially the liability, if any, of the defendant in tort vis-a-vis the plaintiff in light of his denial of negligence and carelessness in causing the accident.
    
27. The defendant admitted the accident, more particularly, the manner of its occurrence as pleaded in terms of paragrphs 6 and 7 of his amended statement of defence dated 07 October 2008 when he was being cross-examined by the plaintiff. Consequently, the contents of those paragraphs formed substantive evidence before court in view of the admission by the defendant, which were to the following effect:
    

THAT further and without prejudice to the foregoing defence(s) the Defendant says that seconds before the collision his motor vehicle drove over a tram line running across the entire width of the road and as he drove and /or crossed over the said tram line and/or as he finished driving and/or crossing over the said tram line his said motor vehicle suddenly and unexpectedly pulled and or veered off to the right crossing onto the path of the Plaintiff's oncoming vehicle. All of this happened so suddenly, unexpectedly and quickly that the Defendant did not have time to apply the brake or manoeuvre the said vehicle so as to avoid the said collision.

THAT furthermore and without prejudice to the foregoing defence(s) the Defendant says that seconds before the collision something white crossed in front his motor vehicle causing the Defendant to suddenly and unexpectedly and though no fault of his to swerve to the right hereby losing control of his motor vehicle such that his motor vehicle pulled and/or veered off to the right crossing onto the path on the Plaintiff's oncoming vehicle. All of this happened so suddenly, unexpectedly and quickly that the Defendant did not have time to apply the brake or manoeuvre the said vehicle so as to avoid the said collision.'

28. Moreover, the defendant did not challenge the evidence of the plaintiff in regard to the accident, which was very briefly placed in court. The undisputed evidence of the plaintiff on the point was that, upon seeing the vehicle of the defendant in the front on her lane, she parked her car at which point of time the defendant collided his car causing the plaintiff's car turn.
    
29. A tort or an actionable wrong in law is committed when damage to property and/or harm to a person is caused by a breach of duty of care owed by a defendant to a plaintiff. The defendant in this case, while driving his car DY 575 on the highway inter alia owed a duty of care towards other road users one of whom was the plaintiff who, too, was simultaneously using the highway. A very high duty of care is expected of the defendant as a highway user especially when statutory and regulatory mechanisms also are enacted to control and prevent motor traffic accidents, as ever escalating accident rate has been a cause of concern. This duty of care, expected of the defendant as a lawful highway user, could have been exercised by driving the vehicle at a reasonable speed in the circumstances. (McLeod v Receiver of Metropolitan Police [1971] Crim. L. R. 364). This follows the general rule that the vehicle should have been driven at a speed, which enabled the defendant to stop within the limits of his vision.
    
30. The action by the plaintiff against the defendant is founded on negligence and carelessness. The non-observance of the above rules on the highway constituted carelessness and negligence and it would occasion a breach of duty of care if such negligent or careless conduct causes damage to property and/or harm to a person.
    
31. The defendant, while admitting the accident but denying carelessness, has picturesquely given details as to the circumstances under which it occurred. His narration of the event undoubtedly shows that the defendant had not been driving the car No DY 575 in the circumstances having its full control to stop within his limits of vision. This was more so when the road was clear both in the front and the rear as stated in his evidence giving him the opportunity of seeing the plaintiff's oncoming car at a very close distance from the opposite direction. In the circumstances, there was no reason for him to swerve into the right side, which was the plaintiff's path, especially when he was driving his car only at the speed of 30 Km. P.H. if not for his negligence and carelessness at the time resulting in the collision.
    
32. The defendant, while relying on an enormous amount of evidence to challenge the plaintiff on her alleged claims arising out of post-collision disabilities, has not, however, challenged the damage and the harm caused immediately after the impact. Instead, he admitted some damages to the plaintiff's car in consequence of the accident; and, he did neither plead nor offer any evidence to suggest that the plaintiff had contributed to the accident or any other defence to negate the allegation of carelessness.
    
33. In view of the above analysis, I hold that the plaintiff, upon a preponderance of probabilities, has established that the defendant has breached his duty of care towards the plaintiff in her capacity as a lawful highway user and caused damage to her car No BV 717 and harmed her. I refuse to accept the evidence of the defendant that the plaintiff did not sustain injuries as a result of the collision after considering his admission in his statement of defence to the contrary. I, accordingly, hold the defendant tortiously liable for such breach of care.
    
34. Having ruled on liability of the defendant vis-a-vis the plaintiff, I am now faced with the issue of compensating the harm. 'Damages' generally have been invented as an instrument of compensating harm, loss, and/or injury committed by a defendant in an actionable wrong. They could, inter alia, be in the forms of special and/or general damages.
    
35. Special damages are those, which cannot be presumed. Instead, they must be claimed and proved specifically. In British Transport Commission v. Gourley [1955] UKHL 4; [1956] AC 185, it was stated:
    

Special damage has to be specially pleaded and proved. This consists of 'out of pocket' expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation.

36. General damages, on the other hand, would compensate a direct, a natural or a probable consequence of a breach of duty of care in tort, which generally would include pain and suffering from injuries, loss of amenities of life, loss of future earnings and other material benefits. Medical evidence to support a claim for general damages is of material importance either in the form of direct oral evidence or documentary evidence by way of medical reports in proof of diagnosis of an ailment.
    
37. (i) The plaintiff in this case, however, did not offer any evidence on her claims for special damages on account of personal injuries alleged to have been inflicted in consequence of the accident and resultant loss of income. On the contrary, her evidence was only to the effect that she had just added the cost for transportation to make the claim of $ 3467.00 without any proof; and, that she had not also substantiated by way of losses and profits of her business to support her claim of $ 16, 196.40 for special damages.
    

(ii) Moreover, she did not place evidence to enable court to quantify general damages in relation to the harm alleged to have been caused to her person on the basis of pain, suffering and/or loss of amenities etc.

In the result, I am unable to award both special and general damages in respect of such claims. Accordingly, both claims in the statement of claim of the plaintiff against the defendant are dismissed.

38. Learned counsel for the defendant amassed the case with relatively a large amount of evidence to advance a case of malingering against the plaintiff and sought orders for dismissal of the action and costs on indemnity basis. I have carefully considered the evidence and learned counsel's propositions but find that the allegation of malingering was never pleaded although the evidence was presented at the trial. The objects and the importance of pleadings were considered in the case of Anderson v Salaitoga [1994] FJHC 42, where it was held as follows:
    

To bring the parties to an issue, and to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to definite issues, and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.

Justice John Byrne, as he then was, dealing with the issue of pleadings in the above case also adopted the principle laid down in Banque Commerciale SA En Liquidation v Akhil Hodings Limited [1990] HCA 11; (1990) 169 CLR 279 at 288 in following terms:

Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon [v Mount Oxide Mines Ltd (In Liq.)] (31)

39. On the strength of the authority in the above case, I hold that the evidence presented by the defendant without a pleading was improper and irrelevant. I accordingly disregard such evidence and refuse to consider the allegation of malingering against the plaintiff as it would certainly be prejudicial to the plaintiff with no advance notice of such a serious allegation before the trial being given.
    
40. As I now return to the issue of redress for the plaintiff, I would state that, apart from compensating loss, harm and/or injury, another object of awarding damages is to penalise the wrongdoer for the wrongful act. This object is sought to be achieved by awarding - what is interchangeably termed as exemplary, punitive, vindictive or retributory damages, which come into play when the defendant's conduct shows a disregard or insolence or the like to the plaintiff, in addition to the usual compensatory damages, if any. (See McGregor on Damages; Harley McGregor, 13th Edit. Sweet and Maxwell, 1972 p. 303) The principle of awarding punitive damages against a wrongdoer was accepted and applied in Uren v Fiarfax and Sons Pvt Ltd [1966] 117; Lamb v Cotogno [1987] HCA 47; [1987] 164 CLR 1 and Fontin v Katapodis [1962] HCA 63; [1962] 108 CLR 177
    
41. The accident was caused by the defendant in breach of his duty of care towards the plaintiff, while she was lawfully using the highway in lawful pursuit of her occupation. The breach also affected, impeded and obstructed the plaintiff's right of movement, which is a universally recognised fundamental right. In the circumstances and having regard to the manner of causation of the accident by the defendant, I am inclined to award punitive damages against the defendant. Upon consideration of the facts and circumstances of this case, I am of the view that it would be reasonable, just and fair to determine such punitive damages to be in an amount of $ 5000.00.
    
42. I also award a sum of $ 500.00 as costs of this action, which is payable by the defendant to the plaintiff.
    
43. Accordingly, orders are:
    
    • (i) The defendant is to pay a sum of $ 5000.00 as punitive damages to the plaintiff;
    • (ii) The defendant is to pay a sum of $ 500.00 as costs of this action to the plaintiff; and,
    • (iii) Claims for special and general damages against the defendant are dismissed
      

Priyantha Nawana
Judge
High Court
Lautoka