Kapadia v Narayan [2011] FJHC 581; HBC125.2001 (1 September 2011)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 125 of 2001

BETWEEN:

PRAVINA KAPADIA & JIGNASHA KAPADIA
[Plaintiffs]

AND:

JITENDRA NARAYAN & CENTRAL TRANSPORT
COMPANY LIMITED
[Defendants]

Counsel: Mr. Daniel Singh for the Plaintiffs.
R. Patel Lawyers for the Defendants.

Date of Judgment: 1st September, 2011

JUDGMENT

1. The plaintiffs claim damages for personal injuries sustained by them in a traffic accident on 6.4.98. The accident occurred when a bus no. DC 535 driven by the first defendant acting during the course of his employment with the second defendant went out of control and hit on a soapstone wall on the dead end of a street.
   
2. Before the trial commenced, the defendants admitted the liability.
   
3. At the hearing into assessment of damages, parties adduced evidence and written submissions filed.
   
4. The first named plaintiff Pravina Kapadia is the mother of the second named plaintiff Jignesha Kapadia.
   
5. On or about 6.4.98, the first defendant acting as the employee of the second defendant drove the motor vehicle negligently and it went out of control and hit the soapstone wall on the dead end of the Gaji street Samabula.
   
6. As a result of the accident, the plaintiffs who were passengers of the bus sustained personal injuries.
   

Plaintiffs' Injuries and Medical History.

7. In examination in chief, the first named plaintiff had given evidence.
   
8. According to her, the accident happened about 7.30 am at Gaji road. She was sitting in the middle of the bus with her daughter.
   
9. When the bus hit the soapstone wall, the witness was thrown forward and her head hit the seat railing in front of her. The 1st plaintiff's nose was fractured and it was sutured and bandaged.
   
10. The 2nd named plaintiff Jignasha Kapadia was thrown onto the floor. She was admitted to the hospital for two days as she had got a fracture.
    
11. Further, the 1st plaintiff stated that she was unable to do housework and her nose remained painful.
    
12. It was further stated that after the accident the nose is deformed and a scar was visible for 4 years. With regard to her daughter's injuries, the plaintiff stated that she was very healthy and active before the accident but after the accident she was frightened.
    
13. In cross examination, she admitted that she was a housewife. Further, she stated that she was incapacitated for 12 weeks, but the Exhibit 2, a medical report from CWM, showed that she was under treatment for 1 week only.
    
14. The 1st plaintiff was seen by Dr. Khan and another doctor at the Bayly Clinic. Further, the medical report prepared by Dr. McCaig's said that nasal voice was due to dental carries, and had nothing to do with the injuries caused by the accident.
    
15. Although the 1st plaintiff stated that her daughter complained of a pain and dragged her leg while walking, medical reports very clearly stated that her daughter had no permanent disability as a result of the injury.
    
16. The plaintiff stated that after the accident, her daughter had some psychological effects in travelling in buses, but I do not see why the plaintiffs failed to produce some expert medical evidence to prove it. She was not even referred to a psychiatrist for an assessment.
    
17. A witness named Kapadia also gave evidence for the plaintiff. He took plaintiffs to the CWM hospital in a taxi. He also stated that the child was frightened to travel by bus after the accident and they had to hire taxies.
    
18. A taxi driver named Ashok Narayan testified on behalf of the plaintiffs and according to him, he used to take the 2nd plaintiff to school by his taxi. He stated that it cost $ 6.00 per day and $ 30 per week.
    
19. However, his evidence also did not suggest that the 2nd plaintiff had any problem in travelling in buses. Therefore, I am not inclined to accept that the 2nd named plaintiff had any difficulty to travel by bus after the accident.
    
20. It is true that the plaintiff and her daughter had been in some pain and discomfort as a result of the injuries suffered. The medical evidence, however, showed that they have recovered well and should experience no permanent disabilities in future.
    
21. Apart from having a barely visible scar on her nose, which is of little cosmetic significance, there is hardly any evidence to show that the 1st plaintiff had any residual effects as a result of the injuries she sustained.
    
22. Further, there were no medical reports tendered by the plaintiffs to prove that any future treatment would be necessary.
    
23. I also observed that the 1st plaintiff had very much exaggerated her condition as well as her daughter's and both of them were not badly suffered as they claimed, and in particular, there was no justification for the claim of 4500.00 as Taxi fares.
    

Assessment of Damages for the 1st Plaintiff

24. The plaintiff's claim for general damages is for pain and suffering from the injuries that she has sustained loss of amenities of life, prospective loss of earnings and other material benefits.
    
25. The plaintiff is entitled to damages for pain and suffering, as stated in Kemp & Kemp (Vol 1, P2 – 007 – 2010):
    

"..the court must take into account, in making its assessment in the case of any particular plaintiff, the pain which he actually suffered and will suffer and the suffering which he has undergone and will undergo. Pain and suffering are not measurable by any absolute standard and it is not easy, if indeed possible other than in the most general way, to compare the degree of pain and suffering experienced by different people, however, the individual circumstances of particular plaintiffs clearly have a significant effect upon the assessment of damages".

26. In British Transport Commission –v- Gourley [1955] UKHL 4; [1956] AC 185 Lord Goddard stated:-
    

"Special damages have to be specially pleaded and provide. 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."

27. In assessing damages in an action of this nature the following passage of Lord Denning M. R. in Lim Poh Choo v. Camden And Islington Area Health Authority [1979] 1 Q.B.196 at 215 is of great assistance.
    

In considering damages in personal injury cases, it is often said "The defendants are wrongdoers. So make them pay up in full. They do not deserve any consideration." That is a tendentious way of putting the case. The accident, like this one, may have been due to a pardonable error such as may befall anyone of us. I stress this so as to remove the misappropriation-so often repeated-that the plaintiff is entitled to be fully compensated for all the loss and detriment she has suffered. That is not the law. She is only entitled to what is, in all the circumstances, a fair compensation-fair both to her and to the defendants. The defendants are not wrong doers. They are simply the people who have to foot the bill. They are, as the lawyers say, only vicariously liable. In this case it is in the long run the tax payers who have to pay. It is worth recording the wise words of Parke B. over a century ago;

"Scarcely any sum could compensate a labouring man for the loss of a limb, yet you don't in such a case give him enough to maintain him for life.... you are not to consider the value of his existence as if you were bargaining with an annuity office....I therefore advise you to take a reasonable view of the case and give what you consider a fair compensation":

1. Loss of prospective earnings
   

There was no evidence that the plaintiff was employed at the time of the accident. Further, she also has not sustained any permanent disability which would prevent her doing any job. Hence, I conclude that the plaintiff is not entitled to any damages under this head.

2. Pain and suffering
   

28. In this matter the 1st plaintiff did go through some pain and suffering as could be seen from the medical report and her own testimony. She suffered a fractured nose; but, it was healed and she recovered fully without any residual effect.
    
29. Although she had a scar on her nose, the evidence showed that it was barely visible.
    
30. Upon a consideration of the foregoing facts and in the circumstance of this case, I award a sum of $ 3500.00 for pain and suffering. I also award interest on general damages at the rate of 6% per annum from the date of accident to the date of the judgment.
    

Special Damages

31. The 1st plaintiff is claiming $ 352.00 for medical and transport cost, which in my view is quite reasonable.
    
32. However, the 1st plaintiff has failed to prove the loss of income to the satisfaction of the court. Not only that, the special damages must be pleaded especially, it has to be proved also specifically. In the instant case the 1st plaintiff has not tendered sufficient evidence to prove the loss of income, hence I disallow the claim under that head.
    

Assessment of Damages for the 2nd named Plaintiff

33. The second plaintiff Jignasha suffered a greenstick fracture of the left tibia and she was incapacitated for about three months. However, she also suffered no permanent disabilities.
    
34. The first plaintiff had made an unsuccessful attempt to demonstrate that the second plaintiff was still having some complications as a result of the accident. However, there is no medical evidence to show that the second plaintiff had any residual pain or effect after the accident. She, being 13 years at the time of the accident, would have undergone a physical trauma after the accident. But there is no evidence to show that the 2nd named plaintiff was having any physical or mental incapacity as a result of the accident. This was further confirmed by the medical reports issued by Dr Khan and Dr McCaig.
    
35. The fact that the 2nd plaintiff was frightened to travel by bus after the accident and therefore went to school by a taxi, in my view, is a farfetched story. Even in the statement of claim, the plaintiffs have not pleaded that. Therefore, it is my considered view that the 2nd plaintiff cannot claim taxi fares said to have been incurred in attending school.
    
36. The 2nd plaintiff is entitled to have $ 122.50 for medical and travelling expenses as she claimed.
    
37. In assessing general damages, I consider the fact that the 2nd plaintiff had a closed leg fracture and also the fact that she would have been temporary disabled for at least 3 months.
    
38. Upon consideration of the above facts I award $ 5000.00 for pain and sufferings.

I also award interest at the rate of 6% per annum on the aforesaid amount.

Costs

39. This accident occurred on 6.4.1998. The hearing took place more than 6 years after the accident. The bus driver was convicted for dangerous driving and was fined. Despite that the defendant required the plaintiff to prove the fact that the defendant was charged and convicted for a traffic offence which in my view is an attempt to drag this case on and also an attempt to harass the plaintiff unnecessarily.

40. Undoubtedly, this accident occurred due to the sole negligence of the defendants. The plaintiffs were the passengers of the bus. This can be inferred even from the pleadings.

41. I do not have the slightest doubt that the defendant knew it; but, chose to disregard it. The pre-trial conference minutes showed that the defendants denied the liability. On 12.7.2004, i.e only 3 days before the trial date, the defendants admitted the liability which demonstrated the inexcusable delay on the part of the defendant, which frustrated the claimants and also caused a considerable inconvenience to the plaintiff.

42. Further, considering the nature of the action and also the way that the accident occurred, I am of the view that this case could easily have been settled out of court. Upon consideration of the aforementioned facts, I award $4000.00 as costs.

43. The orders are therefore as follows:

1. For the 1st named plaintiff;
   
   1. General damages- $ 3500.00
   2. Special damages- $ 352.00
   100. Interest on general damages at the rate of 6% per annum from the date of accident to the date of judgment.
        
2. For the 2nd named plaintiff;
   
   1. General damages- $ 5000.00
   2. Special damages- $ 122.50
   100. Interest on general damages at the rate of 6% per annum from the date of accident) to the date of judgment)
        
3. Costs $ 4000.00
   

....................................
Pradeep Hettiarachchi
JUDGE

1.9.11