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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
Civil Action No: HBC 41 of 2008
BETWEEN:
ZAHID AFWAZ ALI
[Plaintiff]
AND:
PATTERSON BROTHERS SHIPPING COMPANY LIMITED
[1st Defendant]
AND:
PRASAD HOLDINGS LIMITED
[2nd Defendant]
AND:
SABIR HUSSEIN
[3rd Defendant]
AND:
FAIYAZ ALI
[4th Defendant]
Counsel: Mr. A. Sen for the Plaintiff.
Mr. S. Leweniqila for the 1st Defendant.
Mr. Lomaloma for the 2nd Defendant
Mr. Ram for the 4th Defendant.
Date of Judgment: 8th June 2012
JUDGMENT
[1]. The plaintiff instituted this action claiming inter alia special and general damages for personal injuries suffered in a motor traffic accident, allegedly caused by the first and second defendants.
[2]. The alleged accident occurred on or around 18.11.2007 along Labasa Seaqaqa Road near Tabia. Admittedly, the 3rd defendant was the driver of the bus, registration No BD 653 and the 4th defendant was the driver of the bus registration No CX 565. The cause of action against the 1st and 2nd defendants is premised on vicarious liability.
Background facts
[3]. The 1st defendant is a shipping company which operated its vessel namely 'Spirit of Harmony' between Natovi and Nabuwalu. The 2nd defendant is the owner of buses registration No BD 653 and CX 565. The 3rd defendant was the driver of bus registration No BD 653, in which the plaintiff was travelling at the time of the accident. The 4th defendant was the driver of bus No CX 565, which also involved in the above accident.
[4]. The following facts were agreed to by all parties at the Pre-trial Conference:
- On or about 18th November 2007, the 1st defendant operated its vessel namely 'Spirit of Harmony' between Nativi and Nabuwalu.
- On 18.11.2007, at Nabuwalu, the plaintiff boarded bus registration No BD 653.
- The 2nd defendant is the owner of buses No BD 653 and CX 565.
- At all material times the 4th defendant was the driver of bus No CX 565.
- At all material times the 3rd and 4th defendants were servants and agents of the 2nd defendant.
[5]. There were 21 issues raised at the Pre-trial conference but I do not intend to deal with each and every issue individually. The main issues to be determined by court are:
- Was the plaintiff a lawful passenger on the vessel 'Spirit of Harmony' on 18th November 2007 for passage from Natovi to Nabuwalu?
- Was the plaintiff a lawful passenger of the bus No BD 653?
- Was the 3rd defendant negligent in driving bus No BD 653 on 18.11.2007 causing the accident?
- Was the 4th defendant negligent in driving bus No CX 565 on 18.11.2007?
- Was the 2nd defendant an independent contractor of the 1st defendant?
- If not, is the 1st defendant liable to the plaintiff for the actions of the 3rd and 4th defendants?
- Is the 2nd defendant liable to the plaintiff for the actions of the 3rd and 4th defendants?
- Is the plaintiff entitled for general damages and special damages?
[6]. At the trial, evidence of five witnesses were led on behalf of the plaintiff; (1) the plaintiff (2) J. Naidu (3) Paramesh Chand (4) Dr Abhay Chaudhary and (5) Mohammed Husain. Lemeki Matenaiwa the Branch Manager of the first defendant company testified on behalf of the 1st defendant. For the 2nd defendant, its Managing Director Viney Vilash Chand gave evidence. The 4th defendant called two witnesses namely Narayan Prasad and Irwin Ishwani who are police constables.
Plaintiff's evidence in chief
The evidence in chief of the plaintiff could be summarized as follows:
[7]. The plaintiff was an instructor in sports who coached soccer and athletics. He accompanied some of his students to Suva to take part in a competition. He paid $80.00 and purchased a ticket from the 1st defendant company for a return voyage from Labasa to Suva. He left for Suva on 13.11.2007.
[8]. He paid for his ticket and travelled to Nubuwalu by bus and from there he travelled to Suva by ferry. After taking part in the competition, he returned to Nabuwalu by ferry and from Nabuwalu to Labasa by bus. When he was travelling from Nubuwalu to Labasa he met with the accident.
[9]. Patterson Brothers, the 1st defendant was the travel organizer which was responsible for his journey to Suva and return to Labasa.
[10]. According to the plaintiff, on his return trip he got off the ferry on 18.11.2007 and boarded the bus at Nubuwalu. There were some students, parents and teachers in the bus. On their way back to Labasa some of the students had got off at various places and when it reached Natuva only 7 passengers were left in the bus. The accident happened at Tabia, a place between Natuva and Labasa.
[11]. According to the plaintiff's evidence, there were two buses travelling at a very high speed. The plaintiff was travelling in bus No. BD 653 and bus No CX 565 was travelling in front of BD 653.
[12]. When BD 653 was trying to overtake CX 565, CX 565 came to the middle of the road and collided with BD 653. Due to the impact of the collision the rear bus in which the plaintiff was travelling fell off the road and hit a FEA post. The plaintiff was sitting in the middle of the bus and his legs were struck between the metal of the bus and the FEA post.
[13]. Half an hour later a bulldozer came and pulled the bus. Then only the plaintiff's legs were freed. Both his legs were crushed and his right leg was hanging above the knee. Thereafter, the plaintiff was taken to the Labasa hospital where both his legs were amputated.
[14]. The plaintiff was in the hospital for 2 months and 7 days. During his stay at the hospital he attended the theatre almost every day in order to treat for infections and wounds. A boy named Hussan looked after the plaintiff and he was paid $20.00 per night. Theplaintiff stated that he still pays Hussan at the rate of $200.00 per month.
[15]. The plaintiff got his full salary for first 3 months after the accident and thereafter he was not paid. Four months after he was discharged from the hospital, the plaintiff took a loan and went to India to have artificial limbs. He was accompanied by another person whose travelling expenses were also provided by the plaintiff.
[16]. Further, the plaintiff explained how life has been affected due to the injuries and also he explained that the life term of the prosthesis is about 4 years. The expenses accrued in travelling to India for fixation of prosthesis were also detailed by the plaintiff and it remains unchallenged. The plaintiff tendered the travel itinerary and the copies of the receipts issued by the hospital which remain unchallenged.
[17]. According to the plaintiff's evidence he has conducted a research as to find artificial legs. He stated that there are computerized legs and it would cost around USD 12000.00 to USD 15000.00.
[18]. The plaintiff while answering the cross examination clearly explained how the front bus moved towards the right lane when the rear bus was about to overtake it. However, the plaintiff did not mention the above fact in his statement to the police i.e. the bus CX 565 moved towards the right lane when BD 653 tried to overtake it.
[19]. When questioned about the bus ticket the plaintiff stated that he had lost his ticket after the accident because his clothes were cut off and removed when he was treated.
[20]. The 2nd witness for the plaintiff is J. Naidu. He boarded the bus BD 653 at Seaqaqa at 4.00pm. According to the witness both drivers were driving very fast. He also confirmed that when the BD 653 was trying to overtake the CX 565, CX 565 was trying to block the way and then BD 653 hit the CX 565. After hitting CX 565, BD 653 went off the road.
[21]. However, in his statement to the police he never stated that bus CX 565 blocked the way when BD 653 tried to overtake it. He merely stated that when the bus BD 653 tried to overtake CX 565, BD 653 hit CX 565, lost its control and went off the road. The statement reads as follows:
When we reached Tabia the driver of our bus (BD 653) saw the bus (CX565) going at a distance. The driver of our bus added more speed and now was chasing that bus which was in front of us. The bus which was in front was not going that fast. As the driver tried to overtake the bus rear right tyre must had slipped and the bus was moving in an angle. The front of the bus was on road and the back was out of the road and on the grass. Our bus front left bumper hit the rear of the bus which was in front and as a result the bus lost its control. The driver never tried to stop the bus and the bus was out of control and at a distance it went and hit the FEA post.
[22]. The 3rd witness for the plaintiff is Paramesh Chand who was a student at that time and went to Suva with the plaintiff. He explained how he went to Suva from Labasa with the plaintiff. His evidence also confirms the fact that that drivers of both buses were driving at a high speed, when the rear bus was trying to overtake the front bus, the rear bus hit the middle of the front bus and went off the road.
[23]. In cross examination, the witness confirmed that the plaintiff had a ticket and it was presented to the person at the entrance of the ferry. It was further confirmed by the witness that when they reached Seaqaqa there were only 7 passengers left in the bus. Furthermore, the witness confirmed that the bus infront came in the way of the rear bus when it tried to overtake the front bus, and collided with the rear bus.
[24]. The police recorded a statement from Paramesh Chand as well but in that statement also the witness did not mention the fact that when BD 653 tried to overtake CX 565 bus, CX 565 came in the way of bus BD 653.
[25]. The next witness for the plaintiff was Dr. Abey Balachandra Chaudhry who is the consultant surgeon at Labasa Hospital. He gave evidence referring to the Medical Folder of the plaintiff.
[26]. According to his evidence the plaintiff's both legs were crushed and the bones were broken into several pieces and could not be salvaged. His both legs were amputated. The plaintiff's total permanent incapacity is 100% and the plaintiff was managed in the ICU where he developed infections and skin grafting and debridement were done. Dr. Chaudhry went on to explain skin grafting and debridement and stated that it was very painful.
[27]. According to him skin debridement is a removing of the dead tissue and skin grafting is the patching of skin taken from a different site. The witness further stated that it was advisable the plaintiff to undergo counselling and physiotherapy but it was not available in Labasa.
[28]. The plaintiff had below knee and above knee amputation. According to Dr. Chaudhry the above knee amputation needs more sophisticated prosthesis compared to below knee amputation.
[29]. Availability, affordability, convenience, life time of a prosthesis and whether the patient can go back to have it again are the factors which in Dr. Chaudhry's view to be considered when a patient is recommended to go for prosthesis.
[30]. According to Dr. Chaudhry, if the plaintiff gets sophisticated computerized prosthesis he can walk unaided by crutches. The newest place where sophisticated computerized prosthesis is available is Australia and a hydraulic prosthesis will cost $15,000 - $17,000 USD whereas a computerized one will cost 30,000.00 USD.
[31]. According to Dr. Chaudry, prosthesis has to be changed in every 5 years since it wastes and physical changes of the body also occur. When prosthesis are used the plaintiff had to use silicone gel in order to prevent the damage to the skin. The plaintiff always gets pain on his stump and it is called a pain of panten limb.
[32]. The final witness for the plaintiff is Mohammed Hussein, a nephew of the plaintiff. According to his evidence; he has been staying with the plaintiff since the accident, helped the plaintiff to go to toilet, wash, wear his clothes and also helped to remove his clothes.
[33]. After the plaintiff came back with artificial limbs, the witness accompanies him whenever the plaintiff goes out. He further stated that he helps the plaintiff to remove artificial limbs when the plaintiff goes to sleep. In cross examination, it was disclosed that, at the plaintiff's residence there is a house girl who does cooking, washing and other related work.
[34]. Lemeki Matenaiwa, the Branch Manager of the 1st defendant company gave evidence on behalf of the 1st defendant. He has been working for the 1st defendant company for 26 years and has been holding the post of Branch Manager for last 7 years. His duty involved ticketing, arranging of buses, checking of passengers, invoicing and banking.
[35]. The witness explained the procedure involved when a passenger travels and uses his ticket. According to his evidence, when a passenger purchases a ticket, he is issued two copies. One is white and the other one is yellow. Before he boards the bus a checker tears off the bus ticket from Labasa to Nubuwalu which is at the right hand side.
[36]. When he reaches the boat the bursar collect the boat ticket which is on the left, before the passenger enters the passenger lounge. When the boat reaches Natovi the 3rd checker collects the bus ticket from Natovi to Suva before boarding the bus, which is on the bottom. The person who collects the ticket in the boat records the name and then ticket number on the passengers manifest.
[37]. Exhibit 2 was shown to the witness and he identified it as the receipt issued with the ticket to the plaintiff.He further stated that the receipt has two numbers i.e. 943226 and 943227. 943226 is the ticket number for the plaintiff to Suva from Labasa and 943227 is the ticket number for Labasa from Suva.
[38]. The passenger manifest was marked as exhibit 14. It must be noted that the plaintiff's name was not recorded on the passenger manifest. According to the witness the plaintiff had forgotten to present the ticket to the bursar.
[39]. However, in cross examination the witness admitted that not only the plaintiff's name but some other passengers' names also had not been recorded on the manifest which shows that the manifest did not contain a complete list of passengers who travelled in the ferry.
[40]. Whether or not the name of the plaintiff was recorded on the manifest, the evidence before me clearly proved that the plaintiff was a lawful passenger of the bus no. BD 653 and also a passenger of the ferry which was operated by the 1st defendant. In fact the witness admitted that the plaintiff had purchased a ticket from him to Suva from Labasa and back to Labasa.
[41]. Further, he admitted that the plaintiff was entitled for journey from Suva to Natovi, from Natovi to Nabuwalu and from Nabuwalu to Labasa on 18/11/2007.
[42]. Viney Vilash Chand, the Managing Director of the 2nd defendant company gave evidence for the 2nd defendant. According to his evidence his mother and wife were the shareholders of the company. Their company involved in carrying passengers for Patterson Shipping Company for Labasa to Nabuwalu and return. In 2007 the company had a contract with the 1st defendant company.
[43]. When the 1st defendant needs buses an officer from the 1st defendant informs the 2nd defendant the number of buses they want. In 2007, the 2nd defendant did not have a route licence to carry passengers and its buses were exclusively used for Patterson Brothers passengers.
[44]. The witness came to know about the accident on 18.11.2007 at about 4.00pm. When he went to the scene of the accident he saw the BD 653 lying on a FEA post. The bus was extensively damaged and could not be repaired.The witness observed the bus CX 565 and found that the rear right hand side of the bus got damaged. After an investigation the driver of the bus BD 653 was charged and later suspended subsequent to another accident.
[45]. It is important to note that in cross examination, the witness admitted that on 18.11.2007 his instructions were to take passengers from Nabuwalu to Labasa and not other destinations. Therefore the 1st defendant's contention that the plaintiff had a ticket only up to Seaqaqa is rebutted by the above evidence. The witness further admitted that the corresponding damage caused to the BD 653 by CX 565 was on front left side. More importantly the witness stated that both drivers admitted the fact that they were racing.
The 4th defendant called two witnesses.
[46]. The 1st witness was Narayan Prasad a Police Constable. He recorded a statement from one Paramesh Chand also was a passenger in BD 653. However, this witness had not gone to the scene of accident.
[47]. The next witness was also a Police Officer named Irwin Ishwani. He investigated the accident.When he went to the scene the bus CX 565 had been removed and only BD 653 was there. He has made a sketch of the scene of the accident. According to the sketch the back of the bus BD 653 went over the grass. It further shows that the front left corner of the bus was 1.1m away from the main road and the left rear corner of the bus was 5.3m away from the main road which further confirms the fact that BD 653 was running at a very high speed and lost its control completely and went off the road. He recorded statements from the witness.
[48]. Subsequent to the investigations the driver of BD 653 was charged for negligent driving. According to his investigations the accident was due to the fault of the driver of BD 653. The total width of the road where the bus went off was 8.5 m. But the width of the bus was not recorded by the Police Officer.
[49]. The evidence before me clearly proved that the two buses i.e. BD 653 and CX 565 were running at a very high speed. Further, it is proved that when the BD 653 in which the plaintiff was travelling was trying to overtake the CX 565, BD 653 hit CX 565 and went out of control and fell off the road and hit the FEA post. As a result the plaintiff's legs were crushed between the bus and the FEA post.
[50]. It is noteworthy that none of the eye witnesses stated in their police statements the fact that CX 565 came in the way of BD 653 when BD 653 tried to overtake CX 565. Failure to mention that fact by all three witnesses which is very relevant to the accident in my view is indicative of the inconsistency of the police statements and their testimony in court.
[51]. More importantly, the sketch prepared by the police does not make any reference to the location of CX 565 after the accident. To conclude whether CX 565 did block the way of BD 653 when BD 653 tried to overtake CX 565 the observations made by the police is of much assistance. But regrettably, nothing mentioned about the CX 565 on the sketch.
[52]. However, the tyre marks of BD 653 are shown in the sketch as 'G' and 'F'. It shows that bus BD 653 after going off the main road had travelled more than 120m before it hit the FEA post which is further indicative of the excessive speed it had at the time of the accident. Had CX 565 moved to the right and hit BD 653 as stated by the witnesses, BD 653 could not have travelled that far off the road. Therefore, it is my considered view that the driver of BD 653 (the 3rd defendant) was driving at excessive speed and thereby lost the control while trying to overtake CX 565 and as a result hit CX 565 and went off the main road and hit the FEA post. This substantiates the very high degree of negligence on the part of the 3rd defendant.
[53]. Upon consideration of the above I conclude that it is proved on the balance of probability that the negligent driving of the 3rd defendant was the sole reason for the accident in which the plaintiff lost his both legs.
[54]. In the absence of consistent evidence to establish the link between the conduct of the 4th defendant (driver of CX 565) and the accident, it is not safe to conclude that the 4th defendant was also negligent. Hence, I am not persuaded to find the negligence on the part of the 4th defendant liable for the accident. Therefore, I conclude that the negligence of the 4th defendant was not proved on the balance of probabilities.
[55]. When the plaintiff was cross examined by the 1st defendant's counsel, he suggested that the plaintiff was on a wrong bus, but the plaintiff denied it. The defence made an attempt to establish that the plaintiff was not a lawful passenger of the bus registration No BD 653. It was suggested that the plaintiff's journey was supposed to end at Seaqaqa. But it was denied by the plaintiff.
[56]. Referring to the statement made by the plaintiff to the police the defendant's counsel attempted to highlight some inconsistencies with the evidence of the plaintiff. It must be emphasized that this accident happened in 2007, and the plaintiff, when making statement had lost both his legs and obviously would have suffered excruciating pain physically as well as mentally. The plaintiff's evidence has to be evaluated in that context. Therefore one cannot expect the plaintiff to narrate each and every fact precisely in the statement or in his evidence. The plaintiff emphasized that the accident occurred due to the negligent driving of both drivers.
[57]. The next question to be answered is whether the 1st defendant is vicariously liable for the negligent act committed by the 3rd defendant. In other word whether the court can treat the 3rd defendant as a servant or an agent of the 1st defendant. It is not in dispute that the 3rd defendant was an employee of the 2nd defendant.
[58]. In Lister v. Hesley Hall Ltd [2002] 1 A.C 215 it was held that if the employees tort was so closely connected with his employment that it would be fair and just to hold the employer vicariously liable.
[59]. As can be seen from the statement of defence, the first defendant's contention is that it is not liable for the actions of the 3rd and 4th defendants as there was no legal nexus between them and itself and the 2nd defendant was an independent contractor.
[60]. It is trite law that the employer of an independent contractor is, in general, not liable for the negligence or other torts committed by the contractor in the execution of the work.
[61]. In order to decide the issue of vicarious liability of the 1st defendant, court has to determine whether the 2nd defendant was an independent contractor or an employee under the 1st defendant.
[62]. In deciding the above issue following facts which were admitted by the 1st defendant's witness while being testified are of much significance.
- The 1st witness ordered the buses and it was the 1st defendant who decided how many buses should go.
- Clause 13 and Clause 16 of the contract were admitted by the witness.
- It was also admitted in cross examination that the witness specifically told that two buses to go to Labasa and one bus has to stop at Seaqaqa.
- The 1st defendant would still have to pay for the 2nd defendant the same hire whether the bus was to travel from Nabuwalu to Seaqaqa or Nabuwalu to Labasa.
- The buses were exclusively for the ferry passengers.
- The bus drivers were not allowed to take money from passengers and all monetary dealings and ticketing were done by the 1st defendant.
- Money was paid to the 1st defendant.
- The allocation of passengers to a particular bus was also determined by the 1st defendant.
- More importantly, the witness admitted that once the 1st defendant sells ticket it undertakes to bring passengers back to Labasa safely.
- He further admitted that buses for ferry have a distinctive colours i.e blue, yellow and white. These colours were used by the 1st defendant in their flags, boats and offices.
[63]. The above facts clearly demonstrate the extent of control the 1st defendant had over the 2nd, 3rd and 4th defendants while transporting passengers to and from the ferry. Therefore, it is apparent that it was the 1st defendant who decided not only what was to be done by the other defendants but also how it was done, which further confirms the fact that the 2nd defendant cannot be treated as an independent contractor.
[64]. The following authorities shed light on this issue.
Colonial Mutual Life Assurance Ltd v. Producers and Citizens Co-operative Assurance Co of Australia Ltd [1931] HCA 53; (1931) 46 CLR 41 at 48 per Dixon J.
'The work although done at his request and or his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal.'
Control test
[65]. In this matter it is important to distinguish between an employee and an independent contractor. In deciding whether a particular worker is an employee or an independent contractor courts often apply the 'control test.'
[66]. In Yewens v. Noakes [1880] UKLawRpKQB 25; (1880) 6 QBD 530 Bramwell L.J. stated:
'A person was an employee if his employer has the right to control not only what work he does but the way in which that work is done.'
[67]. In Stevenson, Jordan and Harrison Ltd v. Macdonald [1952] 1 TLR 101, Denning L.J. (as he then was) formulated the 'business integration' test. According to this test a worker who is an employee does his work as an integral part of the business whereas an independent contractor is not integratedinto the business but is merely accessory to it.
[68]. The above test was applied in Whittaker v. Minister of Pensions and National Insurance [1967] 1 QB 156.
The worker was an employee if the work done was subject to the control and direction of the employer as to the manner in which it was to be done. Per Latham CJ in Humberstone v. Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389 at 396.
The worker, it was said, was told not only what to do, but also how to do it. Federal Commissioner of Taxation v. Waltor Thompson (Aust) Pty Ltd [1944] HCA 23; (1944) 69 CLR 227 at 231
[69]. The nature of an independent contractor was stated in Humberstone v. Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389 at 396. as follows:
Where the person doing the work agreed only to produce a given result but retained the right of self-control in the actual execution of the work, that person was an independent contractor.
[70]. Although the control test is still regarded as an important way to determine the relationship between the parties it is no longer regarded as the only relevant factor. The practice of the courts is to examine a variety of indicia and to consider the totality of the relationship between the parties. This approach has been adopted in Hollis v. Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21.
[71]. In the instant case, when the evidence led by the plaintiff as well as the defendants is considered, it is plain and obvious that the 2nd defendant's work i.e. transporting passengers to and from the ferry was an integral part of the 1st defendant's business. Further, it is evident that the 2nd defendant's work was subject to the control and direction of the 1st defendant as to the manner in which it was to be done. Clause 16 (IV), (vii) and (viii) of the contract further substantiate the above position. For convenience and clarity I will reproduce Clause 9, 16 (iv), (vii) and (viii).
9. The bus hirer wishes to advise the bus operator that all tickets sold to its passengers will be sold by various branches and agents of the bus hirer and that the bus drivers of the bus operator shall collect no money from travelling passengers.
The bus hirer requires the following services from the bus operator;
(iv). pick up passengers from Labasa office at 6.00 am, depart Labasa at 6.30 am. Pick up ferry passengers at designated stops on the way to Nabouwalu and report at Nabouwalu jetty at 10.30 am in order for passengers to board ferry for sea journey to either Natovi or Ellington on VitiLevu.
(vii) All passengers referred to in (i) and (ii) above are only those passengers who are travelling by ferries provided by the bus hirer and who currently hold valid Patterson Brothers shipping Company Limited official tickets for bus and ship transfers.
Passengers without valid travel tickets between Labasa and designated bus stops en route to Nabouwalu who are not travelling or who have not travelled by the ferries are not permitted to board the bus.
The buses are charted exclusively for passengers travelling to and from the ferries.
(viii). If the bus driver or the bus operator is caught picking up passengers who are not the rightful passengers of the bus hirer the bus operator will be in breach of this contract and will suffer the consequences of this act. The bus hirer wishes to make this point clear that it will not permit the bus operator to carry on its hired buses any unauthorized passengers.
[72]. Looking at the contract as a whole and the evidence as to how the 1st defendant was required to perform its duties under it, it seems to me that the 1st defendant had no real independence and had to carry out its contractual duties as an integral part of the business of the 1st defendant company.
[73]. In view of the above it is my considered opinion that the nature and the manner in which the work was carried out by the 2nd defendant for the 1st defendant meet the requirements of the control test as well as the business integration test. Therefore, the 1st defendant's contention i.e. that the 2nd defendant was an independent contractor of the 1st defendant fails. The 2nd defendant has to be treated as an employee of the 1st defendant. On the above premise, I find that the 1st defendant is vicariously liable for the act of the 2nd defendant and its servants.
Assessment of damages
[74]. The plaintiff is entitled to damages for pain and suffering. As stated in Kemp & Kemp (vol. 1 P 2-007-2-010):
"..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".
[75]. In assessing damages for pain and suffering, court must take into account not only the suffering which the plaintiff had suffered immediately after the accident, but also the future suffering that he will have throughout his life.
[76]. In the instant case, the plaintiff's both legs have been amputated consequent to the injuries he sustained at the accident and moreover, one of the amputations is above the knee. At the time of the accident the plaintiff was 27 years of age, was a young and dynamic person and had a very cheerful life. However, his promising future was ruined by the accident and no amount of compensation can bring back the normal life that he had before the accident.
[77]. The plaintiff described the pain and suffering that he endured after the accident and the suffering he experienced while at the hospital and also upon his release from the hospital. Unquestionably, he would have also experienced excruciating pain and discomfort when he was being trained to wear artificial limbs in a hospital in India.
[78]. Considering the manner in which the accident occurred, in particular the fact that the plaintiff's legs were crushed between the body of the bus and the FEA post until a bulldozer came and pull the bus, no doubt that the plaintiff would have suffered agonizing pain. These injuries certainly would have adverse affect on his quality of life and interfere with his enjoyment of life. The evidence before me shows that the plaintiff has had a very active life before the accident and his promising future was ruined due to the accident.
[79]. Plaintiff is said to be still suffering from the injuries received consequent to the accident. He is required to use jell bags between the stump and the artificial limbs. Whenever he goes to sleep or takes a wash those artificial limbs are to be removed. According to the Medical Report the plaintiff has sustained 100% permanent incapacity.
[80]. The following passage from the judgment of Lord Denning M.R in Lim PohChoo v. Camden And Islington Area Health Authority [1979] 1 Q.B.196 at 215 must be borne in mind while assessing damages in an action of this nature.
"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": see Armsworth v. South-Eastern Railway Co(1847) 11 Jurist 758, 760, quoted in Rowley v. London and North Western Railway Co. [1852] EngR 1037; (1873) L.R. 8 Ex. 221, 230.
[81]. Upon consideration of the abovementioned facts, in particular the fact that the plaintiff has to live with a permanent pain, which will be progressive as time goes by, and in the circumstances of this case, I award the sum of $ 130000.00 (one hundred and thirty five thousand dollars) for pain and suffering and loss of amenities of life.
Special damages:
[82]. The plaintiff in his statement of claim has set out the details of special damages as follows:
| Hospital accommodation cost (Labasa) | $ 200.00 |
| Transportation cost to Labasa Hospital | $ 1500.00 |
| Medication cost | $ 100.00 |
| Leave without pay (4 months) | $4000.00 |
| Caretaker | $4200.00 |
| Food cost while in hospital | $ 300.00 |
| Treatment and rehabilitation in India | |
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| Telephone charges | $ 600.00 |
| Internet charges | $ 50.00 |
[83]. The sum claimed for hospital charges and medications are quite reasonable and in my mind are not excessive. Further, it was not challenged by the defence. Similarly, the sum claimed for the caretaker is also reasonable so as the internet charges and telephone charges.
[84]. The plaintiff has failed to produce any receipt to justify transportation cost to Labasa hospital. It is common knowledge that no one is issued with receipts when he or she hire a taxi in Fiji. Therefore, the plaintiff cannot be expected to have receipts issued by the taxies.
[85]. Nonetheless, considering the plaintiff's condition and, the fact that he was confined to a wheel chair upon his discharge from the hospital and the number of visits he may have made to the hospital for clinical reviews, I calculated the transportation cost to Labasa Hospital to $ 1000.00.
[86]. Treatment received in India, air fare, and accommodation costs were proved by the plaintiff with documentary evidence and were not disputed. Therefore, I see no difficulty to award that amount.
[87]. The plaintiff stated that he was out of work for more than 4 months which was also remained unchallenged. However, the plaintiff was paid compensation in the sum of $32,000.00 by the school. Therefore, I am not inclined to award compensation for loss of wages.
Cost of future nursing care and treatments
[88]. In assessing the cost of future medical treatment and care the following passage of Lord Scarman in Lim PohChoo v. Camden and Islington Area Health Authority [1979] UKHL 1; (1979) 2 AER 910 at 922 is of much assistance.
'The true principle, as counsel for the respondent conceded, is that the estimate of damages under this head must proceed on the basis that resort will have to be capital as well as income to meet the expenditure; in other words, the cost of care, having been assessed, must be met by an award calculated on an annuity basis'
[89]. It is undisputed that the plaintiff's life has been affected severely due to the injuries he sustained as a result of the accident and will continue to be so for rest of his life. The plaintiff was young and dynamic person who coached various sports in his school and also took part in sports representing clubs and provinces.
[90]. The plaintiff was fitted with prosthesis in year 2009 at a hospital in India, since that facility is not available in Fiji. For this the plaintiff had attended the hospital twice. He will be required to travel to India on an average every two years for re adjustment to his prosthesis.
[91]. According to the evidence of Dr Chaudry the plaintiff needs to replace prosthesis at least in every 5 year since the life of any prosthesis is between 4-5 years.The plaintiff is 28 years old and he will require at least 6 travels in his life time in order to change prosthesis. Further, the plaintiff will need to travel overseas every two years to have readjustments done to his existing prosthesis. For replacement of his prosthesis he will need to go to India in every 5 years.
[92]. The plaintiff is 28 years old at present and I would take the life expectancy in this case at 60 years. Within this period he would have to go ahead for replacement of prosthesis in every 5 years. He was fitted with the prosthesis in 2009. So, it can be reasonably inferred that next replacement of his prosthesis will be in 2014. Therefore, over the next 32 years of life the plaintiff will have to replace prosthesis 6 times. Further, he would have to go abroad for adjustment of his prosthesis as well. Suppose that he will go abroad in every two and half years after replacing prosthesis for adjustment, he will have to make at least another 5 trips to India.
[93]. Therefore it is reasonable to conclude that the plaintiff will have to travel at least 11 times for replacements and adjustments. Therefore, I award $ 10000.00 per trip to cover air fare, accommodation and meals which comes to $ 110000.00.
[94]. Also it is proved that the present prosthesis used by the plaintiff is not a sophisticated one and it has restricted the plaintiff's movements to a certain extent. Dr Chaudry in his evidence stated that a sophisticated computerised prosthesis would cost about $30000.00 each whereas a hydraulic one would cost $ 15000.00-$ 17000.00.
[95]. Upon consideration of all the above facts in particular the needs of the plaintiff, especially the sport activities in which he was involved in the past, nature of his employment and his convenience, I am inclined to assess the costs for a suitable pair of prosthesis in the sum of $ 40000.00. Therefore, I award $ 240000.00 (40000.00 x6) for prosthesis.
[96]. The plaintiff also claims $ 156000.00 for future nursing care and attendance. For that the plaintiff mainly relied on the evidence given by Mohammed Hussain. The plaintiff is married and has one child. It is true that the plaintiff needs someone's help to attend his daily needs but once a sophisticated pair of prosthesis is fitted the plaintiff will be able to attend most of the work on his own. Further, his wife is also there to assist him. Therefore, it is not necessary to have a service of a person full time. He can manage with the part time attendant and accordingly I assess the future nursing care as at $100.00 per week. At the time of filing the claim the plaintiff was 24 years of age and therefore, he is entitled for a multiplier of 20. Accordingly I award $ 104000.00 for future nursing care (100 x 52 x 20).
[97]. It is axiomatic that the plaintiff will have to attend a doctor for medical checkups and care of his stumps continuously. As a result of his disability his life style has been changed significantly and there is a possibility that he may develop some complication with the passage of time. Necessarily, he needs to take pain killers and other related drugs to avoid pain and discomfort when using prosthesis. Therefore, I award $ 5000.00 for future medical expenses.
Future economic loss
[98]. The manner in which the loss of future income should be determined is satisfactorily stated by Brown L. J in Moeliker v. A. Reyrolled & Co. Ltd [1977] 1 All E.R. 9 at 17 as follows:
'it was suggested in the course of the argument that whenever a plaintiff establishes a claim under this head the damages must be considerable, and that it can never be right to award only a few hundred pounds damages. I do not agree. Each case must, of course, depend on its own facts, but if the court decides that the risks of the plaintiff losing his present job, or of his being unable to get another job or an equally good job, or both, are only slight, a low award is right ......
And at page 19 Stephenson L.J. said:
"In assessing damages under this head the judge has to engage in a double speculation to measure, first, the plaintiff's chances of losing his job, and then his chances, if he loses it, of getting other employment. It is rather like the serious risk of slight injury or the slight risk of serious injury which the prudent employer has reasonably to foresee and to measure so as to decide what precautions are reasonably necessary to meet him. He has to turn his assessment of the two risks into appropriate action 'on the ground' (or the floor); but the judge has to turn his into a suitable number of pounds sterling 'plucked from air.' The extent of each risk varies with the circumstances of every case. If (as will be rare) both are negligible or fanciful (I avoid 'speculative' because this head of damages can really be nothing else), no award should be made; Browne v. James Broadely Ltd, an unreported decision of Crichton J at Manchester. If one or both are really substantial, but neither is serious, the award should not be a token or derisory award, but should generally be in hundreds of pounds: Robert v. Heavy Transport (EEC) Ltd, a decision of this court referred to by Brown LJ. The risk of a plaintiff's falling out of his present job may be serious or slight and so may be the risk of his losing much or little if he does fall out of it, because he may be expected to have little or much difficulty in getting equally or less well paid work. If both risks are serious, the compensation should generally be in thousands of pounds."
[99]. In the instant case, the plaintiff was an active sportsman before the accident. It is evident that he took part in various sporting events and also acted as a coach. There is no doubt that the plaintiff having lost his both legs would not be able to perform his duties properly as a coach for athletics and soccer as he did before the accident and hence there is an element of risk that his earning capacity could diminish in future. Further, if he loses his job given his disability the chances are very remote for him to find an alternative employment. Therefore, I assess future economic loss in the sum of $ 20000.00.
[100]. The pleading contained a claim for interest and this the plaintiff is entitled to under section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act which provides as follows:
In any proceedings tried in the High Court for the recovery of any debt or damages the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment:
[101]. The above act was amended by the Law Reform (Miscellaneous Provisions)(death and Interest)(Amendment) Decree 2011. Consequent to the amendment the interest rate on judgment debt shall be 4% per annum from time of entering the judgment until the same shall be satisfied.
[102]. I would therefore award interest on general damages (on pain and suffering and loss of amenities) at the rate of 4% per annum on $ 130000.00 from 1st October 2008 (date of filing of writ) to 01.06.2012 (date of judgment) which amounts to $19066.00.
[103]. I would also award interest on special damages at the rate of 4% per annum on $ 29350.00 from 01.10.2008 to 0106.2012 which amounts to $ 4306.00.
Cost
[104]. Plaintiff is also entitled to costs. This trial was heard in the High Court for 5 days and therefore I summarily assessed the cost in the sum of $6000.00.
Summary of awards:
[105]. The summary of awards and costs are as follows:
| | |
| $ 130000.00 |
| $ 19066.00 |
| $ 29350.00 |
| $ 4306.00 |
| $ 104000.00 |
| $ 5000.00 |
| |
| $ 240000.00 |
| $ 110000.00 |
| $ 20000.00 |
| $ 6000.00 |
| Total payable | $ 667,722.00 |
Order:
[106]. 1. The action is decided in favour of the plaintiff in the sum of $667,722.00.
Pradeep Hettiarachchi
JUDGE
AT LABASA
8th June 2012
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