Sharla v Nasau [2012] FJHC 821; HBC086.2003 (26 January 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Action No. HBC 086 of 2003

BETWEEN:

SHARLA alias SARLA (daughter of Ugrasen) of Namada, Ba, Domestic duties,
in propria persona and as the Administratrix of the
ESTATE OF SHALENDRA PRABHAS also known as
SHALENDRA PREBHAS SINGH
(son of Ram Dayal) of Namada, Ba, Driver/Farmer, Deceased
Plaintiff

AND:

TURUKAWA NASAU
of Ba, Lorry Driver
1st Defendant

AND:

BIRJA NAND
(father's name not known to the Plaintiff) of Tavua, Truck Proprietor
2nd Defendants

AND:

FIJI SUGAR CORPORATION LIMITED
a limited liability Company having its registered Office at
3rd Floor, Western House, Lautoka
3rd Defendants

AND:

FIJI SUGAR CORPORATION LIMITED a limited liability Company
having its registered Office at 3rd Floor, Western House, Lautoka
THIRD PARTY

APPEARANCES:
Mr. H.A. Shah Counsel for the Plaintiff
Dr. Sahu Khan -Counsel for the 1st & 2nd Defendants.

JUDGMENT

1. The Plaintiff as the Administratrix of the estate of her late husband instituted this action to recover loss and damages incurred by the estate due to the death of her husband on the 21st September 2002, caused by being crushed between two vehicles on the same day. One vehicle, a truck ( Reg. No; BM 218 )belonged to her husband, and while he was behind his said truck adjusting the cable and winch, which bound and fastened his cargo of cane, the other vehicle being a similar truck ( Reg. No; CL 843) with a similar cargo of cane reversed and crushed her husband between the back of the two trucks. The truck bearing Registration number CL 843 owned by the 2nd Defendant was driven by the 1ST Defendant at the time of the colliding with and crushing her husband, the deceased Shalendra Prabhas.
   
2. The Plaintiff joined the Fiji Sugar Corporation Limited as the 3rd Defendant and the 1st and 2nd Defendant instituted 3rd party proceedings against the said Corporation making it the 3rd Party as well in this action.
   
3. At the commencement of the trial the Plaintiff as well as the 1st and 2nd Defendants withdrew their respective claims against the Fiji Sugar Corporation Limited (the 3rd Defendant as well as the 3rd Party), and as such the action against the 3rd Defendant and the 3rd Party was dismissed and discharged from these proceedings, leaving the trial between the Plaintiff and the 1st and 2nd Defendants. The Plaintiff led the evidence of 3 witnesses marking in evidence P1-P11, and the 1st and 2nd Defendant led the evidence of one witness stating that notice of the accident was given to Sun Insurance Limited.
   

Negligence;

4. It is unchallenged in evidence that the deceased was crushed between two vehicles due to the 1st Defendant reversing the truck (Reg. No; CL 843) owned by the 2nd Defendant while the other truck (Reg. No; BM 218) was stationary. There is no evidence that the stationary truck was parked in any negligent manner. It is only suggested in submissions that the deceased was negligent in placing himself behind a reversing vehicle. It is clear from the evidence led that the deceased was behind his truck for the purpose of tightening the cable that ran over the cane load on the truck. It did transpire in evidence that it is a need as well as a prudent practice to tighten the cable holding the cane load as it could loosen with the shifting of the cane in transport. It is also necessary to loosen and remove it when unloading the cane. As such the deceased had every right to be behind his truck at the time of the collision causing him to be crushed between the two trucks.
   
5. It is the duty of any driver of a vehicle to exercise care when reversing a vehicle as he does not have the same visibility and control as he has when driving forward. A member of the public (a user of the road ) is entitled to assume that a vehicle is driven forward, and that due and sufficient warning will be given when a vehicle is being reversed.
   
6. There was no evidence led by the Defendants to show that the 1st Defendant gave any indication or warning that he was reversing. Caution interviews or statements are not under oath and does not amount to evidence in favour of the maker. The 1st Defendant did not give evidence in this case and what ever he may have said in such interviews cannot be admitted as evidence through written submissions, in his favour. Though he may have stated that he followed unloading procedure in such a statement as suggested in written submissions of the Defendants, there is no evidence that the 1st Defendant was in the process or entering the process of unloading his cane load. There is a special bay at which cane is unloaded as seen in the photograph 12 (a) (in the Agreed Bundle of Documents, the entire ABD being marked as "P11"), however the collision took place outside that bay, on the road leading to it and not within the unloading bay as pointed out by the 2nd and 3rd witnesses for the Plaintiff and marked in the said photograph 12(a) and 12(c) by an "X". The burden shifts to the Defendants under the circumstances to explain as to how such a collision and the crushing of the deceased could have taken place without any negligence on the part of the 1st Defendant (res ipsa loquitor ). The Defendants did not lead any evidence to shift this burden to the Plaintiff.
   
7. Furthermore there was no evidence to show that the 1st Defendant had obtained the assistance of a "lookout" before reversing the truck to ensure that no one, or object, was behind the truck. It is the duty of the driver of a truck laden with a cargo such as cane which could easily jut outside the body of the vehicle and obstruct his view when reversing, to obtain the assistance of a person placed at a point with a clear view of the reversing path, to inform him of the view behind him. The only exception may be when the vehicle is equipped with a rear camera (reversing camera). There is no evidence that the reversing truck had such a reversing camera or even a reversing horn to warn of a reversing vehicle.
   
8. Therefore this Court comes to the finding that the 1st Defendant was negligent as per particulars of negligence pleaded in the statement of claim, in reversing the truck bearing registration number Reg. No; CL 843 and colliding with and crushing the deceased Shalendra Prabhas between the said truck (Reg. No; CL 843) and another stationary truck (Reg. No; BM 218).
   
9. The Post Mortem report (item 6 in the ABD marked P11) of Dr. Dhana Gounder confirms that the condition directly leading to the death of Shalendra Prabhas was "RUPTURED LIVER WITH MASIVE INTRAPERITONEAL HAEMORRHAGE". Dr. Gounder further comments that "THE RUPTURED LIVER IS COMPATIBLE WITH A CRUSH INJURY AS BETWEEN TWO VEHICLE" (VEHICLES). The cause of death in the death certificate (item 2 in P11) too is the same. Therefore this Court holds that the death of SHALENDRA PRABHAS was caused by the negligence of the 1st Defendant.
   

Vicarious Liability;

10. It is an admitted fact in pleadings that the 2nd Defendant was the owner of the truck (Reg. No; CL 843) driven by the 1st Defendant and that the 1st Defendant drove the said truck for the purpose (transporting cane) of the 2nd Defendant, and therefore within the scope of and during the course of his employment under the 2nd Defendant. As such this Court holds that the 2nd Defendant is vicariously liable for the aforesaid negligence of the 1st Defendant.
    

Damages;

11. The Plaintiffs counsel restricted their claim for damages under the Law Reforms (Miscellaneous Provisions) (Death and Interest) Act (Cap 27.) to the loss and damage to the estate of the deceased, in his written submissions.
    
12. To arrive at the loss and damage (at times referred to as "lost years") to the estate, first the benefit to the "estate" had the deceased survived needs to be assessed as it is the deprivation of that benefit that would lead to the loss and damage to the estate at the death of the victim of the accident. Any damage the Deceased may have been entitled to had he survived the accident too may be considered as a benefit deprived to the estate provided it is not extinguished by his death. The loss or damage to a particular dependant of the deceased would be irrelevant under such an assessment. However the Court is obliged to, as the upper guardian of minors to impose conditions and allocate damages awarded to ensure their welfare. The letters of Administration issued to the Plaintiff is document no. 3 in the Agreed Bundle of Documents. The Birth Certificates of the daughter and son of the deceased are marked as "P4" and "P5" from the Plaintiffs Bundle of Documents confirm that the deceased is their father and the Plaintiff is their mother. The Marriage Certificate of the Plaintiff and the Deceased was marked in evidence as "P2" from the Plaintiffs Bundle of Documents.
    
13. The weekly income of the deceased was given in evidence by the Plaintiff to be $600 to 700 per week. She stated that she was given $400/- for expenses and to save. This evidence was not challenged and this Court has no reason not to accept same. The loss to the estate is not only the money that the deceased could have saved but also the money that was available to the estate for expenses. It is the deceased's personal expenses that are excluded which he has retained and given the balance $400/= to his wife according to her evidence. Therefore the multiplicand is $400/=.
    
14. The deceased was 32 years of age according to the evidence led and a multiplier of 15 years sought in the Plaintiffs written submissions, is reasonable given that there was no evidence led for this Court to hold otherwise. In the premises the loss of earnings to the estate would amount to $400 x 52 x15 = $312,000/=.
    
15. The Plaintiff in their written submissions have sought $2,250/= as damages for loss of expectation of life. This Court does not consider $2,250/= as excessive and allows that claim.
    
16. Funeral expenses are claimed at $3,000/= by the Plaintiff in their written submissions. Though there is a judicial view that receipts ought to be produced to prove special damages, this Court is mindful that it is not possible or reasonable to expect a widow to ask for receipts for expenses met under such tragic circumstances, and the sum of $3000/= is not excessive under the circumstances, and this Court allows the same
    
17. The Plaintiff seeks a sum of $25000/= for pain and suffering suffered by the deceased. The basis for allowing such a claim is when the deceased does not die instantaneously and that had he survived he could have claimed such a sum considering the injuries suffered. The evidence led that the deceased died on the way to the hospital confirms that the death was not instantaneous. The injuries and the pain of mind suffered by being crushed between two trucks would justify an award of $25,000/= and this Court allows same. Plaintiff cited Sigavolavola v. Gyan Mati (FJCA No. 85 of 1985), J Singh v. Young (H.C Fiji Civil no. 242 of 1990), Daya Ram v. Peni Cava (29FLR 147).
    
18. The Plaintiff has sought a sum of $50,000/= as tertiary education expenses for the two children of the deceased. As observed such expenses are not special damages or prospective damages that can be considered as brought about by the 1st Defendants negligence. However when a defendant is adjudged to pay damages for the loss caused due to his negligence, it is a reasonable expectation of the Defendant too that the damages he pays compensates the damage he has caused. If it so happens that the children, of the deceased for whose death he was responsible, is left without a tertiary education due to the loss of their father, no doubt the compensation he pays would not have been utilized to compensate fully. It is not that the Defendant has to pay additional compensation for which their is no cause of action but it is the utilization of that compensation by the estate for the benefit of minors that compels Court to apportion the utilization, by payment of a part of the loss of earnings to a separate account to be held in trust for the minors.
    
19. As such a sum of $50,000/=out of the amount awarded as loss of earnings is to be deposited in Court at $25,000/= each in two minors Bank accounts (in Trust) (as long as they are minors) in the name of the two children of the deceased being SHAYAL SINGH (DAUGHTER –D.O.B.28 JULY 1992) and SHUJIL SAVIKASH SINGH( SON –D.O.B. 30 MARCH 1994) by the Defendants jointly and or severally to achieve satisfaction of this judgment on payment of the balance in the award of damages for loss of earnings.
    
20. It is noted by Court that of the 15 year multiplier, already over 9 years has lapsed. On the total claim the Court awards interest at 6% per annum as this Court has of practice awarded in respect of other personal injury actions and as per the Law Reforms (Miscellaneous Provisions (Death and Interest) Act (Cap 27).
    
21. The claim for costs in a sum of $25,000/= is excessive for this action which lasted but a day. In keeping with costs awarded in other actions on a standard basis, this Court summarily assesses costs at $2,500/=.
    
22. SUMMARY OF DAMAGES AWARDED;
    
    1. LOSS OF EARNINGS -$400/= x 52 x 15 = $312,000/=.
    2. LOSS OF EXPECTATION OF LIFE = $2,250/-=
    3. FUNERAL EXPENSES = $3000/=
    4. PAIN AND SUFFERING = $25,000/=
    5. INTERIM TOTAL = $342,250/=
    6. INTEREST AT 6% PER ANNUM ON THE SUM OF $342,250/= FROM 21ST SEPTEMBER 2002 TILL DATE OF JUDGMENT

(9 years 4months and 5 days) = $191,936/=

7. FINAL TOTAL AS AT 26/1/2012 = $534,186/=.

8. MANNER OF PAYMENT;

A. TO DEPOSIT IN COURT TO THIS CASE IN THE ACCOUNT OF SHAYAL SINGH (DAUGHTER –D.O.B.28 JULY 1992) (FOR TIRTIARY EDUCATION) = $25,000/=

B. TO DEPOSIT IN COURT TO THIS CASE IN THE ACCOUNT OF SHUJIL SAVIKASH SINGH (SON –D.O.B. 30 MARCH 1994)FOR TIRTIARY EDUCATION=$25,000/=

C. TO THE PLAINTIFF AS ADMINISTRATRIX OF THE ESTATE OF SHALENDRA PRABHAS = $484,186/=.

23. The Plaintiff is entitled to interest at 4% per annum on the total judgment sum of $534,186/= from the date of judgment till satisfaction in full in view of the Law Reform (Miscellaneous Provisions) (Death And Interest ) (Amendment) Decree 2011 (Decree No.46 of 2011 ) and in view of the Imperial Judgments Act 1838 (UK) and section 22 of the High Court Act (which reference was provided by the Master). The two children of the deceased afore named may, through the Plaintiff or upon attaining majority, withdraw the money deposited as above in Court. In the premises this Court shall enter judgment accordingly.
    
24. LOCATION OF THE COLLISION; The Sugar industry is one of the foremost if not the foremost industry in Fiji. It is difficult to imagine that a road leading to a Sugar mill is not a public road. The Photograph no.12 (a) and the sketch bearing no.9 in the Agreed Bundle of Documents (P11) verify that the location where the deceased was crushed between the two vehicles (trucks) happens to be a 6 meter wide tar seal (tarred) road. The 3rd witness for the Plaintiff stated that the said road is a continuation of the Rarawai road and there are no gates or notices that it is a private road. Perhaps in conceding this fact the insurance company that issued the 3rd party insurance policy to vehicle Reg. No; CL 843 being SUN INSURANCE LIMITED withdrew their action no. HBC 74 OF 2006 which was an action seeking a Declaration of Non Liability as submitted by both parties in this case. As such the collision and the injuries to the deceased had occurred in a public roadway, and as such a road within the meaning of the Motor Vehicle (Third Party Insurance) Act. However it is now for the insurance company to comply with their statutory obligations.
    
25. This case may be one of the few remaining of the substantial backlog of cases that existed at the time in the latter part of 2009 when I was assigned to the High Court of Lautoka. It is refreshing to note that personal injury cases filed in 2011 are now coming up to be fixed for trial after completion of pre trial steps within a year, as against this case in which the copy pleading were filed without a PTC in 2006 and took over 6 years after institution to come before this Court in 2009 December to fix for trial. There were many cases instituted over 20 years ago in the 1990s and some in the 1980s, almost all of which were taken up and now stand concluded. I commend those members of the Bar, the Master of the High Court of Lautoka and the Court staff who assisted to make it possible.
    

ORDERS ON JUDGMENT;

1. the 1st and 2nd Defendants jointly and or severally to pay the Plaintiff in her capacity as the Administratrix of the estate of the late SHALENDRA PRABHAS the sum of $484,186/=. together with interest at 4% per annum thereon from date of this judgment till payment in full satisfaction, and
   
2. the 1st and 2nd Defendants to jointly and or severally deposit in Court to this case FOR THE TERTIARY EDUCATION OF SHAYAL SINGH in an account in the name of SHAYAL SINGH (DAUGHTER OF THE DECEASED SHALENDRA PRABHAS -DATE OF BIRTH 28 JULY 1992) the sum of $25,000/= together with interest at 4% per annum thereon from date of this judgment till such deposit, and
   

100. the 1st and 2nd Defendants to jointly and or severally deposit in Court to this case FOR THE TERTIARY EDUCATION OF SHUJIL SAVIKASH SINGH in A MINORS ACCOUNT OR an account in the name of SHUJIL SAVIKASH SINGH (SON OF THE DECEASED SHALENDRA PRABHAS -DATE OF BIRTH 30 MARCH 1994) the sum of $25,000/= together with interest at 4% per annum thereon from date of this judgment till such deposit, and
     

4. the 1st and 2nd Defendants to jointly and or severally pay costs assessed summarily in a sum of $2500/= to the Plaintiff.
   

.............................................
Yohan Fernando.
JUDGE.

High Court of Fiji
At Lautoka
26th January 2012.