Khan v Prasad [2014] FJHC 814; Civil Action 40.2010 (11 November 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. 40 of 2010

BETWEEN:

ABDUL IRSHAD KHAN
of Korowiri, Labasa. Now employed as Salesman for Matuk.
Plaintiff

AND:

ANJESH VIKASH PRASAD
of Basikalave, Dreketi, Labasa.
1st Defendant

AND:

SAIFUD DIN
of Tuatua, Labasa, Trading as Babasiga Fuel Distributors.
2nd Defendant

AND:

ATTORNEY GENERAL FOR AND ON BEHALF OF THE PERMANENT SECRETARY FOR HEALTH
1st Named Third Party

AND:

DR. JAOJI VULIVECI OF LABASA HOSPITAL
2nd Named Third Party

APPEARANCE : Mr. S Prasad of Saju Prasad Esquire Counsel for the Plaintiff
: Mr. P. Lomaloma of Penijamini R. Lomaloma Esquire Counsel for 1 Defendant
: Mr. Sunil Kumar with Mr. Sharma of Sunil Kumar Esquire, Barristers and Solicitors for the 2nd Defendant.
: Mr. Mainavolau of the Attorney General’s Chambers for the Third Parties.

DATE OF JUDGMENT : 11th of November 2014.

JUDGMENT

[1] The Writ of Summons filed by the Plaintiff on 27 October 2010 claiming damages for personal injuries caused to him due to an accident occurred on 15 February 2008 being a passenger of vehicle (truck) No. EZ950 owned by the 2nd Defendant and driven by the 1st Defendant under his permission.

[2] The Plaintiff stated he relies upon the doctrine of ‘res ipsa loquitur’ and further stated that the truck was under control of the 1st Defendant who caused the truck to tumble down the hill and that the 2nd Defendant had negligently instructed the 1st Defendant to drive the vehicle.

[3] As a result of the accident the Plaintiff was admitted for over 2 weeks at Labasa Hospital and on 29 February 2008 transferred to CWM Hospital Suva for further 6 weeks and his left leg below the knee was amputated.

[4] At the time of the accident the Plaintiff was 24 years of age and was earning $70 a week but due to the injuries caused by the accident he is deprived of working and earning an income.

[5] The 1st Defendant’s and 2nd Defendant’s particulars of negligence stated in the paragraphs 6 of the Statement of Claim.

[6] The 1st Defendant filed his Statement of Defence and Counter Claim against the 2nd Defendant on 15 February 2010 and stated accident was occurred due to the negligence of the 2nd Defendant, and he too was injured in the accident and claimed damages against the 2nd Defendant.

[7] The 2nd Defendant had admitted the paragraph 5 of the Statement of Claim which states the date of the incident 15 February 2008, the Plaintiff travelled in Vehicle No. EZ950. The said paragraph 5 further states the Vehicle No. EZ950 was travelling downhill from Delaikoro towards Labasa Town driven by the 1st Defendant when 1st Defendant drove, managed and controlled the vehicle so negligently, carelessly dangerously or recklessly that he permitted or caused the said vehicle to tumble down the hill causing serious injuries to the Plaintiff. Considering the admissions there is no dispute on the following facts between the Plaintiff and the 2nd Defendant:

1. Accident occurred on 15 February 2008.

2. The vehicle involved in the accident is EZ950.

3. Vehicle was travelling from Delaikoro to Labasa.

4. The Plaintiff was a passenger in the said Vehicle No. EZ950 and serious injuries were caused to the Plaintiff.

Accordingly, there is no necessity to consider the evidence pertaining to the above facts between the Plaintiff and the 2nd Defendant.

[8] The 2nd Defendant in his Statement of Defence stated the accident occurred to due to the negligence of the 1st Defendant and denied the following:

“(h) Driving the said vehicle which was unsuitable for that road condition and the job assigned;

(i) Driving Motor Vehicle Registration No. EZ950 when he was not qualified to do so;

(j) Driving Motor Vehicle Registration No. EZ950 when he did not have the License or Certificate to do so.”

Further replying to the above, 2nd Defendant had stated the 1st Defendant is a duly qualified driver and held Group 6 Driving License issued by the Land Transport Authority and the said vehicle was designed to cart fuel for distribution and duly registered to cart fuel.

[9] The 2 Defendant had stated in his Statement of Defence in paragraph 7 that the Statement of Claim with regard to res ipsa loquitor should be struck off. I state such an application cannot be entertained by a court unless the 2nd Defendant can prove he was not negligent and exercised duty of care.

[10] The 2nd Defendant further stated the Plaintiff was admitted to Labasa Hospital and Dr Jaoji after thirteen days of admission told in the presence of the 2nd Defendant that blood cloth in the Plaintiff’s leg has caused bone poisoning and the Plaintiff’s leg should be amputated and finally left leg was amputated at CWM Hospital at Suva.

[11] The Plaintiff had alleged Labasa Hospital is responsible for the left leg amputation by not administering proper treatment on time and sought to join Attorney General as a representative of Ministry of Health and Dr Jaoji Vuliveci as third parties and to indemnify himself (2nd Defendant) from any claim.

[12] Reply to the Statement of Defence of the First Defendant was filed on 1 June 2012 by the Plaintiff and alleged that the 1st Defendant was negligent.

[13] The Plaintiff filed Reply to the Statement of Defence of the 2 Defendant stated inter alia:

13.1 That the 2nd Defendant’s attempt to put the blame on the third party is without any basis and it’s far from the truth.

13.2 The 2nd Defendant’s statement that he was unaware of Dr. Jaoji’s advise given to the 2nd Defendant.

13.3 Admitted that he was taken to Suva Private Hospital for treatment and he is unaware of the other contents.

13.4 That he is unaware that what was stated by Dr Eddie McGaig of Suva Private Hospital told that blood cloth has caused blood poisoning.

13.5 Admitted that the 2nd Defendant gave some money to his mother.

13.6 Denied that the 2nd Defendant paid for the artificial leg, it was paid by the Plaintiff. Further state he was at the mercy of friends and families for his daily living and the 2nd Defendant stopped paying him wages.

[14] The third parties filed their Statement of Defence and stated inter alia:

14.1 Admitted that Dr Jaoji attended to the Plaintiff at Labasa Hospital and pain killers were given, saline water was only sprayed on the injured parts of the Plaintiff’s leg following the operation at Labasa Hospital which was a few days after the Plaintiff’s admission.

14.2 At the time of admission to the hospital the Plaintiff had a crush fracture and there was no open wound. Dr Jaoji had initially requested the Plaintiff to operate on his leg on suspicion of Compartment Syndrome and the Plaintiff’s mother refused and signed the denunciation on the medical folder. Her reason being there was no open wound and the Plaintiff need not to undergo operation.

14.3 The 2nd Defendant’s statement that Dr Jaoji telling ‘only minor injury’ and could be cured was denied.

14.4 Later having understood the injury on his leg was severe, the Plaintiff’s mother consented to perform an operation on the left leg and found Compartment Syndrome was developed and Dr Jaoji explained that the leg might not survive and it needed to be amputated.

14.5 It was stated if the Plaintiff and 2nd Defendant had listened to the professional advice of Dr Jaoji, the Plaintiff would not have lost his leg.

14.6 The 2nd Defendant and his mother was advised of the risk of amputation from the 1st day of the Plaintiff’s admission.

14.7 The transfer of the Plaintiff to Suva is not within Third Party knowledge.

Issues

[15] In this matter this court should address the following issues:

15.1 As to whether the accident occurred and the injuries caused to the Plaintiff was a result of 1st and 2nd Defendants negligence?

15.2 As to whether the 2nd Defendant negligently used the Vehicle No. EZ950 for cartage of fuel to Delaikoro?

15.3 As to whether the 2nd Defendant was negligent in instructing the 1st Defendant on 15 February 2008 to drive the vehicle back from the point he abandoned the Vehicle NO. EZ950 on 14 February 2008?

15.4 As to whether the Plaintiff can rely on the doctrine of res ipsa loquitor to prove the negligence of the 1st and 2nd Defendants?

15.5 As to whether 1st Defendant was injured due to the negligence of the 2nd Defendant?

15.6 As to whether the 3rd parties are liable for the amputation of the left leg of the Plaintiff in case the 3rd parties failed to exercise reasonable care on the Plaintiff and as to whether the 3rd parties are liable for the losses and damages suffered by the Plaintiff on amputation of his leg?

Evidence, Analysis and Determination

[16] In this matter 4 witnesses had testified on behalf of the Plaintiff, 1 witness on behalf of the 1st Defendant and 4 witnesses on behalf of the 2 Defendant. One witness was called by the Third Parties. The submissions were filed by the Plaintiff, 2nd Defendant and the Third Parties. To determine this matter, I have taken the evidence and the submissions into consideration.

[17] At the outset, I determine as to whether 3rd Parties are liable for the amputation of the leg. The evidence relevant to determine on this issue was testified by:

(a) the Plaintiff, Abdul Irshad Khan;

(b) the Plaintiff’s mother Jaibul Nisha;

(c) Dr. Jaoji Vuliveci;

(d) Dr Emosi Taloga;

(e) Saifud Din – The 2 Defendant.

17.1 The Plaintiff stated at the Labasa Hospital he didn’t give his consent for the amputation of his leg and he was told by the 2nd Defendant not give the consent.

17.2 Dr Jaoji advised the Plaintiff his leg was to be amputated and admitted the Doctors and Nurses gave him proper care and no complaint against the treatment given.

17.3 The mother of the Defendant too confirmed to his Court when she was testified her only request to the Doctors was to save her son. When the Doctor suggested to amputate the leg she was asked by the 2 Defendant not to consent.

17.4 Both witnesses said they believe there was no negligent by the Labasa Hospital in their treatment of the Plaintiff.

17.5 Dr Jaoji Vuliveci had testified on behalf of the Third Parties. He stated even though the medical folder was missing from the hospital records he was aware of the details of the treatment pertaining to the Plaintiff. Dr Jaoji produced the document (marked TP1) dated 27/2/2013. This letter was addressed to Mr Josefa Mainavolau of the Attorney General’s Chambers. It was admitted the medical folder of the Plaintiff kept at Labasa hospital was missing. He remembers the Plaintiff was admitted to the hospital with a crush fracture there was not much of swelling but oxygen saturation was less than 100%. Condition was explained to the Plaintiff’s mother since the injured had authorized mother to decide and all these were noted in the missing medical folder. The witness recommended open fascitomy within 2 or 3 days since the injury was limb threatening and the best option was amputation. This situation was explained to the Plaintiff and his mother didn’t agree for amputation. When the Plaintiff developed swelling and had blisters forming on his leg they agreed for fascitomy and it was too late. However, the Plaintiff and his mother continuously refuse the amputation. The Plaintiff was treated with appropriate medication. The Plaintiff despite the advice for amputation was taken to Suva. The witness stated that he could not recollect whether he advised the 2 Defendant about the amputation. Referring to the letter dated 3 April 2008 (P15) the witness stated there was no referral letter to CWM Hospital and he is giving evidence from his recollection. He explained why he could remember about this case since there was a matter pertaining to one Suruj Narayan where it was not properly documented. The treatments given and why the amputation was recommended the witness explained. Patient was thrown out of the vehicle 95% of the muscles were damaged and bones were in pieces. On cross examination by the Plaintiff, the witness told he never mentioned to the 2 Defendant that the injury was a minor issue. Replying to the 2 Defendant’s counsel, the witness stated fascitomy was done after swelling commenced with the consent of the patient and his mother. The witness stated he knows the 2 Defendant as a Businessman in Labasa. Performing fascitomy was consented by the mother after 3 or 4 days. I find there is no reason to disbelieve the witness he explained why he could remember this case, and he was very firm in his evidence. Although medical report was missing the witness deliberate to the court what really had taken place. The missing of the medical folder does not affect the credibility of the witness as suggested by the 2 Defendant’s counsel. I am satisfied delay in operation caused at Labasa Hospital because the Plaintiff and his mother did not agree. It was also stated by the witness, the Plaintiff was discharged from the Labasa Hospital despite the advise for amputation and without the knowledge of the staff.

17.6 Dr Emosi Taloga was testified on behalf of the Plaintiff. Dr Taloga is a Consultant Orthopedic Surgeon at CWM Hospital who treated the Plaintiff at CWM Hospital. He was shown the Medical Report dated 3 April 2008 (P15) and identified his signature. He stated that there was a fracture and with the fracture leg was not salvageable. The letter dated 3 April 2008 states:

“The above named individual was admitted via Suva Private Hospital with history of injuries he sustained to his left lower limb secondary to a motor vehicle accident in Labasa. He was initially managed at Labasa Hospital (records of which were not made available to our health facility)............”

Dr Jaoji stated that the Plaintiff left Labasa Hospital without the knowledge of the Labasa Hospital Staff. The witness said there were no medical records when the Plaintiff was admitted to CWM Hospital via Suva Private Hospital. This proves that the Plaintiff left Labasa Hospital without the knowledge of the staff. Dr Taloga stated that below knee amputation was done on 6 March 2008 and the stump was closed on 31/3/2008. Dr Taloga had reviewed the Plaintiff’s position on 7 October 2013 to assess the impairment. When the Plaintiff was questioned by the Dr Taloga the Plaintiff had stated he does not wear the prosthesis much because of blistering over the anterior part of the stump and the wound dehiscence. Witness stated the particular disability was assessed at 28% and pain 9-10 range. The counsel for the 2 Defendant why there is no mentioning of multiple fracture of the bone in P15. Witness stated when bone is crushed there is no immediate surgery and the dead part has to be cut off. Answering to the 1 and 2 Third Parties counsel the witness stated when the Plaintiff was brought to the CWM Hospital there was no possibility of salvaging the leg.

17.7 The Plaintiff’s mother Jaibul Nisha in her evidence told she was happy with the treatments at the Labasa Hospital and no complaints and she further told she didn’t agree for amputation of the leg of the Plaintiff. She repeatedly asked the Doctors to save her son. She further stated that 2 Defendant advised her not to consent for the amputation.

17.8 I now consider the evidence by the 2 Defendant Saifud Din. His contention was that the Labasa Hospital never advised the Plaintiff and his mother of amputation. He further stated Doctors have not exercised due care and diligence. He brought the Plaintiff to Suva because he felt Labasa Hospital was not in a position to save the Plaintiff’s leg. During the cross-examination, he admitted that the person who was with the Plaintiff most the time at the Labasa Hospital was his mother. The witness went there in the morning and afternoon. He was unaware what advice was given to the Plaintiff and his mother by the Doctors. When the counsel for Third Party asked about the missing medical folder, the witness was nervous although he denied. During his whole evidence he didn’t answer the questions properly and was wage and tried to evade the questions. His demeanor in the witness box showed that he had something to hide and the Court is of the view this witness was untruthful. Furthermore the 2 Defendant had not called any evidence to support his claim against the 1 and 2 Third Parties negligence resulted in the amputation of the leg.

17.9 To establish the liability against the Third Parties burden of proof lies with the 2 Defendant. The 2 Defendant was to establish:

(i) the Third Parties breached their duty of care by not giving proper treatment to save the leg;

(ii) as a result the left leg of the Plaintiff was amputated.

As I stated in the preceding paragraphs, the 2 Defendant’s evidence that the Third Parties failed to exercise duty of care was not supported by any independent evidence. On the other hand the suggestion to the witnesses called by the Plaintiff and the Third Parties that the Third Parties could have performed alternative methods of treatment did not support the Defendant’s claim. It’s mere speculation which was answered by the witnesses properly. In fact the 2 Defendant failed to challenge the position of the Doctors who gave evidence by calling expert witness or failed to produce any documentary evidence. The only evidence led before this court to prove his claim against the Third Parties was the missing medical folder at Labasa Hospital. However, I believe the evidence of Dr Jaoji who explained the position convincingly.

The 2 Defendant’s counsel submission that failures of Third Parties to produce the medical folder do not carry any merits for the reasons set out hereinbefore. I further state that the burden of proof lies with the 2 Defendant to prove his claim against the 3 Parties which he failed and all witnesses gave evidence including the Plaintiff and his mother deliberated the treatments were properly done and no complaints. The 2 Defendant’s counsel cited the case of Suruj Narayan vs. Ministry for Health and Attorney General of Fiji Civil Action No. 43 of 2004 (unreported) decided on 25 July 2008 and submitted that 2nd Named Third Party was held negligent and in the Appeal Case No. FJCA 27 of 2011 (unreported) Fiji Court of Appeal affirmed the said decision by its Judgment in the said case there were certain treatments give by the Hospital which aggravated the position of the Plaintiff. The Learned Judge’s finding at the High Court was that the condition of the Plaintiff was improving before the application of the Plaster Cast. It was found that the application of a complete cast created an ideal breeding place for growth of bacteria and organisms which resulted the knee amputation of the Plaintiff. In this case the Plaintiff failed to establish that amputation of the left leg below the knee was due to the treatment. In the circumstances the 2 Defendant’s counsel’s submission fails.

17.10 In case of Rogers vs. Whitaker [1992] HCA 58; (1992) 175 CLR 499 the High Court of Australia stated that the test was not whether the conduct accords with the practice of the medical profession or some part of it; but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the obligation to decide the issue cannot be shifted to any professional group in the society.

As stated above, the evidence before me is that the Plaintiff was given due attention and care. There was no evidence to establish that the Plaintiff’s left leg below the knee was amputated due to the negligence in treatment or the Plaintiff’s condition deteriorated because of any breach of duty of care by the Third Parties. As such I determine that the 1st named Third Party and 2nd named Third Party are not liable to indemnify the 2 Defendant in case the Plaintiff’s claim is decided against the Defendant. Accordingly, the 2 Defendant’s claim against the 1st named Third Party and 2nd named Third Party carries no merits and 2 Defendant fails, and I determined in favour of the 1st named and 2nd named Third Parties.

[18] The Plaintiff’s Claim Against the 1 and 2 Defendants

This court has to first decide as to whether liability is established by the evidence. Quantum of the damages should be decided thereafter. To determine on the liability the following issues has to be taken into consideration:

(a) As to whether the Plaintiff was an employee of the 2 Defendant?

(b) As to whether the Plaintiff suffered injuries during the course of his employment?

(c) As to whether the First Defendant was driving the Vehicle No. EZ950 on the instructions of the Second Defendant under his authority?

(d) As to whether the Plaintiff was authorized by the 2 Defendant to travel with the 1 Defendant?

(e) As to whether the 2nd Defendant exercised his duty of care towards the Plaintiff?

(f) As to whether the 2 Defendant was vicariously liable for the actions of the 1 Defendant?

To decide on the above issues, I now summarise the facts of the case and the evidence.

18.1 The accident which caused injuries to the Plaintiff occurred on 15 February 2008 and the Plaintiff was 24 years of age at that time and he was employed by the 2 Defendant as a driver. It was an admitted fact by the parties.

18.2 The accident occurred when the Plaintiff was travelling as a passenger from Delaikoro to Labasa in Motor Vehicle No. EZ950 owned by the 2 Defendant.

18.3 The First Defendant was the driver of the Motor Vehicle No. EZ950 and he was driving the vehicle in the course of his employment with the 2 Defendant.

18.4 The 2 Defendant was supplying fuel to Delaikoro Telecom Station by transporting the fuel in 200 litre drums.

[19] 19.1 The Plaintiff Irshad Khan was testified at the trial. He stated he was an employee of the 2 Defendant and was driving a 6 Wheeler Truck Registration No. DS599 and delivering fuel to various places. He possesses a driving license to drive Group 2 and 6 and permit for cartage of hazardous material. He was paid $70 per week.

19.2 On 14 February 2008 he had loaded fuel drums to ten wheeler truck EZ950 on instructions of the 2 Defendant to be taken to Delaikoro Telecom Station. He loaded 20 drums of diesel and taken the vehicle to Tuatua where 2 Defendant’s office is situated. Ten wheeler trucks are not to be driven to Delaikoro because it’s dangerous to drive on the Delaikoro road which is very narrow and steep. The Plaintiff told him he will drive the Vehicle No. 650 and one other employee Pathik will accompany him. The Plaintiff was as to take 7 drums in a van Registration No. EZ333 and other vehicle Hilux 4x4 was taken to Delaikoro by Rohit.

19.3 All 3 Vehicles EZ950; EZ333 and 4x4 Hilux were driven to Delaikoro. Delaikoro is a mountain and on the top Fiji Electricity, Fiji TV, Digicel and Vodafone Stations are situated. I personally observed the mountain in my view it must be the highest mountain in Labasa and can see the towers on the top and the road has to be very steep and an experienced driver should be employed to drive a vehicle, I agree with the Plaintiff’s evience. Tele Com Fiji too has a station on the top of the mountain. From base of the hill up to the stations, it’s around 11km and there is a gate after travelling around 9km. The gate is locked all the time and no security placed. Gate keys are with Telecom.

19.4 Whenever the Plaintiff or any other employee was instructed to deliver fuel drums the 2 Defendant makes arrangements with the Telecom to open the gate. Telecom staff also used to go with them for their work and open the gate. The fuel is transported from the gate up to the Telecom station up on the hill by 4x4 or 2 tons vehicles from the gate. Telecom would come back on their own time and lock the gate. This position was clearly stated by the witness Solomone Tagicakibau the Property Incharge of Telecom at the time of the accident whose evidence was unchallenged.

19.5 The Plaintiff had driven his vehicle DS599 several times to delivery of fuel drums from the gate to the Telecom station on top of the Delaikoro mountain.

19.6 There was a notice board at the gate and it was written there “Heavy Goods Vehicles Not Allowed”. Only 1 tonne and 2 tonne trucks are permitted to go beyond the gate. The 2 Defendant denied this position. If there was free ride on this road, why the gate was installed question arise in the mind of the court.

19.7 On 14 February 2008, the Telecom staff opened the gate and proceeded to the station to attend to their work. The Plaintiff took EZ333 with 7 drums of fuel and off loaded the drums at the station as instructed by the 2 Defendant and was returning to the gate and he saw the 10 wheeler Registration No. EZ950 had passed the gate and slipped on to the drain. EZ950 which was driven by the 2 Defendant had come about 1.5km passing the gate up on the hill and the Plaintiff was surprised to see the vehicle was driven up by the 2 Defendant since heavy goods vehicles never pass the gate because the road is so narrow winding and steep. Because of the drizzling on that day, it was slippery. Rohith had brought the 4x4 vehicle to transport the fuel from the gate to Delaikoro Telecom Station and there was the no necessity to drive the ten wheeler passing the gate.

19.8 The Plaintiff was shocked to see the vehicle there and both the 2 Defendant and Pathik looked scared. The Plaintiff said if there was no drain it could have fallen into the ravine.

19.9 The 2 Defendant had instructed the Plaintiff to transfer 3 drums at a time which were in the slipped Vehicle No. EZ950 and deliver them to the Telecom station. The 2 Defendant too told that he is going to Tuatua to arrange to pull the vehicle EZ950.

19.10 On the same day i.e. 14 February 2008 EZ950 was pulled out of the drain by a D4 (Bulldozer) sent by the 2 Defendant and it was parked and it was not brought back on the same day because it was night time, and the weather was bad.

19.11 On 15 February 2008 the Second Defendant had instructed the 1 Defendant to bring the Vehicle DZ950 and the Plaintiff was told by the 2 Defendant to come back with the 1 Defendant since the 1 Defendant never drove on the Delaikoro Road. This was confirmed by the 1 Defendant in his evidence and Rohith who later admitted he was the supervisor who gives instructions to the employees as directed by the 2 Defendant.

19.12 The 2 Defendant repeatedly told that the Plaintiff gone with the 1 Defendant without his instructions. He admitted that Rohith, one of his employees who gave evidence give instructions to other employees. The 1 Defendant in his evidence admitted that Rohith told the Plaintiff to come with the 1 Defendant. The Plaintiff had come to work on that day. He was a driver. If he was not instructed to go to Delaikoro he should have been attending to his normal duties. Why 2 Defendant did not ask him to stay back and attend to his normal duties? I don’t believe the evidence of the 2 Defendant. The 2 Defendant was wage in his answers and he was uncomfortable in answering the questions, under cross examination, even to the court. At this juncture I wish to observe the statement made by the Defendant to the Police on 27/3/2008 which was in the Agreed bundles of documents and Defendant’s bundle of documents although this document is not marked. I take judicial notice to come to a conclusion of the 2 Defendant’s evidence. On page 2 the 2 Defendant stated:

“On 15/2/2008 at 0900hr the driver of D-4 Jim, the driver of EZ333 Pathik and the driver of EZ950 Anjesh another driver with Anjesh is Irshad and Rohith they all went in a vehicle FC921. I sent them to get my vehicle back.”

The 2 Defendant’s position when he was not aware that the Plaintiff travelled with others to bring back the vehicle. His own statement contradicts his evidence in the court. The 2 Defendants were untruthful.

It was found that his evidence always directed to pass on his liability to others including 1 Defendant and the 3rd Parties. I conclude that the Plaintiff had gone to assist and accompany the 1 Defendant to bring back the vehicle on instructions of the 2 Defendant.

19.13 The 2 Defendant produced two statements made by the Plaintiff and the 2 Defendant marked as 1D1-2 and P18. The Plaintiff and the 1 Defendant denied that the said documents were written by them. Those two statements were signed by them. Considering the oral evidence led in this court, I conclude the two documents are pre drafted and obtained the signatures of the Plaintiff and the 1 Defendant later for the benefit of the 2 Defendant. I am not considering the statements which were prepared by someone for the benefit of the 2 Defendant with a view to shift the liability to other parties safeguarding 2 Defendant’s interest. The handwriting in the two statements are same. The Plaintiff and the 1 Defendant denied they wrote the statements.

19.14 The Defendant evidence was:

(a) that he never authorized the Plaintiff to travel in the Vehicle EZ950;

(b) it was only on the negligence of the First Defendant the accident occurred and he is not negligent and not vicariously liable.

Both above issues are established through the evidence. The evidence also established that Delaikoro Road to the Telecom station is a dangerous road. The 2 Defendant had driven the vehicle passing the gate and vehicle skidded to a drain.

It is well established by the evidence that the 2 Defendant’s negligence originated the accident. He had driven the vehicle which is not supposed to be taken up to the top of the hill and his action resulted in vehicle skipping into the drain. If his position that vehicle could be taken passing the gate why had he taken 2 vehicles, 2 ton vehicle and 4x4 were taken with him? There was no explanation given. Considering the evidence before the court it is established that the 2 Defendant had negligently and recklessly taken EZ950 passing the gate on a dangerous road and the vehicle skidded to a drain. By sending his employees on the next day to recover the vehicle and specifically instructing the 1 Defendant who was scared to drive for the first time on the Delaikoro Road to drive the vehicle back is in breach of his duty of care towards the Plaintiff who travelled in the said vehicle EZ950. He was authorized to travel in the vehicle by the 2 Defendant. The 2 Defendant’s negligence on 14/2/2008 given rise to all the incidents happened thereafter and he cannot avoid his liability. The 1 Defendant’s evidence clearly corroborates the evidence of the Plaintiff and I am satisfied with the evidence of Solomone Tagicakibau who was the Officer in Charge of the Telecom property in Delaikoro (P14). He repeatedly told that no one had allowed Titi (The 2 Defendant also known as Titi) to take the 10 wheeler truck pass the gate.

19.15 There is no issue with regard to the negligence and his failure to exercise duty of care to the Plaintiff which was established through the evidence. I find that the other witnesses for the defence who were employees of the 2 Defendant gave evidence to safeguard the interest of the 2 Defendant to avoid his liability.

19.16 I also conclude in any event in addition to the above, the 2 Defendant is liable for his employee’s negligence vicariously the dictum of res ipsa loquitor applies in this case. The Second Defendant authorized the 1 Defendant to drive EZ950 and 1 Defendant performed his duties on instructions of the 2 Defendant. I also take into consideration 1D9 Traffic Case No. 5291/08 where initially the 1 Defendant was charged with dangerous driving and later it was amended to criminal recklessness and was acquitted by the Learned Magistrate on the basis that prosecution failed to prove the elements of the alleged offence. However, on the evidence placed before me, I conclude if the 1 Defendant was scared to drive he would have refused to drive the vehicle or he would have advised the Plaintiff not to travel with him. With the evidence before me I am convinced that the 1 Defendant was negligent in his driving at the time of the accident. As such 1 Defendant was in breach of duty of care on the Plaintiff and the evidence placed before this court does not suffice to establish he was not negligent on balance of probabilities.

19.17 The Supreme Court of Fiji in case of Shell Fiji vs. Sushil Chand (CBV 003 2011 (unreported decided on 4 May 2012) well elaborate on the issue of vicarious liability and which is relevant to this case. His Lordship Suresh Chandra in paragraphs 21 to 28 of the said Judgment stated:

“21. It is this finding that the Respondent being in the vehicle to assist the driver that plays a crucial part in the liability of the Petitioner on the basis of vicarious liability. It is this factor that distinguishes this case from the line of authority starting from Twine v Bean's Express where the Employer was held not liable. Whereas in the decision of Rose v Plenty the assistance given by the boy on the van to help the driver was the matter that made the employer vicariously liable. Lord Denning in Rose v Plenty stated thus:

"In considering whether a prohibited act was within the course of employment, it depends very much on the purpose for which it is done. If it is done for his employer's business, it is usually done in the course of his employment, even though it is a prohibited act."

In the present case too the Respondent had been invited by the driver to assist him in carrying out the employer's work which makes the Employer liable for the negligent act of the driver.

22. In the same case of Rose v Plenty, Lord Justice Scarman went further by stating thus:

"But basically, as I understand it, the employer is made vicariously liable for the tort of his employee not because the plaintiff is an invitee, nor because of the authority possessed by the servant, but because it is a case in which the employer, having put matters into motion, should be liable if the motion that he has originated leads to damage to another."

23. This dictum of Lord Justice Scarman brings in a wider concept based on public policy by which an employer is made liable if he initiates some action which may for some unfortuitous events bring about some damage to a person., which borders more on personal liability than on vicarious liability when an employer engages a driver to drive a vehicle for the employer's purposes. Irrespective of any prohibitions or instructions given to the driver, the employer is liable for the negligent driving of the vehicle. .

24. The Respondent cited the judgment in Sarath Kumara Perera v Winifred Keerthiwansa and others (1993) LKSC 48 where it was held that the Employer was vicariously liable for the negligence of its driver in causing the death of a passenger taken in a car by driving it negligently and meeting with an accident contrary to instructions given to him not to give lifts to passengers. In that case Chief Justice G.P.S.de Silva stated that the act of taking Keerthiwansa (the passenger) in the car was within the ostensible authority of Sally (the driver ) and was not an unauthorized act, and that Sally was acting within the scope of his employment in taking the passenger in the car and that the employer was vicariously liable.

25. In the course of his judgment Chief Justice G.P.S.de Silva cited with approval the following dictum of Wessels J in Estate Van Der Byl v Swanepoel 1927 AD 141 at 151

"It is within the master's power to select trustworthy servants who will exercise due care towards the public and carry out his instructions. The third party has no choice in the matter and if the injury done to the third party by the servant is a natural or likely result from the employment of the servant then it is the master who must suffer rather than the third party. The master ought not to be allowed to set up as a defense secret instructions given to the servant where the latter is left as the public is concerned, with all the insignia of a general authority to carry on the kind of business for which he is employed."

and stated that according to the facts in that case that the employer had failed to exercise the degree of care expected of a prudent employer in selecting the person whom he employed. This is in line with the pronouncement of Lord Justice Scarman in Rose v Plenty quoted above. The liability of the employer is more on the basis of not being careful in selecting his employees.

26. As was stated in the present case, does the fact that the prohibition given to the driver is displayed in the vehicle, which was fixed to the dashboard in this case make a difference in the responsibility of the employer. What if the person who was given the lift was an illiterate person who could not read such a notice? As has been held in the above cases, the fact of placing a notice within the vehicle regarding the prohibition would not make any difference if the vehicle is being driven by the driver for the employer's purpose.

27. The law relating to vicarious liability has developed over the years and has advanced to the stage of imposing a very heavy burden on employers when engaging employees as they have to act prudently in selecting employees to carry out tasks for the employer. It the tasks to be carried out by the employees with or without prohibitions amounts to situations where the employer's purpose is being carried out then the employer would be held liable for the wrongs of his employees.

28. In the above circumstances this Court of the opinion that the Petitioner is vicariously liable for the negligent driving of its driver and would affirm the finding of the Court of Appeal."

19.18 On analyzing the evidence before me, the 1 Defendant's negligence is proven on balance of probabilities when the vehicle was driven from Delaikoro to Labasa on 1st February 2008 whilst coming down the 1 Defendant lost control of the vehicle and tumbled down the hill which caused injuries to the Plaintiff.

19.19 The 2 Defendant's;position was that he never authorized the Plaintiff to travel in the said vehicle, even if it is the case (not proven) the 2 Defendant cannot disclaim his vicarious liability in terms of the guidelines set out by the Supreme Court of Fiji in the cited case of Shell Fiji.

19.20 Accordingly, the issues stated in the paragraphs 18(1) to (4) are determined in favour of the Plaintiff and the defences are dismissed without any further consideration.

[20] Damages

The Plaintiff claims damages under the following headings:

(a) General Damages;

(b) Medical Expenses;

(c) Loss of Earnings;

(d) General Damages;

(e) Future Expenses;

(f) Loss of Consortium;

(g) Interest on General Damages;

(h) Costs.

(a) General Damages

This case calls for substantial amount of damages for pain suffering and loss of amenities of life. The Plaintiff had lost his left leg below the knee. He cannot do a proper job for his living. The visible deformity of, as a one leg person which will differentiate from the society which will cause him severe psychological pain. The amputation was done when he was 24 years.

20.1 In assessment of general damages, the court is to award in lines with the established principles of law taking into consideration the pain suffered by the Plaintiff and he continues to suffer pain as a result of the injuries caused. The evidence given by the Dr. Taloga, the Plaintiff was in pain 9-10 in the range between 1-10. He also stated the permanent disability is 28% of the whole person. Despite the advice given by Dr Jaoji to amputate the left leg, the 2 Defendant got him to Suva Private and then to CWM Hospitals which delayed the amputation and the Plaintiff's suffering of pain was extended.

20.2 Dr Taloga in his evidence stated the Plaintiff will not be able to do any manual work. He was employed as a driver and he is deprived from his driving job for the life time. Dr Taloga also stated although the stump is healed the person has to suffer pain in future too.

20.3 I will now turn to the principles in case authorities enumerate Lord Blackman's stated in case of Living Stone vs. Ram Yards Coal Company (1885) App. Case 25 at 39:

"Compensation should as possible put the party who has suffered injury in the position as he would have been if he had not sustained the wrong."

The said principle was applied after 80 years in case of Fletcher vs. Auto Care and Transporters Ltd [1968] 2 Q.B. 32 Salmon L. J. stated:

"On the other hand, the full amount of perfect compensation manifestly cannot be given for pain and suffering or loss of amenities for simple reason that, in the nature of things, there can be no perfect compensation in relation to such matters......to my mind the damages awarded should be such that the ordinary sensible man would not instinctively regard them as either mean or extravagant, but would consider them to be sensible and fair in all circumstances."

20.4 The principles behind the awarding of damages in principle of restitution in integrum which means claimant is entitled for full compensation for his losses.

20.5 Byrne J. in case of Paul Praveen Sharma vs. The Attorney General and Dr. Hubert Elliot [1993] 39 FLR 228 at p.245 cited Singleton L. J's statement in case of Waldon vs. War Office (1956) 1 WLR 51 at 55:

"A judge in assessing damages draw up his own experience where does he get that experience? From knowledge of other judge's decisions as to amount; from the knowledge of what is said in this court and in the House of Lords; and from his ordinary experience in life."

It is further said:

"The judge realizes that his task is to assess damages in the particular case before him; and upon the evidence before him and upon nothing else. If he can get help from decisions of other judges, or from this court, I am inclined to think that in his discretion he might well accept it. It is for him to judge."

20.6 Having cited above principles, the court has to keep in mind the injury suffered, the pain sustained and the loss of amenities in life. Damages should be adequate to lead the Plaintiff's normal life before the injury. In this case the Plaintiff's age, the loss of his leg preventing him leading a normal life, sufferings and pain undergone etc should be taken into account to award the damages.

20.7 I have taken into consideration the case authorities cited by the Plaintiff's counsel, specifically Suruj Narayan vs. Ministry of Health and Attorney General Labasa HCCA No 43 of 2004 (unreported decided on 25 July 2008) Justice Byrne awarded $75,000 to the Plaintiff who lost a leg below knee.

I also considered the awards made in Anita Kumar Singh vs. Rentokil Laboratories [1993] FJCA 26; Abu 73u. 91s (decided on 29 August 1993) Fiji Court of appeal increased the awarded of $5,000.00 to $60,000.00.

In Subramani Reddy vs. A. K. Naicker & Sons Limited and Others Action No. HBC 0298/94 L. (Judgment delivered on 31st March 2000), Justice Gates awarded the Plaintiff who at the time of the Judgment was 70 years old $65,000.00 under this head.

Accordingly, I consider the claim for general damages in a sum of $75,000.00 is justifiable to be awarded to the Plaintiff.

20.8 Future Care, Treatment

It is established the Plaintiff had to go for change of prosthesis legs and medication, I award $5,000.00 under this heading.

20.9 Loss of Consortium

In awarding of general damages this heading also taken into consideration as suffering as such I deny the Plaintiff's claim under this heading.

20.10 Special Damages

The Plaintiff had given evidence and testified before this court with documents supporting his claim under this heading.

(A) Medical Expenses

The schedule of expenses was served on the 2 Defendant and documents marked P7 to P9 in the evidence and claimed $2687.90. It was admitted by the Plaintiff and his mother Jaibul Nisha some monies were given to the mother by the 2 Defendant. The monies were given to her by the 2 Defendant from the date of the accident and up to the date of the return of the Plaintiff to Labasa. Jaibul Nisha stated totallings to $2,400 was given by the 2 Defendant. Accordingly, I deduct the sum of $2,400 from the amount of $2687.90 claimed and award $487.90 to the Plaintiff.

(B) Loss of Earnings

The Plaintiff had claimed for Loss of Earnings on two folds. Firstly, at $70 per week from 15/2/2008 to 12/6/2010 and $135 from 1/10/2013 to 6/3/2014 $8960.00 and $3780.00 respectively. However, according to FNPF statements (P11 Part) 2 Defendant had paid FNPF up to 28/08/2008 and the conclusion I make is that the 2 Defendant paid the Plaintiff his salary up to 28/08/2008. Accordingly, the calculations are as follows:

(1) Period of Loss of Earnings 28/08/2008 – 12/06/2010

@ 70 per week 653 days - 93 weeks

7 @ 70 per week

= $6510

The Plaintiff was employed with another employer from June 2010 to September 2013 at the wage of $135.00 per week and FNPF statements were tendered marked as P11 (P11 part) as such I apply $135.00 per week from 1/10/2013 to 6/3/2014 (trial commenced on this date).

(2) Period of Loss of Earnings 1/10/2013 – 6/3/2014

@135 per week for 22 weeks 157 days - 22 weeks

7

= $2970

I award total Loss of Earnings: $6510.00 + $2970.00 = $9480.00

(C) Loss of FNPF

When FNPF contribution is calculated, already the Plaintiff was awarded his contribution of 8% in the above amount of $9480.00. Accordingly, the award is to make only 8% which is calculated as follows:

Loss of FNPF $9480 x 8 = $758.40

100

(D) Air Ticket for Dr Taloga was tendered in the evidence marked P12 and I award the airfare of $515.90.

(E) Receipt was produced for obtaining FNPF records and I award $44.00,

(F) No proof of $1200 under the heading Consultants Report and cost of giving evidence and there is no basis for the claim. Accordingly, no award is made in this regard.

I award total Special Damages: (A) = $ 487.90
(B) = $ 9480.00
(C) = $ 758.40
(D) = $ 515.90
(E) = $ 44.00

$11,286.20

20.11 Loss of Future Earnings

The Plaintiff claimed Loss of Future Earnings. In this regard it was a fact that the Plaintiff was earning $135 per week from June 2010 to October 2013 which was established in this case. Although he could not be employed as a driver he could be engaged in another profession and earn his living to some extent. Accordingly I use the multiplier of 15 at the rate of $70 per week (which he was earning before the accident) and award $70.00 x 52 weeks x 15 = $54,600.00.

Interest

[21] Interest on general damages is awarded on the basis that the Plaintiff is deprived of earning income on the capital sum from the date it was due and accordingly, I exercise my discretion and award interest at 6% per annum on the general damages of $75,000 from the date of the Writ of Summons up to the date of this Judgment. Calculated as follows:
(i) writ filed on 10 October 2010 up to 11 November 2010 to date;

(ii) interest @6% per annum on $75,000.00 for 4 years and 15 days (1475 days):
$75,000 x 6 = 4500 = (interest per day) $12.30 x 1475 days
100 (365 days)

= $18,142.50

The total sum awarded to the Plaintiff is made up as follows:

(a) General Damages	$75,000.00
(b) Interest on General Damages	$18,142.50
(c) Future Care and Treatment	$ 5,000.00
(d) Special Damages	$11,286.20
(e) Loss of Future Earnings	$54,600.00

Total $164,028.70

[22] The 1 Defendant's Counter Claim is not proven in fact his negligence is proved on balance of probabilities. In any event his counter claim cannot be entertained in this action against the 2 Defendant and it is an abuse of the process of the court. The evidence was that the First Defendant was negligent and I find he did not establish the 2 Defendant's liability.

[23] Orders

(a) I enter Judgment in favour of the Plaintiff against the 2 Defendant in the sum of $164,028.70 together with further interest at the rate of 4% per annum until the full payment is made.

(b) The claim by the 2 Defendant against the 1st named third party and 2nd named third party dismissed.

(c) The Counter Claim of the 1 Defendant against the 2 Defendant dismissed.

(d) The 2 Defendant is ordered to pay summarily assessed cost of $3000 to the Plaintiff.
(e) The 2 Defendant is ordered to pay summarily assessed cost of $2,500 to the 1st named and 2nd named third parties.

Delivered at Suva this 11th Day of November 2014.

.....................................
C. KOTIGALAGE
JUDGE