Wati v Singh [2015] FJHC 556; HBC41.2011 (24 July 2015)

In the High Court of Fiji
At Labasa
Civil Jurisdiction

Civil Action No.HBC 41of 2011

Between:

GeetaWati

First plaintiff

And :

Keshmi Devi Singh
Second plaintiff

And :

Rakeshwar Singh

First defendant

And :

Manjula Devi

Second defendant

Sun Insurance Co Ltd

Third Party

Appearances : Mr P. Lomaloma for the first and second plaintiffs
Mr S. Sharma for the first and second defendants
Mr A. Ram with Mr.K. Ratule and Ms. N. Singh for the third party

Dates of hearing : 2nd and 3rd June,2015

JUDGMENT

1. On 1st December 2008, at about 8.15 p.m., Sinal Devi Singh and the second plaintiff were travelling as passengers in a vehicle driven by the first defendant along the Labasa- Coqeloa Road, when the first defendant lost control of the vehicle near the Vunika Bridge. The vehicle ran off the road and landed upside down in the Vunika creek. In the aftermath, Sinal Devi Singh tragically died. The second plaintiff suffered injuries. The plaintiffs allege that the death and injuries were caused by the negligence of the first defendant. The vehicle was owned by the second defendant. The first plaintiff is the mother of Sinal Devi Singh and the second plaintiff. She seeks compensation from the defendants, for the death of Sinal Devi Singh. The second plaintiff seeks damages for the injuries suffered by her. Default judgment was entered against the first defendant. Upon application by the second defendant, notice was issued to Sun Insurance Co Ltd, the third party. The third party denies liability.
   
2. The statement of claim
   

1. The statement of claim states that on 1st December, 2008,Sinal Devi Singh and the second plaintiff were passengers in the motor vehicle no.EG 587 driven by the first defendant, as an employee/agent of the second defendant and with her consent.
   
2. The first defendant was driving at a high speed on the Labasa Coqeloa Road, when he lost control of the vehicle, drove off the road at a bend near the water pump in Vunika, travelled for some distance in the bushes, flew across the creek, hit any ivy tree and landed upside down in the creek. The plaintiffs rely on the doctrine of res ipsa loquitur.
   

100. On 24th February,2011, the first defendant was convicted by the Labasa Magistrates Court for dangerous driving occasioning death and grievous bodily harm and fined.
     

4. The particulars of negligence of the first defendant pleaded read:
   
   1. The First Defendant was negligent in that he drove his said vehicle in an aggressive manner and at an excessive speed.
      
   2. Failed to reduce his speed whilst approaching the bend so as to allow him to steer his vehicle safely around the bend.
      
   100. Failed to take any or any proper control of vehicle registration number EG 587.
        
   4. Failed to take any or any sufficient steps to brake, steer or otherwise manoeurvre his said vehicle so as to avoid running off the road and falling into the creek.
      
   5. Colliding with an ivi tree forcing his said vehicle to fall into the creek.
      
5. The particulars of injury of Sinal Devi Singh pleaded read:
   

(She) was born on the 23rd February,1995, and was 13 years at the time. As a result of the said accident, she was trapped inside the motor vehicle and was bleeding heavily and died as a result of haemorrhagic shock due to the injury to her kidney and fracture of her right humerus.

6. A sum of $3000 is claimed, as funeral expenses by the first plaintiff.
   
7. The particulars of injury of the second plaintiff pleaded read:
   

The Second Plaintiff was born on 19th September 1992 and was 16 years old at the time of the accident. As a result of the said accident, she lost consciousness for some time and woke up with great pain. She was conveyed to Labasa Hospital where she was admitted from 2nd December 2008 for six days complaining of pain and difficulty in walking.

She was found to have a haematoma 3cm x 4cm on the forehead and bruises about 5cm on the right wrist. The second plaintiff had limited movement of the right hip joint and difficulty in walking. After x-rays, she was found to have fractured her left pelvic rami bones. She was treated with painkillers and had to undergo physiotherapy. She was unable to walk without crutches for 3 days. The Second Plaintiff was released from Labasa Hospital on 8th December 2008 still in pain and had to attend clinic for 2 occasions.

8. The second plaintiff states that as a result of her injuries, she cannot walk long distances or carry heavy loads without suffering pain. She was a “Form 3 student at the time of the accident and her school work suffered and she could not continue her education. She cannot enjoy sex fully” and suffered psychological distress by the loss of her sister.
   

3. The statement of defence of the second defendant
   

The second defendant, in her statement of defence denies that the first defendant was her employee or agent. She states that he was a close friend of her son and gave him her vehicle for his personal use, on his request.

The second defendant states she is unaware that the first defendant was convicted by the Labasa Magistrates Court.

4. The statement of defence of the third party
   

The third party, Sun Insurance Co Ltd, in its statement of defence, states that it provided a comprehensive motor vehicle insurance cover over vehicle No. EG 587. The policy covered inter alia sudden and physical accidental loss to the vehicle, third party property damage and windscreen cover. The policy did not cover passenger liability. The first plaintiff and the second plaintiff were passengers in the vehicle.

The statement of defence concludes that the second defendant is not entitled to be indemnified.

5. The determination
   

1. The primary facts are undisputed. The Agreed facts state:
   
   • At about 2015 hours on 1st December 2008, the First Defendant lost control of the said EG 587 near Vuniika Bridge on the Labasa-Coqeloa road, and the vehicle ran off the road and landed upside down on the Vuniika River.
     
   • As a result of the accident, Sinal Devi Singh aka Shinal Devi died at the scene due to the injuries she received.
     
   • The Second Plaintiff suffered a fracture of her left pelvic ramii bones and was admitted at the Labasa Hospital from 2nd December to 8th December 2008.
     
   • On 25th September 2012, default judgment against the First Defendant was sealed by the Court with damages to be assessed.
     
2. The second plaintiff,(PW1) testified that on the evening of 1st December, 2008, she and her sister Sinal Devi Singh arranged to meet two boys, Vishal and Ashneel. At about 6.00pm, Rakeshwar Singh,(the first defendant) came with the two boys. They got into the vehicle EG 587 driven by the first defendant and proceeded to Vulovi.
   

100. When the driver increased the speed, she and her sister told him to drive slow. He asked them to sit down and keep quiet. The vehicle passed the FSC Mill, and at Vulovi, turned towards Wainikoro Road. The speedometer read 80 km/hr at Soasoa bridge. Before they reached Vunika, the driver increased the speed to 120 km/hr. PW1 said that she could not remember what happened thereafter .
     

4. When she regained consciousness, she found the vehicle upside down in the creek. Water was waist deep. She was stuck in the car. It was dark and she could not see her sister. The driver and the two boys in the car had disappeared.
   
5. Mr Sharma, counsel for the second defendant put it to PW1, that in her statement to the Police, she had said she was seated in the middle at the rear seat. But in her evidence in chief, she said she was seated behind the front passenger seat. It was suggested that she could not see the speedometer. She answered that she moved her head to read the speedometer.
   
6. PW1’s evidence of excessive speed was not controverted by the defence. The first defendant did not participate in these proceedings to say that he was not negligent and lost control without any fault on his part. The second defendant did not call any evidence to controvert PW1’s testimony nor did she provide an explanation for the catastrophe that occurred.
   
7. In my view, the doctrine of res ipsa loquitur applies. In the absence of negligence, a vehicle travelling along a road would not ordinarily, land upside down in a creek.
   
8. Sir R. Evershed, M.R. in Moore v. R.Fox & Sons, [1956] 1 All ER 182 at page 188 stated that the foundation of all subsequent authority is found in Scott v. London Dock Co.[1865] EngR 220; [1865] 3 H&C 596 where Erle, C.J. at p. 601 declared:
   

But where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.(emphasis added)

1. In Barkway v. South Wales Transport Co. Ltd. (1948) 2 All E R 460 at p 471 Asquith, L J.., stated the position as to onus of proof in such cases as follows:
   

(i)If the defendants’ omnibus leaves the road and falls down an embankment, and this without more is proved, then res ipsa loquitur, there is a presumption that the event is caused by negligence on the part of the defendants, and the plaintiff succeeds unless the defendants can rebut this presumption.(emphasis added)

Is the second defendant vicariously liable?

10. The next issue is whether the first defendant was driving the second defendant’s vehicle, as her agent.
    
11. There is a rebuttable presumption that a driver of a motor vehicle is prima facie an agent of the owner of the motor vehicle.
    

50. The second defendant,(DW1) in her statement of defence denied that the first defendant was her employee or agent and stated that she gave her vehicle for his “personal use”.
    

13. In her evidence in chief, DW1 said that she gave the keys to the first defendant, her son’s friend, to get a recharge card. She said prior to the date of the accident, the first defendant had taken her vehicle for his use.
    
14. I reproduce an extract of her evidence in chief:
    

Q. And from what point to what point did Rakeshwar

asked for the use of the vehicle?

A. .. only from hospital to town.

Q. And then?

A. And to take the recharge and return.

Q. And did he return?

A. No My Lord.

Q. And did you attempt to find out the whereabouts

of Rakesh and the vehicle?

1. I was sitting there I did not find out. It was about

Q. 15 to 20 minutes when my son called.

Q. And what, what did he say?

A. He asked .. mummy where is the car?

Q. Then what was your response?

A. I said Rakesh has taken the vehicle, to get the

recharge.

Q. My question is did Rakesh on the 1st December when he

took the vehicle he told you that he going to buy the

recharge that’s fine, whether he came back to the

hospital on that same day 1st of December yes or no?

A. No My Lord.

Q. And later on you found out that your vehicle got

involved in accident?

A. Yes My Lord.

Q. Did you authorise Rakesh to take the plaintiff for a

joy ride to Vunika?

1. No My Lord.(emphasis added)
   

• I find DW1’s evidence that that she sent the first defendant to obtain a recharge card and return was inconsistent with her answer that she did not attempt to find out his whereabouts, when he did not return. I do not accept her evidence on this point.
  

16. Revising her evidence in the light of her statement of defence, I am of the view that she authorized the first defendant, her son’s friend to use her vehicle for his personal use.
    
17. It follows that the second defendant is vicariously liable for the negligence of the first defendant.
    

The first plaintiff

18. The first plaintiff makes her claim under the Compensation to Relatives Act.
    
19. Mr Ram, counsel for the third party, in his closing submissions contends that the first plaintiff did not have a right to sue as an administratrix, as she had obtained Letters of Administration on 23rd January, 2012, while writ in these proceedings was issued on 1st December,2011.
    
20. I note that the first plaintiff is suing “in her own personal right” as mother and Intended Administrator of Sinal Devi Singh , as pleaded in paragraph 1 of the statement of claim.
    
21. In my view, the first plaintiff is entitled to bring these proceedings, as mother of the deceased.
    

5. For completeness, I will deal with Mr Ram’s contention.
   

23. Mr Ram relied on the case of Gaffney v Faughnan (2005) IEHC 367 where Justice Laffoy cited with approval Ingall v Moran,[1944]1 K B 160. That case held that an administrator must have a cause of action vested in him at the date of the issue of the writ, as his title to sue depends solely on the grant of administration.
    

10. Mr Ram also cited Burns v Campbell, [1951] 2 All E R 966 where Lord Denning L J held that an action by a plaintiff who had not obtained grant of administration when the writ was issued, was a nullity. It was not properly constituted.
    

25. In the present case, the material fact is that the first plaintiff did not claim to be an administratrix, as in the cases relied on by Mr Ram.
    
26. Mr Lomoloma, counsel for the plaintiff has invited my attention to the case of In Railala v Yuen Yin Hum, [2001] FJHC 44. In that case, the plaintiff had sued as an “Intended Administrator” of the estate of his late daughter. The defendants moved to strike out the case. Fatiaki J(as he then was) said section 10 of the Compensation to Relatives Act enables an action to be brought by a dependent, where there is no administrator appointed.
    
27. Fatiaki J concluded that the irregularity caused no injustice to the defendants citing the decision of Austin v Hart,[ 1983]2 All ER 341 interpreting the identical worded section. In that case, the Privy Council held that the “benefit of the right of action does not form part of the estate of the deceased... The (Compensation for Injuries) ordinance provides machinery for the action to be brought by personal representatives of the deceased as trustees for the dependent”.
    
28. I turn to the claim under the Compensation to Relatives Act.
    

In Moli v Bingwor, [2003] FJHC 279 Pathik J stated that:

It is not necessary for the plaintiff to prove that he had a right to support by the deceased, what he must establish is, ‘a reasonable expectation of pecuniary benefit as of right or otherwise from the continuance of the life’ (Franklin v Southern Rly Co [1858] EngR 669; (1858) 3 H&N 211).

0. Pathik J stated further that it has been “the practice of the Courts to grant a minimal sum as damages where deceaseds are infants of tender age and are not in employment”.
   

30. Pathik J cited the following passage from the judgment in Barnett v Cohen & Others, [1921] 2KB 461 where Mc Cardie J at page 469 said:
    

The plaintiff’s claim to damages must rest in substance upon his anticipation of the future services and help or the pecuniary aid in the future of the son, who at four years of age is now dead.

31. In Navunisarvi v Kumar, [1994] 40 FLR 58 a as cited by Mr Lomoloma, a sum of $ 4044.00 was awarded for the death of a boy of 8 years.
    
32. In the present case, the deceased was 13 years of age.
    
33. In my judgment, a sum of $ 9,000.00 would be an appropriate award in the present case.
    
34. The first plaintiff also makes a claim, in terms of section 2 of the Law Reform (Miscellaneous Provisions) (Death and Interest)Act.
    

2. Section 2 provides that “on the death of any person.. all causes of action subsisting against or vested in him shall survive against or, as the case may be, for the benefit of, his estate”.
   

36. In Daya Ram v Peni Cara,(Civil Appeal No. 59/82) Speight JA said:
    

It finds its justification in the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27. The claim is brought under section 2 and is for the benefit of the estate in respect of all causes of action which the deceased had at the time of his death. In the case of a person who is injured an action lies by him in tort for such damages as will

represent in money terms his loss of future earnings; how he would have spent those earnings in the future is irrelevant to such a claim. By the statutory provision of Cap. 27 in the case of a man who is injured and dies the cause of action for the lost years vests in the deceased when he is injured and in the case of instantaneous death immediately before his death, and after death passes to his personal representative.

Speight JA went on to say that "only moderate awards should be under this head." He awarded a sum of $ 1250, in 1983.

37. I award a sum of $ 1500.00 to the first plaintiff under the Law Reform (Miscellaneous Provisions) (Death and Interest)Act.
    

0. The FCA, in Jai Kissun & Anor v Maciu Ualala & Anor,(Civil Appeal no 61/79) following Davies v Powell Duffryn Associated Collierie,Ltd, (1942) 1 All ER 657 held that a plaintiff is not entitled to double recovery under the Law Reform (Miscellaneous Provisions) (Death and Interest)Act and the Compensation to Relatives Act. The sum awarded as damages for loss of expectation of life under the Law Reform (Miscellaneous Provisions) (Death and Interest)Act must be deducted from the sum awarded under the Compensation to Relatives Act.
   

39. This principle was followed by Pathik J in Moli v Bingwor,(supra) and Navunisaravi v Kumar,( supra).
    
40. In the result, the sum of $1500 awarded under the Law Reform (Miscellaneous Provisions) (Death and Interest)Act falls to be deducted from the award of $ 9,000 awarded under the Compensation to Relatives Act.
    
41. The first plaintiff is entitled to judgment against the first and second defendants in a sum of $ 7500.
    
42. I turn to the claim for special damages. The first plaintiff, in her statement of claim claims funeral expenses of $ 3000. Mr Lomoloma suggests a sum of $ 2000, in his closing submissions.
    
43. As regards funeral expenses, Pathik J in Moli v Bingwor,(supra) stated:
    

We are all familiar with the customs of the various races in Fiji and in the context of funerals there are certain expectations and obligations which have to be fulfilled. It is only right that reasonable expenses ought to be allowed without requiring the plaintiff to produce receipts and proof of each item of expenditure as is required for the purposes of proving special damages.

44. I allow a sum of $ 2000 as funeral expenses.
    

The second plaintiff

45. PW1,(the second plaintiff)claims general damages for pain and suffering. It is an agreed fact that the second plaintiff suffered a fracture of her left pelvic rami bones and was admitted to the Labasa Hospital She was hospitalised for 6 days.
    
46. PW1, in her evidence stated that in the aftermath of the accident, she had injuries on her head and waist. She suffered severe pain in her waist and her pelvic region, when she stood up or turned. It was painful, when she passed stool or urine. She could not walk nor move her leg.
    
47. After leaving hospital, she could not do any work. She found it painful to have sex.
    

0. In cross-examination, she said that she had problems at home, so she was forced to move out and live with her partner. She admitted under cross-examination by Mr Sharma that she had eloped with her partner, as she loved him and enjoyed having sex with him
   

49. Her first child was born on 9th March, 2009. She said that she had to undergo a caesarean operation for both her children, because of the pain.
    

20. It transpired in her cross-examination by Mr Ram that she had not told her doctor that her pelvis was injured, albeit she consulted her doctor five times during her pregnancy.
    

51. The medical report given by Dr Jaoji Vulibeci, Medical Superintendant,Labasa hospital of 11 October,2011, reads:
    

The above patient was admitted to out ward 13 hours after a motor vehicle accident with complaints of pain and difficulty in walking on 2/12/08.

No history of loss of conscious but could not remember what happened leading to the accident,

Physical examination noted that patient to be well-orientated and her vital signs were normal. She had a hematoma about 3cm x 4cm on the forehead and bruises about 5cm on the right wrist. There was decreased range of movement in the right hip joint and difficulty in walking.

X-ray done should fracture of her left pelvic rami bones.

She was managed symptomatically in the ward with pain

relief and physiotherapy and sent home on 8/12/08.

She had attended one clinic according to our record. (emphasis added)

52. Dr Inosi Voce, Consultant Obstetrician and Gynecologist, Labasa hospital (PW2) produced her medical report and testified as an expert witness.
    

aaa. Dr Voce gave evidence generally on the function of the pelvic muscles, in controlling urinary and waste functions, as well as in child birth. He explained through a replica, the structure of the bones in the pelvic region including the left pelvic rami bones.

bbb. He said that if a bone in the pelvic region is fractured, its function can be impaired. It was difficult to provide complete mobilization. He was unaware, if that was done for PW1, as he did not have her medical records. In answer to Mr Lomoloma, he said that when the pelvic remiore bones were fractured, it was possible that the normal delivery process would be affected.

0. Mr Sharma posed the following questions in cross-examination:
   

Q. You have been given a copy of the medical report

and in this medical report, you will agree it does not

disclose the extent of the pelvis injuries it does not?

1. It does not specifically state My Lord.

Q. And can I ask you a question of opinion since you have given your qualifications as a consultant if the pelvis injuries or fracture was minor it could have been cured . A minor fracture could have been cured after a length of time?

A. It naturally heals My Lord. (emphasis added)

ddd. In answer to Mr Ram, Dr Voce said he had not seen the second plaintiff's medical folder and had no other information on her condition, other than her medical report.

eee. I do not accept PW1's evidence that she still feels pain. The medical evidence is to the contrary. She had no permanent disability. She had attended only one clinic, after she was discharged from hospital. She also admitted that during her first pregnancy, she had not informed her Doctor that she befell this accident and her pelvis bones were fractured.

fff. Mr Lomoloma cited three decisions in support of his claim for damages in a sum of $ 40,000.

ggg. In the first case, Chand v Roko, [2009] FJHC 374 Calanchini J (as he then was) had awarded $30,000 for past pain and $25,000 for future pain and suffering to a plaintiff who suffered a closed fracture of his pelvic bones.

hhh. The injuries are not comparable. The medical report of the plaintiff in that case, provided that the severity of the injury greatly impaired the function of his pelvic bones and caused him to be bedridden for 32 days at the Labasa hospital. The disability percentage for the pelvis was 50% and for the left foot was 40 %. There was also signs of post trauma arthritis.

3. In Prakash v Khan, [2009] FJHC 160, a sum of $ 30,000 was awarded for pain and suffering and loss of amenities, where the plaintiff suffered a fractured pelvis and a superficial abrasion over his right shoulder. The injuries were not severe. He was in hospital for two days. The fracture though painful had healed.
   

jjj. Finally, Mr Lomoloma referred to Kumari v Hassad, [2012] FJHC 1153. In that case, Raj Kumari suffered a fracture of the pelvis but had no permanent disability. I awarded $ 30,000, as damages for pain and suffering.

kkk. In the light of the principles applicable to assessing damages, I assess the general damages for the past pain and suffering of the second plaintiff at $ 30,000.00 (thirty thousand dollars).

0. The second plaintiff has claimed special damages of a sum of $ 370 comprising damages to clothing-$100.00; loss of shoes:$50.00; transport costs to hospital $100.00 and Medicine, etc:$120.00. However, no evidence in support was produced.
   

mmm. I would award a ballpark figure of $ 150, in respect of these claims.

nnn. The plaintiff has claimed interest

ooo. In the exercise of my discretion under section 3 of the Law Reform (Miscellaneous)(Interest) Act,I award interest at 6% per annum on the general damages of $30,000.00 from date of service of writ(1st December,2011), to date of trial, (2nd June,2015) and 3 % per annum on special damages of $ 150.00 from the date of accident to date of trial.

The third party liability

ppp. Arvendra Kumar, the Assistant Claims Manager of the third party, Sun Insurance Company Limited testified. He said that the vehicle EG 587 had two insurance covers: a Third Party Policy for the relevant period and a Comprehensive Motor Vehicle Private-Policy. The Third Party Policy covered only personal injury to third parties, as for example, pedestrians and passengers in other vehicles, not passengers in vehicle EG 587. The second policy covered "Sudden And Physical accidental Loss to The Vehicle, Third Party Property Damage and Windscreen Cover". Physical injury was not covered in this policy.

qqq. Arvendra Kumar was not cross-examined.

rrr. DW1, under cross-examination by Mr Ram read the relevant clause in the Third Party Policy. She admitted that the policy did not cover passengers in her "private" vehicle.

sss. DW1 also said that she had received $8000 from Sun Insurance Company Limited under the comprehensive cover for sudden and physical accidental loss to the vehicle. The vehicle was written off

ttt. On a reading of the relevant policies, I accept the position of the Third Party that the second plaintiff and Sinal Devi Singh were passengers in the vehicle, not third parties as contemplated by the Third Party Policy and hence were not covered by that policy.

1. In my judgment, there is no liability on the Third Party, to indemnify the second defendant.
   
2. In conclusion, I would note that at several stages of her evidence in chief, PW1 said that the ill-fated vehicle was a taxi, contrary to the testimony of DW1. In cross-examination, PW1 admitted that it was a private vehicle.
   

6. Orders
   
   1. The first and second defendants shall pay the first plaintiff a sum of $9500 as damages.
      
   2. The first and second defendants shall pay the second plaintiff a sum of $ 36329.25 as damages made up as follows:
      

a.	General damages	30,000.00
b.	Interest on General damages	6300.00
c.	Special damages	150.00
d.	Interest on special damages	29.25
	Total	36329.25

100. The second defendant shall pay the first and second plaintiffs a sum of $ 2500 as costs summarily assessed.
     

4. The second defendant shall pay the Third Party a sum of $ 2500 as costs summarily assessed.
   

24th July, 2015

A.L.B.Brito-Mutunayagam
Judge