Tamanibici v Prakash [2015] FJHC 720; HBC34.2012 (29 September 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 34 of 2012

BETWEEN:

JOSAIA TAMANIBICI
PLAINTIFF

AND:

UMESH PRAKASH
FIRST DEFENDANT

AND:

THE ATTORNEY-GENERAL OF FIJI
SECOND DEFENDANT

BEFORE : Hon. Justice Kamal Kumar

COUNSEL : Mr P. Lomalomafor the Plaintiff
: Mr D. Nairfor the Defendants

DATE OF HEARING : 14 to 16 October 2014
DATE OF JUDGMENT : 29 September 2015

JUDGMENT

1.0 Introduction
1.1 On 4 June 2012, Plaintiff caused Writ to be issued with Statement of Claim claiming for special damages, general damages (pain and suffering), interest and costs arising out of alleged injuries sustained by Josaia Tamanibici in a road accident on 4 June 2009.

1.2 On 6 June 2012, and 10 July 2012, Defendant filed Acknowledgement of Service and Statement of Defence respectively.

1.3 On 17 July 2012, Plaintiff filed Reply to Statement of Defence.

1.4 Thereafter no action was taken by the parties for almost ten (10) months and it appears that this matter was called before the Master on 12 April 2013, by the registry due to the case management system that is currently in place.

1.5 On 12 April 2013, Plaintiff was directed to file Notice of Intention to Proceed and Summons for Directions and this matter was adjourned to 30 April 2013.

1.6 On 18 April 2013, Plaintiff filed Notice of Intention to Proceed but failed to file Summons for Directions and on 30 April 2013, Plaintiff was granted further time to file Summons for Directions and this matter was adjourned to 20 May 2013.

1.7 On 8 May 2013, Plaintiff caused to be filed Summons for Direction and on 20 May 2013, being the returnable date of the Summons, Order in terms of the Summons was made by the Master of the High Court.

1.8 Even though discovery of documents in personal injury claim is automatic (Order 25 Rule 8 of High Court Rules) the Master of the Court made Orders for parties to file Affidavit Verifying List of Documents as prayed for in the Summons.

1.9 On 20 and 26 June 2013, Defendants and Plaintiff filed their Affidavit Verifying List of Documents respectively and on 5 July 2013, parties were granted fourteen (14) days to complete Pre-Trial Conference ("PTC"). This matter was adjourned to 2 August 2013, to fix trial date.

1.10 On 2 August 2013, Counsel for Plaintiff informed Court that PTC was completed and as such this matter was listed for trial on 17 and 18 October 2013.

1.11 On 7 August 2013, Plaintiff filed PTC Minutes.

1.12 On 4 October 2013, this matter was called before the Master when trial dates of 17 and 18 October 2013, were vacated and adjourned to 1 November 2013.

1.13 On 1 November 2013, this matter was adjourned to 13 December 2013, to enable Plaintiff to obtain further medical report.

1.14 On 13 December 2013, Plaintiff by his Counsel informed Court that he is ready to take trial date and as such this matter was adjourned to 7 and 8 April 2014, for trial.

1.15 On 16 March 2014, Plaintiff by his Counsel filed Application to vacate trial dates to enable Plaintiff to be medically examined and to amend pleading if necessary.

1.16 On 28 March 2014, being the returnable date for the Application the trial dates of 7 and 8 April 2014,were vacated by the Master and this matter was adjourned to 2 May 2014, for review.

1.17 On 17 April 2014, Plaintiff caused Application to be filed for an Order that Medical Superintendent of Labasa Hospital give a copy of the medical file to Dr. E. D. Taloga and on 1st May 2014, being returnable date of the Application Order in terms of the Application was made by the Master and this matter was adjourned to 30 May 2014, for mention.

1.18 On 30 May 2014, this matter was adjourned to 20 June 2014 to enable medical report to be prepared and to fix trial date.

1.19 On 20 June 2014, this matter was adjourned to 14 to 16 October 2014, for trial.

1.20 Trial concluded on 16 October 2014, when parties were directed to file submissions, which directions they complied with.

2.0 Background Facts

2.1 On 4 June 2009, the Plaintiff allegedly suffered injuries; a result of an accident whereby motor vehicle registration No. GM 832 driven by First Defendant collided with the horse being ridden by the Plaintiff.

2.2 Due to the alleged injuries Plaintiff was hospitalized and received treatments at Savusavu and Labasa Hospitals.

3.0 Pre-Trial Conference Minutes

3.1 The following are agreed facts asstated in the PTC Minutes dated 2nd April 2013:-

(i) At about 18.30 hours on the 4th June 2009, the Plaintiff was riding his horse along the Savusavu-Labasa Highway at Belua, near Belego when it was hit by the First Defendant driving vehicle registration number GM 832 ("the vehicle") owned by the Ministry of Lands;

(ii) At the time of the collision, the First Defendant was an employee of the Ministry of Lands driving the said vehicle in the course of his employment for the Government of Fiji;

(iii) The Second Defendant is the legal representative of the Government of Fiji and is sued on behalf of the Government.

3.2 It is with much regret I note that Counsel for the parties have not entirely understood the purpose of holding PTC.

3.3 It is apparent from the Minutes of PTC filed in this action that it was filed only for the sake of filing PTCMinutes to proceed furtherwith this action and that there was no genuine attempt to hold PTC.

3.4 I say this for the following reasons:

(i) At paragraph 2of PTC Minutes under heading Agreed Facts parties agreed that First Defendant at time of collision was an employee of the Ministry of Land and was driving in the course of his employment;

(ii) At paragraph 2 under the heading Issuesit is stated as follow:

(a) Was the collision caused by the First Defendant's negligence?

(b) If the First Defendant was negligent then is the Second Defendant vicariously liable for his negligence?

(c) Did the Plaintiff contribute in any way to the collision?

(d) Did the Plaintiff as a result of the collision suffer any personal injury, pain, loss and damage? And if so, is he entitled to damages?

(iii) If it is an agreed fact that First Defendant at the time of collision was driving in the course of his employment then it is obvious that Second Defendant is vicariously liable for First Defendant's negligence;

(iv) If this is so then now can issue of vicarious liability be an issue for Court's determination.

3.5 At this point in time I must state in very clear terms is that the purpose of PTC is to avoid unnecessary delay and curtail trial time.

3.6 The parties or their Counsel during the PTC Minute should make every effort to agree on facts which are not in dispute (eg. age of Plaintiff, time and place of accident, etc.), exchange all relevant documents, consider possibility of settlement, and expert witnesses, give any notice to call hearsay evidence, discuss liability and quantum, the outcome of traffic charge, agree on facts and issues to be determined by court and do all other things necessary to avoid unnecessary delay during trial.

3.7 If parties fail to hold meaningful PTC and agree to Minutes of PTC by exchange drafts on the basis of only pleadings filed then it defeats the purpose of the requirement in the High Court Rules for parties to attend to PTC and file Minutes of PTC.

4.0 Pleadings
4.1 I also note that Plaintiff in the Statement of Claim has missed following important facts:

(i) Age of the plaintiff at the time of the accident;

(ii) Particulars of General Damage such as:-

(a) Pain and suffering;

(b) Loss of Plaintiff's earning capacity;

(c) Loss of amenities of life;

4.2 It appears that some legal Practitioners still fall short of pleading relevant facts in support of their claim, defence or counter claim and it is high time they should take serious heed to rules of pleadings as failure to comply with rules of pleadings can lead to pleadings being struck out for inadequacy or parties missing out on legitimate claims.

5.0 Plaintiff's Case
5.1 Plaintiff counsel in his opening statement stated that:-

(i) Plaintiff at time of accident was fourteen(14) years old and residing at Balelo, Savusavu;

(ii) At the time of the accident Plaintiff was riding horse towards Savusavu on straight road when the horse was struck by government vehicle driven by the First Defendant;

(iii) Plaintiff called five (5) witnesses.

Plaintiff's Evidence

5.2 Plaintiff during examination in chief gave evidence that:

(i) He resides at Vakativa Village with his grandfather and mother (Sulia Matausela) and was born on 19 February, 1995;

(ii) In 2009 he was a Form 4 student of St Bedes College and was residing at Vakativa Village;

(iii) On the date of accident he came back from school, had his tea, cooked food on the farm which is located between Nabalebale(village) and Balelo(settlement)and left on horse to Vakativa village to get his rugby boot;

(iv) He had his tea on the farm which is owned by his grandfather;

(v) The distance from the farm to Balelo is almost same as that between the Court house and Nasekula bridge and the distance from farm to Vakativa village is almost the same as that between Court house and Nasekula bridge;

(vi) Whilst returning from Vakativa village at around 6.00pm he saw a vehicle coming towards him and when he tried to slow down the horse by pulling the bridle, the horse jumped;

(vii) He could not turn the horse towards right because of steep slope on that side;

(viii) Motor vehicle then bumped the horse as a result of which he fell on the middle of the road and became unconscious;

(ix) The horse died and when he regained consciousness he saw the vehicle that bumped him and the passenger in the vehicle who was standing outside;

(x) He saw some other vehicles;

(xi) As a result of the accident he fractured his leg and hand;

(xii) At that time he felt pain and managed to move to the side of the road;

(xiii) His cousin came and called for help and as a result one truck driver came and assisted his cousin to get him into the truck and take him to Savusavu Hospital;

(xiv) At Savusavu Hospital he saw the passenger in the vehicle;

(xv) From the hospital he was taken to Vunivesi Village for massage and spent the night at the village;

(xvi) Next morning he went to Savusavu Hospital where he was examined and sent to Labasa Hospital when they carried out anx-ray and was given injection;

(xvii) He was told by medical officer that x-ray revealed that he had fractured his right leg, left arm and shoulder;

(xviii) He has scars on his right leg from knee down to calf muscle due to boils and he was told by hospital staff that it needs to be operated;

(xix) He did not have boil before the accident;

(xx) A rod was inserted to fix the fracture and he was admitted at Labasa Hospital for almost three (3) months and was called for review;

(xxi) On the review date he was re-admitted at the Labasa Hospital from 15 October 2009 to 24 October 2009 when he was sent to Savusavu Hospital to be discharged;

(xxii) After rod was inserted on his right thigh and his leg was put on cast he moved around in wheelchair;

(xxiii) He was transferred to Labasa Hospital on three occasions for review by town cabs and at the cost of $80.00 per trip;

(xxiv) He did not complete his education and at that time his class position in examination was 6th or 7thout of 32 students;

(xxv) Prior to accident he played rugby and when he was in class 6, 7, and 8 he represented CBM Sharks in rugby competition in Suva;

(xxvi) CBM Shark team is selected after trials consisting schools from Cakaudrove, Bua and Macuata;

(xxvii) Just prior to accident he was playing rugby for St. Bedes Rugby team;

(xxviii) He always dreamt about representing Fiji in Sevens Rugby;

(xxix) He no longer plays rugby because of fear of fracturing his thigh bone again;

(xxx) He is not able to twist or freely move his left arm;

(xxxi) He has scars on his right thigh because of grafting done to patch up the injury;

(xxxii) He covers the scar from being seen by others and while at school he was teased by children and it was embarrassing for him;

(xxxiii) He plants dalo, cassava and yaqona and earns about $60.00 per week;

(xxxiv) He is unable to lift heavy goods because of his leg and shoulder pains;

(xxxv) He is aware that First Defendant was charged;

(xxxvi) He attended Court upon receipt of Summons to give evidence but was not called inside the Court to give evidence;

(xxxvii) He was examined by Dr. Taloga at Suva Private Hospital;

(xxxviii) He travelled to Suva by boat at cost of $60.00 and stayed at his uncle's place;

(xxxix) He was examined by Dr. Taloga on 29th May 2014, at a cost of $400.00 which was paid by his mother;

(xl) At the time of accident, visibility was okay;

(xli) Lights for the vehicle were on and when he saw the vehicle approaching he tried to stop the horse by pulling the rope;

(xlii) The horse lifted its legs and at that time the vehicle driven by First Defendant bumped the horse.

5.3 In Cross-Examination Plaintiff stated as follows:-

(i) He has been riding horse since he was ten (10) years old and in Class 5 but upon further questioning he said he was riding horse since he was in class 8;

(ii) At time of accident it was just getting dark, one could see at a distance and there were no street lights;

(iii) He was not carrying a torch or wearing a reflector jacket;

(iv) At time of accident he was wearing a yellow T-Shirt and blue pants and that his mother was on the farm;

(v) He rated himself as a good horse rider and that he was familiar with the road where accident took place;

(vi) He noticed vehicle coming very fast and as such he pulled the rope to stop the horse and by then the vehicle bumped the horse;

(vii) Horse reacts to bright light and he has to control it by pulling the rope;

(viii) Vehicle bumped the horse between the legs;

(ix) He had boils after four (4) days of accident;

(x) Diary kept by him was filled by him, his mother and grandfather;

(xi) He didn't go to school after accident in the year 2009 but went the following year for 1st and 2nd terms;

(xii) He stopped going to school from 3rd term in 2010 because he was not concentrating properly as he lost concentration;

(xiii) He did not want to go to school because of embarrassment;

(xiv) He plays touch rugby in which there is no contact;

(xv) After being discharged from hospital he went to see doctors at Savusavu Hospital because of pain and was given pain killers;

(xvi) When he went for first review he was re-admitted and was not called for review after he was discharged again;

(xvii) Once he started to walk he had his leg massaged by a person who was not medically qualified and the massage was not recommended by the medical officer;

(xviii) He felt pain after the massage;

(xix) He did not jump on right hand side because of slope on that side;

(xx) At time of accident it was not that dark and he could see the white van with lights on.

5.4 During re-examination Plaintiff stated:

(i) Statement of Police was written by a Police Officer after he gave statement in I-taukei language;

(ii) His mother was present when he gave the statement which was read back to him before he signed;

(iii) Three secondary schools in Savusavu are at Navuka, Vaturova and Natavu;

(iv) School at Navuka is near Rabi, one in Vaturova is in Seaqaqa and the one in Natavu is at Natewa Bay;

(v) He does not know the distance between above schools and the town.

5.5 Plaintiff's next witness was Plaintiff's mother Sulia Matewale (PW2).

5.6 PW2 during evidence in chief gave evidence that:-

(i) Plaintiff is her son and she resides at the farm which is near Builaand close to Nakalini Settlement;

(ii) In the area there is a village called Vunivesi Village which is five kilometers from the farm;

(iii) It takes about thirty (30) minutes to walk from the farm to Vakativa Village;

(iv) She was informed about the accident by a person who came in a vehicle and at that time she was cooking on the farm;

(v) At scene of the accident she saw her son holding his leg and the vehicle involved in the accident was parked at the scene;

(vi) The vehicle that took her son and her from scene of accident dropped them at Vunivesi as it ran out of fuel;

(vii) Whey they reached Vunivesi, she requested Plaintiffs uncle to take him into their home and left for the farm to see her other children;

(viii) Police Officers attended to the accident and waited for her at Buila and asked her to take Plaintiff to Savusavu Hospital;

(ix) She took Plaintiff to Savusavu Hospital the next morning;

(x) She did not take Plaintiff to Hospital earlier due to financial problem and some Indo-Fijian drivers could not take her either because of their prayer time;

(xi) At Savusavu Hospital she was asked to take Plaintiff to Labasa Hospital for x-ray and they went to Labasa by Ambulance;

(xii) She stayed on farm with her three children and three of her brothers children with eldest one at that time being eleven years old;

(xiii) She visited Plaintiff in hospital and stayed in Labasa from Friday to Sunday and left for farm on Sundays;

(xiv) During the day she walked to the Hospital and at night she went by taxi;

(xv) Whilst in Labasa she stayed with her cousin at Nacula;

(xvi) Bus fare to and from Labasa was $4.50 per trip and taxi fare from Nacula to Hospital was $6.00;

(xvii) Plaintiff was admitted at Labasa Hospital for forty-two days;

(xix) She did not hear the impact of the accident and when she came to scene of accident it was just getting dark and the driver of the vehicle had already left for hospital;

(xx) When Plaintiff went to visit Dr. Taloga she paid for doctor's fee and fare to Suva;

5.7 During cross-examination PW2 stated as follows:-

(i) Plaintiff had been riding horse since he was in class 8;

(ii) Plaintiff was taught to ride horse by her father and Plaintiff's uncle and she supervised Plaintiff when he rode the horse whenever she was there;

(iii) On date of accident she was busy cooking and as such did not supervise Plaintiff;

(iv) On 4 June 2009, Plaintiff told her that he was going to get his boots to prepare for trials following morning at St. Bedes;

(v) Maintained that she took Plaintiff to Vunivesiwith Plaintiff's cousin and an i-Taukei man;

(vi) Agreed that accident was caused because there was no supervision;

5.8 Plaintiff's third witness was Sunil Kumar Harish, Consultant Surgeon at Labasa Hospital ("PW3").

5.9 PW3 during evidence in chief gave evidence that:-

(i) In 1980 he obtained MBBS degree from Delhi University and in 1985 completed his Masters in Surgery from the same University;

(ii) He worked as Specialist Surgeon and Consultant Surgeon in India and at various hospitals in India and Pacific Island countries including New Zealand and have conducted approximately 1,000 surgeries;

(iii) As general surgeon he conducted stomach, intestine, heart, rectum and breast surgeries;

(vi) He started working as Head of Surgery Department in Labasa Hospital from 26 July 2014;

(vii) He now supervises surgeries;

(viii) There is an Orthopaedic Surgeon with post graduate qualification at Labasa Hospital;

(ix) All simple surgeries are conducted at Labasa Hospital by Orthopaedic Surgeon and complicated ones are referred to Suva;

(x) Details of patient's treatment are recorded in the record folder which is kept at the record section of the hospital;

(xi) He has patient record folder for the Plaintiff with him.

5.10 By consent and with leave of Court PW3 gave evidence from the record folder of the Plaintiff kept at Labasa Hospital.

5.11 PW3's further evidence during evidence in chief were as follows:-

(i) On 5 June 2009, Plaintiff was referred from Savusavu Hospital and was admitted on the same day;

(ii) Plaintiff has suffered following injuries:-

(a) Fracture of right femur (long bone starting from lower part of abdominal to knee joint);

(b) Fracture of left forearm including radius and ulna of left arm;

(c) Fracture of right clavicle (collar bone).

(iii) When patient came conservative management was carried out to relieve pain and left arm was put on half plaster to let blood flow while fracture is healed;

(iv) Swelling of Plaintiffs right leg increased which affected flow of blood into the leg;

(v) They had to carry out treatment called fasciotomy (cutting of skin and muscle of right leg to release tension and ease flow of blood) on 12 June 2009;

(vi) They had to conduct second surgery called open reduction surgery because fracture of right femur was bad and they had to straighten it;

(vii) After second surgery they had to put Plaintiff's right leg on plaster;

(viii) Plaintiff was discharged on 5 August 2009 from Savusavu Hospital and was on wheelchair;

(ix) Plaintiff was re-admitted on 21 September 2009, as fracture of femur had not united properly and this is called malunited fracture;

(x) On 29 September 2009, open reduction and internal fixation surgery was carried out on Plaintiff whereby rod was fixed to align the fracture;

(xi) No further surgery was carried out on Plaintiff and he was discharged on 1 October 2009 from Savusavu Hospital;

(xii) There was no record of Plaintiff being admitted again at Labasa Hospital;

(xiii) He was not in position to answer as what will happen if bones start to grow;

(xiv) In reference to Dr. Taloga's report (Exhibit P3) he stated that he received the report three (3) days before the trial and he compared the said report with the record kept at the hospital;

(xv) Agreed that Dr. Taloga gave his opinion as an Orthopaedic specialist;

5.12 During cross-examination PW3 stated as follows:-

(i) He does no classify himself as an Orthopaedic surgeon and does not have much knowledge on human bones;

(ii) A qualified doctor will never advise patient with fracture to have massage;

(iii) There is a possibility that if you massage a fractured area you will have pain;

(iv) Once you have fracture on upper part of chest, lifting excessive weight can cause pain.

5.13 In re-examination PW3 in response to question as to whether massaging fractured area that is healed will cause pain stated that it will depend on how vigorous the massage is.

5.14 Plaintiff's fourth witness was Apisalome Yabakidua, Law Clerk in the Plaintiff's Solicitors firm ("PW4").

5.15 PW4 during evidence in chief gave evidence that:-

(i) On 17 March 2014, he went with Mr Lomaloma to Vakativa to see the Plaintiff the farm and place of accident;

(ii) Plaintiff identified the farm and place of accident to them and there was culvert and concrete post with number 23 on it;

(iii) In his office he marked the farm, culvert and shop on the road map in Google Earth site and measured the distance which were as follows:-

(a) Culvert to shop is 538.08m;

(b) Culvert to Farm is 172.17m

(iv) He also made arrangements for Plaintiff to be taken to Suva Private Hospital ("SPH") to be examined by Dr. Taloga as arranged by Mr Lomaloma;

(v) Confirmed receiving invoice dated 12 June 2014 from SPH for $446.10 in respect to examination carried out by Dr. Taloga and it was paid by cheque deposited in SPH's account at Bank of South Pacific.

5.16 During cross-examination, PW4 stated as follows:-

(i) On 12 June 2014, he was in Labasa but could not recall as to whether he met Plaintiff on that day;

(ii) In reference to Exhibit P10 the date of admission was 12 June 2014;

(iii) Agreed that it is possible that on 12 July 2014 Plaintiff could have been admitted at SPH;

(iv) He was not aware of what consultation was about and agreed that it could have been for anything;

(v) In response to question that the costs stated in Exhibit P10 is not for assessment carried out by SPH on 29 May 2014, he stated that it was the only invoice their office received.

Defendant's Case
5.17 Defense called five witnesses including First Defendant.

5.18 Defendant's first witness was Corporal 2407 Rinesh Prasad of Naqere Savusavu (DW1).

5.19 During evidence in chief DW1 gave evidence that:-

(i) He has been in the Police Force for twenty-three (23) years and at time of trial was based at Savusavu Police Station ("SPS");

(ii) At time of accident he was based at SPS and on 12 June 2009, being date of accident he was informed by Traffic Standby Man about the accident along Labasa/Savusavu Highway

(iii) After being informed of the accident he took Statement from the Plaintiff and Taraivini, passenger in the government vehicle;

(iv) He also interviewed the First Defendant;

(v) On 10 August 2009, Plaintiff's Statement (Exhibit P1(C) was recorded and written by him in English in the presence of Plaintiff's grandparents at Plaintiff's residence at Vakativa Village;

(vi) No force or threat was applied when Plaintiff gave his statement and that Plaintiff spoke in English;

(vii) After Statement was taken, it was given to Plaintiff to read and make any changes and sign;

(viii) Plaintiff signed Statement without making any changes;

(ix) He recorded and wrote Statement (Exhibit P1(E) of Taraivini at Lands Department office in Labasa in English language;

(x) He conducted and recorded the interview of First Defendant (Exhibit P1(G) at Labasa Police Station;

(xi) After interview was recorded First Defendant was warned of prosecution and released;

(xii) After that he instructed Traffic Officer Constable Rakesh to file away the case because of insufficient evidence to lay charges on the First Defendant and left for Liberia;

(xiii) He reached that conclusion because of following reasons:-

(a) Vehicle was on road driven by First Defendant with passenger;

(b) Rider of horse was fourteen (14) years old who was riding brown colour horse without any reflector vest or lights along main highway (Labasa/Savusavu corridor);

(c) Horse jumped on the vehicle;

(xiv) He knew about above after being told by Traffic Standby man Rakesh, from statement of witness, Plaintiff and the Interview Records of First Defendant;

(xv) First Defendant was charged with the offence of dangerous driving after six (6) months which was reduced to careless driving;

(xvi) First Defendant was acquitted of the charge of careless driving.

5.20 During cross-examination DW1 stated as follows:-

(i) Statement from Plaintiff was recorded in English in presence of his grandparents in simple English language;

(ii) Plaintiff's grandparents spoke in English and Plaintiff also spoke to them in iTaukei language;

(iii) Once complaint is lodged against a person, that person is interviewed;

(iv) In response to question that you caution person about being charged when you have evidence to lay charges he stated that happens in Crime Investigation and in respect to Traffic Investigation they warn the suspect about prosecution;

(v) In response to question that on initial evidence First Defendant was culpable for prosecution he stated that there was no evidence;

(vi) In response to question why he caution interviewed First Defendant when there was no evidence he stated that it was one of the procedures for interview;

(vii) In response to suggestion that he had evidence of Taraivini, Police Constable Rakesh and sketch plans he decided to caution interview First Defendant because he was culpable he stated that there was no sufficient evidence;

(viii) To the suggestion that he caution interviewed First Defendant he had evidence to prosecute him is incorrect;

(ix) From the sketch plan of the scene of the accident he stated that impact was one meter from the side of the road;

(x) He looked at evidence which showed horse went one meter inside the main road and put its hooves on the top of the vehicle;

(xi) He was not aware of any provision in Land Transport Act which prohibit a man from riding horse on the road;

(xii) Read line 14 to line 30 from Taraivini Ratumudu's statement (Exhibit P1(E);

(xiii) Read answer to question 33 in Interview Record;

(xiv) In response to suggestion that he was implying that First Defendant was not paying attention he stated that he was trying to get in touch with his senses as to where he was concentrating on;

(xv) He directed Constable Rakesh to write to Lands Department stating that First Defendant was not at fault;

(xvi) First Defendant was charged by some other officer;

(xvii) Agreed that it is the duty of driver to look ahead for hazards like horses, children, cows and pedestrians on roads and take necessary action to avoid running them down;

(xviii) Agreed that when driving at night in poor light one has to adjust vehicle speed so that one can take evasive action in respect to road hazards;

(xix) In response to questions 24 and 25 in the Interview Record (Exhibit P2(G) and answers to those questions he stated that he did not get First Defendant's eye checked.

5.21 During re-examination DW1 gave evidence that:-

(i) He was not aware where Plaintiff's mother was and he stayed at Plaintiff's house for half an hour or so;

(ii) In criminal cases after crime is reported, evidence is gathered first before the suspect is caution interviewed and is charged at the same time;

(iii) In Traffic cases, after rough sketch plan is drawn, statements are recorded, driver is then caution interviewed and warned for prosecution;

(iv) When there is enough evidence the driver is formally charged;

(v) Soon after interview was conducted the First Defendant was warned for prosecution;

(vi) There was no need for eye test to be carried out because First Defendant gave statement on oath and signed it as correct;

(vii) Eye sight test would probably be done if he defends himself and says he has eyesight problem;

(viii) He saw sketch plan made by Constable Rakesh when he interviewed First Defendant and did not make any assumptions;

(ix) He concluded that horse was one meter inside the road by looking at the sketch plan;

(x) In response to question as what is meant by right of way he stated it means legally road belongs to vehicle as they pay third party insurance and wheel tax.

5.22 Defendant's second witness was Ajendra Sharma of Bulileka Labasa, Clerical Officer in the Office of Attorney-General, Labasa (DW2).

5.23 DW2 was called to tender letter dated 30 December 2013 from Second Defendant Savusavu Magistrate Court (Exhibit D1) and response dated 31 December 2013 from Savusavu Magistrates Court to Second Defendant (Exhibit D2).

5.24 Defendants third witness was Taraivini Ratumudu, Divisional Lands Manager Central Eastern of Ratu Dovi Road, Suva ("DW3").

5.25 During evidence in chief, DW3 gave evidence that:-

(i) She had been employed by Lands Department for eighteen (18) years and in 2009 was based as its Labasa office;

(ii) After 5pm on 4 June 2009, she left Savusavu after carrying out official duties at Naqere;

(iii) On their way whilst the driver of the vehicle and her were yarning, she heard a loud bang when the vehicle stopped and she saw black hooves slide down the vehicle;

(iv) She asked the driver what happened and by then CDP people alerted her that there was blood on her forehead which could have been a result of her head hitting the windscreen;

(v) From her experience, the horse jumped on the vehicle because when she got off it was lying dead on the left hand side;

(vi) She was taken to hospital in a vehicle where she received medical attention; remained there for three to four hours and was discharged around 11.00 o'clock;

(vii) After being discharged they went to First Defendant's relatives place where they had coffee whilst waiting for government vehicle from Labasa;

(viii) First Defendant was dropped home first and next day she reported to duty when she gave statement to Police;

(ix) She gave two statements one of which was written by her (Exhibit P1(D) and one recorded by Rinesh (Exhibit P1(E) and both statements have her signature;

(x) At Counsels' request read line 26 and 27 of her statement (Exhibit P1(E);

(xi) Colour of the horse was brownish black and she could not remember if anyone was riding the horse;

(xii) At the relevant time, dark was settling in;

(xiii) The vehicle was travelling on its path.

5.26 During cross-examination DW3 stated as follows:-

(i) Confirmed that she gave two statements to Police on 5 June 2009, a day after the accident;

(ii) At time of accident it was getting dark and that sky was well lit but ground was getting dark;

(iii) She could see the horse from say two hundred (200) meters;

(iv) Confirmed that horse was on the left hand side of the road and she could not see anyone riding the horse;

(v) When she was going to Savusavu after the accident she was not aware that there was a boy on the horse;

(vi) First Defendant did not mention about this on their way to Savusavu because they were in a state of shock and did not discuss anything.

5.27 In re-examination DW3 stated that she could say that the horse she saw was the one involved in the accident because that was the only horse.

5.28 Defendants fourth witness was Rakesh Prasad, Police Constable 2790 of Nasinu Police Quarters, Nasinu ("DW4").

5.29 DW4 during evidence in chief gave evidence that:-

(i) He has been in Police Force for fifteen (15) years and in June 2009, was based at Savusavu Police Station as Traffic Standby Duty Officer;

(ii) He recalled receiving a call on 4 June 2009, from an unknown caller reporting an accident at Balego along Labasa/Savusavu Highway;

(iii) He then proceeded to scene of accident and on arrival saw government vehicle belonging to Ministry of Lands, skin and stomach of horse was lying on the road with other parts of horse missing from the scene;

(iv) After that he drew rough sketch plan which was not drawn to scale and measurements were taken by using tape line;

(v) After that he took the vehicle to Savusavu Police Station;

(vi) Exhibit P1(I)&(J) is fair sketch plan and explained the coordinates in the Exhibit;

(vii) From Exhibits P1(I) and (J) he could say that:-

(a) when vehicle became stationary it stopped at an angle which means driver managed to stop vehicle at that place;

(b) vehicle was travelling straight and the driver tried to control the vehicle to avoid going out of the road;

(viii) In reference to rough sketch plan (Exhibit P1(K) hestated:-

(a) point of impact was one meter from tarsealed road and point of impact is where accident occurred;

(b) when accident took place horse was one meter inside the road;

(ix) First Defendant was later charged for the offence of dangerous driving which was reduced to careless driving and he was acquitted;

(x) On 2 July 2009, he wrote accident report (Exhibit P5(A) on vehicle GM832;

(xi) On 3 January 2010 he made a Statement (Exhibit P1(F) which was recorded and signed by him;

(xii) He was instructed by Corporal Rinesh to submit accident report to Ministry of Lands.

5.30 During cross-examination DW4 stated:-

(i) There were no brake marks and that brake marks appear if there is long drag;

(ii) Guts and skin of the horse was at one place;

(iii) Rest of the parts of the horse was not there and he received information that it was slaughtered and taken by villagers;

(iv) He arrived at the scene after one hour and by then body parts of the horse was removed;

(v) Road was long stretch of about one and half kilometers and accident occurred somewhere in the middle;

(vi) First Defendant was charged and acquitted and that he appeared in Savusavu Court;

(vii) In reference to Exhibit D2 he agreed that there was no hearing of the charge;

(viii) In response to question that prosecution did not call any witness, Magistrate refused adjournment, demanded prosecution to proceed with the case and dismissed charge pursuant to section 170 of Criminal Procedure Decree he stated that he was not aware as prosecution handled the case;

(ix) Agreed that if Prosecution cannot proceed with the case and Magistrate refuses to adjourn the case charge is dismissed and accused is acquitted;

(x) Confirmed that he was instructed by Corporal Rinesh to close the file and later someone directed him to re-open the case;

(xi) Sergeant Sagogo prepared Summary of Facts (Exhibit P1B);

(xii) He was the Investigation Officer and had access to all the evidence including that of passenger in the vehicle who could see horse at a distance;

(xiii) Agreed that passenger said it was getting dark, Plaintiff said lights of the vehicle were on when accident took place one meter inside the road and it took 62m for vehicle to come to a stop;

(xiv) When suggested that driver was not paying attention he stated that he cannot comment but to suggestion that if passenger could see the horse and driver could not see meant driver was not paying attention, he stated that he does not agree;

(xv) To suggestion that vehicle stopped at 62m meant it was travelling at high speed he stated he cannot comment;

(xvi) To the suggestion that if vehicle hit the horse one meter from edge of road, driver was not taking enough care because a man on horse is entitled to use the road as well he stated that he cannot comment;

(xvii) After taking statements, recording interview and drawing of sketch plan they came to conclusion that driver was not at fault;

(xviii) Agreed that test for careless driving is what a prudent driver would do under the circumstances;

(xix) To the suggestion that from brake marks it was obvious driver was speeding he stated he cannot comment.

5.31 During re-examination DW4 stated that:-

(i) He was not the Prosecuting Officer;

(ii) He was investigation officer and he took statements, recorded interview, drew sketch plan, prepared report and gave file to Sergeant EroniSogogo and from then he took over investigation.

5.32 Defendants fifth witness was the First Defendant (DW5).

5.33 During evidence in chief DW5 gave evidence that:-

(i) He is 51 years old and has been working for Lands Department for twenty-seven (27) years;

(ii) In 2009, he was employed as Chairman/driver and has been employed as such for last twenty (20) years;

(iii) In 2009, he held valid driving licence;

(iv) On 4 June 2014, at around 2.00pm he left Labasa with his boss (DW3) to carry out inspection in Savusavu;

(v) They reached Savusavu at around 4.00pm and left for Labasa around 5.15pm or 5.30pm after carrying out the works;

(vi) As they passed Balego Village unexpectedly and suddenly horse jumped on vehicle window;

(vii) Before horse jumped, vehicle lights were on and were in working condition;

(viii) He was driving at 65km/hour because there were potholes and was driving normal speed;

(ix) The speed limit in that area was 80km/hour;

(x) The vehicle lights were on full beam and he could see as far as the lights could shoot;

(xi) Since horse was a bit heavy, it took some time for him to stop the vehicle and he stopped the vehicle as soon as horse fell down;

(xii) Vehicle stopped on the road at distance of 62 meters from point of impact;

(xiii) As soon as the vehicle stopped he turned on the hazard lights, gave water to his boss who was bleeding and saw horse lying on the left hand side of his vehicle;

(xiv) Plaintiff was taken to hospital in a passing vehicle;

(xv) He did not see Plaintiff or the horse before the accident;

(xvi) Just before the accident he was concentrating on the road as there were potholes;

(xvii) There were no street or other lights and it was dark;

(xviii) They were then taken to Savusavu Police Station in a vehicle where they reported the matter and after which they were taken to Savusavu Hospital by the Police officer;

(xix) He was taken to hospital because of injuries received by him to his head, forehead and shoulder;

(xx) He was not interviewed on that day because of the headache;

(xxi) On 5 June 2009, he was interviewed by Corporal Rinesh who also recorded the interview;

(xxii) Confirmed Exhibit P4(A) as record of his interview that the signature on the Record of Interview was his;

(xxiii) At time of accident his vehicle was on the left side of the road but could not recall how far was it from shoulder of the road;

(xxiv) At first he was cleared by Police officer but was later charged with the offence of dangerous driving which was reduced to careless driving;

(xxv) In December 2013, he was acquitted of the charge by Savusavu Magistrates Court;

5.34 During cross-examination DW5:-

(i) In response to question if anybody gave evidence before he was acquitted he stated that because of prosecution was not able to call witnesses and that witnesses were still in court;

(ii) At Counsels' request read Question 33 and 34 in the Record of Interview and answers to those questions;

(iii) He denied the fact that because the vehicle stopped at distance of 62m from point of impact it meant he was travelling at high speed;

(iv) Stated that vehicle lights were on high beam and he was concentrating on the road and not side of the road;

(v) Agreed that it was his duty as driver to look out for other road users including pedestrians;

(vi) Did not agree with the suggestion that it was not his duty to look out for potholes;

(vii) Initially he denied that it was during curfew and when pressed he stated he could not recall;

(viii) After Counsel read questions 17 to 20 and answers in the Record of Interview he agreed;

(ix) He could not recall if any vehicle was coming from the opposite side before the accident;

(x) Agreed that it was rural area at the time of accident people would be going to farm or shops;

(xi) To the suggestion that since it was rural road, there could be animals on side of road he stated "maybe or maybe not";

(xii) To the suggestion that if he was paying attention to the road he could have seen the horse and avoided the accident he stated that he never saw the horse;

(xiii) Stated that he agreed to the above proposition when he was interviewed by the Police Officer;

(xiv) To the question why he did not drive on the centre of the road he said that the road code stated that vehicle be driven on the left side of the road;

5.35 During re-examination DW5 gave evidence that:-

(i) When coming from Savusavu he did not see any other vehicle travelling;

(ii) He denied actually seeing the horse;

6.0 Documentary Evidence as Exhibits

6.1 Following documents were tendered in evidence by consent of the parties:-

Plaintiff's Exhibits

P(1) Copy of Police Disclosures in the matter of State -v- Umesh Sashi Prakash;

P(2) Copy of selected pages from Plaintiff's Diary from June 2009 onwards;

P(3) Medical Report of Plaintiff dated 08.06.14 prepared by Dr. E. Taloga;

P(4) First Defendant's Record of Interview dated 05.06.09;

P(5) Savusavu Police Accident Report - GM 832;

P(6) Fiji Sun news Article - "Drivers Warned of Stray Animals" dated 06.11.09;

P(7) Photocopy of Plaintiff's Birth Certificate;

P(8) Google Earth plan of place of accident and its surrounding;

P(9) Copy of e-mails dated 26 March 2014 and 1June 2014 between Plaintiffs Solicitors and Mr E. D. Taloga;

P(10) Photocopy of Tax Invoice NO. 579139 from Suva Private Hospital addressed to Plaintiff;

P(11) Deposit slip for the sum of $446.00.

Defendant's Exhibits

D(1) Photocopy of letter dated 30 December 2013 from Second Defendant to Savusavu Magistrates Court;

D(2) Photocopy of letter dated 31 December 2013 from Savusavu Magistrates Court.

7.0 Whether First Defendant Owed Duty of Care to the Plaintiff
7.1 It is trite law and it is apparent from submissions by the parties that a road user owes a duty to other road users whether it be other drivers, pedestrians, joy riders or horse riders and is not to be negligent.

7.2 It is therefore not in dispute that First Defendant as driver of the vehicle owed a duty to the Plaintiff who was riding the horse at the time of accident.

8.0 Whether First Defendant Breached The Duty Of Care Owed To The Plaintiff
8.1 I have carefully analysed the evidence of PW1, DW1 to DW5 which appears at paragraphs 5.2 to 5.35 of this Judgment and the documentary evidence in the form of Interview Record, Statements of Plaintiff, DW2, DW3, DW4, DW5 and sketch plans of the accident. I must categorily state that I have not given any weight to Exhibit P6, the Fiji Sun article and Exhibit P8 The Google Earth Plan.

8.2 I make following findings:-

(i) The accident took place on 4 June 2009, at around 6.30pm;

(ii) Since it was winter season, dark was setting in but there was some visibility;

(iii) At the time of accident First Defendant was driving the vehicle on his left side of the road whilst the Plaintiff was riding the horse in the direction of the First Defendants vehicle or towards the right hand side of the road;

(iv) Just prior to the accident First Defendant was talking to the DW3 who was a passenger in the vehicle;

(v) DW3's evidence during the trial and statement given to Police is that she saw the horse within a distance of approximately 100 to 200 meters;

(vi) Therefore if DW3 could see the horse at a distance of 100 to 200 meters prior to the accident then there is no question why First Defendant could not see the horse unless of course he was not paying attention to the road and "yarning" with DW3;

(vii) I do not accept First Defendant's evidence that he could not see the horse because he was paying attention to the potholes on the road;

(viii) Both DW3 and First Defendant gave evidence that even though they saw the horse they did not see the Plaintiff;

(ix) There were no oncoming vehicles;

(x) First Defendant was initially not charged with the traffic offence due to lack of evidence. I am of the view the police file was closed prematurely and without analyzing the evidence properly. One reason could be that the investigating officer was due to leave for a mission and he did not want a traffic case hanging over his head while he is away. I must make it clear that this is my observation only and not a finding of fact;

(xi) First Defendant was subsequently charged with offence of dangerous driving which was reduced to careless driving;

(xii) On 24thDecember 2013, First Defendant was acquitted of charge of careless driving by Savusavu Magistrates Court due to Prosecution informing the Court that they do not have any evidence to produce in support of the charge;

(xiii) Once again I find hard to comprehend as why the then Prosecutor could not proceed to trial on the face of the evidence and the fact that Plaintiff, First Defendant (Driver), DW3 (Passenger), DW2 (Traffic Officer who drew sketch place of accident scene) were all present in the precinct of Savusavu Magistrates Court on25 December 2013. The reason for not proceeding with the hearing is well known to the then Prosecutor in charge of conducting the hearing.

(xiv) I do not give any weight to evidence of First Defendant's acquittal on finding on issue of breach of duty.

8.3 I therefore find that Defendant breached his duty of care owed to the Plaintiff and that required of a prudent driver under the circumstances of the case.

8.4 I note that there is inconsistency between Plaintiff's (PW1) and his mother's evidence (PW2) as to what transpired soon after the accident. The inconsistency is trivial and does not in any way affect the finding of duty of care and breach of duty of care on part of the First Defendant.

9.0 Whether Plaintiff Contributed To His Injuries

9.1 On this issue I accept the following statement from Gani v. Chand [2006] FJCA 65; ABU 0117.2005 (10 November 2006) reproduced in Defendants Submission with approval:-

"The basic principle of contributory negligence is that, when a court is awarding damages to the plaintiff for injuries caused by the defendant, it may reduce the award if the plaintiff can be shown to have contributed to the injury by some negligence on his part. However, whilst the liability of the defendant arises from a duty towards the plaintiff, the assessment of contributory negligence is not based on a similar duty on the plaintiff towards the defendant. It was explained by Lord Simons in Nance v. British Columbia Electric Railway Co Ltd [1951 AC 601, 611:

"The statement that, when negligence is alleged as the basis of an actionable wrong, a necessary ingredient in the conception is the existence of a duty owed by the defendant to the plaintiff to take due care, is, of course, indubitably correct. But when contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured part to the party sued, and all that is necessary to establish such a defence is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff's claim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.

...this, however, is not to say that in all cases a plaintiff who is guilty of contributory negligence owes to the defendant no duty to act carefully. Indeed it would appear to their lordships that in running-down accidents like the present such a duty exists. The position can be put even more broadly. Generally speaking, when two parties are so moving in relation to one another as to involve risk of collision, each owes the other a duty to move with due care, and this is true whether they are both in control of vehicles, or both proceeding on foot or whether one is on foot and the oter controlling a moving vehicle."

9.2 However, caution may be exercised before making a finding on contributory negligence against a child.

9.3 I again adopt with approval following statements of Lord Devlin in Phipps v. Rochester Corpn [1995] 1 ALL ER 129 at 135 and Lord Denning in Gough v. Thorne [1986] 3 ALL ER 398 at 399:-

Phipps v. Rochester:

"The law recognizes...a sharp difference between children and adults. But there might well, I think, be an equally well marked distinction between "big children" and "little children", I shall use these broad terms to divide broadly the difference between children who know what they are about and children who do not. The latter are sometimes referred to in the cases as "children of tender years". Not having reached the age of reason or understanding, they present a special problem. When it comes to taking care of themselves, there is a greater difference between big and little children than there is between big children and adults...Adults and big children can be guilty of contributory negligence; a little child cannot."

Gough v. Thorne:

"An older child may be: but it depends on the circumstances. A judge should only find a child guilty of contributory negligence if he or she is of such an age as reasonably to be expected to take precautions for his or her own safety; and then, he or she is only to be found guilty if blame should be attached to him or her ...he or she is not to be found guilty unless he or she is blameworthy.

The question as to whether the plaintiff can be said to have been guilty or contributory negligence depends upon whether any ordinary child of thirteen and a half could be expected to have done any more than this child di. I say "any ordinary child". I do not mean paragon of problem of prudent; nor do I mean a scatterbrained child; but the ordinary girl of thirteen and a half."

9.4 In this instant Plaintiff at time of accident was fourteen (14) years old and was a form four student.

9.5 Plaintiff gave evidence that:-

(i) At the time of accident he was going to Vakativa Village to get his rugby boots for practice the next day;

(ii) he has been riding horse for four years;

(iii) he was aware that the horse he was riding would not keep still if it sees bright lights;

(iv) At the time of accident he was not wearing reflector jacket or carrying any form of light;

(v) He was riding the horse without any supervision;

(vi) When the vehicle came close he tried to pull the horse to keep the horse straight;

(vii) He could not turn the horse towards right because of steep slope on that side.

9.6 I find that Plaintiff falls within the category of adult child who had understanding and appreciation of the risk involved in riding a horse when it is getting dark alongside the highway.

9.7 I find that Plaintiff rode the horse at the time of the accident without any proper adult supervision, without wearing any reflector jacket or carrying any form of light on him in disregard for his own safety and as a result contributed to his injury.

9.8 I assess Plaintiffs contributing negligence at thirty-five per cent (35%). I have taken into consideration Plaintiff's age at the time of the accident in my assessment of contributory negligence on Plaintiff's part.

10.0 Assessment Of Damages

Special Damages

10.1 Plaintiff in the Statement of Claim filed claimed a sum of $800.00 as special damages and particulars of this sum is stated under the heading: Particulars of Special Damages to the Sixth Plaintiff". Who is the sixth Plaintiff is anyone's guess and I take this opportunity to draw attention to my comments at paragraph 4.0 in respect to adequacy of pleadings.

10.2 The particulars of special damages are stated at paragraph 7(h) of the Statement of Claim as follows:-

"7.(h) Particulars of Special Damages to the Sixth Plaintiff

i. Loss/damages to clothing $100.00

ii. Transport costs to Hospital $500.00

iii. Medicine, etc. $200.00

iv. Total $800.00"

10.3 Whilst Plaintiff gave evidence that he was wearing jeans and tee-shirt at the time of accident no evidence was led as to the value of the clothes. It is apparent that Plaintiff or his Solicitor just plucked the figure from the air and inserted it or failed to change the figure from the precedent that was followed. I do not think Plaintiff would have been wearing clothes to the value of $100.00 at the time of accident.

In fact at paragraph 9(e) of Plaintiff's Submission it is stated "$40.00 for loss of shirt and trousers."

I will allow a sum of $40.00 for loss of clothing.

10.4 For transport costs to and from hospital from Plaintiff and his mother's evidence it is established that Plaintiff incurred $420.00 as appears at paragraph 92(a), (d) and (e) of Plaintiff's Submission.

I therefore award a sum of $420.00 towards transport costs to hospital.

10.5 Even though no evidence in the form of receipts have been tendered I will allow a sum of $200.00 towards medicine expenses in view of Plaintiff's age and circumstances of the case (i.e. injuries sustained by Plaintiff).

10.6 Plaintiff during the trial and at paragraph 92(b) and (c) of Submissions filed on his behalf claims following:-

(i) $120.00 being transport costs to Suva to see Dr. Taloga; and

(ii) $446.10 being examination fee paid to Suva Private Hospital for examination by Dr. Taloga.

10.7 Plaintiff by PW4 tendered following documents in support of payment of $446.00:-

(i) Emails dated 26 March 2014, 26 May 2014 and 1 June 2014 between Plaintiffs Solicitors and Dr. Taloga of SPH (Exhibit P9);

(ii) Photocopy of Tax Invoice No. 577139 dated 12 June 2014 from SPH to Plaintiff for the sum of $446.10 (Exhibit P10);

(iii) Photocopy of Plaintiffs Solicitors cheque No. 7441063 and dated 16 June 2014 for $446.10 payable to SPH (Exhibit P11);

(iv) Bank of South Pacific Deposit slip dated 16 June 2014 (Exhibit P12).

10.8 Defendants by their Counsel challenged the evidence in relation to payment of $446.10 to SPH during the cross-examination of PW4 mainly due to the disparity between the date of examination in Exhibit P9 and date of admission in Exhibit P10.

10.9 I accept the evidence of PW4 and hold that payment of $446.10 was made to SPH for and on behalf of Plaintiff for examination by Dr. Taloga.

10.10 I award a sum of $1,226.10 as special damages which is made up as follows:-

Loss of clothing $ 40.00

Transport to Labasa Hospital $420.00

Transport to SPH $ 120.00

SPH Charges $ 446.10

Medicine $200.00

TOTAL $1,226.10

General Damages
10.11 It is noted that Plaintiff has only claimed damages for pain and suffering in the Statement of Claim and no claim is made for loss of earning capacity, loss of amenities of life and yet led evidence in respect to Plaintiff's income and inability to play rugby.

10.12 Parties or their legal representatives should take heed of the rule of pleading as Court can only allow for damages or loss that is pleaded.

10.13 To make submissions in respect to heads of damages or including particulars of damages/injury which do not form part of Plaintiff's claim in the Submissions tantamount to back door amendment of the pleadings. Submissions are not part of pleadings.

10.14 It appears that Plaintiff but more so his Counsel made Submission on various heads of damages in the hope that this Court will turn a blind eye to the rules of pleadings and award such damages.

10.15 If Plaintiff and/or his legal advisors chose to disregard the rules of pleadings and not claim for or particularise certain heads of damages then they did so at their own peril.

10.16 Whilst judicial comity requires that compensation for pain and suffering for particular types of injuries be in conformity it must be understood that each particular case needs to be assessed on its merit and circumstances surrounding the particular case.

10.17 In this instant Plaintiff suffered following injuries in the accident:-

(i) Fracture of right femur;

(ii) Fracture of left forearm including radius and ulna of left arm;

(iii) Fracture of right clavicle (collar bone).

10.18 Plaintiff gave evidence that:-

(i) Immediately after the accident he was unconscious;

(ii) On regaining consciousness he found himself lying on the road and he moved to the other side of the road by holding his leg;

(iii) With assistance of his cousin and truck driver he was taken to Vunivesi village in the truck as the truck was on its way to Labasa and did not have enough fuel;

(iv) He was at Vunivesi village for the night and was taken to Savusavu Hospital the next day and was later transferred to Labasa Hospital.

10.19 PW3 gave unchallenged evidence in respect to injuries sustained and treatment received by Plaintiff at Labasa Hospital which is recorded at paragraph 5.11 (ii) to (x).

10.20 There is no dispute that the treatment received by the Plaintiff was in relation to injuries suffered in the accident.

10.21 I have also considered that Plaintiff had his right leg massaged after being discharged from hospital and find that such massage did not contribute to Plaintiff's injury or pain to an extent for it to be considered relevant for purpose of assessing damages.

10.22 I have considered following cases in respect to assessment of damages for pain and suffering.

Lawanisaviv. Raj [1999] FJCA 48; ABU0050u.98s (13 August 1999)

Nasese Bus Company Ltd v. Chand [2013] FJCA 9; ABU40.2011 (8 February 2013)

Latav. Kumar [2014] FJHC 757; HBC 222.2009 (21 October 2014)

10.23 In Lawanisavi's case, Plaintiff suffered from following injuries and was hospitalized for twenty-four (24) days:

(i) Fracture of right shaft of the femur;

(ii) Lacerations to forehead and trauma to the chest.

The Court of Appeal noted that:-

"The lacerations were sutured, and the femur was fixed with an intermedullary rod" and Plaintiff recovered satisfactorily...."

Plaintiff was awarded $60,000.00 by Fiji Court of Appeal.

10.24 In Nasese Bus Company Ltd's case Respondent/Plaintiff suffered:-

(i) closed displaced comminuted intraarticular fracture of left ankle;

(ii) closed extensive degloving injury right thigh;

(iii) grade II anterior cruciate ligament injury right knee; and

(iv) multiple abrasions to both upper and lower limbs.

Respondent/Plaintiff was awarded $65,000.00 by the Honourable Trial Judge for pain and suffering which award was increased to $90,000.00 on appeal.

10.25 In Lata v. Kumar [2014] FJHC 757 HBC222.2009 (21 October 2014), First Plaintiff suffered fracture to both legs and was initially treated with external fixators, which was later converted to intramedullary rods and bone grafting. Her right forearm was also fractured and treated as in a POP cast.

10.26 In this instant the injuries sustained and treatment received by Plaintiff is stated at paragraph 5.11 of this Judgment and according to the assessment carried out on Plaintiff by Dr. Taloga on 29 May, 2014 four months prior to trial showed:-

"...a well-muscled young man without any limp. There was no lower limb length inequality. The right leg shows areas that have been covered by skin grafts on the medial and lateral surfaces. The skin was hyper-pigmented, rough, and with dysesthesia. A thin surgical scar was evident over the lateral right thigh. The right hip, knee, and ankle did not show any loss of motion or instability. The pronation (20o) and supination (300) of the left forearm were severely restricted. Motion of the elbow and the wrist were normal. The x-ray taken on the day of the examination showed a consolidated fracture of the right femur shaft. The internal fixation device remains in place. There is no radiological evidence of it being loose or broken. The left radius fracture also consolidation with mal-alignment."

10.27 In view of the injuries received by the Plaintiff and nature of treatment I award a sum of $70,000.00 for past and pain and suffering and a sum of $10,000.00 for future pain and suffering.

10.28 As indicated earlier since Plaintiff in his Statement of Claim has not claimed for any other heads of damages and the Plaintiff and this Court is bound by the pleadings and as such I am not in a position to award any other damages except for pain and suffering.

10.29 In view of my assessment on issues of contributing negligence I reduce the award for pain and suffering to $45,500.00 and $6,500.00 respectively.

Interest
10.30 In exercise of Court discretion pursuant to Section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27, I award interest on both special and general damages at the rate of six percent (6%) per annum.

Costs
10.31 In awarding costs I have taken into consideration the fact that Defendants did not run a defence which was totally unmeritorious, trial lasted for three days, both parties filed Submissions and Pre-Trial Conference held between parties was totally inadequate. The trial time would have been shortened if a proper and meaningful Pre-Trial Conference would have taken place.

10.32 Therefore the costs to be awarded in this case should be on lower side of the scale.

10.33 I award costs in favour of the Plaintiff in the sum of two thousand dollars ($2,000.00).

11.0 Conclusion
11.1 I confirm my finding that First Defendant breached his duty to the Plaintiff and Plaintiff's contributory negligence is assessed at thirty-five per cent (35%).

11.2 The damages and interest I awarded to Plaintiff is as follows:-

Special Damages(paragraph 10.10 ) $1,226.10

Less 35% 429.14

Carried forward 796.96

Brought forward 796.96

Interest at 6% per annum from 4 June 2009 (date of accident) to 29/9/2015 (date of Judgment) [2108 days] 276.16 $1,073.12

General Damages

Past Pain and Suffering $70,000.00

Less 35% - contributory negligence 24,500.00

$45,500.00

Interest at 6% per annum from 4/6/12 (date of Writ of

Summons) to 29/9/15 (date of Judgment) [1212 days] $ 9,065.09 $54,665.09

Future Pain and Suffering $10,000.00

Less: 35% - Contributory Negligence 3,500.00 6,500.00

TOTAL $62,238.21

11.3 I make following Orders:-

(i) Defendants do pay Plaintiff a sum of $62,238.21 including interest;

(ii) Defendants do pay Plaintiff's cost assessed in the sum of $2,000.00.

K. Kumar
JUDGE

At Suva
29 September 2015

Penijamini Lomaloma, Esquire for the Plaintiff
Attorney-General's Chambers for the Defendants