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Lata v Rups Investment Ltd [2016] FJHC 1088; HBC265.2014 (23 November 2016)

In the High Court of Fiji at Suva
Civil Jurisdiction
HBC Action No. 265 of 2014

Between

Reena Roshni Lata

Plaintiff

And

Rups Investment Ltd


COUNSEL: Mr Suresh Chandra for the plaintiff
Mr G O’Driscoll for the defendant
Date of hearing : 2nd and 30th August, 2016
Date of Judgment: 23rd November, 2016


Judgment

  1. The accident which forms the subject matter of these proceedings took place in the defendant’s shop at Ba town on 23rd December,2013.The plaintiff states that she sustained injuries when she fell down 3 to 4 feet, due to the defendant’s negligence and breach of statutory duty. The statement of claim sets out the particulars of negligence pleaded against the defendant, in failing to provide the plaintiff with safe shop premises, proper supervision over customers browsing for shopping and exposing her to an unnecessary risk of injury.
  2. The defendant denies the claim and states that it ensures that its customers can do their shopping in a safe environment. The accident was caused by the sole and/or contributory negligence of the plaintiff.
  3. The medical evidence provided that the plaintiff had a “fracture of the right tibial plateau” and was incapacitated to a degree of 12%.
  4. There is no dispute between the parties as to the claim for general damages for pain and suffering. The closing submissions filed on behalf of the plaintiff claims a sum of $32,000.00, while the closing submissions filed on behalf of the defendant suggests a sum of $35,000.00.The parties are at variance on the question as to whether the plaintiff was contributory negligent.
  5. I turn to the evidence on this point.
  6. PW1,(the plaintiff) in evidence in chief said that she went to the “Rup Ki Rani” section of the defendant’s shop in Ba Town, to buy a salwar kameez. The clothes for sale were hanging behind a step. When she went to touch a salwar kameez, her foot fell into a gap and on to a hidden step. She lost her balance and fell into the gap 3 feet down. The gap was not visible, as the clothes were hanging 4 inches behind the gap. There was no sign nor a railing before the step. The step was beside the cashier. The Manager, Security and the cashier were present. The Manager told her that she befell the accident, because his staff had not put bed-sheets on the gap that day, as they usually do. The Manager reprimanded the staff as to why bed-sheets were not put on the gap.
  7. In cross-examination, she maintained that the step was beside the cashier. The clothes were hanging in front of the step. She denied that the clothes were hanging behind the cashier counter.
  8. PW2,(Virendra Nair, the husband of PW1) said that four days after the incident, he saw a warning sign in the defendant’s shop and the Manager told him that PW1 fell due to the negligence of his staff.
  9. DW1,(Ashnil Sivan, Manager of the defendant company) in evidence in chief said that his staff told him that PW1 went behind the cashier counter. She should not have done so. The clothes were displayed behind the cashier counter. She did not see the step. He apologized to her. He said he told PW2 that the danger signage was not displayed near the gap, when PW1 befell the accident. DW1 was not cross-examined.
  10. Mr O’ Driscoll, counsel for the defendant in his closing submissions states that it may be considered that the accident occurred due to there being no warning about the gap, but the gap would have been noticeable. It was not wholly obscure. PW1 stands to bear some contributory negligence,since she had not requested for any assistance and failed to take adequate notice of her surroundings.
  11. The riposte of Mr Chandra, counsel for the plaintiff was that she was not negligent in reaching to touch the item, as the clothes were hanging besides the cashier counter.
  12. On a review of the evidence as a whole , I accept the evidence of DW1 that PW1 went behind the cashier counter to touch the item of clothing. I found him to be an honest witness. Moreso, his evidence was not challenged in cross-examination. I would also note he was not cross-examined on the assertions made by PW1and PW2 that he said the accident occurred due to the negligence of his staff.
  13. I agree that a proportion of the blame has to be attributed to PW1, in failing to seek assistance from the staff of the defendant “to reach for an item beyond the extent of her capacity” , failing “ to take adequate notice of her surroundings” and “ensure that she was on a firm footing before reaching behind the cashier’s desk”, as pleaded in the statement of defence.
  14. On the question of apportionment, the closing submissions of the defendant suggests a contribution of 30%, which I consider reasonable. I therefore assess the plaintiff’s contributory negligence at 30%.
  15. I assess general damages in a sum of $ 35,000.00, as agreed by the defendant. Subtracting thirty percent from that amount leaves the plaintiff with $24,500.00.
  16. The plaintiff claims special damages. The defendant disputes the claim.
  17. She claims her expenses for travelling to Ba Mission Hospital, Lautoka hospital, Suva Private hospital and her family home in Makoi in a sum of $1100. No documentary evidence has been produced in support.
  18. The absence of receipts to establish expenditure has been dealt with in several decisions. In my view, it is proper to make a calculation based on the evidence before me.
  19. In Narendra Kumar v Sairusi Drawe ,36 FLR 90 at page 95 Palmer J stated:

Notwithstanding that not a single receipt has been produced in evidence I am satisfied from the Plaintiff's evidence that he paid those amounts.


  1. PW1 in evidence in chief stated that in the aftermath of her injury, she was taken by the staff of the defendant’s shop to Ba Mission Hospital.
  2. The next day, her husband took her to the hospital, as her leg was swelling. Thereafter, she went for physiotherapy and then to Lautoka hospital, as there was no X’ray available in the Ba hospital. She was admitted at the Lautoka hospital. The Specialist advised her that he would put plates and screws to fix her fracture after a period of two weeks, as the Doctors were on leave. Her husband decided to take her to Suva Private hospital.
  3. On 30th December,2013, she underwent surgery with bone grafting at the Suva Private hospital. She was released on 1st January,2014.The taxi fare to Suva Private hospital from Lautoka cost her $ 200.
  4. PW1 said that she travelled 3 to 4 times to Lautoka hospital for reviews, after her surgery. She was seen by PW3(,(Dr Joeli Mareko,Consultant Orthopaedic Surgeon, Lautoka hospital).
  5. The three medical reports produced by PW3 confirm that PW1 was seen at the Ba Mission Hospital, Lautoka hospital and underwent surgery at the Suva Private hospital on 30th December,2013. The treatment is described as “Open Reduction Internal Fixator with plates and screws”.
  6. In the light of the evidence I have referred to, I would allow the plaintiff a ballpark sum of $600, as her travelling expenses to the three hospitals for treatment and review. I disallow the expenses claimed on behalf of her family to travel to and fro to Suva Private hospital from Makoi.
  7. PW1 also claims the charges she incurred at the Suva Private hospital for admission and reviews at this hospital.
  8. Mr O’ Driscoll objected to the production of a receipt from Suva Private hospital on the ground that it was not disclosed to the plaintiff.
  9. In evidence in chief, she testified that her husband paid $ 8922.34 for her operation at Suva Private hospital from his FNPF monies .Her oral testimony on that expense was not challenged in cross-examination.
  10. I accept her evidence that she incurred that expense and allow her claim for the cost of surgery in a sum of $ 8922.34.
  11. There is no evidence before me of the cost of reviews at Suva Private hospital, which she claims were $ 147.10 and $112.30.
  12. Next, she claims consequential losses arising from her husband’s leave from work for two weeks; accommodation at her family home in Suva; and wages of the house girl for two weeks.
  13. PW2, in his evidence said that he paid her transport expenses, medical costs and the wages of the house girl for two weeks. He said that he was paid by his employer for one week of the two weeks he took leave to look after her.
  14. In Rokodovu v Rokobutabutaki, (1998)FJHC 151 it was held that gratuitous care given by parents are recoverable. In that case, Pathik J said:

So far care has been provided by the plaintiff’s parents. It was decided in Griffiths v Kerkemeyer (1977) HCA 45; (1977) 139 CLR 16) that a plaintiff should receive damages representing the value of gratuitous services necessitated by the injury done to a plaintiff by a negligent defendant.


That decision was further explained by the High Court in Van Gervan v Fenton (1192) HCA 54; [1992] HCA 54; 175 CLR 327. It is now clear that the damages are to be awarded, not by reference to the sum, if any, expended upon services rendered to the plaintiff or to the loss incurred by any career, but by reference to the market cost of providing the services needed by the plaintiff as a result of the damaged suffered.

  1. In Donnelly v Joyce,[1973] EWCA Civ 2; [1973] 3 All ER 475, a plaintiff was entitled to claim damages in respect of services provide by his mother, as was reasonably required because of his physical needs directly attributable to the accident. The mother’s loss of wages was held to be recoverable. Megaw LJ referred to the decision in Reach v Yates, [1937] 3 All ER 442.
  2. In Reach v Yates, the plaintiff had been gravely injured. His wife and sister-in-law had nursed him and gave up their employment for that purpose. It was held that the plaintiff could recover their lost wages, albeit there was no suggestion of any agreement between the plaintiff and the two ladies that he would reimburse them.
  3. In my view, in the light of the authorities I have cited, PW1 is entitled to claim her husband’s loss of wages for one week and wages of the house girl for two weeks. I disallow the claim for her stay at her family home.
  4. In total, the plaintiff is entitled to special damages as follows:
    1. Travelling expenses $600.00
    2. Cost of operation at Suva Private Hospital $8,922.34
    1. PW2’s wages $340.00
    1. House-girl’s wages $140.00

$ 10,002.34

Less 30% $3,000.00

$7,000.00



  1. PW1 in evidence in chief claimed general and special damages, interest and costs.
  2. In cross-examination, Mr O’Driscoll asked her if she was foregoing her other claims in her statement of claim, namely past and future economic loss and costs of future care. She answered in the affirmative. She was not re-examined on this point.
  3. In any event, PW1 did not give evidence on those claims. DW2 testified on her past earnings by selling flowers which she grew. He said that their children continued with their flower business during her convalescence period of five months.
  4. The plaintiff has claimed interest. In the exercise of my discretion, I award interest at 6% per annum on general damages of $24,500.00 from the date of service of writ: 13th September, 2014, until date of trial:2nd August, 2016, and 3 % per annum on special damages on the sum of $ 7,000.00 from 23rd December,2013, to 2nd August,2016.
  5. Mr O’Driscoll, agreed to the costs claimed by the plaintiff of $ 4500 .
  6. Orders
(i)
General damages
$24,500.00
(ii)
Interest on general damages
$ 2,817.00
(iii)
Special damages
$ 7000.00
(iv)
Interest on special damages
$ 350.00

Total
$ 34,667.00





(b) The plaintiff is entitled to post judgment interest.
(c) The defendant shall pay the plaintiff costs summarily assessed in a sum of $ 4500 .

A.L.B.Brito-Mutunayagam
Judge
23rd November,2016

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