Ciba v Lee [2020] FJHC 620; HBC27.2018 (7 August 2020)

IN THE HIGH COURT OF FIJI AT LABASA

CIVIL JURISDICTION

Civil Action No. HBC 27 of 2018

BETWEEN

USEBIA CIBA of Vinivau, Labasa, Student Nurse, ANASEINI DIROKO of

Namara, Labasa, Student Nurse and ROSA RAIVUKICI

TUNABUNA aka ROSA TUNABUNA of Vunivau,

Labasa, Student Nurse.

PLAINTIFFS

AND

BALE FRANCIS LEE of Namara, Labasa, Driver.

FIRST DEFENDANT

AND

GORDON LEEWAI of Mudaliar Place, Namara,

Labasa Town.

SECOND DEFENDANT

AND

THEN INDIA SANMARGA IKYA SANGAM trading as

SANGAM SCHOOL OF TECHNOLOGY /

SNAGAM SCHOOL OF NURSING of

Park Street, Nadi.

THIRD DEFENDANT

Counsel : Mr. Prasad S. with Mr. Dayal R. for the Plaintiffs

Mr.Krishna S with Mr Kumar N. for the 3^rd Defendant

Dates of Hearing : 22^nd June 2020 to 24^th June 2020

Date of Judgment : 07^TH August 2020

JUDGMENT

[1] The plaintiffs in these proceedings sued the defendants seeking damages for the injuries caused to them due to the negligence of the defendants.

[2] The plaintiffs’ case is that at the time of the accident they were students of the 3^rd defendant. On the day of the accident the plaintiffs were travelling in the vehicle bearing registration No. EM 369 (the vehicle) driven by the 1^st defendant. The 1^st defendant while driving the vehicle fell asleep and the vehicle went off the road causing injuries to the plaintiffs.

[3] Apart from general damages for pain and suffering the plaintiff also claimed special damages as follows:

1^st Plaintiff –

(a) Medical expensed and cost of medicine - $ 250.00
(b) Travelling expenses - $ 400.00
(c) Costs of Police and Medical Reports - $ 80.00
(d) Other miscellaneous expenses - $ 500.00
(e) Costs of past nursing care - $2000.00

2^nd Plaintiff –

(a) Medical expensed and cost of medicine - $ 250.00
(b) Travelling expenses - $ 500.00
(c) Costs of Police and Medical Reports - $ 80.00
(d) Other miscellaneous expenses - $ 500.00
(e) Costs of past nursing care - $3000.

3^rd Plaintiff –

(a) Medical expensed and cost of medicine - $ 250.00
(b) Travelling expenses - $ 400.00
(c) Costs of Police and Medical Reports - $ 80.00
(d) Other miscellaneous expenses - $ 500.00
(e) Costs of past nursing care - $2000.00

[4] At the pre-trial conference the parties admitted the following facts:

1. The plaintiffs were at all material times students of Sangam Institute of Technology.
2. The 1^st defendant was at all material times the owner of the motor vehicle registered No. EM 369 and was driving the said vehicle for the 2^nd defendants as their servant and/or agent.
3. The 2^nd defendant was the owner of motor vehicle registration No. EM 369 and the 3^rd defendant was the hirer of motor vehicle registration No. EM369 for conveyance of student nurses from one destination to another.
4. On the 16^th day of June 2015, the plaintiffs were involved in an accident while travelling in motor vehicle registration No. EM 369 and were injured. (Extent of which is an issue).
5. The 1^st defendant was charged for the offence of dangerous driving causing grievous harm and was found guilty and had been convicted and sentenced to five (5) months imprisonment and disqualified from driving for a period of four (4) months to be served after the 1^st defendant completed his term in prison.
   

[5] The 1^st and 2^nd defendants did not participate at the trial. They were absent throughout the trial but their counsel Mr. Sarju Prasad informed court that the 1^st and 2^nd defendants would not participate at the trial and that they admit liability.

[6] In my view it is unsafe to act upon a statement made by the counsel admitting liability and enter judgment against them especially when they are not before the court. Therefore, I will now proceed to consider the evidence before this court against the 1^st defendant on the issue of negligence.

[7] The plaintiffs’ evidence is that before the vehicle went off the 1^st defendant drove the vehicle very fast and the 2^nd defendant testified that after passing the bridge the 1^st defendant dozed off and the vehicle went off the road and hit the embankment. He should not have driven the vehicle if he was feeling sleepy.

[8] It is a fact admitted by the parties that the 1^st defendant was convicted by the Magistrates’ Court and was sentenced to prison. The 1^st defendant did not appeal the conviction and/or the sentence.

[9] From the above it is well established that the accident was caused due to the carelessness and dangerous driving of the 1^st defendant.

[10] Before considering the quantum of damages to be awarded to each plaintiff the court must make a finding on the question whether the 3^rd defendant is vicariously for the negligence of the 1^st defendant.

[11] There is no dispute that the 1^st defendant was at the time of the accident driving the vehicle as an employee of the 2^nd defendant and therefore the 2^nd defendant is vicariously liable for the negligence of the 1^st defendant.

[12] The plaintiffs have averred in paragraph 2 of the statement of claim that the 1^st defendant drove the vehicle for the 2^nd and 3^rd defendants as their servant and/or agent. The 3^rd defendant has, in its statement of defence, admitted paragraph 2 of the statement of claim. However, at the pre-trial conference the 3^rd defendant has not admitted that the 1^st defendant drove the vehicle as its servant or agent. Further, the plaintiff at the pre-trial conference raised and issue to that effect which reads as follows:

Was the 1^st defendant driving the said motor vehicle registration No. EM 369 for the 3^rd defendant as their agent and/or servant with any authority or permission or instructions from the 3^rd defendant?

[13] Order 34 rule 2(1) & (2) of the High Court Rules 1988 provides:

(1) The provisions of this rule apply only in proceedings in which all the parties are represented by solicitors.
(2) Before an action may be set down for trial the solicitor acting for any of the parties shall make a written request to all the other solicitors acting for other parties to the action to attend a conference at a mutually convenient time and place, with the object of reaching agreement as to possible ways of curtailing the duration of the trial, and, in particular, as to all or any of the following matters-

• (a) the possibility of obtaining admission of facts or documents;
• (b) the holding of inspections and examinations;
• (c) the discovery of documents;
• (d) the exchange between parties of reports of experts;
• (e) the plans, diagrams, photographs, models and similar articles to be used at the trial;
• (f) the quantum of damages; and
• (g) the consolidation of trials.

[14] In this matter there is a discrepancy between the pleadings and the facts agreed by the parties at the pre-trial conference. The question here is whether the court must base its findings on the admissions found in the pleadings or on the agreed facts contained in the minutes of the pre-trial conference. It appears from Order 34 rule 2 of the High Court Rules 1988, the main purposes of conducting a pre-trial conference is to ascertain the possibility of obtaining admissions of fact.

[15] At the pre-trial conference the parties agreed that the 1^st defendant drove the vehicle at all material times for the 2^nd defendant as their servant and/or agent and it has not been agreed that the 1^st defendant drove the vehicle as a servant and/or agent of the 3^rd defendant and the plaintiffs have taken the burden of proving that the 1^st defendant at the time of the accident drove the vehicle as an employee and/or agent of the 3^rd defendant. It is also important to note that in paragraph 5 of the statement of claim it is averred that at the time of the accident the plaintiffs were travelling in motor vehicle registration No. EM369 which was hired by the 3^rd defendant. This means that the 1^st defendant, at the time of the accident was not an employee of the 3^rd defendant. Therefore, the court cannot make a finding on the admissions found in the pleadings which are contrary to the contents of the minutes of the pre-trial conference.

[16] It is common ground that whenever the nursing students including the plaintiffs needed transport, they had to fill a form and hand it over to the administration of the 3^rd defendant who then request the 2^nd defendant (Leewai Tours) to provide transport.

[17] On 16^th June 2015 the plaintiffs were traveling in the vehicle driven by the 1^st defendant from Sangam Nursing School to Coqeloa Nursing Station and the vehicle veered off the road and landed in a culvert.

[18] The evidence of the plaintiffs is that the school provided a supervisor who supervised the driver which fact is denied by the witnesses for the 3^rd defendant. Witness Premni is a Senior Executive Officer of the 3^rd defendant. She explained how the payments were made to the hirer Leewai Tours. She also tendered in evidence payment vouchers for period from 2009 to 2015. Her evidence is that for payment the 2^nd defendant raised invoices and the 3^rd defendant school prepared vouchers and paid for hires. The payments have been made monthly. The witness testified further that the 3^rd defendant did not pay wages for the 1^st and 2^nd defendants and that the 2^nd defendant was an independent contractor. In cross-examination the witness said the school did not know that the 2^nd defendant used private vehicles for passenger transport.

[19] In an accident of this nature once the plaintiff establishes the ownership of the vehicle a presumption created that the driver was driving the vehicle for and on behalf of the registered owner under his authority. This principle is not applicable to the 3^rd defendant and if the plaintiffs say that the 3^rd defendant is vicariously liable for the negligence of the 1^st defendant who was, as admitted by the parties, an employee of the 2^nd defendant, the burden of establishing that fact is fairly and squarely on the plaintiffs. There is no evidence adduced by the plaintiff to show that the 1^st defendant was an employee of the 3^rd defendant.

[20] Vicarious liability is liability imposed on an employer to a third party for the tort of his employee committed in the course of employment. This means that a relationship of employer and employee, as distinct from employer and independent contractor, has to exist.

In the case of Honeywill and Stein Ltd v Larkin Brothers Ltd [1934] 1 KB 191, 196 it was held:

The determination whether the actual wrongdoer is a servant or agent on the one hand or an independent contractor on the other depends on whether or not the employer not only determines what is to be done, but retains the control of the actual performance, in which case the doer is a servant or agent; but employer while prescribing to work to be done, leaves the manner of doing it to control of the doer, the latter is an independent contractor.

[21] In deciding whether the wrongdoer is a servant or an independent contractor the court has to look into various factors. Scope of duty is one such factor. A key difference between the employees and independent contractors is that employees are employed to work for a particular period of time, whereas independent contractors are normally hired to perform a particular job. Another factor to be considered is the mode of payment. Employees are paid according to the time they have worked for their employer. In most cases, they are paid wages (an amount per week worked) or a salary (an amount per month worked). Independent contractors, are normally paid a fee for doing a particular job.

[22] The witness Krishan Kumar who had been Acting Head of the School, said when the school was relocated at another place the contract document with the 2^nd defendant was misplaced. However, from the bundle of vouchers tendered by the 3^rd defendant shows that the 1^st defendant’s salary was not paid by the 3^rd defendant and the payments have been made to the 2^nd defendant for the services provided.

[23] From the evidence of the 1^st plaintiff it appears that she was not aware of the relationship between the 1^st and 2^nd defendants and the 3^rd defendant. Once in cross-examination she said the 1^st and 2^nd defendants did not work for the 3^rd defendant and again she said the 1^st and 2^nd defendants were employees for the 3^rd defendant. She also said Samgam was using the vehicle and paid for it and there was an agreement between the 2^nd defendant and the 3^rd defendant to provide transport.

[24] From the above the only conclusion the court can arrive at is that the 1^st defendant was not an employee of the 3^rd defendant at the time of the accident but an independent contractor. Therefore, the 3^rd defendant cannot be held vicariously liable for the negligence of the 1^st defendant.

[25] The plaintiffs also say that the 3^rd defendant was negligent in providing a private vehicle for the transportation of the student nurses and its failure to provide a supervisor to supervise the driver.

[26] Section 62 of the Land Transport Act 1971 provides:

(1) No person shall drive or use any motor vehicle, or cause or permit one to be driven or used, as a public service vehicle unless it is licensed as a public service vehicle.
(2) No person shall drive or use, or cause or permit to be driven or used, any public service vehicle contrary to the terms of a public service vehicle licence or public service permit relating to that public service vehicle.
(3) An owner of a motor vehicle that is licensed as a public service vehicle shall ensure that at all times -

• (a) the prescribed licence label is affixed to the motor vehicle; and
• (b) the correct public service vehicle identification number is clearly marked on it.

(4) A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction to the prescribed penalty.

[27] Under section 62 of the Land Transport Act it is an offence to use a vehicle as a public service vehicle unless it is licensed as a public service vehicle. However, driving a vehicle to transport passengers without a licence cannot be an act of negligence it is only a violation of statutory provision which is punishable by law. If the plaintiffs say that the vehicle was not road worthy or it did not have the capacity to transport the three plaintiffs they must adduce evidence to establish that but no such evidence was adduced by the plaintiffs.

[28] The plaintiffs say that the school provided a supervisor to supervise the driver whenever they go out and in cases on injury the school promised to take the responsibility. In this regard the only document they rely on is the book called “The Companion” given to them by the school. The book was tendered in evidence marked as “P4” and in that book there is nothing to say the school would provide a supervisor to supervise the driver. The evidence of the 3^rd defendant’s witnesses is that they provided a clinical supervisor and not a supervisor to supervise the driver. Witness Kirshan Kumar testified that when the students went Rural Attachments the school did not provide clinical supervisors because in those attachments there are lecturers and when the students go there they stayed for one week. He stated further in Rural Attachments they did not provide clinical supervisors because the lecturers and the students go there and stayed for one week.

[29] The plaintiffs also complains that there were no seat belts in the rear seat of the vehicle. To have seat belts fixed in the vehicle is the responsibility of its owner and not of the 3^rd defendant. If they found that there were no seatbelts they could have refused to travel in the vehicle and brought to the notice of the 3^rd defendant.

[30] From the above, it appears that there is no negligence on the part of the 3^rd defendant which contributed to the injuries sustained by the plaintiffs.

[31] He 1^st plaintiff testified that she was 22 years old at the time of the accident and she is now a clinical nurse at Korolosere Health Centre. She is married but do not have children. She said after the accident when she woke up she was in the Intensive Care Unit of the Labasa Hospital and had to undergo several surgeries. She had been in hospital for 53 days.

[32] Dr Rajeev Patel testified referring to the medical report prepared by him. According the medical report the 1^st plaintiff has suffered to following injuries due to the accident:

1. Open pubic symphysis diastasis.
2. Bladder rupture (anterior wall) secondary to avulsion and direct force from pubic sumphysis diastasis.
3. Large anterior vaginal wall tear communicating with loss foetus vitals.
4. Left antero-medical thigh laceration.

[33] The 1^st plaintiff said she was attended by several doctors and she was in the incubator due to lack of oxygen in the body. At the time of the accident she was 5 months pregnant and due to the injuries sustained she lost the baby and since the scan showed that the baby was not breathing she had to undergo caesarean section which according to the doctor, was not a normal caesarean section but was a difficult one and it was done vertically.

[34] The 1^st plaintiff also testified that two metallic rods were inserted in the pelvic bone and every morning the doctor tightened the screws to bring the pelvic bone to its original position.

[35] The doctors have also performed a surgery to repair her ruptured bladder and before the surgery she had to go the wash room 4 to 5 times in every hour. The doctor’s evidence was that because of the bladder injury she did not have control over urine leakage. She also said she had difficulties in having sexual relation because of the urine leakage and since the pelvic bones are attached to each other she would not be able to deliver a baby the normal way.

[36] The doctor has explained the summary of her urology problems after the accident as follows:

She was initially seen in my clinic In April 2017 with issues of urinary inconsistence. She would leak urine on coughing, laughing, sneezing or strenuous work (lifting patients). She would use 3 to 4 pads per day which would be fully soaked with urine. The situation has severely affected her quality of life. She was diagnosed as having stress urinary inconsistence...

On 03/11/2017 she underwent a rectus fascial sling to treat her stress urinary inconsistence. There was a lot of scarring in her lower abdomen due to previous laparotomies and two caesarean sections.

Her leakage improved considerable post – operatively. She was seen in my clinic on 07.06/2018. On review her leakage has decreased considerably. She only uses 1-2 pads per day compared to 3-4 pads/day previously. The leakage is present when she does strenuous work on a full bladder.

Her whole person impairment rating is 25% impairment of whole person due to urethral dysfunction resulting in intermittent urine dribbling.... This impairment rating is only for her urology problems.

[37] Dr Maloni Bulanauca said the 1^st plaintiff was in severe pain and she needed regular pain relievers. The 3^rd defendant objected to this medical report being tendered on the ground that it was not discovered under order 25 of the High Court Rules. The court accepted the report subject to the objection. The 1^st and 2^nd defendants did not raise any objection to these reports. This court has already decided that the 3^rd defendant is not liable in damages. Therefore, the court decides to accept the reports in evidence.

[38] From the evidence of the 1^st plaintiff and the doctors it appears that the 1^st plaintiff has not fully recovered from the bladder injury. Considering the seriousness of the injuries suffered by her due to the accident the court is of the opinion that it is reasonable to award $150,000.00 to the 1^st plaintiff as damages for pain, suffering and loss of amenities.

[39] 1^st plaintiff’s mother said she went to the hospital to see the daughter by taxi and the taxi fare for a day was $10.00. The witness also said after the 1^st plaintiff was discharged from the hospital she looked after her for seven months and was assisted by a relative in looking after the 1^st plaintiff who was paid $80.00 per week.

[40] The 1^st plaintiff by way of special damages claimed $250.00 as medical expenses and cost of medicine but no evidence was adduced to prove he claim. There is also no evidence as to the costs incurred by the 1^st plaintiff to obtain the medical reports and the police report. The 1^st plaintiff also claims $2000.00 as Costs of Past Nursing Care. Therefore I award $2400.00 as special damages.

[41] The 2^nd defendant testified and explained how the accident occurred. The evidence of all three plaintiffs as to the manner in which the accident occurred is the same and there are contradictions. She said, she was 35 weeks pregnant at the time of the accident and after the accident she found pieces of glass on her leg and she suffered pain in the lower abdomen. She had to undergo a caesarean section to take the baby out and the baby was put in the incubator. She had stayed in the hospital for about 40 days. She testified further that she could not breast feed the baby because there was no milk and when attempted to feed the baby it was blood that came out.

[42] Dr Inosi Voce confirmed that the 2^nd plaintiff had to undergo an emergency caesarean section. The 2^nd plaintiff said, the first baby was also born by a caesarean section. She also said that she is married again has two babies by the second marriage and the second baby was also born by a caesarean section. Therefore, it cannot be said that the accident was the cause for the plaintiff could not have normal delivery of babies.

[43] Second defendant’s evidence is that after discharging from the hospital her husband hired a nanny for six months and paid her $80.00 per week which comes to $1920.00.

[44] For above reasons I award $60,000.00 as general damages and $1920.00 as special damages to the 2^nd plaintiff.

[45] The 3^rd plaintiff testified that she was 27 years old at the time of the accident and when she was thrown out of the vehicle her thigh bone fractured and left shoulder dislocated. She had been in hospital for nine days and after leaving the hospital she was in bed for six weeks and had gone to Savusavu for a massage and the trip costs her $400.00. She also says that she cannot walk as before because her left leg is shorter than the right leg. This was confirmed by the doctor. According to the 3^rd plaintiff it had taken 4 to 5 months for her to recover completely.

[46] Dr Maloni Bulanauca said the 3^rd defendant was in hospital for eight days and on 15.10.2015 she was not working normally and she was limping. The doctor has assessed the WPI of the 3^rd plaintiff as 18%.

[47] In his report dated 20^th October 2015 Dr Maloni says:

I foresee that she is destined for challenges physically that will impair her form her duties as a future medical personnel with her current status. As it is, she is likely to continue to have physical impairments that will gravely impair her quality of life, employability and functional/emotional independence. Under these circumstances and the continued dynamic nature of disabilities, she has not reached Maximum Medical Index hence not eligible for WPI assessment.

[48] In cross-examination the doctor said the 3^rd plaintiff opted to seek native treatment. There was a possibility to improve angulation if she was treated at the hospital and it is possible that her WPI would be 8%.

[49] Third plaintiff’s father testified that he preferred to refer the daughter to a traditional healer. The 3^rd plaintiff had been taken out of the hospital against the advice of the doctors and she was treated by a traditional doctor. His evidence is that he paid $2000.00 for treatment and $800.00 for travelling. The 3^rd plaintiff tendered passenger ticket to show that she spent $49.00 to go to Suva for treatment.

[50] In the circumstances I award $75,000.00 as general damages and $2049.00 as special damages.

[51] All three plaintiffs claimed that due to the accident their graduation was delayed by one year and therefore they are entitled to recover one year’s salary from the defendants. However, they have not pleaded it in the statement of claim and there is no evidence how much would the salary have been if they were employed one year earlier. 1^st plaintiff said it was about $19000.00 per year which is not sufficient for the court to act upon and grant such relief.

[52] For the reasons aforementioned the court makes the following orders.

ORDERS

1. The 1^st and 2^nd defendants are ordered to pay the 1^st plaintiff $150,000.00 as general damages and $2400.00 as special damages.
2. The 1^st and 2^nd defendants are ordered to pay the 2^nd plaintiff $60,000.00 as general damages and $1920.00 as special damages.
3. The 1^st and 2^nd defendants are ordered to pay the 3^rd plaintiff $75,000.00 as general damages and $2049.00 as special damages.
4. The action against the 3^rd defendant is dismissed.
5. The 1^st and 2^nd defendants are also ordered to pay $3000.00 to each of the plaintiffs ($9000.00 in total) as costs of this action.
   

Lyone Seneviratne

JUDGE

07^th August 2020