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High Court of Fiji |
IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 351 of 2009
BETWEEN
SAKIUSA SOLI (Senior) Retired & SAKIUSA SOLI (Junior) an infant suing by his
grandfather and next friend Sakuisa Soli both of Lot 13, Soqe Place, Nasinu
PLAINTIFFS
AND
RAIWAQA BUS LIMITED a limited liability company having its registered
head office at Grantham Road Raiwaqa.
1ST DEFENDANT
AND
KAMINIELI TUIMAVANA of Lot 48, Block 4, Goodsir Road, Raiwai.
2ND DEFENDANT
AND
NEW INDIA ASSURANCE COMPANY LIMITED a limited liability company
having its registered office at New India Assurance Building, 87,
M.G. Road, Fort Mumbai – 400 001 and having its principal
place of business in Fiji at Harifam centre, 2nd Floor,
Cnr Renwick Road and Greig Street, Suva Fiji.
1ST NAMED THIRD PARTY
Counsel : Mr. D. Singh for the Plaintiffs.
Mr. M. A. Khan with Ms. S. Kant for the 1st Defendant
Mr. S. Krishna with Mr. N. Kumar for the 1st Named Third Party
Date of Hearing : 20th August 2020
Date of Judgment : 30th September 2020
JUDGMENT
[1] The plaintiffs instituted these proceedings to recover damages for the injuries caused to them due to the negligence of the 2nd defendant as a servant and/or agent of the 1st defendant.
[2] On 28th August 2008 at Naevueuv, Sigatoka on Queens Highway the bus bearing registration No. RBL001 driven by the 2nd defendant caught fire causing injuries to the plaintiffs.
[3] The 1st defendant in its statement of defence has averred that before the journey the bus was repaired, checked by qualified and well-experienced mechanics and the bus was test driven by one of the most experienced drivers. The defendant states further that at the time of its manufacturing, all electrical wires and cables were outsourced from an independent, reputable electrician who along with his own team of electricians is well recognised for doing electrical work for other bus companies as well.
[4] The 1st defendant claimed the following reliefs against the 1st named 3rd party and the 2nd named 3rd party:
(a) That the 1st named 3rd party and the 2nd named 3rd party to fully indemnify the 1st defendant or as the court may order the 1st defendant to pay the plaintiffs.
(b) A declaration that the 1st defendant is entitled to be fully indemnified by the 1st named 3rd party by virtue of Motor Comprehensive Policy No. 922623/3104/286256 and Compulsory Third Party Policy No. 922623/3144/272916.
(c) That in the event the court finds the 1st defendant liable to the plaintiffs’ claim, the 1st defendant seeks a declaration:
- (i) That the Land Transport Authority had provided a fitness certificate confirming that the standard of the bus was in conformity with the proper standards and was mechanically sound and safe to be driven on public roads and carry passengers; and
- (ii) For damages for breach by the Land Transport Authority of its statutory duty in certifying that the bus was in conformity with the proper standards and was mechanically electronically sound and safe to be driven on public roads and carry passengers.
(d) Costs of the defence and third party proceedings.
[5] On 20th October 2014 the 1st defendant filed the Notice of Discontinuance and discontinued the proceedings against the 2nd named 3rd party, the Land transport Authority.
[6] At the pre-trial conference the parties admitted the following facts:
[7] I will first consider the issue between the 1st defendant and 1st named 3rd party that is whether the 1st named 3rd party is liable to compensate the 1st defendant under the contract of insurance. After the accident the 1st defendant made a claim seeking the 1st named 3rd party to indemnify the damages caused to the vehicle and also to the passengers who were travelling in the bus at the time of the accident. The 1st named 3rd party by its letter dated 16th April 2010 (TP 3) repudiated the claim on the basis that the 1st defendant and/or 2nd defendant has acted contrary to the terms and condition of the Motor Vehicle Comprehensive Policy No. 922623/3104/286256 which covers the Third Party property damage and Passenger Risk Extension.
[8] The 1st named 3rd party in its letter repudiating the claim stated thus:
In view of the matters stated herein we hold that your claims are exclude under the provisions conditions 4 and 8(3) contained in the subject motor insurance policy issued by us.
....
We will, however, cover the claim under the provisions of the Compulsory Third Party Insurance Policy No. 922623/3144/272916 covering a total aggregate sum of $40,000.00.
[9] Condition 4 of the Motor insurance Policy issued by the 1st named 3rd party reads as follows:
You have no protection under this policy if, at the time the loss or damage occurs, your vehicle (or any other vehicle the policy states it will cover):
Unsafe condition
Is being used in an Unsafe condition or unroadworthy condition or without proper Certificate of fitness or is contrary to law.
Other Exclusions
3). Damage to or failure or breakage of the engine, transmission, mechanical or electrical systems unless arising from an external accidental cause
[10] The 1st defendant called Mr. Mohamed Irshad Gani had been working for the 1st defendant as the Manager Operations. He said he looked after the busses, drivers, checkers and mechanics. He testified further that the company had a maintenance system to follow. At the end of the day the drivers had to inform the company in writing whether there were any defects in the busses. The bus which caught fire was checked before it was sent to Sigatoka. The witness identified the comprehensive cover Insurance Policy (D4) and the Third party insurance Policy (D5), Motor Vehicle registration (D1) and Fitness Certificate (D2).
[11] The inquiry report prepared for the Minister for Works, Public Utility and Energy regarding this accident was tendered in evidence (P1) by the plaintiff.
[12] According to this report the source of fire is (in paragraph 8.2);
It was unanimously agreed that the fire was initially instigated when the main positive cable which was displace from it proper position was found lying over the starter Motor. Due to the undulation of our road the twist and turn of the whole vehicle whilst in motion created a rubbing and heat effect that wears and burnt out the cable insulation. The live heavy duty cable under naked condition stirred an earth circuit that subsequently induced a series of sparks that became the source of fire.
Paragraph 8.3 – In any fire situation under the triangle of fire, a fuel source will be needed to set flame alive and alight. In this particular case it is believed that there was a fuel leakage on the fuel return pipe that was just above the starter position. The leak is deemed to be through the braze welded segment of the fuel pipe. Due to position factor, (fuel line/starter motor) obviously fuel drops will directly drip and plunge on starter motor area.
[13] The findings contained in this report were not challenged by any of the parties. The 1st defendant relied on the fitness certificate which does not show any defect in the bus. Mr. Etuate Koroi who, at the time of the accident, was the Chief Executive Officer of the Land transport Authority testified that after the issuance of the fitness certificate if the owner inspected the busses regularly the accident could have been avoided. He said unlike any other vehicle theses busses have very high mileage.
[14] From the above evidence it appears that the employees of the 1st defendant had not inspected the bus properly before it was sent to Sigatoka. Although the evidence say that bus was inspected and a test run was done they have not detected the defects referred to in the report of the Land Transport Authority. There is also no evidence that these defects could have occurred on the way to Sigatoka. The examination reveals these defects had been there for quite a sometime. The 1st defendant cannot therefore rely on the fitness certificate to show that the bus was in a proper mechanical condition few months after its issuance.
[15] In clause 6.0 of the report it is stated:
The forensic inspection established that RBL 001 sustained defects which do not directly contribute to fire but does pose safety concern which is a contributing factor to certain difficulties encountered by the driver in having full control over the bus.
[16] For the reasons set out above the court is of the view that the 1st named 3rd party is correct in repudiating the claim of the 1st defendant relying on clause 4 of the Motor Insurance Policy.
[17] The repudiation of the claim based on clause 8(3) of the agreement as agreed by the witness Ms. Subhashni Prasad, Asst. Manager of the 1st named 3rd party is not correct. The insurance claim of the 1st defendant was not for what is stated in clause 8(3) of the agreement.
[18] It is a fact admitted by the parties that the 1st named 3rd party is liable to pay up to $100,000.00 to each passenger. This in fact an issue before this court and Learned master of the High Court ruled as follows:
The interpretation of this court is that the 1st named 3rd party in terms of Motor Comprehensive Policy No. 922623/3104/286256 is liable for passenger risk cover of $100,000.00 to each claimant. (AND NOT THE AGGREGATE SUM OF ALL CLAIMS OF PASSENGERS).
[19] The 1st named 3rd party sought leave to appeal the said decision but the court refused leave. The 1st named 3rd party then sought leave to appeal the said decision to the Court of Appeal which was also refused. The first named 3rd party sought leave to appeal from the Court of Appeal but to no avail.
[20] I will now consider the claim for damages for pain and suffering of the plaintiffs. The plaintiffs’ tendered two medical reports through Dr. Rauni Tikoinayau who examined them 19th May 2020. These two reports were objected to by the 1st named 3rd party on the ground that those were not discovered.
[21] Order 24 rule 16(1) of the High Court rules 1988 provides:
(1) If any party who is required by any of the foregoing rules, or by any order made thereunder, to make discovery of documents or to produce any documents for the purpose of inspection or any other purpose, fails to comply with any provision of that rule or with that order, as the case may be, then, without prejudice, in the case of a failure to comply with any such provision, to rules 3(2) and 11(1),-
(a) that party shall not be entitled subsequently to produce a document in respect of which default was made without the leave of the Court, and
(b) the Court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly.
[22] Order 24 rule 16(1)(a) confers a discretion on the court to admit a document not disclosed by a party. However, the court in exercising to discretion must consider the prejudice that would be caused to both parties if the document is rejected or allowed to tender in evidence.
[23] These medical reports have been obtained by the plaintiff on 19th May 2020, sometime before the matter was set down for trial and they had sufficient time to disclose this to the other parties but the plaintiffs and their solicitors for reasons best known to them did not disclose the reports to the defendants. The plaintiffs did not offer any reason for not disclosing these two medical reports to the defendant as required by law. Therefore, the court disallowed these two medical reports and the court will not be guided by these medical reports in assessing damages.
[24] The negligence of the 1st and 2nd defendants has been established. The two plaintiff with other were travelling in the bus when it caught fire. The evidence of the plaintiffs is that when the bus caught fire the 1st named plaintiff went out of the bus through the sliding window and took his grandson who was at the time six years old. Both got injured and the 1st named plaintiff’s hand and fingers and the left side of the 2nd named defendant’s body were burnt. The 1st named plaintiff testified further that his fingers were burnt and bones were visible. The court observed the areas where the plaintiffs’ suffered injuries. After 12 years of the accident they still have scars on the body.
[25] The 1st named plaintiff not hospitalised after the fire, however, the 2nd named plaintiff was hospitalised for three weeks. The 1st named plaintiff also testified that after the accident he experienced loss memory and he cannot lift heavy things. The evidence of the 2nd named plaintiff is that after the accident he forget things, still dreams about the fire and when he smell smoke his nose gets blocked but there is no medical evidence to say these difficulties are as a result of injuries sustained due to the bus fire. However, the evidence of the plaintiffs on the difficulties the now face after the accident was not challenged at the trial by the defendants or the 1st named 3rd party. The 2nd named plaintiff’s mother testified that the 2nd named plaintiff plays rugby.
[26] As I always say there is no relationship between pain and money. The court has to award an amount for pain and suffering arbitrarily but such amount must be reasonable.
[27] Taking all these factor into consideration the court is of the view that the 1st named plaintiff and the 2nd named plaintiff should be awarded damages for pain and suffering $50,000.00 and $75,000.00 respectively.
[28] The plaintiffs also sought special damages. The 1st named plaintiff said he spent $3000.00 for medical expenses and $3500.00 for travelling to the hospital but in the statement of claim the 1st named plaintiff has only claimed $45.17 for medicine and the first aid kit and $218.85 for travelling. This clearly shows that the evidence of the 1st named plaintiff as to his travel and medical expenses is not correct and there is no reliable evidence before the court to rely on and make a finding in his favour.
[29] The 1st named plaintiff also claimed $935.92 for loss of personal belongings but did not adduce any evidence prove this claim.
[30] The 2nd named plaintiff claimed $1147.00 as travelling and medical expenses. It is understood that the 2nd named plaintiff who was, at the time of the accident, six years old would not have known how much his parents spent as medical and travelling expenses. However, his mother and the grandfather, the 1st named plaintiff testified but none of them did not say anything about the amount of money spent for his medical and travelling expenses.
[31] The mother of the 2nd named plaintiff testified that at the time of this accident she was employed and her income was $150.00 per week. However, in the statement of claim, if I may reproduce, it is stated:
Loss of Earnings
Mother (wife)
Loss of 1month wages ($119 per wk x 1month) 3,570-00
Father (husband)
Loss of 1 day payment 30.00
[32] The plaintiffs or their witness, the mother of the 2nd named plaintiff, have not explained how they arrived at the figure of $3570.00. If it is loss of wages for one month at the rate of $119.00 per week the amount should be $476.00.
[33] The evidence of the mother of the 2nd named plaintiff is that she looked after the son for 6 – 8 months. In cross-examination when she was asked whether she has pay slips or FNPF records she answered in the negative.
[34] From the above it appears that the plaintiffs have failed to establish their claim for special damages. The evidence of the plaintiffs and their witness are contradictory.
ORDERS
Lyone Seneviratne
JUDGE
30th September 2020
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URL: http://www.paclii.org/fj/cases/FJHC/2020/806.html