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Singh v Hussein [2022] FJHC 142; HBC26.2019 (23 March 2022)

IN THE HIGH COURT OF FIJI
AT LABASA
[CIVIL JURISDICTION]


Civil Action No. HBC 26 of 2019


BETWEEN:


VINAY PRAVEEN SINGH
1ST PLAINTIFF


AND:


LOSANA MARSHALL
2ND PLAINTIFF


AND:


SUZIE MARSHALL
3RD PLAINTIFF


AND:
JUSTINE MARSHALL
4TH PLAINTIFF


AND:


MOHAMMED ZAKIR HUSSEIN
1ST DEFENDANT


AND:


BEVEK PRASAD
2ND DEFENDANT
BEFORE:
Javed Man J


COUNSEL:
Mr. S. Sharma for the plaintiff
Ms. B. Qioniwasa for the respondent


Date of Hearing:
27 July

Date of Judgment:
23 March 2022


JUDGMENT

PERSONAL INJURY Negligence – Vicarious liability – Contributory negligence – Special damages – General damages

The following cases are referred to in this judgment:

  1. Jefford v Gee [1970] EWCA Civ 8; [1970] 2 W.L R 702
  2. Virend Chand v Amal Jeet Singh and Tacirua Transport Company Limited [1994] FJHC 84; HBC 0363J.89S (20 July 1994)
  1. Lim Poh Choo v Camden and Islington Area Health Authority [1979] 1 Q.B. 196
  1. British Transport Commission v Gourley [1955] UKHL 4; [1956] A.C 185
  2. Attorney General v Charles Valentine [1998] FJCA34; ABU0019U.98S (28 August 1998)
  1. The plaintiffs filed action claiming damages from the defendants for injuries caused to them when the vehicle driven by the first defendant crashed on to the vehicle in which the plaintiffs were travelling, along the Soasoa road, on 28 August 2017.
  2. The vehicle in which the plaintiffs were travelling was owned and driven by the first plaintiff. The vehicle driven by the first defendant was owned by the second defendant. The claim against the second defendant is on the basis of vicarious liability.
  3. The first defendant admitted that he drove the vehicle that caused the accident on 28 August 2017. The parties agree that the second and third plaintiffs were passengers of the vehicle driven by the first plaintiff, and that the first defendant was the agent, servant or employee of the second defendant at the time of the accident.
  4. The claims in the statement of claim were for general damages, special damages in a sum of $1,240.00 and punitive damages.
  5. The parties raised the following issues:
    1. “Whether the collision was caused by or contributed through the negligence of the 1st defendant?
      2. Whether the collision was caused by or contributed through the negligence of the 1 plaintiff or other plain?
    1. Did the 1st, 2nd and 3rd plaintiffs, as a resulthe athe accident, suffer any injuries?
    1. What was the nature anent of injuries suffered by the 1st, 2nd and 3rd plaintiff any?
    2. Are the plaintiffs entitled to special damages in the sum of $1,240.0i>
    3. Are the defendants liable to pay damages to the plaintiffs and if so on what basis?
    4. If the answer to 6 above is in the affirmative then what is the quantum of damages to be awarded and should there be a proportionate reduction for any contributory negligence of the plaintiffs?
    5. Are the plaintiffs capable of working either in the jobs they had prior to the accident or some other job?
    6. Can the plaintiffs claim punitive damages at all?”
  6. The main issues for the court’s determination are, therefore, whether as a result of the collision the first, second and third plaintiffs suffered injuries entitling them to damages, and whether the plaintiffs had contributed to the accident by their negligence.
  7. At the commencement of trial on 27 July 2020, counsel for the plaintiffs, Mr. Sharma, informed court that the first and fourth plaintiffs would not proceed with their claims. It was submitted that the first plaintiff was critically ill, and the injuries caused to the fourth plaintiff were minor and that there was no medical report concerning him. Mr. Sharma also informed court that the plaintiffs would not be seeking punitive damages.

The accident

  1. Ms. Losana Marshall, the second plaintiff described the incident in this way. The plaintiffs were travelling from Vunivau to Vunika. The vehicle was driven by her husband, the first plaintiff, who owned the vehicle bearing number HO 712. She was seated on the front passenger seat, next to her husband. Her sister and nephew, the third and fourth plaintiffs, were seated at the back of the vehicle. At about 4 pm, a white coloured vehicle, which was initially within its lane, veered towards their vehicle and collided head-on with their car.
  2. Soon after the accident, Ms. Losana Marshall said she was in terrible pain with bruises to her chest and left thigh. The pain was at the highest level on a scale of 10. About half an hour later, a passing vehicle took her and her sister to hospital. She was admitted at about 6 pm on the day of the accident and was released at about 2 am the following day. She had bruises from her chest to her left thigh. Initially, it was the chest that hurt her the most. She returned to the hospital for a review after two weeks. She felt severe pain for about a month after the accident; she described the pain at level 8 on a scale of 10. After the first month, the pain was mainly felt on her left thigh. She said that her husband had minimal injuries. He did not have a medical report.
  3. Dr. Ravuama Raqisia, the principal medical officer of the Labasa hospital’s surgical department was called by the plaintiff. He produced the medical reports of Losana Marshall and Susy Marshall. Ms Losana Marshall’s medical report prepared on 12 September 2018 by Dr. Abdul Ibrahim of the Labasa hospital’s emergency department stated:

“She claims that she witnessed a vehicle come and hit the driver’s side of their vehicle resulting in her sustaining injuries to her left hip and thigh, chest and abdomen from the seat belt restraint.

There was no other pertinent history of any other symptoms.

On examination Ms Marshall was found to be oriented to time, place and person. Her vitals and Glasgow coma scale was stable throughout the admission period.

The positive findings in her physical examination was:

Bruising noted across her anterior chest wall which was diagonally shaped, 4 – 5 cm in diameter.

Mild epigastric tenderness on palpation

Bruising on posterior surface of her right hand and arm, 5 – 6 cm long.

Bruising on deltoid region of left shoulder.

10 cm x 3 cm lateral bruising on the superior aspect of left thigh.

A series of trauma x-rays were ordered skull, C-spine, chest, pelvis and left femur and a focused assessment with sonography, for trauma also showed no pertinent pathology. All her blood tests were also found to be normal. She received tetanus toxoid prophylaxis.

After 6 hours of observation without any sequel, Ms Marshall was discharged on pain relief medications and topical antibiotic cream into the care of her relative.

She was forecasted to have a good prognosis and was advised for review on a ‘pro re nata’ basis”.


  1. Dr. Raqisia said that Ms. Losana Marshall had diagonally shaped bruises on her chest. He explained that bruising is caused by damage to the capillaries on the upper surface of the skin or the epidermis. Bruises were as a result of the loss of skin. The bruise on her chest was about 4 to 5 cm. There were bruises on her right arm of about 5 to 6 cm, as well as bruises on her left shoulder and a 10 cm bruise on her left thigh. There was swelling on the ankle. Most injuries were on her left side.
  2. The plaint’s caption refers to the third plaintiff as Suzie Marshall. In her testimony, the third plaintiff gave her name as Susy. Her birth certificate states the name as Sussie Gannett Marshall. I will refer to her as Susy Marshall; the name given when testifying. She was born in 1981. At the time of the accident she would have been 36. She confirmed the incident that occurred on 28 August 2017 as described by her sister, Losana. The impact of the accident caused her shoulder to hit the front passenger seat and resulted in a dislocation of the shoulder. She sustained injuries to her legs, particularly on her left knee. She was in pain, which she described at a level of 9 to 10. After admission to hospital around 5 pm, she waited with her sister in the emergency section for about an hour before she was seen by a doctor. She was discharged past midnight.
  3. Dr. Raqisia produced a medical report dated 29 October 2018 prepared by Dr. Mereoni Voce of the Labasa hospital’s emergency department. The report stated,

“She presented with a painful left shoulder, skin abrasions on her left knee and left ankle”, and that she was, “diagnosed with mild head injury, left shoulder dislocation and shin abrasions of left leg. She was referred to the surgical department due to her injuries. She was treated and observed in the emergency department for 15 hours before she was discharged on 29 August 2017”.


  1. For the defence, the first defendant gave evidence. He admitted that he was the driver of the vehicle involved in the accident. He said he could not remember what exactly happened. On the day of the accident, he had returned home from Nadi, and then taken his vehicle out. He was having a headache while driving. He left home because his headache was not severe when he started out. He was also very hungry. All he remembered was entering the main road. Then he had a black out. He woke up after the collision and realised that he had caused an accident. He was charged by the police for careless driving. He was fined $200.00. If it was not for his headache, the first defendant said, the accident would not have happened.
  2. In view of the evidence given by the first defendant and the facts agreed by the parties, an evaluation of the police officer’s evidence will not be necessary. Police officer Neumi Katia produced the first defendant’s record of interview at the Labasa police station.
  3. The second defendant did not give evidence. The parties admitted that the first defendant was driving the subject motor vehicle as the second defendant’s agent, servant or employee.
  4. It is convenient at this point to deal with some of the issues before court. The injuries suffered by the second and third plaintiffs were caused by the first defendant. The defendants have pleaded contributory negligence. The suggestion was made by the defence that the third plaintiff’s injuries could have been reduced by wearing the seat belt. This suggestion, made during the third plaintiff’s cross examination, was denied. The doctor’s opinion on this point is not available. In his testimony, the first defendant did not mention anything by which the plaintiffs contributed to the injuries sustained by the second and third plaintiffs. There is no evidence before court that any of the plaintiffs contributed to the happening of the accident or to sustaining their injuries. The first defendant is liable for the injuries caused to the second and third defendants. The second defendant’s liability is on the basis of vicarious liability.
  5. The court must, therefore, decide whether the second and third plaintiffs are entitled to damages. If they are so entitled, the court must assess the damages to be paid by the defendants.

Special damages

  1. The particulars of special damages in the statement of claim mention four items: $400.00 for transportation, $350.00 for medication, $54.50 for the medical report, and $272 permanent incapacity report for Ms. Susy Marshall; this does not add up to the $1,240.00 claimed as special damages. The first three items referred to in the statement of claim do not specify which of the plaintiffs incurred the expense. The evidence shows that the transportation and the medical report expense claims are by Ms. Susy Marshall.
  2. Special damages mean the actual pecuniary loss suffered by the plaintiff, up to the date of trial, owing to the wrongful act of the defendant[1]. Special damages must be pleaded and proved. Special damages consists of out-of-pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation[2].
  3. Ms. Susy Marshall was asked to take hospital reviews for about 3 months. For those reviews, she made about two weekly visits. Sometimes she travelled by taxi and at other times by bus. The one way taxi fare was about $11.00. Each week she spent $44 for travel to the hospital. She did not have receipts to prove the taxi fare. She did not explain why there were no taxi fare receipts. No mention was made of the bus ticket fare. She estimates having spent $300 on taxi fare for her reviews.
  4. The prudence of providing documentary evidence to establish special damages was highlighted in the decision of Pathik J in Virend Chand v Amal Jeet Singh and Tacirua Transport Company Limited[3]. However, evidence does not have to be proved solely by documentation. The court is entitled to give due weight to oral evidence. The rules state that any fact required to be proved at the trial of any action begun by writ by the evidence of witnesses must be proved by the examination of witnesses orally[4].
  5. It can be supposed that the pain in the initial period of recovery may have prompted Ms. Susy Marshall to take a taxi for her reviews. She does not say for how long she used a taxi. Her evidence is that the pain was intense for about a month. The claim of $300 seems to be for the entire span of the review period. Dr. Raqisia’s evidence is that she would have taken 6 weeks to recover. He said that patients with a dislocated shoulder are advised to use a sling in the initial period of recovery. In the absence of documentary proof, it is reasonable to suppose that she incurred taxi fare over a four week period. This is the period she describes when the pain was most severe. On this basis, she is entitled to recover $176 for expenses in taking a taxi for hospital reviews.
  6. Ms. Marshall spent $54.54 to obtain a medical report from the Labasa hospital. She did not produce a receipt in proof of the expense. The claim is not of significant value. The defence did not challenge this expense in cross examination. In fact, counsel for the defendants made reference to the medical report obtained by this plaintiff during cross examination. I accept her evidence on this item of expense.
  7. Because of the injuries and the pain she felt, Ms. Susy Marshall said she had to obtain the services of a maid to attend to housework. She paid the maid about $100 per week. This was necessary as her mother, who was ill, was at home and needed care. In her evidence she said this payment was made for about five months. This expense has not been pleaded, and will be excluded from consideration when awarding special damages.
  8. The statement of claim particularises special damages in a sum of $1,240.00. In her testimony, Ms. Susy Marshall claimed a sum of $354.50 as special damages. An award of $230.50 would be fair compensation as special damages. This sum constitutes the taxi fare for four weeks of hospital reviews and the cost of the medical report. Interest of 1% per annum will apply on special damages from the date of the accident i.e: 28 August 2017, to the date of the hearing i.e: 27 July 2020.
  9. No evidence was led to prove the claimed expenses for medication or the permanent impairment report particularised in the plaintiffs’ statement of claim. These have not been proved. Ms. Losana Marshall did not give evidence to prove her expenses. She is not entitled to special damages.

General damages

  1. Both plaintiffs who gave evidence have asked for general damages. This is for pain and suffering caused by the accident.
  2. There are settled principles governing the award of general damages. Some personal injury decisions refer to the following passage of Lord Denning M. R[5]:

“In considering damages in personal injury cases, it is often said “The defendants are wrongdoers. So make them pay up in full. They do not deserve any consideration.” That is a tendentious way of putting the case. The accident, like this one, may have been due to a pardonable error such as may befall any one of us. I stress this so as to remove the misappropriation so often repeated that the plaintiff is entitled to be fully compensated for all the loss and detriment she has suffered. That is not the law. She is only entitled to what is, in all the circumstances, a fair compensation-fair both to her and to the defendants. The defendants are not wrong doers. They are simply the people who have to foot the bill. They are, as the lawyers say, only vicariously liable. In this case it is in the long run the tax payers who have to pay. It is worth recording the wise words of Parke B. over a century ago.

“Scarcely any sum could compensate a labouring man for the loss of a limb, yet you don’t in such a case give him enough to maintain him for life...you are not to consider the value of his existence as if you were bargaining with an annuity office... I therefore advise you to take a reasonable view of the case and give what you consider fair compensation’, see Armstrong v South-Eastern Railway Co (1847) 11 Jurist 758, 760, quoted in Rowley v. London and North Western Railway Co. (1873) [1852] EngR 1037; L.R. 8 Ex. 221, 230”.


  1. Authorities mention that a court must take into account, in the assessment of damages, the pain which a plaintiff has suffered and will suffer and the suffering which he has undergone and will undergo. As pointed out in Lim Poh Choo, pain and suffering are not measurable by any absolute standard, and the individual circumstances of particular plaintiffs have a significant effect upon the assessment of damages. In the following paragraphs, the court will consider the evidence on record to assess whether general damages are payable to the second and third defendants.
  2. Ms. Losana Marshall was born in 1978. This means she was yet to turn 40 at the time of the accident. After the accident, Ms. Marshall developed a lump on her left thigh. She finds the lump painful. This is mostly when she lies down on her left side, and also during cold spells. Her doctor, she said, attributed the lump to bruises from the accident. She has been prescribed pain-killers for her chest pain and for pain from the lump on her left thigh. Following a scan, she was to be operated for removal of the lump in 2018. The surgery was re-scheduled as the doctor was not available; it is yet to be performed.
  3. Ms. Losana Marshall said that she was wearing a seat belt. She agreed that her injury was not serious as she was released within six hours of admission to hospital. Her evidence is generally consistent with the medical report prepared by the Labasa hospital. However, she did not believe that an operation would permanently take away the pain from her left side lump. The accident, she felt, caused her permanent impairment. As she was having a chest pain, she went to the hospital, she said, even the week before she came to give evidence. She agreed, however, that her medical report showed her chest to be clear.
  4. Dr. Raqisia said that Ms. Losana Marshall’s abrasions and lacerations could have taken about 6 weeks to heal, and that this happens in stages. The doctor told court that abrasions and loss of skin would result in acute pain. When queried whether the injury was permanent, the doctor said, most injuries of Ms. Losana Marshall are bruises. There was no fracture. There was no external bleeding. There were no injuries to the head. Within two years the injuries would have got better. This is how long it takes through the process of remodelling. He expected the bruises to have gone away. Most healing would have happened by now. If the injury does not heal within that time, the doctor said, it could be problematic. He did not expect her injuries to prolong. Accident victims who have sustained injuries are recommended physiotherapy and given pain medications to help them over the initial period of recovery. He had to examine her to determine whether she has chronic pain. By the time of the trial – nearly three years after the accident – Dr. Raqisia expected most healing to have taken place.
  5. Referring to Ms. Losana Marshall’s claim of a lump on her left thigh, Dr. Raqisio said that it did not feature in the reviews or her medical report. He explained that bruising could lead to a haematoma. In turn, he said, this could result in a lump, if the haematoma did not go away. Usually, a haematoma clears within two weeks. If the haematoma clears, he opined, the lump would go away. If it persists, the haematoma is removed by surgery.
  6. After perusing her medical folder, the doctor referred to an instance in the past when Ms. Losana Marshall developed a lump. The lump was on her right leg. That lump, he said, was discovered in 2012, and excised in October the same year, long before the motor car accident. The excision was on her right leg.
  7. Ms. Susy Marshall gave evidence of the pain and suffering she has endured, and her inability to indulge in everyday activity as a result of her dislocation. She said that her shoulder took about five months to heal. She still feels pain. Especially when it is cold and when she lifts heavy things.
  8. She said that as a result of the weakened shoulder and the lingering pain, she could not lift heavy things. She could not attend to things she had done in the past like cutting grass, looking after her mother, attending to work at home and playing volleyball. When in pain, she would either take Panadol or bear the pain. She went for traditional massage sessions. These did not help very much.
  9. In cross-examination, it was suggested that Ms. Susy Marshall could not have been in great pain after the accident. Consequently, it was put to her, she was not immediately attended to or given medication at the hospital. The witness maintained that she was in much pain. She conceded that she was not wearing a seat belt. She disagreed that the injury would have been less if she had worn the seat belt.
  10. Dr. Raqisia’s evidence concerning Ms. Susy Marshall was that she sustained a mild head injury, shoulder dislocation and skin abrasions on the left leg. The doctor described the shoulder dislocation as an interior shoulder dislocation in which the bone had come out of the socket and moved towards the front of the body. The dislocated shoulder was relocated immediately in the hospital’s emergency section. The surgeon who admitted the plaintiff gave her morphine and a muscle relaxant. She was also given tetanus and antibiotics.
  11. He described Susy’s injury as mild. He opined that the injury did not restrict her much. The left shoulder dislocation was expected to improve and should have normalised by now. The patient had mild headaches. This would not have restricted her from attending to her daily activities. He said there could be pain for up to six weeks. It was possible for the pain to have been there for five months as claimed by Susy. Recurrence depends on the patient and the type of occupation and activities that a person indulges in. He agreed that carrying weights could precipitate shoulder dislocation. There is also a possibility of dislocation recurring. With age the risk of recurrence is greater. Dr Raqisia said it could be harder to reduce the dislocation of first time patients. First time patients, he said, could end up with surgery as a result of shoulder dislocation. Injuries to the joint and osteoarthritis were possible risks due to shoulder dislocation.
  12. I accept Dr. Raqisia’s evidence that Losana and Susy Marshall did not suffer permanent impairment due to the injuries caused by the accident. Dr. Raqisia said that in assessing life threatening and permanent injury, the hospital is guided by the American Medical Association’s (AMA) Guides to the evaluation of permanent impairment.
  13. Ms. Losana Marshall’s injury was not a serious one. But, she experienced pain for nearly two months. Severe pain was present for about a month after the accident. After the first month the pain was mainly felt on her left thigh. She has continued to feel the pain. Evidence on whether the lump on her left leg could be attributed to the accident is inconclusive. Dr. Raqisio said there was a possibility that the lump was caused by the accident but was unable to say so with certainty. The medical report records a 10 cm x 3 cm bruise on her left thigh. The doctor was unable to say whether in this case the bruising could have resulted in the lump. He would only say that was a possibility. The possibility that this bruise may have led to the lump on her thigh cannot be dismissed. Considering all circumstances, a sum of $10,000.00 would be reasonable damages for the pain, suffering and discomfort Ms. Losana Marshall has undergone since the accident.
  14. Ms. Susy Marshall said her shoulder injury has healed. But she still feels pain. The injury was to her left shoulder. She uses her right hand when attending to housework. She uses both hands when playing volleyball. The doctor said that her shoulder was successfully relocated. The doctor acknowledged that she would have been advised to avoid heavy work during the first two months after shoulder relocation, and to use a sling. Her reviews went well. But, he could not rule out the possibility of a recurrence in dislocation. Such risks increased with ageing. Dislocation could also result in Osteoarthritis. Considering these factors, I think an assessment of $10,000.00 in general damages would be proper.
  15. The second and third plaintiffs are entitled to interest on general damages at the rate of 2% from the date on which the writ of summons was served on the defendants to the date of the trial. Interest on the total sum of special damages is awarded from the date of the accident until the date of the trial at half the rate allowed on general damages. In principle, interest should be calculated from the date on which the loss arises. Since the sums claimed as special damages are not significant, they can be lumped together and a rate applied from the date of the accident. This will save time and effort that might otherwise be needed to make the computation of interest. This was the approach recommended by the English Court of Appeal in Jefford v Gee. This was cited with approval in the Fiji Court of Appeal decision of Attorney General v Charles Valentine.
  16. The plaintiffs alleged loss of earnings and future loss of earnings in their statement of claim. In their testimonies, neither Losana nor Susy Marshall claimed loss of earnings or future loss of earnings. Ms. Losana Marshall said she was not employed before or after the accident. Ms. Susy Marshall confirmed that she did not work prior to the accident. Her brothers and sisters, she said, wanted her to look after her sick mother. No award is made for loss of earnings or future loss of earnings.
  17. The second and the third plaintiffs are entitled to costs summarily assessed at $1,250.00 each, aggregating to a sum of $2,500.00.

ORDER

  1. Judgment is granted in favour of the second and third plaintiffs
  2. The second plaintiff is awarded:
    1. general damages in a sum of $10,000.00
    2. interest of 2% on general damages in a sum of $219.18
  1. The third plaintiff is awarded:
    1. special damages in a sum of $230.50
    2. interest of 1% on special damages in a sum of $6.73
    1. general damages in a sum of $10,000.00
    1. interest of 2% on general damages in a sum of $219.18
  1. The defendants are directed to pay costs in a sum of $1,250.00 each to the second and third plaintiffs.

Delivered at Suva on this 23rd day of March, 2022

M. Javed Mansoor
Judge.

[1] Jefford v Gee [1970] 2 W. L. R 702
[2] British Transport Commission v Gourley [1985] A.C 185
[3] [1994] FJHC 84; 0363J.89S (20 July 1994)
[4] Order 38 Rule 1 of the High Court Rules 1988
[5] Lim Poh Choo v Camden and Islington Area Health Authority [1979] 1 Q.B. 196 at 215

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