Baro v Nasese Bus Co Ltd [2022] FJHC 161; HBC290.2015 (14 April 2022)

IN THE HIGH OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. HBC 290 of 2015

BETWEEN

RATU SEMESI BARO of Lot 7 Chanik Place, Nasinu, Unemployed.

PLAINTIFF

AND

NASESE BUS COMPANY LTD a duly incorporated company having its

registered office at Lot 8 Carpenters Street, Raiwai, Suva.

FIRST DEFEDANT

AND

SHALENDRA SINGH of Sawani, Nausori, Bus Driver.

SECOND DEFENDANT

Counsel : Ms. Raikaci N. for the Plaintiff

Ms. Qioniwasa B. for the Defendants

Dates of Hearing : 07^th March 2022 & 08^th March 2022

Date of Judgment : 14^th April 2022

JUDGMENT

[1] The plaintiff filed the writ of summons seeking the following reliefs against the 1^st and 2^nd defendants for the injuries caused to him due to the negligent driving of the 2^nd defendant who was at the material time was an employee of the 1^st defendant:

1. General Damages;
2. Special Damages in the sum of $47,000.00;

100. Interest on General Damages at the rate of 6% per annum;

4. Interest on Special Damages at the rate of 6% per annum;
5. Costs of these proceedings including costs on a solicitor client basis; and
6. Any other relief deemed just by this Honourable Court.

[2] On the day of the accident the plaintiff was driving the vehicle bearing the registration No. FC885 along Daniva Road, Velelevu towards Yasiyasi Road. At the same time the second defendant was driving the bus bearing registration No. FY007 along Kings Road heading towards Suva. While the plaintiff making his entry to the Yasiyasi Road, the bus driven by the 2^nd defendant collided with the vehicle driven by the plaintiff.

[3] Particulars of the 2^nd defendant’s negligence as averred in the statement of claim are as follows:

(a) Driving the bus around the roundabout without seeing whether he could do so;
(b) Failing to stop the bus at the roundabout to see if it was clear for him to drive along roundabout;
(c) Driving the bus at a speed where he was unable to control the vehicle;
(d) Driving the bus without care and attention as a prudent driver ought to;
(e) Failing to stop and give way to right when he was mandatorily required to do so;
(f) Failing to exercise control over the bus as any prudent driver ought to having regard to the circumstances; and
(g) The plaintiff will rely on the maxim res ipsa loquitur as evidence of the 2^nd defendant’s negligence.

[4] The defendant’s position is that the accident occurred due to the negligence of the plaintiff and as averred in the statement of defence, the particulars of negligence of the plaintiff are as follows:

(i) Failing to stop at the junction of Daniva Road to give way to traffic already traversing the Valelevu roundabout.
(ii) Failing to keep any or any proper lookout while proceeding towards the said junction.
(iii) Travelling at a speed that was dangerous in all the circumstances of the situation at hand on the night in question.
(iv) Failing to steer or manage vehicle registration No. FC 885 in such a way as to avoid colliding with bus registration No. FY 007.
(v) The defendant will rely on the plaintiff’s pleadings and evidence of witnesses to ascertain the true situation regarding the circumstance of the accident and will also rely in the doctrine of res ipsa loquitur.

[5] At the pretrial conference parties admitted the following facts:

(1) The plaintiff was born on 6^th October, 1990.
(2) The plaintiff’s parents were at all material times the registered owner of the motor vehicle registration number FC 885, [the “twin cab”].
(3) The plaintiff all material times driving the twin cab with authority of his parent and contractor.
(4) The 1^st defendant is a duly incorporated company having its registered address at Lot 8, Carpenters Street, Raiwai, Suva.
(5) The 1^st defendant carries on business in the bus industry providing bus transport on its bus routes.
(6) The 2^nd defendant at al material times employed by the 1^st defendant as the bus driver.
(7) The 1^st defendant is the registered owner of the bus registration number FY 007 [“the bus”].
(8) The 2^nd defendant at all material times authorised to drive the bus and was driving the bus with the authority and permission of the 1^st defendant.
(9) On Wednesday 25^th August 2012 around midnight, the plaintiff was driving the twin cab along Daniva Road, Valelevu heading towards Yasiyasi Road.
(10) At about the same time 2^nd defendant was driving the bus from Nausori side heading towards Suva along Kings Road, Valelevu.
(11) As the result of the impact of the collision the twin cab tumbled, hit a pedestrian and came to a stop at the fence of a nearby residence, damaging the fence and the Fiji Electricity pole.
(12) The plaintiff obtained his driving licence in 2007.
(13) The plaintiff is entitled to claim 3% interest on special damages.

[6] The plaintiff testified that on 25^th August 2012 around 12.00 midnight as he was approaching the Valelevu roundabout right side of the road was clear and when he was about to enter Yasiyasi Road a vehicle came and collided with his vehicle on the left side towards the back of his vehicle.

[7] The 2^nd defendant testified on behalf of the defendants and stated that the accident happened at midnight near Valelevu roundabout and at the time of the accident he was driving the bus at the speed of 50 to 60 Kmph. However, in cross-examination when the learned counsel for the plaintiff showed him the Record of Interview he admitted that his speed was between 60 to 70 Kmph. He testified further that he did not see the vehicle No. FC 885 and he only saw another vehicle with lights on from far away. The 2^nd defendant also said that the vehicle driven by the plaintiff came without lights and this he has also told the police however, at the trial the plaintiff was not questioned on this and it was not even suggested to the plaintiff that he drove the vehicle without lights. The 2^nd defendant said in cross-examination that there were street lights in the area where the accident occurred. If he was careful enough to slow down the bus when he approached the roundabout he could have easily seen the vehicle on his right hand side.

[8] The 2^nd defendant in cross-examination said he took the outer lane and the van came from Daniva Road and he hit the van on the left side. He testified further that at the time of the accident the van had already passed the roundabout. From the 2^nd defendant’s own evidence it is absolutely clear that if he reduced the speed when he approached the roundabout this accident could have been avoided.

[9] After the accident the twin cab driven by the plaintiff toppled and landed in the garden of a house nearby about 13.3 meters away from the point of impact. This fact supports the contention that the 2^nd defendant had been driving at a very high speed without any regard for the safety of the others who use the road.

[10] From the evidence adduced at the trial by both parties the only reasonable conclusion the court can arrive at is that the accident was caused due to the negligent driving of the 2^nd defendant.

[11] The plaintiff explained the injuries sustained by him due to the accident. His evidence is that there were fracture in the right forearm and he was in severe pain. Plaintiff also said after the accident he lost weight (P7) and after the surgery his right hand is numbed.

[12] In the Police Medical Examination Form (P6) dated 15^th November 2012 the following conclusions have been arrived at by the doctors:

Open Fracture right forearm now has healed but needs radial nerve exploration to ascertain cause of the nerve palsy.

Dr. Livai Baleivolivoli in his report dated 21^st January 2013 (P11) has made the following observations:

He was taken for wound wash out on admission and was then taken again to Rush pinning and plating of the radius and ulnar on the 31^st of august.

He was then discharged on the 3^rd of September.

Subsequent visits to the clinic on 30/10/2012, it was noted that he had reduced sensation to the radial nerve distribution and was also unable to extend his right wrist and the metacarpophalangeal joint and was also not able to abduct his right thumb.

An assessment was made that he had injured the posterior interosseous nerve to his right arm.

In the medical report dated 20^th September 2012 (P16) Dr. Alvin De Asa has made the following observations:

He suffered from an open fracture (Gustillo-Anderson type IIIB) of the proximal third of the right radius and ulna (forearm) with extensive soft tissue injuries. Surgery was done on the forearm, initially for wound exploration and debridement, then finally pins, plates and screws were inserted to fix the fractures.

He is currently being followed up at the fracture clinic on a regular basis and still complains of on and off pain at the wrist and shoulder region associated with tingling sensation and numbness at the right shoulder and first two fingers of the right hand. His range of motion at the right wrist and had is still decreasing.

Patient is being recommended range of motion exercises on his right upper extremity and expected time for healing and recovery would be around 6-12 months.

In Dr. Alvin De Asa’s report dated 13^th February 2019 (P17) in paragraph three he has expressed the following opinion:

In my opinion, due to the muscle weakness, chronic infection and nerve injury to the right upper extremity, the patient has lost more of his function on that extremity which will affect his activities of daily living.

[13] Dr. De Asa testified that the plaintiff underwent a surgery at C.W.M. Hospital for wound cleaning, exploration of the wound and for fixing of the fracture. He said further it was an open fracture in the forearm and nerve was also injured. Dr. De Asa said the plaintiff’s bone injury had got infected and if it was not controlled it could lead to amputation of the hand. He also said that right hand is the plaintiff’s dominant hand and he can do only light work.

[14] The plaintiff said pus is coming out of the injury and the doctors advised him to undergo a neurosurgery but he said he does not have money to go abroad for a surgery and it is not available in Fiji. Dr. De Asa also confirmed it.

[15] There is no formula to follow in awarding damages for pain and suffering. There is also no relationship between pain and money. The court has to ascertain the quantum of damages to be awarded arbitrarily but it has to be reasonable.

[16] In this case the evidence clearly show that the plaintiff is still suffering from the injuries sustained due to negligent driving of the 2^nd defendant even after about ten years of the accident. After taking all these factors into consideration the court is of the view that an award of $180,000.00 as damages for pain and suffering would be reasonable.

[17] The plaintiff in his evidence claims $ 200.00 for transportation to go to the hospital for review, $600.00 for medication and $46,800.00 for the loss of contract.

[18] The plaintiff said he does not have receipts for the payment of taxi fare. He did not produce receipts for medication. However, these claims were not challenged in cross examination by the defendant. The defendant counsel only asked whether the plaintiff has receipts. This is not sufficient to decline the claim for taxi fare and medication.

[19] In support of his claim for $46,800.00 loss of contract the plaintiff tendered a letter signed by the plaintiff’s father Aselemo Baro (P3) where it is stated that the plaintiff received $300.00 per week for driving. The plaintiff claims $300.00 per week from 25^th August 2012 to 24^th August 2015 (date of the institution of these proceeding). The plaintiff tendered in evidence the letter dated 15^th October 2009 sent by the Major Tender Board to AB Communication and the agreement entered into by AB Communication to provide transport of plants, equipment and vehicles(P2). Plaintiff’s evidence is that he worked for AB Communication as a driver. This contract has expired 5^th April 2012 and by letter dated 24^th February 2012 (P4) the contract had been extended until 31^st December 2012. There is no evidence of further extension of the contract. The plaintiff is therefore, not entitled to claim for the loss of contract after 31^st December 2012. It is also important to note that there is no evidence of a contract entered into between the plaintiff and AB Communications nor is there any evidence of the payment of allowances as claimed by the plaintiff. The plaintiff said in evidence he does not have any receipts for the payment of allowances by his father. For these reasons his claim for $46,800.00 fails.

[20] The plaintiff tendered receipts for hotel charges when he went to Lautoka for treatment (P12), payments made to obtain a medical report (P8 & P10) and for the payment of physiotherapy (P9). However, these claims are not pleaded in the statement of claim. The court does not have power to grant any relief that has not been pleaded in the pleadings.

ORDERS

(1) The defendants are ordered to pay the plaintiff $180,800.00 as damages within 30 days from the date of this judgment.
(2) The plaintiff is also entitled to interest on the said sum under section 4 of the Law Reforms (Miscellaneous Provisions)(Death and Interest) Act 1935.
(3) The defendants are also ordered to pay the plaintiff $3000.00 (summarily assessed) as costs of the action.

Lyone Seneviratne

JUDGE

14^th April 2022