Taiyab v Tabua [2011] FJMC 152; Civil Case 01.2011 (1 December 2011)

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Mr. Sheik Shah for the Plaintiff
The Defendant was absent and unrepresented at the hearing

1] By writ of summons the plaintiff commenced this action against the defendants. The plaintiff seeks following reliefs by this claim.

2] On 07th February 2011, the defendant was present and she disputed the claim. Then, Court gave date to file Statement of Defence. The Defendant filed her Statement of Defence and claimed that this matter has before Police Tribunal and Tribunal has yet to give a ruling. She said that the Plaintiff has no locus Standi institute this action. But, this was not proved in the evidence and later the plaintiff said he did not know the outcome of Police Tribunal. Then the Plaintiff has filed amended Writ of Summons. They added Isikeli Tabua as 1st Defendant and Sera Tabua as 2nd Defendant. The original first defendant became second defendant. They were served on 07-04-2011 with amended writ of summons. First Defendant did not present and his wife was present. She denied the claim on behalf the first defendant therefore date was given to file Statement of Defence. On 17th August 2011, the First Defendant's wife was again present and told the court that they need a date to file amended State of Defence. This matter came for Amended Defence on 26-09-2011, but the Defendant failed to appear and failed to file the amended Defence. Then, matter was fixed for formal Proof. Formal Proof Evidence was led on 11th October 2011. So far that the defendant have not made any enquiry what happened to this case.

3] On formal proof, the Plaintiff said that he has served Fiji Police Force for 31 years. He was the traffic Officer of Nasinu police station. He was staying at Police quarters-Valelevu and his wages were $350 fortnight at the time of incident. The Second Defendant is a Police Woman and she worked with him at the time of the incident. On 20-04-2008, at 12 noon the plaintiff saw that second defendant was coming after church service. Then, he went to the Police station and brought a summons. At that time she was sitting in the EG 436, a private car. It belongs to the first defendant. Then He called her name "Sera". She then suddenly reversed the vehicle 90 degrees and the vehicle ran over on toes and left foot of the plaintiff. He was shocked and sustained injuries. He was rushed to the hospital and treatments were begun. The Medical Report was marked as Ex-1. The Plaintiff said by this accident he got shock, pain and suffering. He was on plaster for two months. The plaintiff said that he was not able to perform sexual activities due to this accident. At this time court noted swollen left foot. The plaintiff said still he is suffering and he claimed General Damages and special damages as set out in his writ of summons. Answering to the court, the plaintiff said they did not have enmity before this incident with the second defendant. She was a witness to a fatal accident case and the plaintiff wanted to serve summons to her. While he was calling her to serve summons, this happened.

4] I now evaluate the evidence before me. The Plaintiff in his evidence adduced that he was unexpectedly met with an accident and it was negligently done by the second defendant. The first defendant was the owner of said vehicle. . By this accident the plaintiff suffered shock, pain and suffering. He further said that he suffered mental trauma. He claims General, Special damages. According to the evidence, this accident occurred because of sudden reversing of the second defendant. She was well below the standard expected of a prudent driver exercising reasonable care. I hold that the evidence is sufficient to establish negligence on the part of second Defendant and vicarious negligence on the part of first Defendant. Thereby the plaintiff has a case against the defendants. I now turn to quantum of damages.

5] General Damages: The medical Report proves that by this accident he suffered fracture of left foot. The paragraph 19 of the Medical Report provides the consequence of this accident. It categorically says that a partial disability is inevitable. The plaintiff is crippling after this accident. The remnants of injuries are still persisting and it has been noted by this court. The plaintiff further said that he cannot perform sexual activities as before. But he has not elaborated how it affected to his sexual and intimate life. Mode or method of having sex and pleasure is unique to each other and court cannot draw attention how his sexual life was disturbed by this action as it did not harm to his private parts or nerves system. Under the general damages, however, the plaintiff is entitled to damages for pain and suffering. In Osea Vakalalabure vs Waisea Nakorovou and the Attorney General (Civil Appeal No HBA0002 of 1995) the court awarded $25,000 for pain and suffering which the right elbow of the plaintiff was severely damaged. This accident disturbed the movement of the plaintiff as a police officer. He has to carry this permanent injury for remaining life. I therefore assess the general damages for pain and suffering in the evidence of this case at $30,000 (Thirty thousand dollars).

6] Special Damages: In this case, the Plaintiff has not produced any bill or cost involved. But no matter that the plaintiff has visited and spent money several times to cure his aliment caused by this accident. The receipts of hospital bills are not sine qua non to award special damages. If the court is satisfied that the plaintiff has paid or spent money, then special damages could be granted. In Narendra Kumar v Sairusi Drawe 36 FLR at page 95, his Lordship Justice Palmer enunciated "Notwithstanding that not a single receipt has been produced in evidence I am satisfied from the Plaintiff's evidence that he paid those amounts". The plaintiff in his evidence drew averments of the statement of claim. THE PLAINTIFF THEREFORE CLAIMS FROM THE DEFENDANT:

Medical and Transport expenses	$290.00
Medical Report from CWM Hospital	5.00
Police Report	22.50
Loss of extra duty allowance	500.00
Cost of massage @ $20 per day for 30 days	600.00
Transport cost for massager @ $15 per day for 30 days	450.00
Crutch	45.00
Labour for cleaning of compound @ $50 per month
May 2010 – December 2010	400.00
Grocery boy @ $20 per month	160.00
	_________
TOTAL	$2472.50

7] This court can take notice as a matter of facts and personal knowledge as a prudent man these expenditures are reasonable in result of this type of accident. Therefore, though the plaintiff has not tendered single receipt, in line with the above court of appeal decision, I award $2472.50 as claimed.

8] In the above premises, I am satisfied that the Plaintiff has proved his case balance of probabilities. I award following damages;

Magistrates Court of Fiji

Taiyab v Tabua [2011] FJMC 152; Civil Case 01.2011 (1 December 2011)