Tabaiwalu v Sila [2011] FJMC 165; Civil Action 107.2009 (25 November 2011)

IN THE RESIDENT MAGISTRATE’S COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CIVIL JURISDICTION

CIVIL ACTION NO: 107/09

BETWEEN

ASESELA TABAIWALU
PLAINTIFF

AND

MISIADA SILA
DEFENDANT

For Plaintiff: Mr. Diven Prasad
For Defendant: Defendant is absent and unrepresented

JUDGMENT

The plaintiff, by his writ of summons dated 04th of September 2009, instituted action against the defendant, claiming special and general damages.

The action by the plaintiff was sequel to an accident on 13th of July 2007, involving injuries received in the course of his employment.

The plaintiff is a plumber by the occupation and resides in “Ratu Dovi” road, Nepani, Nasinu.

The defendant is a businessman trading as “Sila” enterprises, which is a limited liability company having its registered office at Lot 12, Hedstrom Place, Lautoka and is engaged in the business of civil engineering, contracting and consultancy.

The writ of summons was duly served on the defendant. Since the defendant is absent and unrepresented the case proceeded on formal proof.

The plaintiff adduced oral evidence at the trial and said that he was working as a plumber for the defendant at its jobsite at Suva point, Vatuwaqa, Suva, Fiji. That on or about 13th of July 2007, the plaintiff was working on fixing the pipe in the trench/ drain at Suva point when the rocks and soil that had been earlier dug out by the digger fell on top of the plaintiff and the supervisor who was overseeing the work also fell on top of the plaintiff and as a result plaintiff got buried in the soil and sustained injuries. As a consequence of the said accident, the plaintiff had sustained back pain, neck pain and cuts and lacerations on both knees.

The plaintiff had requested the defendant to take him to the hospital but the defendant had refused. The plaintiff had made his own arrangement to go to Colonial War Memorial (CWM) hospital for medical treatment.

The Plaintiff has sustained permanent disability and it is particularized in paragraph 09 of the Statement of Claim as follows;

i. Pain and suffering and discomfort in the knees and back.

ii. Loss of power and strength in both legs.

iii. Permanent impairment assessed at 3 percent.

The Plaintiff sought to particularize the alleged negligence in paragraph six (06) of his statement of Claim as follows;

i. Failing to take any adequate precautions for the safety of the Plaintiff.

ii. Failing to ensure that the digger operator put the soil/rocks out of harms way.

iii. Instructing the Plaintiff to fix the pipe in the trench when it was likely that the soil/ rocks could fall in the trench/ drain.

iv. Exposing the Plaintiff to foreseeable risk of injury.

v. Failing to provide or maintain safe system of work for the Plaintiff.

“Alipate Naibsasa” gave evidence for the Plaintiff and corroborated the version of the Plaintiff.

The Plaintiff testified as to the nature of the injuries he sustained due to the accident. He was treated at “CWM” hospital, Suva. He was referred to the Orthopaedic clinic on 05th of November 2007 for a review. He was examined by Dr. E. D Taloga, Consultant Orthopadic Surgeon, and CWM Hospital. The medical report is submitted to Court as exhibit-01. According to exhibit 01, the Plaintiff has a torn PCL of the left knee. The permanent incapacity from his injury is 3 ½ of the whole person.

In “Clerk and Lindsell on Torts; 19th Edition, Sweet and Maxwell (2006) at page 383 states;

“The duty in Negligence, therefore, is not simply a duty not to act carelessly. It is a duty not to inflict damage carelessly, since damage is the gist of the action, what is meant by “duty of care situation” is that it has to be shown that the Courts recognize as actionable the careless infliction of the kind of damage of which the claimant complains, on the type of person to which he belongs, and by the type of person to which the defendant belongs........

The relationship between the Plaintiff and the defendant is of paramount importance to understand the extension of the duty of care that the Law imposes on the defendant.

The plaintiff pleaded in his statement of claim that he was an employee of the defendant. Further the document marked as exhibit 02 clearly established the “Master- Servant” relationship.

In the circumstance, I hold that the Plaintiff has proved that he was an employee/ servant of the defendant.

The burden entirely lay on the plaintiff to establish that the defendant had been negligent or careless in his conduct in bringing about the situation of causing injuries, loss and damage to the plaintiff.

1. Bonnington Castings Limited –vs- Wardlaw [1956] UKHL 1; (1956) A. C 613.
   
2. Jones -vs- Great Wetern Railway H.L (1930) 47 TLR 39.
   

If the conduct of the defendant fell short below the standard required by the law, he is considered as having acted in breach of his duty of care on account of negligence.

1. Blyth -vs- Birmingham Waterworth (1856) AGR 478.
2. Glasglow Corporation –vs- Muir [1943] UKHL 2; (1943) AC 448.
3. London Graving Dock –vs- Horton (1951) AC 737.
   

In the light of the undisputed evidence, I hold that the plaintiff has established that the defendant had been negligent or careless in his conduct in bringing about the situation of causing injuries, loss and damage to the plaintiff.

The Plaintiff Claims the following:

General Damages

Under this head, the Plaintiff Claims damages for pain and suffering, loss of amenities and loss of earnings.

According to the medical report of Dr. E. D Taloga, consultant Orthopedic Surgeon, CWM Hospital, the examination did not show any abnormality of gait. The left knee showed moderate effusion with a posterior sag. The plaintiff has a torn PCL of the left knee. The permanent incapacity from this injury is 3 ½ of the whole person.

In determining the damages, the plaintiff is entitled to, for pain and suffering, it is necessary to consider general level of comparable awards.

In “Alak Ram –vs- Ernest Patterson, HCCA No.210 of 1997 S, the Plaintiff had suffered compound fracture of left tibia and fibula and fractures of left radius, right femur and ankle. He was awarded $45,000.00 general damages.

In Rajesh Prakash v Kamlesh Ramesh Parmar and D.Gokal & Co. Ltd, HCCA No. 350 of 1996, a 32 year old male technician suffered serious fractures of ankle in a motor vehicle accident. His left leg was shortened by 2cm resulting in him walking with a limp. There was limitation of all facts of movements of the ankle joint. His permanent incapacity was assessed as 20%, and the general damages awarded was $45,000.00

In Chand v Padarath Bros. & Sons Ltd.,[2005]FJHC 542,HBC 0134 of 1995,a 33 years old taxi driver and farmer had suffered comminuted fracture of distal right femur extending of knee joint, comminuted fracture proximal tibia and fibula (right) and open fracture of shaft of mid tibia (right) as a result of a motor vehicle accident. His right lower limb was shortened by 6cm and the range of motion of the right knee was limited. His incapacity was assessed as 25% disability for his injuries and was awarded $65,000.00 as general damages.

It is important at this stage to note Nand v Vatuwaqa [1997] FJHC 207 and Tevita Benico v Ambika Nand, High Court Civil Action No. 163 of 1990L .In Nand v Vatuwaqa, a truck driver had suffered 27-28.5% total permanent incapacity and the court had awarded $ 15,000 for pain and suffering and loss of amenities as a result of fracture of the right hip, fracture of the lower leg in four places and fracture of the neck. In Tevita Benico v Ambika Nand, the plaintiff had suffered a left mandibular fracture, dislocated hip joint, a ruptured knee, a fractured toe, a stiff and painful hip, an unstable knee and walked with a limp and the court had awarded $12,500.00 for pain and suffering.

These awards can be used as a guide, but the facts of each case have to be considered. The plaintiff has undergone pain and suffering as a consequence of injuries. The plaintiff did not establish how long he was hospitalized due to the accident. After he was discharged from the hospital, he had gone five times for his checkups. He was re-admitted once. He was a farmer. He used to carry one sack of cassava. Now he cannot carry. With respect to loss of amenities, damages must also compensate the plaintiff for no longer being able to do the things he was accustomed to do.

In the light of the principles applicable to assessing damages, I assess the general damages for pain and suffering in the circumstances of this case at $8,000.00.

Future Earnings
The plaintiff is a plumber by the occupation. His gross weekly income is $97.00. The plaintiff has failed to establish that he lost his earning capacity, after the accident. There is no Iota of evidence that he is unable to return to his former work at the same rate of pay or take any other work with similar or better pay.

Special Damages

The plaintiff states that he paid $49.00 for medicine and $20.00 per trip for five medical checkups. No receipts have been produced in support.

The absence of receipts has been addressed by the Courts in Fiji. In Mahendra Naidu and Ravindra Patel C.A. No. 105/197999 (West Div) it was stated:

"No receipt or evidence has been tendered to show that hospital fees amounted to $50.00 and I do not accept that figure. I am unable to guess what it would be and I do not allow it. As Lord Goddard and the F.C.A. have pointed out claimants are expected to call evidence supporting their claims".

In Narendra Kumar (f/n) Shiu Kumar and Sairusi Drawe 36 FLR 90 at page 95, Palmer J stated:

"Notwithstanding that not a single receipt has been produced in evidence, I am satisfied from the Plaintiff's evidence that he paid those amounts."

I disallow the expenses claimed for medication purchased, since receipts have not been produced in support.

The plaintiff claims travel expenses in respect of five visits made to the hospital for review. Despite the absence of any documentary evidence of expenditure to support the claim and given that receipts are not issued by taxi drivers, I hold the plaintiff is entitled to expenses reasonably incurred in respect of five (05) visits made to the hospital totaling $100.00 ($20 x 5).

In the exercise of my discretion I award interest at 6 ½ per annum in general damages of $8000.00 from the date of the accident to 25th of November 2011 and 3 ½ per annum on special damages on the sum of $100.00 from the date of accident to 25th of November 2011.

Orders

The sum awarded to the plaintiff as damages is $10,044.00 made up as follows;

General damages	$8000.00
Interest on General damages	$1920.00
Special damages	$ 100.00
Interest on special damages	$ 24.00
	$10,044.00

Conclusion

There will therefore be judgment for the plaintiff against the defendant in the sum of $10,044.00 together with a sum of $1500.00 payable by the defendant to the plaintiff as cost summarily assessed.

30 days to appeal.

Dated at Lautoka on the 25th day of November2011

Jude Nanayakkara
RESIDENT MAGISTRATE

MAGISTRATE COURT – 03
LAUTOKA.