Ualala v Kissun [1979] FJSC 69; Action 199 of 1978 (27 July 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
CIVIL JURISDICTION

Action No. 199 of 1978

BETWEEN

MACIU UALALA & OVETI TUNAVUGA
Plaintiffs

AND

JAI KISSUN f/n Batohi
1st Defendant
GYAN CHAND f/n Ram Rattan
2nd Defendant

Mr. B.C. Patel for Mr. M.T. Khan, Counsel for the Plaintiffs
Mr. Koya for Mr. U. Mohammed, Counsel for the 1st Defendant

JUDGMENT

The mother and father of the deceased Naiyawa Naituku and administrators of his estate bring this action for damages in accordance with the Law Reform (Miscellaneous Provisions) (Death and Interest) Ordinance and the Compensation to Relatives Ordinance, against the first and second defendants, being respectively the owner and driver of a lorry Y 931 which was involved in an accident in which the deceased lost his life.

Certain facts were admitted and evidence was given for and on behalf of the plaintiffs. No evidence was given by or for the defendants, so that certain facts are unchallenged.

On the day in question the deceased was part of a sugar cane cutting gang and the second defendant was the driver of the lorry on which the cane was loaded. When the lorry was loaded the driver told the gang to get on board the lorry. There was some slight inconsistency in that one witness said the driver said "All aboard the lorry" and another witness said that the driver specifically told someone to get on top of the lorry on top of the sugar cane.

This is not an important inconsistency since it was common ground that it was the practice for someone to ride on top of the cane to check whether the load slipped, and it was the practice for some members of the cutting gang to go with the lorry across the fields, on the feeder road, leading the King's Road so as to give a final tightening of the wire holding the cane in place before the lorry took the main road to the sugar mill. It was said that three, four or five members of the gang were required for this purpose and there was room for only one inside the driver's cab. On this occasion one gang member was on each of the running boards and two had to get on top of the lorry perched on top of the sugar cane. There is no question that the driver was aware of what was happening.

There is not the slightest doubt that this is a dangerous practice. The way across the fields was rough, the feeder road was rough, in this case there was also steep slope on the feeder road and the load took some time to settle down (hence the necessity to tighten it again before the lorry got to the main road.)

On the feeder road, going downhill the lorry got out of control and turned over and the deceased who was on top of the sugar cane was killed, presumably almost instantly. No explanation for the accident was given, but it is reasonable conclusion that if the accident was not caused by the driver's negligent or reckless driving, then it was caused because he was driving the lorry when it was in a dangerous condition considering the stated of the road and the load he was carrying.

The pleading are at fault in that the statement of claim says that the lorry struck the deceased, and also refers to elements of negligence that are not appropriate to the circumstances of this case - except to the extent that the pleadings claim that "the driver drove without care and attention which a reasonable and prudent driver ought to have done, and failed to have any regard to the presence of the deceased." However this aspect was never challenged by the defence, and there was no doubt that the deceased was killed as the result of an accident to the lorry and the negligent, or careless driving of the driver. In fact the driver was convicted of causing death by dangerous driving, this was an admitted fact even though it was not specifically pleaded. Since it was an admitted fact it was rather surprising that the defendants later argued that it should have been specifically pleaded.

However I do not consider the point to be of great importance, and as I have said earlier either negligent or dangerous driving caused the accident, or driving it in a dangerously loaded condition, and the driver must accept responsibility for negligently allowing the deceased to ride on the lorry in a dangerous position, or allowing the practice of riding on top of the cane, or even specifically telling someone to ride on top of the cane. This was clearly not a case of the deceased climbing onto the back of the lorry without any permission or authority as pleaded in the defence; he was there with the driver's full permission and authority, and the defendants must be held liable in damages to the plaintiffs.

There are still the questions of contributory negligence and the quantum of damages to consider.

To what extent if any did the deceased contribute to his own death, or was the author of his own wrong? Did he fail to use reasonable care for his own safety?

There is no doubt that the practice of riding on top of the sugar can, particularly on rough roads is a dangerous practice, and the question is whether the risk was one which a reasonably prudent man in the deceased's position would take or ought to take. In the circumstances of this case there is little doubt that the deceased ought not to have taken the risk. It cannot be said that riding on top of the lorry was a necessary incidence of his work, although there might have been some pressure on him to do what others had done before him. He could have refused to ride in what was undoubtedly a dangerous position, he could have walked behind the lorry, or taken a short cut to the main road to where the load had to be finally tightened. But this would have taken a little more time, he would have held up the lorry a little longer, and as one of the witnesses said, if he held up the lorry, the lorry might keep their gang waiting another time (and on this sort of work that could have pecuniary repercussions). And I have no doubt that it was more convenient to ride on the lorry than walk, and it being the end of the working week they were all keen to finish the job - this being the last load.

In this case, taking into account all the circumstances I must conclude that the deceased was guilty of contributory negligence but would assess his own liability at 40% to the defendants' 60%.

With regard to the quantum of damages, special damages of $200 for funeral expenses were claimed. In giving evidence the plaintiffs appeared to be claiming more than this, but most of the extra expense was for the entertainment of feeding of guests and I would therefore limit damages under this head to the $200 claimed in the pleadings.

With regard to loss of expectation of life the deceased was 21 years age when he died, and in accordance with the decisions in other similar cases recently before the court I would assess damages under this head at $1500.

With regard to the assessment of damages to be paid to the parents of the deceased as compensation, the deceased was contributing to the upkeep of the parents at the rate of about $10 a week from cutting cane and ploughing on a hire basis. He also helped in the garden and in marketing produce from the garden. There were no reliable figures to work on and the mother of the deceased was quite clearly exaggerating the amount that the deceased brought home from this source. I don't think that I could accept a figure over $15 a week as a contribution by the deceased. It is impossible to say exactly how long the deceased would have continued to support his parents, but they are both aging and the father is now considerably handicapped by a severe stroke so that he has to be carried everywhere, his mind is wandering and he is clearly not able to look after himself. It must be assumed that the parents could expect support from the deceased for some years to come and I would consider a multiplier of five to be appropriate. Damages under this head I would therefore assess as $780 × 5 i.e. $3900.

Total damages would therefore amount to
Special damages	$200
Loss of expectation of life	$1500
Compensation to parents	$3900
	$5600

Since I have assessed the deceased's own contributory negligence at 40% the damages I therefore award against the defendants jointly and severally ⅔ × $5600 = $3733 of which ⅔ × $1000 should go separately to the mother of the deceased and ⅔ × $2900 to the father of the deceased, the balance to go to them jointly as administrators of the deceased's estate.

(Sgd.) G.O.L. Dyke
JUDGE

LAUTOKA,
27th July, 1979.