Udhan v Singh [1979] FJSC 84; Action 250 of 1977 (25 April 1979)

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

Action No. 250 of 1977

BETWEEN

UDHAN alias UDAY SINGH
Plaintiff

AND

1. GYAN SINGH s/o Suruj Pal Singh
2. PREM PAUL SINGH s/o Gyan Singh
3. SAHODAR SINGH s/o Dharam
Defendants

Mr. G.P. Shankar, Counsel for the Plaintiff
Mr. S. Sahu Khan, Counsel for the 1st & 2nd Defendants
Mr. S. Matawalu, Counsel for the 3rd & 4th Defendants.

JUDGMENT

On 31/3/76 the plaintiff, a road-sweeper, in the employ of Lautoka City Council was knocked down and injured in the course of his work.

Two motor vehicles a 'bus and a van were involved in a collision which occurred at the intersection of Nava Street and Ravouvou Street where the plaintiff was sweeping the road.

It is not disputed that the 'bus was travelling along Ravouvou Street, which is the major road, and that the van was travelling at right angles to Ravouvou Street along Nava Street. Both vehicles were crossing over the intersection when they collided and the bus pushed the van ahead of it causing it to overturn and knock down the plaintiff.

Defendants 1 & 3 are the owners of the van and the bus respectively and defendants 2 & 4 are the drivers both of whom are sued for negligence.

Some time after the accident, defendant 2, the van driver, pleaded guilty in the magistrate's court to careless driving and was fined $30.00. His plea of guilty was tendered on the advice of his counsel.

In giving evidence for the plaintiff the defendant 2 alleged that the two buses were parked in Ravouvou Street on his left hand side at the junction of the two roads. When he reached the junction they obstructed his view to the left along Ravouvou Street from which direction the bus was approaching. Although there is a stop sign in Nava Street at the intersection the defendant 2 alleged that he had to proceed into the inter-section in order to get a view of the road on his left. In cross-examination defendant 2 denied driving suddenly into the inter-section and said that he proceeded cautiously.

P.W.5, FARJAN ALI, another road-sweeper, appeared on the scene just after the accident. He stated that the bus was then on its correct side of Ravouvou Street with its front near side wheels about 2' from the kerb and that its front end had travelled substantially beyond the centre of the intersection. His evidence supports the testimony of the bus driver who claimed that he was at all times on his correct side of Ravouvou Street.

Endeavours were made by counsel for the 1st and 2nd defendants during cross-examination of the bus driver, defendant 3, to show that he was negligent. He insisted that his speed was 15-20 m.p.h. at the time and that the van emerged suddenly from Nava Street on his right driving into the path of the bus and immediately in front of it. Consequently he could not possibly avoid hitting it.

I believe P.W.5 and the bus driver defendant 3. I find that at the time of the collision the defendant 3 was on his correct side of the road and proceeding across the intersection at 15-20 m.p.h. when the van suddenly appeared immediately in front of him. The bus driver had no chance to avoid the collision and he was in no way negligent.

The evidence given by defendant 2 prompts me to conclude that his plea of guilty to careless driving was properly tendered in the magistrate's court. I find that he was solely responsible for the accident and the consequent injuries to the plaintiff.

In the statement of claim it is alleged that the second defendant was driving the first defendant's van as the servant or agent of the first defendant. The evidence of defendants 1 & 2 is that the defendant 2 had borrowed the van from defendant 1 to travel from Sigatoka to Lautoka in order to purchase spares for defendant 2's own car. Defendant 1 agreed that he loaned his car to defendant 2 for that journey. I am satisfied on that evidence, and there is no other evidence on that aspect, that defendant 1 in no way liable as master or principal for the negligence of defendant 2 who was neither the servant nor the agent of defendant 1.

Of the four defendants only defendant 2 is in my view liable to the plaintiff.

As a result of the accident the plaintiff received a compound fractured of the lower parts of the right tibia and fibula and "degloving" of the dorsal area of the right foot i.e. extensive loss of skin.

He was admitted to hospital on 31/3/76 and received skin grafts and operations for fractures, and he was detained in hospital until 24/5/76. At that stage he was using crutches. P.W.1, Dr. MacNamara, stated that the plaintiff was able to walk on 16/3/77 and the medical report set out in the statement of claim and which is in no challenge shows that on 12.4.77 the plaintiff was fit to take up his duties once again.

The medical report states that the plaintiff had not resumed work and suggested that the plaintiff should attend for assessment of his permanent disability. Dr. MacNamara put this at 10%.

On 13/7/77 the plaintiff was again admitted to hospital when it was ascertained that he was suffering from a myocardial infarction which could have given rise to gangrene in the left foot which was amputated on 15/9/77. Dr. MacNamara stated quite categorically that the infarction and amputation were in no way a result of the accident and injuries to the right leg.

The plaintiff states that up to the date of his re-admission to hospital in July 1977 he was still having to use crutches in order to walk. At the same time he relies upon the medical report of Dr. Proud, dated 19/5/77, which states that the plaintiff, after discharge attended the follow-up fracture clinic on eleven occasions and was deemed fit for work on 12/4/77.

The special damages include $240 for travelling expenses by taxi to and from the hospital which has been challenged on the ground that no details were given. The plaintiff made 11 trips at $3.00 per trip and Mr. G.P. Shankar for the plaintiff submitted that an award under this head be reduced to 11 x $3.00 = $33.00. I allow $33.00 accordingly.

There is a claim for special nursing but this was abandoned by Mr. G.P Shankar in his submissions.

The third item of special damage is for less of wages during the period of incapacity which in the prayer is alleged to be from 31.3.76 to 21.11.77. No daily rate of pay or weekly rate is indicated. The amount claimed as loss of wages is $3,800.

The City Clerk, P.W.3, Vishnu Chand, testified that the plaintiff's pay during 1976/77 varied from $54 gross to $58 gross. I take the average and arrive at $56 gross per week which may produce slightly different figures from those arrived at by the City Clerk whose records are based on the actual wage prevailing during different periods of the plaintiff's incapacity.

No reason is given by the plaintiff for claiming up to 21.11.77 when the medical report indicates that in April, 1977 he was fit for work. The City Council paid him ²/₃ wages up to 12.4.77 which is the date on which the medical report says he was fit for work. There is no suggestion in the evidence of the City Clerk, P.W.3, or of the plaintiff that the plaintiff ever complained that the payments should not have ceased in that he was not fit for work on 12.4.77. The plaintiff also received Workmen Compensation from the City Council amounting to $1,247.48 which P.W.3 says was the complainant's full entitlement.

P.W.3 states that the total wage received by the plaintiff was about $1900. If the wage payments were based on 54 weeks incapacity i.e. from 31/3/76 to 12/4/77 at $56 per week the total salary would be $3024 and ²/₃ thereof would be $2008. It appears therefore that the Council's payments were based on the plaintiff being fit for work on 12/4/77. Again the payment of ages during incapacity was not merely an ex gratia type award but was based on an agreement between the Council and its employees. It would seem therefore that the plaintiff must have accepted that he was only entitled to such payments up to 12/4/77. Had he still been badly incapacitated one may have expected that he would have relied upon that agreement and have protested to the City Clerk, P.W.3, that he had stopped the payments before the plaintiff was fully recovered.

If the plaintiff was unfit in July 1977 due to his injury it would have been possible for him to return to the hospital and have his incapacity verified.

I come to the conclusion that it is fair and proper to accept 12/4/77 as the date on which the plaintiff was able to work again. Would he have been able to resume his old job as a road sweeper? There has been no evidence or allegation or submission in that respect. I can only take the view that the statement in the medical report that he was fit for work means fit for the work he had been doing.

Apparently the plaintiff never attempted to do his job in April 1977 or subsequent thereto.

Therefore the period during which the plaintiff was unable to follow his occupation was 31/3/76 to 12/4/77 which is 54 weeks. Taking his salary at $56 per week and ignoring the trifling amount he would pay in tax his earnings for that period amount to $3024. According to P.W.3 the plaintiff received $1900 during that period from the City Council therefore his loss of earnings would be $(3024-1900) - $1124.00.

There remains the claim for general damages to cover pain, suffering and discomfort, loss of faculty to the extent of 10% and consequent detriment to his enjoyment of life.

It is now 2 years since the plaintiff was discharged from hospital. It appears that he did not have to return for further treatment to the injured leg. He does not complain that it is now causing him any particular pain or discomfort.

There is nothing in the pleadings or evidence-in-chief to indicate his age. However, Mr. Matawalu for the 3rd and 4th defendants obtained from the plaintiff that he was 65 years of age. At the time of the accident he would be 62 years of age.

Awards of pain and suffering and loss of amenities made in the U.K., Australia and New Zealand are not much help in Fiji where salaries, conditions of climate, living conditions, amenities, costs of living, standard of living etc. are very different from those in more highly developed nations. English cases do assist in indicating the kind of principles to be followed in assessing such awards.

There has been no suggestion that he was dismissed because of his injury and it is not possible for me to try and include any figure for the loss of future earnings. The fact that the plaintiff is unfortunately unemployed is due to the amputation of his other foot rather than to any injury received in the accident. For pain suffering and loss of amenities I award him $3,500 which gives a total of $4,624.00 to which I add the $33.00 taxi fares which makes it $4,657.00.

Mr. Sahu Khan submitted that S.24 of the Workman's Compensation Ordinance, Cap. 77, bars the plaintiff from claiming damages when he has already recovered compensation from his employer. With respect, I would say that S.24 specifically enables the plaintiff to pursue both remedies but leaves it open to interesting parties to restrict him from receiving and retaining both compensation and damages.

It is apparent that the Court, if moved by the City Council under S.24, should make an order that the plaintiff reimburse the Council to the extent of the $1,247.48 paid to the plaintiff by way of compensation.

The City Council are fully aware of this action and as I have said the City Clerk, P.W.3, has given evidence including reference to compensation paid. No move has been made by the Council to claim re-imbursement and in the circumstances, i.e. in the light of the Council's full knowledge of the action I do not propose to make any adjustment of my own volition. It remains open for the Council to take such steps as they wish.

There will be judgement for the plaintiff in the sum of $4,657.00 plus cost as against defendant No.2 which I fix at $120.00 excluding disbursements.

The plaintiff will pay the costs of defendant No.1, which having regard to the fact that his defence was joint with defendant No.2 I fix at $50.00.

The plaintiff will pay the costs of defendants 3 & 4 which having regard to it being a joint defence I fix at $70.00.

(Sgd) (J.T. WILLIAMS)
JUDGE

LAUTOKA,
25th April, 1979.