Chand v Paddys Market of Fiji [1981] FJSC 1; Action 152 of 1979 (8 May 1981)

IN THE SUPREME COURT OF FIJ1
(WESTERN DIVISION)
AT LAUTOKA
CIVIL JURISDICTION

Action No. 152 of 1979

BETWEEN

SATISH CHAND s/o Ram Chandar
Plaintiff

AND

PADDYS MARKET OF FIJI

AND

MUSA ISA s/o Isa Ismail
Defendants

Messrs Stuart, Reddy & Co., Solicitors for the Plaintiff
Messrs Wm. Scott & Co., Solicitors for the 1st Defendant
Messrs Sahu Khan & Sahu Khan, Solicitors for 2nd Defendant.

JUDGMENT

This is an employee's claim against his employer defendant No. 1 and a co-employee defendant No. 2 for injuries received and loss of earnings arising out of a motor accident. The plaintiff was a kind of assistant to the defendant No. 2 who was a salesman. The plaintiff's job was to keep a watch on the employer's motor van and any clothing in it when defendant No. 2 and he were at open markets.

It is not disputed that the plaintiff was a passenger in the employer's motor van or pick-up on 16th March, 1978 driving along the Queen's Road from Sigatoka towards Nadi; nor is it disputed that the plaintiff and the driver defendant No. 2 were employed by defendant No. 1 and the accident occurred during their employment. Defendant No. 1 is a vendor of clothing and shoes and apart from fixed premises his assistants sell at fairs or markets.

The Statement of Claim alleged that defendant No. 2 was negligent hitting the rear of a 'bus. Although negligence was denied by the defendants the driver defendant No. 2 gave no evidence. The first defendant alleged that the plaintiff's injuries arose because he failed to wear his seat belt but offered no evidence thereon.

The plaintiff says he was wearing his seat belt and although he was not, as I will indicate later, an honest witness, the medical evidence indicates that he had drag marks on his chest. That seems to suggest that the plaintiff was wearing a seat belt.

Only the plaintiff gave evidence as to the cause of the accident. He says that defendant No. 2 was driving at 70 m.p.h. just before the accident and failed to reduce speed when the plaintiff complained. There was no reason why defendant No. 2 should run into the back of the 'bus other than his failure to drive carefully, slow down and avoid it.

I am satisfied that defendants No. 1 and 2 are liable to the plaintiff for the damage suffered.

The real issue between the parties has not been the nature of the personal injuries but the quantum of damages and the plaintiff's fitness for employment.

As a result of the accident the plaintiff who was 19 years of age at the time of the accident suffered -

(a) compound fracture of the left femur;

(b) compound fracture of the left tibula and fibula;

(c) compound fracture of the right tibula and fibula;

(d) minor cuts in chest and face due to a broken windscreen;

(e) fracture of the left wrist.

They were extensive and very serious injuries.

He was in hospital from 16th March, 1978 to 15th May, 1978 where a steel rod was placed in the left femur and a screw in the left ankle. After discharge he continued under observation and on 9th August, 1978 he was re-admitted for the bolt to be removed from his left thigh. However, the screw will be permanently in his left ankle. He was under the care of Dr. Isikeli Tami. The left ankle had to be skin grafted by several operations which are painful processes. I saw the plaintiff's left leg and there is a very unpleasant and disfiguring scarring at the front of the left lower leg from the ankle to just below the knees.

The doctor stated that having regard to the seriousness of his injuries the plaintiff has made a very good recovery. There will be trouble with the left ankle due to arthritic changes and it cannot be assumed that the screw will continue to function satisfactorily. There is no obvious shortening of the left leg resulting from the injuries.

0n 21st January, 1979 the doctor P.W. 2 certified that the plaintiff was fit to resume his work as a salesman and estimated his disability at 23% under the Workmen's Compensation Ordinance.

In his evidence the plaintiff says that his left ankle is stiff in the mornings and it takes an hour or so for it to become flexible and that his legs begin to swell when he has been walking on them for a mile or two. The doctor agreed that this could be so. However, he insisted that the plaintiff was fit to return to his work in January, 1979.

The plaintiff says that he had to use crutches until November, 1978.

The plaintiff's pleadings were very poorly drafted. One Statement of Claim filed on 6th September, 1979 did not allege that wages were lost during the period the plaintiff was in hospital and the time of his convalescence nor does it allege wrongful dismissal or inability to obtain employment due to his injuries there is no allegation as to the wages he was earning at the time of the accident.

When discovery had been made and the action set down for trial copy pleadings were filed on 26th August, 1980 in which the plaintiff had, without leave amended his Statement of Claim to reveal special damages showing -

(i) Loss of wages from 16th March, 1978 - 30th November, 1979 at $26.00 per week Less 4 weeks wages received	$2,288 104
	$2,184
(ii) Medical expenses	$20
(iii) Travelling	$20

At the hearing the plaintiff was allowed to amend for loss of wages to give a figure of $952 as the nett loss after payment of wages.

In evidence the plaintiff explained this figure by saying he received wages from 16th March, 1978 to 15th July, 1978 at $26.00 per week, and from 22nd July, 1978 to 15th April, 1979 at $17.77 per week. It is not clear why the plaintiff selected the date and 30th November, 1979 as fixing the period covering his loss of wages under "special damages." He adhered to those figures in his evidence-in-chief.

In cross-examination by the second defendant the plaintiff agreed that he was untruthful telling his solicitors that the defendant No.1, his employer had only paid him one month's pay.

He said that at the beginning of 1979 he went to his work for two days but says it was only because his employer defendant No. 1 had picked him up and taken him out for a run. He stated that the first defendant sent him home from work saying he would recall the plaintiff if there was any work for him.

In cross-examination it was put to the plaintiff that the doctor had stated in January 1979 that the plaintiff was fit for his work as a salesman. The plaintiff replied that he could not remember the doctor saying this. I do not believe the plaintiff. I am satisfied that the plaintiff was fully aware of the doctor's views.

In reply to a question by the Court the plaintiff said he did not go to the defendant No.1 and ask for his job because the defendant No. 1 had said that he would send for him. The plaintiff was not an impressive witness and in regard to the availability of his former employment I have no doubt that he remained away from work deliberately although he was sufficiently recovered to cope with it. I have no doubt that his intention was to get as much as he could without working for it. I prefer the evidence of the plaintiff's employer, P.W.1, who impressed me as truthful and reliable.

The employer says that he paid the plaintiff $26.10 per week until September, 1978 and then reduced it to $17.77 after discussion with the Labour Department. Those are nett figures after deductions. No doubt $17.77 would be the pro rata rate of pay as calculated under the Workmen's Compensation Act. In April, 1979 the employer ceased to make any further payment to the plaintiff because he gathered from the plaintiff's mother that the plaintiff did not intend to return to work. The plaintiff had not been available when the employer called at his home with two weeks' allowance at $17.77.

The employer, P.W 1 says, and I believe him, that the plaintiff of his own volition in January, l979 returned to his place of employment for two days then did not return. After that he continued to pay the plaintiff the $17.77 until about mid-April, 1979. He denies dismissing the plaintiff and stated that up to the date of the hearing the plaintiff's job was open to him. On the defendant No. 1's evidence which I unhesitatingly accept the plaintiff received $1086.02 in wages.

I accept the medical evidence that the plaintiff was fit to resume work in January, 1979. By that I mean he was able, as the doctor P.W.2 said, to do his former job as a salesman. As the evidence shows it was an undemanding kind of work - keeping guard on a motor van and its contents of clothing at public markets. The job clearly does not demand any outstanding physical or mental qualities. It is likely that the plaintiff may have pain and discomfort from time to time but that should not prevent him from doing his job. He has not lost the capacity to work. Many people injured in accidents which do not give rise to a claim for damages have to "grin and bear" their afflictions whilst getting on with the business of living and working. Pain whether or not it incapacitates one for work come within the claim for general damages.

Since the plaintiff was fit for work in January, 1979, that fixes the date to which his special damages is computed. I assess damages on the basis that he was fit to do his job on 1st February, 1979. Therefore he was entitled to loss of wages up to 31st January 1979 at $26.00 per week as from 30th March, 1973 which is a period of 31 weeks giving a sum of $806.00. In the special damages portion of his claim the plaintiff indicates that he has received $952 less than he was entitled to and which he says is still owing. Of course he is claiming loss of wages up to 30th November, 1979. Why he fixes that date I any not sure unless he means that he was not fit for work on 30th November, 1979. Anyway as I have stated he was fit for work by 31st January, 1979. Therefore the plaintiff who was entitled to $806.00 has, as I have stated earlier, received $1086.00. His travelling claim of $40.00 was accepted.

I find that on the aspect of special damages the plaintiff has received all that he is entitled to. I make no award under that head other than the agreed $40.00.

Turning now to pain suffering in the past and in the future coupled with loss of amenities and loss of earning capacity I am in the area of what might be termed experienced or educated speculation.

The plaintiff was employed in a somewhat humble sphere and in a job that could scarcely be regarded as exacting. What his prospects would have been with the same firm had there been no accident I am unable to say. It is not suggested that he had any other job, trade or career in mind. No evidence was led on those lines. The plaintiff has not in any way pleaded or suggested that his injuries have made him completely unemployable. In fact he said he had enquired about getting started as an electrician. During the trial his employer expressed his continued willingness to re-employ him and I am regarding this as serious and genuine offer. I find that the plaintiff's former job has been open to him at all times since the accident. The employer, defendant No.1, impressed me as a reliable person whose word and offer could be accepted. There could perhaps come a time when the plaintiffs injuries might cause him to be frequently away from work, and to perhaps loose his job. One cannot overlook that he might be prevented from obtaining a better paying job in the future but it has not been suggested that he has ever received any training, or that he has any special aptitude which has been adversely affected. I do not think that there is likely to be loss of expectation of life. However, I cannot imagine after those numerous severe fractures and the distressing skin grafts that the plaintiff will go through life untroubled by after effects.

In fact my views at to the contrary. He has left ankle which is stiff at the beginning of the day. I do not doubt that his legs do swell after he walks a mile or two. The ability at the age of 19 onwards to walk around without discomfort and limitation as to distance is a substantial loss of amenity; it also restricts and blocks any attempt to take up some outdoor sport or to engage in some physically active hobby. The nasty scar on his left leg could make him less disposed to bathe or swim in public.

Taking all the relevant factors into consideration I assess the general damages at $8,500.

Judgment for the plaintiff as against both defendants in the sum of $8,540.00 with taxed costs.

(J.T. WILLIAMS)
JUDGE

LAUTOKA,
8th May, 1981.