CIVIL ACTION NO. 19 OF 2009 RAJ KUMARI –VS MOHAMMED HASAD AND PARMOD
ENTERPRISES LIMITED
IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
CIVIL ACTION NO. 19 OF 2009
BETWEEN:
RAJ KUMARI
Plaintiff
AND:
MOHAMMED HASAD
1st Defendant
AND:
PARMOD ENTERPRISES LIMITED
2nd Defendant
Appearances: Mr Amrit Sen for the plaintiff
Mr A. Kohli for the first and second defendants
Date of hearing: 14 and 17th February, 2012
JUDGMENT
1.
On 2nd June, 2008, Raj Kumari, the plaintiff was standing on the steps to the entrance
of the New World Supermarket, Labasa, when bus bearing registration number CU 304
driven by Mohammed Hasad, the first defendant, veered of its path on the two lane carriage
way at Jaduram Street and struck Raj Kumari, causing her to suffer injuries. Mohammed
Hasad was acting in the course of his employment with Parmod Enterprises Limited, the 2nd
defendant. It is alleged that the collision occurred due to Mohammed Hasad negligently and
unskilfully driving his vehicle. Raj Kumari, claims general damages for pain and suffering
and loss of amenities of life; special damages; costs for future care; loss of past and future
earnings; interest and costs.
The primary facts are undisputed. Mohammed Hasad alleges that the accident occurred as he
suffered a blackout and lost control of the bus. The extent of injuries suffered by Raj Kumari
are also disputed.
2.
The hearing
Raj Kumari, Dr Chowdry and Rolesh Chand, a eye witness to the accident testified.
Mohammed Hasad testified . Dr Mua was called by the defence to testify from the medical
report prepared by Dr V.H.Wasson on Mohammed Hasad's medical condition.
3.
The determination
3.1 Negligence
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CIVIL ACTION NO. 19 OF 2009 RAJ KUMARI –VS MOHAMMED HASAD AND PARMOD
ENTERPRISES LIMITED
Rolesh Chand was serving a customer at the New World Bakery at Jaduram Street on 2nd
June, 2008, when the accident occurred. He testified that he saw a bus proceeding at a high
speed from Labasa market hit a lady standing on the step of the New World Supermarket. He
had heard the toot of the horn of the bus and saw the driver trying to control the bus. After the
accident, the driver who was awake at that time had leaned back . Rolesh Chand said he had
not seen any brake marks.
The defence states that Mohammed Hasad suffered a blackout. The medical report prepared
by Dr V.H.Wasson provides that Mohammed Hasad was "brought to hospital in a drowsy
state but responded to painful stimuli and vocal command". On examination, his "Vital
Signs" were found normal. All laboratory tests, neurology report and investigations carried
out pertaining to his heart, blood sugar, etc were normal. Dr Mua testified that he was
assessed as probably having " benign positional vertigo". Upon a review two weeks later, he
was found to have a "slight improvement in symptoms of dizziness but did not have chest pain
nor LOC (loss of consciousness) again"
Mohammed Hasad was 66 years of age at the time of the accident. As Mr Sen has pointed
out, he was admittedly not medically examined to ensure that he was fit to drive an omnibus.
Mohammed Hasad testified that his health was good and he did not experience a blackout
prior to or subsequent to the accident. In all the circumstances, it would seem unlikely that he
had a medical condition that would have brought about a blackout, as contended.
In his examination in chief, Mohammed Hasad said he could not recall the accident. In crossexamination, he denied that he was driving at a high speed when he struck Raj Kumari. He
stated he got unconscious after he moved gear from one to two. His response to Mr Sen, as to
what would take place in that situation and when the foot is taken after the accelerator, was as
follows:
"Bus will move slowly after No 2 gear".
The defence did not call any independent evidence to contradict Rolesh Chand's testimony
that the bus was travelling at a high speed, when it struck Raj Kumari. I accept the evidence
of Rolesh Chand that Mohammed Hasad was driving the bus at a high speed and could not
control the bus.
Mr Sen, in his closing submissions, has cited Lord Normand in Barkway v South Wales
Transport,(1950) 1 AER 392 at page 399 as follows:
"the fact that an omnibus leaves the roadway and so causes injury to a passenger or
to someone on the pavement is evidence relevant to infer that the injury was caused
by the negligence of the owner, so that, if nothing more were proved, it would be a
sufficient finding of liability against him."
Clerk & Lindsell on Torts (19th Ed, 2006) at paragraph 502 states:
"The speed at which a vehicle should be driven must be reasonable in the
circumstances. The general rule is that the vehicle should be driven at a speed which
enables the driver to stop within the limits of his vision, particularly having regard to
the weather and the state of the road
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CIVIL ACTION NO. 19 OF 2009 RAJ KUMARI –VS MOHAMMED HASAD AND PARMOD
ENTERPRISES LIMITED
I hold Mohammed Hasad was negligent and is liable for the injuries caused to Raj Kumari.
Parmod Enterprises Limited, as his employer is accordingly vicariously liable, as Mohammed
Hasad was admittedly acting in the course of his employment.
3.2
Injuries
Raj Kumari suffered a fracture of the pelvis. She testified she was in pain and hospitalised for
four days. It took her two months to recover,and her mother and daughter cared for her during
this period. She stated that her condition has worsened, since the accident and she cannot
walk fast nor with the same gait.
Dr Chowdry was called by Mr Sen, counsel for Raj Kumari. Dr Chowdry said it takes 1 ½ to
2 months for a fracture of the pelvis to heal. In answer to Mr Sen, Dr Chowdry said if a
fracture is displaced, it is likely that a person could walk with an abnormal gait. In crossexamination, he said Raj Kumari suffered a closed fracture and the bone though cracked, was
intact.
Dr Chowdry said Raj Kumari had presented herself for a follow up, six weeks after the
accident on 17 July,2008. He stated, the medical record of that day, does not disclose that Raj
Kumari made any complaint as to her condition and that any Doctor would have observed, if
she walked with a gait. Finally, Dr Chowdry stated he prepared the medical report dated 8
December, 2009, and found she had no permanent disability.
3.3
General damages
In determining the damages, Raj Kumari is entitled to for pain and suffering, it is necessary to
consider general level of comparable awards. These awards can be used as a guide, but the
facts of each case have to be considered.
Mr Sen, in his closing submissions, has cited Singh v Rentokoil Laboratories Ltd,(1993)
FJCA 26 and Eta Naqeletia v Ram Kumar, (HBC 19 OF 2010). In the first case, the Court of
Appeal had awarded $ 60,000. The injuries are not comparable. In that case, the plaintiff had
suffered injuries to all limbs except the left leg. He had a fracture of the "mandible", right
humerus with radial nerve palsy and displaced fracture of the pelvis. In the second case, there
was injury to the plaintiff's right forearm and wrist, which required reconstructive surgery.
The plaintiff had a 19% permanent disability and was awarded $ 114,100 as general damages.
Mr Kholi, in his closing submissions, has cited Prakash v Khan,(2009)FJHC 160,and
submitted that a similar award be made in the present case. The plaintiff in that case, had
suffered a pelvic fracture like Raj Kumari, and was awarded $ 30,000 as general damages.
Raj Kumari was hospitalised for a period of four days and took two months to recover. 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 $ 30,000.00 (thirty thousand dollars).
3.4
Special damages
In her statement of claim, Raj Kumari claims $5 in respect of a medical report, $ 100 for
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CIVIL ACTION NO. 19 OF 2009 RAJ KUMARI –VS MOHAMMED HASAD AND PARMOD
ENTERPRISES LIMITED
transport to hospital for review and $50 for medicines purchased. .
Despite the absence of any documentary evidence of expenditure to support the claim for
transport to hospital, and given that receipts are not issued by taxi drivers, I hold the Raj
Kumari is entitled to this expense . I also allow the claim for cost of the medical report in a
sum of $5.
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 claim for medicines purchased. 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".
A schedule of special damages has not been filed in support of the other claims for transport.
Loss of earnings
Raj Kumari testified that she supported herself prior to the accident, by selling vegetables,
she planted .She stated she earned $ 100 a week, though on certain days her sales were $ 10
In Singh v Bui (2007) FJCA 2, the Court of Appeal declared a trial judge, as a trier of fact
was entitled to consider the evidence to assess the income of a villager. The Court of Appeal
stated "..the reality of the situation seems to be that for self-employed traditional farmers,
growers and fishers, in a lower socio –economic group, niceties of commerce, such as
accurate book-keeping are often not observed".
I accept the evidence of Raj Kumari that she was a vegetable seller. The claim for $100 a
week in earnings is however, excessive. I assess her income at $50 a week. I hold she is
entitled to loss of earnings from the date of accident to 8 December, 2009, the date Dr
Chowdry found there was no permanent disability.
I award the loss of earnings to be 50 x 88 weeks = $ 4400.
Future earnings and Future care
Raj Kumari stated that she could not revert to vegetable planting after the accident, as she
experienced pain when digging. This is inconsistent with the medical finding and I disallow
this claim.
Her testimony that she requires future care after she befell the accident, is also inconsistent
with the medical evidence. I therefore disallow this claim
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CIVIL ACTION NO. 19 OF 2009 RAJ KUMARI –VS MOHAMMED HASAD AND PARMOD
ENTERPRISES LIMITED
Interest
Raj Kumari has claimed interest pursuant to Section 3 of the Law Reform (Miscellaneous
(Interest) Act, (cap 27).
Interest on general damages is awarded to compensate a plaintiff for being kept out of the
capital sum –Pickett v British Rail Engineering Ltd (1980) AC 136 at 137. In Jeffords and
another v Gee,(1970) 2 WLR 702 at 703 it was held that "in general interest should be
allowed on special damages from the date of accident to the date of trial at half the
appropriate rate".
In the exercise of my discretion I award interest at 6% per annum on general damages of $
30,000.00 from the date of writ to date of hearing on 14th February,2012, and 3 % per annum
on special damages from the date of accident to 14th February,2012.
4.
Orders
The total sum awarded to the Raj Kumari as damages is $ $ 44632.83 made up as follows:
a.
b.
c.
d.
e.
f.
General damages
Interest on General damages
Special damages
Past domestic care
Loss of earnings
Interest on c,d and e
Total
30,000.00
4880.77
105.00
4400.00
4270.00
977.06
$ 44632.83
There will therefore be judgment for Raj Kumari against Mohammed Hasad and Parmod
Enterprises Limited in the sum of $ 44632.83 together with a sum of $ 3000 payable by
Mohammed Hasad and Parmod Enterprises Limited to Raj Kumari as costs summarily
assessed.
08th June, 2012
A.L.B.Brito- Mutunayagam
Judge
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