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Attorney General v Narayan [2011] FJCA 27; ABU0057.2008 (1 April 2011)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF FIJI

CIVIL APPEAL NO. ABU 0057 OF 2008
(High Court Action No. HBC 43 of 2004 at Labasa)

BETWEEN :

THE ATTORNEY-GENERAL OF FIJI
Appellant

AND :

SURUJ NARAYAN
Respondent

Coram: Inoke, JA
Calanchini, JA
Wati, JA

Date of Hearing : 17 May 2010

Counsel : Mr J Mainavolau with Mr S Sharma for the Appellant
Mr A Sen for the Respondent

Date of Judgment: 1 April 2011

JUDGMENT

Calanchini JA

[1] This is an appeal against a decision of the High Court (Byrne J, as he then was) at Labasa handed down on 25 July 2008. The Court awarded judgment to the Respondent in respect of his claim in negligence and ordered the Appellant to pay damages in the sum of $189,225.00 together with costs of $5000.00.

[2] The background facts may be stated briefly. On 13 August 2003 during the course of his employment as a chainsaw operator the Respondent suffered an injury to his right ankle when a tree fell on his leg. He was freed with the assistance of another employee and later the same day admitted to the Labasa Hospital.

[3] He was admitted as an in-patient with an open crush fracture of the right ankle. In the Pre-Trial Conference Minutes filed on 20 March 2007 the parties agreed that the Respondent had suffered a "Compound Comminuted Fracture of right medial malleolus and wounds to the dorsum of the foot". The wound was initially stitched. The wound was cleaned on a daily basis. The stitched wound was not bandaged. Any pain that the Respondent suffered was treated with medication. The learned trial judge noted that during this stage of his treatment the Respondent stated that he was able to move around the ward, could move his toes and felt that his injury was getting better.

[4] Some days later the doctors removed the stitches and applied a Plaster of Paris (plaster cast). A complete plaster cast was applied without padding. From that time the Respondent's condition deteriorated. He experienced pain. He asked for the plaster cast to be removed. The Hospital refused to remove the plaster. He was given medication to relieve his pain.

[5] After three days a window was cut on the plaster. The plaster itself was not cut. A bad smell was noticed. The next day a nurse removed the window. The smell was worse. A nurse and then doctors cleaned the wound. At one stage he was given an injection to enable the wound to be cleaned and he was rendered unconscious. His leg had become swollen. It would appear that he was taken to the operating theatre for further treatment that involved cleaning the wound and the removal of skin. After that he could no longer move his toes. The plaster cast was then removed.

A short time later he was told that the doctors wanted to "cut his ankle."

[6] He refused to allow this to happen and arranged to travel at his own expense to the Suva Private Hospital. There he was seen by Dr McCaig. His injury/wound was x-rayed and he was admitted as an in-patient for thirteen days. A below right knee amputation was performed four days after admission.

[7] The Respondent commenced proceedings claiming damages in respect of the negligent treatment he received at the Labasa Hospital which he claimed resulted in a below knee amputation of his right leg. He claimed damages for pain and suffering past and future, loss of amenities and future loss of earnings. He also claimed special damages in the sum of $10,325.25, interest and costs.

[8] In the Defence the Appellant claimed that the Respondent had suffered a massive and extensive injury including an open fracture. The plaster was applied to minimise pain and stablise the fracture for healing. The pain he suffered in hospital was due to his injury and not due to the treatment provided by the hospital. The Appellant denied negligence. At all relevant times a proper diagnosis and prognosis was explained to the Respondent. The Appellant claims that the injury caused the arterial damage which in turn caused gangrene which ultimately resulted in the amputation.

[9] The learned trial judge considered in some detail the medical evidence called by the parties. The learned judge accepted and preferred the evidence of Dr McCaig who had been called by the Plaintiff. He did not accept certain aspects of the evidence given by Dr Joji Vulibeci who had been called by the Appellant. In particular at page 14 of his judgment the learned judge stated:

"I am left with the unfortunate conclusion that Doctor Joji did not render the advice which he claimed to have given the Plaintiff."

[10] Having carefully considered the evidence, the learned trial judge found that the Respondent's condition had been exacerbated as a result of the application of the plaster cast and the failure by the Appellant to adequately manage it. His Lordship found that the Respondent's condition was improving before the application of the plaster cast. He accepted the evidence that the application of a complete cast created an ideal breeding place for the growth of bacteria and organisms which accounted for the foul smell after the window was cut on the plaster cast. He also concluded that adequate padding had not been applied.

[11] The learned judge applied the test set out in Rogers –v- Whitaker [1992] HCA 58; (1992) 175 CLR 479. In its decision, the High Court of Australia stated that the test was not whether the conduct accords with the practice of the medical profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the Court and the obligation to decide the issue cannot be shifted to any professional group in the community.

[12] On the evidence before him the learned judge found that the Defendant was negligent. At paragraph 52 the judge stated:

"Fundamentally, the Plaintiff complains that a Plaster of Paris should not have been applied to his open wound and the evidence of Dr McCaig makes it quite clear that to do this was wrong medically."

[13] Furthermore he concluded that the manner in which the Respondent had been treated by the Appellant following the application of the plaster cast was also negligent. The learned judge rejected the Appellant's submission in relation to the Respondent discharging himself from Labasa Hospital, the alleged advice given by Dr Joji concerning the need for amputation and the assertion that the Respondent refused amputation on 16 August 2003 after he had been admitted for only three days. He found that the Appellant had been negligent and that the negligence had exacerbated the Respondent's injury.

[14] The learned judge then considered the question of damages. He dealt first with general damages. He reviewed the decision of this Court in Attorney-General –v- Kotoiwasawasa (unreported Civil Appeal No. 4 of 2003 delivered 14 November 2003). He then considered the more recent decision of this court in Permanent Secretary for Health and Attorney-General –v- Arvind Kumar and Another (unreported Civil Appeal No 84 of 2006 delivered 20 June 2008).

[15] Applying the guidelines provided by this Court in Arvind Kumar (supra) he considered that the Plaintiff should receive an award of $70,000.00 for past and future pain and suffering and past and future loss of amenities.

[16] Another component of general damages is loss of future earnings or earning capacity. At the time of judgment the Respondent was aged 32. At the time of his injury he was earning $149.85 per week. He was not receiving wages at the time of the trial. Applying a multiplier of 19 the learned judge arrived at a figure of $148,051.80 which he then reduced to $85,000.00 after taking into account the vicissitudes of life and the fact that the Respondent would be receiving a lump sum which was available for his immediate use.

[17] Finally, as part of general damages, the learned judge awarded a sum of $9000.00 for future prosthesis replacements. This was due to the Respondent's need for a replacement prosthesis every two years. At $1200.00 for each replacement over 20 years an amount of $12,000.00 was required for this likely expense. This amount was reduced to $9000.00 on account of its immediate receipt by the Respondent rather then over a twenty year period. In addition he awarded an amount of $2000.00 for future medical care.

[18] As for special damages, the learned judge awarded $10,326.25 being the amount agreed between the parties.

[19] The judge awarded interest on the component of general damages relating to pain and suffering and loss of amenities at the rate of 6% from 30 June 2004 to 30 June 2007 in the sum of $12,600.00. He awarded interest on special damages at 3% for one year in the sum of $300.00. The total award of damages was $189,225.00 together with $5,000.00 costs.

[20] The Appellant seeks an order that the judgment be wholly set aside on the following grounds:

"1. That the Learned Judge erred in law and in fact in awarding excessive and disproportionate damages of $70,000.00 for pain and suffering and loss of amenities of life.

2. That the Learned Judge erred in law and in fact in awarding excessive and disproportionate damages of $85,000.00 for loss of future earnings.

3. That the Learned Judge erred in law and in fact in awarding an extra $2000.00 for cost of future medical care when he already made the conclusion that the Plaintiff was entitled to $9000.00 for cost of future medical care.

4. That the Leaned Judge erred in law and in fact in failing to discount the damages payable by the Defendants in accordance with the pre-existing condition which the Plaintiff presented with at the Labasa Hospital when he was first admitted.

5. That the Learned Judge erred in law and in fact in finding the Defendants entirely and solely liable for all damages suffered by the Plaintiff which were caused by the loss of his limb.

6. That the Learned Judge erred in law and in fact in holding that the relevant standard of care was not that of a medical doctor acting in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.

7. That the Learned Judge erred in law and in fact in holding that the relevant standard of care was whether the treatment conforms to the standard of reasonable care demanded by the law.

8. That the Learned Judge erred in law and in fact in failing to find that the treatment received by the Plaintiff at the Labasa Hospital met the relevant standard of care, whichever standard was adopted by the Court.

9. That the Learned Judged erred in law and in fact in finding that the application of the Plaster of Paris was the sole cause of the gangrene over the Plaintiff's leg which necessitated the amputation.

10. That the Learned Judge erred in law and in fact in failing to find that the severity of the wound and the severed artery also contributed to the lack of blood circulation to the lower leg which necessitated the amputation."

[21] These grounds of appeal raise three issues. First, as part of the challenge to the award of damages (grounds 1-3), the method of calculating future economic loss. Secondly, the appropriate test to be applied by the court to determine the issue of medical negligence (grounds 6, 7 and 8). Thirdly the issue of causation when there is a pre-existing injury (grounds 4, 5, 9 and 10).

[22] It seems logical to consider first grounds 6 – 8 of the appeal, then grounds 4, 5, 9 and 10 and finally the issues raised by the challenges to the award of damages, being grounds 1 – 3.

[23] Grounds 6 and 7 of the appeal raise an issue as to the test to be applied in determining the standard of care in medical negligence cases. Ground 8 challenges the finding of negligence made by the learned trial judge.

[24] In his judgment the learned trial judge stated his preference for the test set out in Rogers v. Whitaker (supra) rather than the test applied in English Courts which has been derived from the decision in Bolam –v- Frienn Hospital Management Committee [1957] 2 All ER 118.

[25] At page 16 of his judgment the learned Judge stated:

"In Rogers v. Whitaker (supra) the High Court of Australia refused to follow the practice of English Courts in applying Bolam (supra) to cases of medical negligence. The High Court rejected the Bolam approach and held that the question is not whether the conduct accords with the practice of the medical profession or some part of it, but whether it confirms to the standard of reasonable care demanded by the law. That is a question for the Court, and the duty of deciding it cannot be delegated to any profession or group in the community."

[26] The Appellant's submission on this point refers to a paper presented at the Attorney-General's Conference in November 2009.

[27] The issue of whether a defendant has been negligent is a process involving two stages. The first stage involves an assessment by the court of how, in the circumstances, the Appellant ought to have behaved; in other words, what standard of care should have been exercised? This issue requires a value judgment which should be made by the Court. (See the text "Medical Negligence" by Michael a Jones, Sweet & Maxwell 2003 at page 189). This is the issue raised by grounds 6 and 7 of the appeal. For the purposes of this appeal, the Appellant submits that the standard of care to be exercised is that proposed by the Bolam (supra) test. The learned trial judge preferred the test set out in Rogers –v- Whitaker (supra).

[28] The second stage requires a decision about whether on the facts of the case (as determined from the evidence) the Appellant's conduct fell below the appropriate standard. (Medical Negligence – Jones supra at page 190). Grounds 8 of the appeal is concerned with the second stage.

[29] It is, in my opinion, not necessary, given the facts involved in the present appeal, to determine which is the appropriate test to be applied in Fiji. The treatment of the Respondent's injury, the decision whether or not a plaster cast should be applied and the care of the Respondent after the application of plaster to the injury do not involve difficult or uncertain questions of medical or surgical treatment or highly technical scientific issues. They involve questions relating to whether obvious and simple precautions were taken. In a case such as the present the question of the evidence of experts is not relevant. It was therefore quite proper for the learned judge, in this case, to determine the standard to be that of reasonable care demanded by the law. The evidence given by Dr McCaig clearly established that this was a case where simple methods to avoid infection and gangrene have been developed, are well known and available. Furthermore those methods were capable of being readily understood by any ordinary person and as a result the learned judge was as much as any expert competent to deal with the issues.

[30] I conclude that the learned judge has not erred in the approach that he adopted in determining how the Appellant ought to have acted in the circumstances of the case before him.

[31] Ground 8 seeks to challenge the finding of fact made by the learned judge that the Appellant's conduct fell below the appropriate standard. In arriving at that conclusion the learned judge preferred the evidence of Dr McCaig and for a number of reasons rejected the evidence of Dr Vulibeci. It was open to the leaned judge to reject Dr Vulibeci's evidence by considering the ordinary principles of credibility and reliability that would be applied in the trial of any action, for example, where the oral evidence is inconsistent with the documentary evidence, where memory is in issue or where there appears to be self-interest. This Court's approach to any challenge to findings of fact was clearly stated in Janak Prasad and Others –v- Mano Lata (unreported Civil Appeal No. 26 of 2004 delivered 4 March 2005) at paragraph 17:

"As has been repeatedly emphasised, an appellate court is slow to interfere with findings of fact reached at first instance."

[32] Based on the material before him and having heard and observed the witnesses, the learned judge made findings of fact. He concluded that the conduct of the Appellant fell below how the Appellant ought to have behaved. One of his findings was to the effect that the Appellant failed to recognise the presence of infection as quickly as possible and to take steps to treat it. I see no reason for disturbing either the finding of fact or the conclusions of the learned trial judge.

[33] In Ares –v- Venner (1970) 14 D.L.R (3rd) 4 the Supreme Court of Canada considered an appeal the facts of which were not dissimilar from the facts of the present appeal. During the course of its judgment the Court referred to certain findings of fact made by the judge at first instance. In particular at page 8 of the judgment the following passage from the trial judge's decision was noted:

"We have here a broken leg at a ski resort – albeit a severe break. .... The complication found in this case was one of circulatory impairment.

The classic signs or symptoms of circulatory impairment manifested themselves clearly and early.

There has been established, to my satisfaction, that in such cases there is a usual and normal practice in the profession, regardless of specialty, namely to split or bivalve (split on both sides and the top removed, or removable) the cast. If no relief is then obtained (from pain) one should refer to a specialist, or, if equipped explore further to ascertain the cause of the problem.

The Defendant did not follow such practice. He was concerned more with maintaining the good fracture reduction he had obtained than with the maintenance of good circulation. This led to the irreparable damage.

I am satisfied that the defendant's decision was not the result of exercising the average standard and he is therefore liable for the resulting damage."

[34] The Supreme Court then made the following observation at page 9:

"This was a finding made on contradictory evidence and upon evidence which the learned trial judge was entitled to rely. He also had the testimony of the appellant which of itself indicated a deteriorating condition through the decisive Monday to Wednesday period and which was corroborated by the finding of Dr Johnston. The finding of negligence, supported as it is by the evidence, should not be disturbed."

[35] I consider that the approach of the learned trial judge in the present case mirrors the approach that was approved and adopted by the Canadian Supreme Court. For all of the above reasons, I reject grounds 6 – 8 of the appeal.

[36] It is convenient to deal with grounds 4, 5, 9 and 10 together. The four grounds are essentially concerned with what may be generally termed as causation.

[37] Grounds 9 and 10 seek to challenge findings of fact and grounds 4 and 5 are perhaps more concerned with the conclusions based on the evidence that was accepted by the learned trial judge.

[38] Grounds 9 and 10 specifically relate to the findings concerning the factors that caused the Respondent to develop gangrene.

[39] It is certainly not disputed that the Respondent had developed gangrene. Dr McCaig's evidence was to the effect that had the Respondent's injury been adequately managed after the plaster cast was applied, gangrene would not have developed and amputation would not have been necessary.

[40] The issue raised by these grounds is whether the plaster cast and the subsequent management of the Respondent's injury was the sole cause of gangrene or whether the severity of the injury and the severed artery also contributed to blood circulation impairment which caused gangrene to develop.

[41] It is implicit in the learned judge's finding that he rejected the evidence of Dr Vulibeci that the Respondent would have developed gangrene in any event and that amputation was inevitable because of the type of injury suffered by the Respondent. Instead the learned judge preferred the evidence of Dr McCaig and this was a matter entirely for him. He concluded, on the evidence, that the application of a full plaster cast, without padding, to an open wound without subsequent adequate management caused infection (manifested by foul smell) which in turn resulted in the development of gangrene.

[42] The learned judge, by his use of the word "exacerbated" had clearly taken into account the fact that the Respondent had presented at the Labasa Hospital with an injury to his right ankle. Furthermore, there was no evidence before the leaned judge to the effect that before the application of the plaster cast the Respondent had developed any sign or symptom of gangrene. It is a fair inference to say that had the Plaintiff displayed any symptom or sign of gangrene prior to the application of the plaster cast, then the Appellant would not have proceeded to apply a plaster cast to the Respondent's injury.

[43] The trial judge accepted the medical evidence of the doctor called by the Respondent. That evidence was to the effect that the complaint of pain by the Respondent following the application of the plaster indicated that there was a problem with the injury and that the problem was connected to the application of the plaster. The plaster should have been removed at once, not days later, and the cause of the pain investigated and treated. It was not the accepted practice simply to prescribe pain relieving medication. It was this failure to adequately manage the Respondent in an accepted manner following the application of the plaster that exacerbated the Respondent's condition to the point that gangrene developed and amputation resulted.

[44] For the above reasons, grounds 9 and 10 are rejected.

[45] Grounds 4 and 5 seek to challenge the conclusion that the Appellant was liable in negligence for the loss and damage suffered by the Respondent. These grounds of appeal appear to suggest that the trial judge should have taken into account the pre-existing injury when determining the extent of the Appellant's liability.

[46] In the first place, there was only one tortfeaser joined in the proceedings. Then, as previously noted in this decision, there were findings of fact made by the learned judge to the effect that the Appellant's treatment of the Respondent was negligent.

[47] In this appeal, even if the Appellant's position is put at its best, there are two competing causes of the amputation. They are the consequences of the open ankle fracture and the consequences of the application of the plaster cast and the subsequent negligent management that resulted in the development of gangrene.

[48] The evidence established that the tortious act (the negligent management of the Respondent's injury following the application of the plaster cast) was capable of causing gangrene and the subsequent need to amputate.

[49] In the Defence one of the reasons stated by the Appellant for the application of the plaster cast was to stabilise the fracture for healing. This would indicate that at that point in time, which was some days post admission, amputation was not considered as either necessary or inevitable. What made amputation necessary was the subsequent failure to adequately manage the Respondent's injury after the plaster had been applied. The learned judge accepted the evidence of Dr McCaig that had the Respondent's injury been managed according to standard practice, then amputation would not have been necessary. It is these findings made by the learned judge that distinguish this case from cases such as the House of Lords decision in Hotson v. East Berkshire Area Authority [1988] UKHL 1; [1987] 2 All ER 909. In that case the initial injury was such that the disability suffered by the Plaintiff had become inevitable. In the present appeal there was no such finding made by the learned judge. The decision of the Court of Appeal in Page v Smith (No. 2) [1996] 3 All ER 272, following a line of authority including McGee v National Coal Board [1972] UKHL 7; [1972] 3 All ER 1008 held that (from the headnote):

"When determining an issue of causation the test to be applied was whether, on the balance of probabilities, the negligence of the defendant had caused or materially contributed to the development or the prolongation of the symptoms suffered by the Plaintiff. A cause was only to be regarded as material if it was more than minimal or trivial or insignificant."

[50] It is clear from his Lordship's judgment that he was satisfied that the negligent management of the Respondent by the Appellant after the plaster cast had been applied that resulted in the development of gangrene at least materially contributed to the need for amputation. Having found negligence on the part of the Appellant, the Respondent was entitled to damages. As there was no other tortfeaser joined and as the issue of contributory negligence was not raised as a ground of appeal, the question of apportionment does not arise. These grounds of appeal are dismissed.

[51] Grounds 1 – 3 raise issues concerning the assessment of damages.

[52] The Appellant challenges the award of $70,000.00 for pain and suffering and loss of amenities as excessive and disproportionate. Applying the decision of this Court in The Permanent Secretary for Health and Another –v- Arvind Kumar (supra) the learned trial judge stated at paragraph 59:

"... I consider that the Plaintiff in this case should receive an award of $70,000.00 for an injury which has caused him considerable distress and will do so in the future. With the greatest respect to the Court of Appeal's decision in Kotoiwasawasa and in the light of what a differently constituted Court said in Arvind Kumar, I consider that the amount awarded in Kotoiwasawasa should now be regarded as inadequate. The law does not stand still, nor does the cost of living. (Courts) must take these matters into account in awarding damages."

[53] The Appellant's submission deals at length with the question of general damages. I make three comments about those submissions. First, the Appellant relies on the evidence given by its own medical expert. However a substantial portion of that evidence was rejected by the learned trial judge who, for the reasons stated by him, preferred the evidence of Dr McCaig.

[54] Secondly, the Appellant refers to various statements of law on general principles. The most recent authority of this Court is the decision in Arvind Kumar (supra). To the extent that it may be necessary to do so, I consider that the decision in Arvind Kumar (supra) correctly states the approach to be adopted in Fiji.

[55] Finally, the year is now 2011. The cases to which reference has been made by the Appellant were decided in 2000 or earlier and as a result do not accurately reflect what should be regarded as adequate compensation in the case of a personal injuries claim such as the present.

[56] In my opinion the award of $70,000.00 by way of general damages for past and future pain and suffering and past and future loss of amenities is not an exorbitant amount to compensate the Respondent for a below right knee amputation when he was only 32 years old. I reject ground 1 of the appeal.

[57] Ground 2 relates to the award of $85,000 for loss of future earnings. In its submission in paragraphs 4.1 – 4.2 the Appellant appears to be challenging the learned judge's observation in paragraph 62 that "Special damages have been agreed at $10,326.25". In paragraph 4.1 (which should read 4.2) the Appellant claims:

"Therefore the Learned Judge erred in law and in fact in ignoring the contention of the Appellant and awarding special damages prayed for by the Respondent."

[58] However ground 2 of the appeal grounds is clearly seeking to challenge the award of general damages in the form of $85,000.00 "for loss of future earnings". There is no ground of appeal that seeks to challenge the award of special damages or any component of that award. Furthermore, in the Pre-Trial Conference Minutes the parties have agreed that the Respondent was earning $3.33 per hour.

[59] Rule 5 of the Court of Appeal Rules states:

"The appellant shall not, without the leave of the Court of Appeal, urge or be heard in support of any ground of objection not stated in his notice of appeal ....."

[60] I do not propose to give any further consideration to the assertion that the trial judge had erred in relation to the award of special damages.

[61] The Appellant submits that the judgment is flawed (para 5.4) on the grounds that the learned judge (a) did not follow the conventional rule for assessment of damages using a multiplier and multiplicand, (b) adopted the approach in WELLS v WELLS where "we do not have all the basis for using that, particularly ILGS rates of discount" and (c) awarded a multiplier of 19.

[62] The Appellant submitted that the learned judge had failed to ascertain the multiplicand and the multiplier in line with other decided cases of a person of similar age.

[63] The appellant challenged the multiplier used by the learned judge. It submitted that the multiplier should be calculated as at the date of the trial and instead of 19 should be reduced to 15. (para 6.1 of its submissions).

[64] The Appellant then submitted that the multiplicand should be calculated by multiplying the take home pay ($149.85) by the permanent disability. The Appellant submitted that the permanent disability was 9%. As a result, the Appellant submitted, the multiplicand is $1348.65 as an annual figure ($149.85 x 9% x 52).

[65] The Appellant then submitted that the award for the loss of earning capacity should have been $13486.50 (i.e. $1348.65 x 15). However, even if the Appellant's submission is accepted, then 15 (as the multiplier) multiplied by $1348.65 (as the multiplicand) would total $20,229.75.

[66] Although the learned judge has not reproduced his calculations, he chose a multiplicand of $149.85 per week being the Respondent's earnings at the time of injury since he was not receiving wages at the time of the trial. He selected a multiplier of 19. The learned judge multiplied the multiplicand weekly wage figure by 52 to arrive at an annual figure and then multiplied that amount by the multiplier of 19 to arrive at $148,051.80. His Lordship rejected the submission that this amount should be reduced by a percentage amount that reflected the extent of the Respondent's disability. Instead the learned judge noted that the Respondent would have great difficulty in ever resuming work as a chainsaw operator being an option which could no longer be said to be open to him.

[67] The learned judge then reduced the amount to $85,000.00 on the basis that the Respondent would be receiving a lump sum for his immediate use and what he termed "the vicissitudes of life".

[68] The Appellant submitted that the level of incapacity, the level of education and the possibility of some form of future employment being available to the Respondent should have been considered by the learned judge. The Appellant concluded by submitting that an amount between $10,000.00 and $20,000.00 would be an appropriate award for loss of future earnings.

[69] Although the Appellant has referred to a number of decisions of both the High Court and this Court, I am of the opinion that this Court should be mindful of the observations of the Supreme Court in Attorney-General of Fiji –v- Edward Michael Broadbridge (unreported Civil Appeal No. 5 of 2003 delivered on 8 April 2005). Commencing at paragraph 43 the Court noted that "the multiplicand/multiplier" approach:

"... has a long history in Fiji. It is based upon a traditional method of calculating future economic loss that developed in England over many years. It assumes that the method by which lost future earnings are converted into a lump sum is to multiply the net annual loss (the multiplicand) by a figure based upon the number of years of duration of the lost earning power, that is discounted so as to take into account the fact that the lump sum is being paid immediately, rather than being spread over a number of years, as would have been the case had the accident not occurred (the multiplier). The object of this exercise is to provide a lump sum which, when invested, will equal the income lost during the working life of the claimant, assuming a combination of interest payments and gradual withdrawal of capital leaving nothing in the fund at the end of the period.

This approach requires the quite separate assessment of a multiplier, and of multiplicand. In general, the multiplicand is first assessed. ... the starting point (is) the amount that the Plaintiff would have been earning at the date of trial had it not been for the accident. If the plaintiff is able to earn more in the future, that fact must be taken into account. Under this approach, the Court does not take account of future inflation but assesses the multiplicand on the basis of the net annual average future earnings. It follows that account is taken of promotion prospects.

....

Conversely, it may be necessary to take account of the likelihood that a Plaintiff would not have earned his or her pre-accident earnings during a period when there was less that full employment ....

Ordinarily, the multiplier will be calculated on the basis of the likely duration of the plaintiff's disability. If it is clear that the plaintiff will not work again, that will be the rest of his or her working life. The starting point is the date of trial.

In determining the appropriate multiplier, courts that apply this method have tended to significantly discount the initial figure arrived at to take account of two particular factors. The first of these is, as the award of damages takes the form of a lump sum, the fact that the plaintiff would, but for the discount, be receiving immediately the earnings that would otherwise have been spread over a number of years. The plaintiff thereby benefits from the interest accruing during that time."

[70] Of some significance in relation to this aspect of the multiplier is the Court's discussion of the decision of the house of Lords in Wells –v- Wells [1998] UKHL 27; [1999] 1 AC 345. At paragraph 54 of its judgment the Supreme Court referred to the reasoning of the House of Lords in relation to the multiplier and the possibility of interest being earned on a lump sum investment:

"A prudent investment for an ordinary investor, which would include a substantial proportion of equities, was not necessarily a prudent investment for an injured Plaintiff. A person in that position would need to draw on income and a portion of capital each year, and would require a safer investment, but at a significantly lower rate of return. A higher multiplier was needed to reflect that fact."

[71] Then at paragraph 55 the Supreme Court proceeded to discuss the other factor that courts take into account in determining an appropriate multiplier:

"In addition to the discounting designed to take account of the immediate award of the lump sum, courts also take into account the vicissitudes of life. These include the risk that the Plaintiff might not live to earn his or her income over the anticipated working life, or might have his or her employment terminated through illness or redundancy. Equally, of course, the possibilities for good should also be taken into account."

[72] At paragraph 61 the Supreme Court confirmed that a court was not obligated to strictly apply this conventional approach:

"There is no challenge to the courts' ability to approach loss of earning capacity in a manner that dispenses with the conventional multiplicand/multiplier approach. Loss of future earning capacity can be calculated on a broader basis, having regard to the evidence led in the particular case, without being constrained by the traditional requirements of the conventional multiplicand/multiplier approach."

[73] The task that faced his Lordship at the trial of this action was clearly stated by the Supreme Court (supra) at paragraph 66:

"In any personal injury action involving loss extending beyond the date of trial it is necessary to consider what would have occurred had it not been for the injury, and what will now happen."

[74] In discussing that issue, the Supreme Court indicated at paragraph 69:

"A plaintiff who has been deprived of earning capacity, whether in whole or in part, has lost the chance of exploiting that capacity to the full. ... in most instances, the chance of so exploiting the capacity is high and this is reflected in the approach taken by the courts, which is usually to assume that it would have been exploited to the full, at least to the normal retirement age. That one hundred per cent probability is then discounted by the chances of its not being exploited due to the normal contingencies of life."

[75] Again at paragraph 72 the Supreme Court, in clear terms, re-iterated the task that a court must undertake:

"A plaintiff is entitled to damages for the difference between the earning capacity as it would have been had there been no injury, and the earning capacity as it now is. The difficulty in assessing the net loss is accentuated by reason of the uncertainty, speculation and conjecture that surrounds these issues. The simplest case to deal with is that of a mature person, in a steady job, with little or no prospect of advancement, whose earning capacity is totally destroyed. (emphasis added). Even in such a case a court must attempt to predict a number of years for which the plaintiff might have gone on working."

[76] Again the Supreme Court stated at paragraph 79:

"It is incorrect simply to multiply the amount of the loss at the relevant date by the time over which the losses are expected to occur. Each loss must be discounted by reason of the earlier and certain receipt of the money to replace the losses."

[77] The evidence before the learned judge was that at the date of trial the Respondent was 31 years old, having been born on 25 April 1976. He would, in the usual course of events, have retired at the age of 55 years. Dr McCaig estimated the Respondent's disability at 45% based on the workers compensation scale. The Respondent experienced difficulty in movement even with a prosthetic leg. However the evidence was that his former employer continued to pay him $25 - $30 per week for work in his vegetable garden.

[78] The Respondent was a mature person in a steady job as a chainsaw operator. There was no evidence of any realistic prospect of meaningful advancement for him in that employment. Although his earning capacity may not have been totally destroyed, his employment opportunities as a below knee amputee experiencing mobility difficulties were extremely limited especially when employment opportunities even for able-bodied mature men were extremely limited. There was no evidence to suggest that the Respondent could anticipate any form of future full time employment. He had left school at any early age. In all probability as an amputee he could expect in the future to be limited to part time and/or casual employment.

[79] It is apparent that the learned judge did not take into account the relatively small amount of weekly income earned by the Respondent in his former employer's vegetable garden. A deduction of $30.00 per week should have been taken into account and the multiplicand reduced to $119.85 per week.

[80] Although the multiplier of 19 is certainly higher than is usually applied by courts in Fiji when using this approach to calculate a fair amount as compensation for loss of future earnings, the reduction from $148,051.80 to $85,000.00 being $63,051.80 represents a discount of approximately 43%.

[81] If 15 is adopted as the multiplier and the multiplicand is accepted at $119.85, the lump sum would be approximately $93,000.00. That figure, of course, is based on the assumption that the Respondent's disability was 100%. The Appellant submitted that the Respondent's entitlement should be calculated on the basis that he suffered 9% permanent disability. I agree with the learned judge that a below right knee amputee's compensation for loss of earning capacity should not be calculated in this manner. However it is apparent that the Respondent's disability is not anywhere near total or 100%.

[82] In determining a fair amount of compensation under this head, allowance has to be made for the present and certain receipt of a lump sum to be invested for the future, the limited prospects of permanent full time employment as a result of the injury, the extent of the Respondent's residual permanent disability and the vicissitudes of life.

[83] These factors do not lend themselves to mathematical calculations. The process is not perfect but it does attempt to be fair.

[84] When it is taken into account that the multiplier selected by the learned judge was extremely high and the fact that the multiplicand was also higher than it should have been the figure ultimately arrived at by the learned judge was in my opinion excessive. I consider that an amount of $60,000.00 is fair compensation for the Respondent's future loss of earnings.

[85] The final challenge relates to the award of an extra $2,000.00 for the cost of future medical care when, it is submitted, the learned judge had awarded $9,000.00. However, in my opinion, this challenge is misconceived. In paragraph 62 of the judgment it is clear that the learned judge has awarded an amount of $9,000.00 as general damages for the cost of future replacement of the Respondent's prosthesis. The learned judge then sets out the other components of general and special damages. In addition to the $9,000.00 awarded for prosthesis replacements he awarded a further sum of $2,000.00 for future medical care. His Lordship noted that no estimates were given for this item but he considered it appropriate to allow an amount for future medical care. It is clear to me that His Lordship intended this amount of $2,000.00 to cover future medical expenses that may arise in addition to the amount awarded for prosthesis replacement requirements. I would dismiss this ground of appeal.

[86] In summary I would dismiss the appeal in all respects except to reduce the amount awarded for future loss of earnings from $85,000.00 to $60,000.00. The Respondent is entitled to the costs of the appeal which I would fix at $4000.00.

Inoke J: I agree.

Wati J: I agree.

The orders of the Court are:

1. The amount awarded for future loss of earnings is reduced from $85,000.00 to $60,000.00 otherwise the appeal is dismissed.
   
2. The Appellant is to pay the costs of the appeal which are summarily fixed in the sum of $4,000.00.
   

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Hon. Justice S Inoke
Justice of Appeal

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Hon Justice W Calanchini
Justice of Appeal

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Hon. Justice A Wati
Justice of Appeal

Solicitors:

Office of the Solicitor-General for the Appellant
Maqbool & Company for the Respondent