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Devi v Nandan [2013] FJCA 104; ABU0031.2011 (3 October 2013)

IN THE COURT OF APPEAL
APPELLATE JURISDICTION

CIVIL APPEAL NO. ABU 0031 of 2011
(High Court Civil Action No. HBC 121 of 2008 )

BETWEEN:

SAROJINI DEVI
Appellant

AND:

VISHWA NANDAN
Respondent

Coram : Chandra JA
Basnayake JA
Lecamwasam JA

Counsel : Appellant in person
Mr K Pillay for the Respondent

Date of Hearing : 16 September 2013
Date of Judgment : 3 October 2013

JUDGMENT
Chandra JA

1. This is an appeal from the judgment of the High Court at Lautoka.
   
2. The Appellant filed a writ of summons claiming damages consequent upon being a victim of a motor car accident involving two cars, one driven by her and the other driven by the Respondent.
3. The Appellant claimed damages for transport expenses, loss of earnings as special damages and general damages from the alleged physical harm caused to her by the accident.
   
4. The Appellant said that the Respondent failed to exercise necessary care expected of a prudent driver as he was driving at an excessive speed, failing to keep a proper look out and slow down or stop or manoeuvre the said vehicle so as to avoid collision with the Appellant's vehicle and thereby failing to pay attention to other road users.
   
5. The Appellant claimed that as a result of the collision, she had suffered extensive injuries and was suffering from injuries which could not be diagnosed that required overseas diagnosis and treatment.
   
6. The Respondent, in his statement of defence denied that the collision was caused by any act of carelessness or negligence on his part and required the Appellant to prove same. He further stated that his vehicle had veered off towards the right side as some object crossed suddenly and unexpectedly and that it was not his fault to have the vehicle swerved to the right.
   
7. The Respondent admitted that he was charged for an offence of careless driving for which he was fined with a sum of $100.00.
   
8. At the trial the Appellant gave evidence regarding the occurrence of the accident and that she was taken to the hospital after the accident. She stated that she could not walk as she was still suffering from pain and claimed damages in a sum of $100,000.00. She did not produce any evidence regarding her alleged disabilities by way of medical diagnosis, prescriptions for treatment or medical reports to support her claim nor did she lead any evidence to substantiate her claim for damages.
   
9. When cross examined, the Appellant denied faking injuries and medical conditions. Although she undertook to call a doctor to give evidence on her behalf she failed to do so.
   
10. The Respondent gave evidence on his behalf and related the incident resulting in the collision of the vehicles and stated that he was ordered to pay a fine of $100.00
    
11. The Respondent also led the evidence of two other witnesses to show that the Appellant had not suffered any injuries nor had any resultant disabilities as a result of the said accident. The Respondent also led the evidence of the doctor who had examined the Appellant for a medical assessment and stated that the Appellant did not manifest the medical condition that she was presenting. He expressed the opinion that the Appellant was malingering.
    
12. The learned trial Judge on considering the evidence led before him held that the Respondent was liable for causing the accident and that there was a breach of the duty of care by him. Thereafter he proceeded to consider the damages claimed by the Appellant and concluded that she had failed to place any evidence regarding the general and special damages claimed by her and dismissed those claims.
    
13. Thereafter the learned trial Judge proceeded to order the Respondent to pay $5,000.00 as punitive damages to the Appellant and $ 500.00 as costs of the action.
    
14. The Appellant by notice of appeal dated 14th June 2011 appealed against the said judgment on the following grounds:
    
    1. The Judge erred in law and in fact in assessing the damages to be in the sum of $5,000.00 only.
       
    2. The Judge erred in law and in fact in assessing the costs of this action to the Appellant to be in the sum of $500.00 only.
       
15. The Respondent too appealed against the said judgment by his notice of appeal 28th June 2011 and set out 13 grounds out of which what was relied on by the Respondent at the argument stage were the following grounds:
    
    1. That the learned Trial Judge erred in law and/or fact in finding the Respondent liable for punitive damages when the same was not raised by the Appellant.
       
    2. That the learned trial Judge erred in law and/or in fact in holding that the Respondent pay $5000.00 in punitive damages and $500.00 in costs when the totality of the evidence showed that the Appellant had no reasonable cause of action and was malingering her alleged disability.
       
    3. That the learned trial Judge erred in law and/or in fact in finding the Respondent liable for $5,000.00 for punitive damages when it was put to the Appellant and raised that the Appellant had filed multiple duplicate actions in the Nadi and Lautoka Magistrates Court seeking damages for the loss to her vehicle and that she was duplicating her claims before three separate courts.
       

Appeal of the Appellant

16. Both parties had filed written submissions in respect of their appeals. When the appeal was taken up for hearing, Counsel for the Respondent raised an objection regarding the written submissions filed by the Appellant to the effect that the Appellant had in addition to the two grounds of appeal in her notice of appeal had annexed new documents without seeking leave from court to adduce fresh evidence. The said objection was upheld and the Appellant was required to confine her submissions to the two grounds which she had urged in her notice of appeal.
    
17. The first ground of appeal of the Appellant was that the learned trial Judge erred in law and in fact in assessing the damages to be in a sum of $5000.00 only.
    
18. It is to be noted that the damages awarded by the learned trial Judge was punitive damages in a sum of $ 5000.00 and not as general or special damages. In fact, the learned trial Judge did not award any damages on the basis of general and special damages.
    
19. It is a well established principle that special damages to be awarded should be claimed and proved specifically. As quoted by the learned trial Judge in British Transport Commission v Gourley [1955] UKHL 4; [1956] AC 185 it was stated:
    

"Special damage has to be specially pleaded and proved. This consists of 'out of pocket' expenses and loss of earning incurred down to the date of trial, and is generally capable of substantially exact calculation."

20. As stated by the learned trial Judge the Appellant did not place any evidence regarding special damages and therefore there was no basis to grant any special damages to the Appellant.
    
21. In relation to general damages especially in the case of an accident victim, such damages would envisage pain and suffering from injuries, loss of amenities of life, loss of future earnings and loss of other material benefits. In respect of general damages too the Appellant did not place any evidence before Court for the Court to grant any damages.
    
22. Therefore the conclusions reached by the learned trial Judge cannot be faulted as it was the Appellant herself who was to be blamed for not proving any general and special damages which resulted in no award of damages being made in respect of her claims. Therefore the first ground of appeal fails.
    
23. The second ground of appeal was that the costs awarded was only $500.00. The allegation of negligence on the part of the Respondent was established and therefore that resulted in the case of the Appellant being successful to that extent. The Appellant appeared in person and therefore her expenses in respect of the action was at a minimum. Therefore the costs awarded by the learned trial Judge in those circumstances was appropriate and justified and therefore the second ground of appeal also fails.
    
24. The damages granted to the Appellant termed 'punitive' damages by the learned trial Judge needs consideration in the circumstances of this case. That will be dealt with under the consideration of the Respondent's appeal.
    

Appeal of the Respondent

25. The ground of appeal that was before Court when the appeal was taken up for argument was on the question of the granting of punitive damages by the learned trial Judge against the Respondent.
    
26. The Appellant in her statement of claim prayed for special damages, general damages and costs and did not claim punitive damages.
    
27. The learned trial Judge in granting punitive damages had gone beyond what was pleaded by the Appellant. The learned trial Judge himself in his judgment cited the decision of Anderson v Salaitoga [1994] FJHC 42 to the effect that the relief which may be granted to a party must be founded on the pleadings in respect of a matter raised by the Respondent in the course of the trial and disregarded the evidence adduced by the Respondent and refused to consider the allegation of malingering against the Appellant.
    
28. Having dealt with the allegation of malingering by the Appellant as above, the learned trial Judge at paragraph 40 of the judgment, proceeded to consider the redress that could be granted to the Appellant and stated:
    

"... apart from compensating loss, harm and/or injury, another object of awarding damages is to penalize the wrongdoer for the wrongful act. That this object is sought to be achieved by awarding, in addition to the usual compensatory damages, if any, exemplary, punitive, vindictive or retributory damages, which comes into play when the defendant's conduct shows a disregard or insolence or the like to the plaintiff (See McGregor on Damages; Harley McGregor, 13th Edit. Sweet and Maxwell, 1972 p.303). The principle of awarding punitive damages against a wrongdoer was accepted and applied in Uren v Fair Fax and Sons Pvt Ltd [1966] 117; Lamb v Cotogno [1987] 164 CLR and Fontin v Katapodis [1962] HCA 63; [1962] 108 CLR 177."

29. The principles relating to the granting of punitive damages was correctly set out by the learned trial Judge as stated above but the question that arises is as to whether the circumstances of this case warranted the application of such principles.
    
30. The learned trial Judge thereafter stated as follows:
    

"41. The accident was caused by the defendant in breach of his duty of care towards the plaintiff, while she was lawfully using the highway in lawful pursuit of her occupation. The breach also affected, impeded and obstructed the plaintiff's right of movement, which is a universally recognized fundamental right. In the circumstances and having regard to the manner of causation of the accident by the defendant, I am inclined to award punitive damages against the defendant. Upon consideration of the facts and circumstances of this case, I am of the view that it would be reasonable, just and fair to determine such punitive damages to be in an amount of $ 5000.00."

31. In Seniloli v Voliti [2000] FJHC 234' [2000] 2 FLR 6 (22 February 2000) Justice Shameem in dealing with a case of false imprisonment granted punitive damages and in the course of her judgment cited the New Zealand decision of X v Attorney General (1996) NR 623 where Justice Williams at p.631 stated:
    

"As to punitive or exemplary damages,...... it is enough to note that such damages are only awarded to punish the defendants because of the outrageous or contumelious way in which they have conducted themselves in committing the tort for which they are sued (Donselaar v Donselaar [1982] NZCA 13; (1982) 1 NZLR 97 ... As Auckland City Council v Blundell [1986] NZCA 86; (1986) 1 NZLR 732 at p.739 make clear, exemplary damages must be 'fairly and reasonably commensurate with the gravity of the conduct thus condemned."

32. The present case was a simple case of negligence on the part of the Respondent which resulted in the occurrence of the accident which was complained about by the Appellant. As far as the evidence was concerned there was nothing extraordinary apart from his negligent driving which indicated any contumelious conduct on his part. The law is quite clear regarding the grant of punitive damages that there should be some untoward or contumelious conduct or malice on the part of the defendant to justify the award of punitive damages as punitive damages are granted more to punish a wrongdoer rather than with the idea of compensating the person wronged. The evidence in the present case does not show any such circumstances which would warrant the granting of punitive damages.
    
33. The granting of punitive damages is therefore erroneous due to the fact that it was not pleaded by the Appellant and also the circumstances did not warrant the grant of such damages and therefore that award has to be set aside.
    

Conclusion:

34. The resulting position in this case is that the appeal of the Appellant fails and the appeal of the Respondent regarding the grant of punitive damages succeeds and the awarding of $5000.00 as punitive damages is set aside. The costs awarded in the High Court shall remain but there shall be no costs to either party in the present appeal.
    

Basnayake JA

35. I agree with the reasons and the conclusions of Chandra JA.
    

Lecamwasam JA

36. I also agree with the reasons and the conclusions of Chandra JA.
    

Hon. Justice S Chandra
JUSTICE OF APPEAL

Hon. Justice E Basnayake
JUSTICE OF APPEAL

Hon. Justice S Lecamwasam
JUSTICE OF APPEAL