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Deo v Tropik Wood Industries Ltd [1992] FJHC 50; Hbc0491j.91b (28 October 1992)

IN THE HIGH COURT OF FIJI
At Labasa
Civil Jurisdiction

CIVIL ACTION NO. 4 OF 1991

Between:

RAM DEO
s/o Puran Maharaj
Plaintiff

- and -

1. TROPIK WOOD INDUSTRIES LTD.
2. AUTIKO YACALEVU
Defendants

Mr. V. Parshuram for the Plaintiff
No appearance for the Defendants

JUDGMENT

On the 25th of August 1988 the plaintiff's van was involved in a collision with a vehicle belonging to the first defendant company and driven at the time by the second defendant its employee.

As a result of the collision the plaintiff's van was extensively damaged and the plaintiff sustained serious fractures to his arm, hip and legs. The 2nd defendant for his part in the accident was charged and convicted by the Labasa Magistrates Court on his own plea of 'guilty' to an offence of Careless Driving and was fined $30.

The present claim for damages arising out of the accident was instituted by Writ of Summons with Statement of Claim annexed on the 19th April 1991 and was served on the 1st defendant company on the 3rd of December 1991 and on the 2nd defendant on the 19th of February 1992.

Then on the 17th of July 1992 in the absence of any appearance by either defendant default judgment was entered against them for damages to be assessed. This latter hearing was fixed to take place on the 4th of August 1992 and on the 28th of July 1992 'Notice of Appointment for Assessment of Damages' was served on both defendants.

On the appointed day again there was no appearance by either defendant and accordingly the Court is obliged to assess damages in this case in the absence of and without any assistance from the defendants.

At the hearing for assessment of damages the plaintiff and the Acting Consultant Surgeon of Labasa Hospital gave evidence.

The plaintiff Ram Deo testified that as a result of the accident he sustained fractures to his right arm, both legs and hip and was hospitalised for 68 days undergoing treatment as an inpatient at the Labasa Hospital.

During that time he was in great pain and because of the nature of the treatment he underwent, was totally immobilised in his hospital bed and had to be attended by his wife (during the day) and his son (during the night) for his every personal need.

Upon his discharge he was still unable to walk and had to use a wheelchair and then crutches for 6 months before he could walk unassisted. He still feels pain and has difficulty walking for long periods.

During his time of recuperating at home he attended 4 review clinics at the Labasa Hospital and on each occasion owing to his immobility, a taxi was hired from his home at Ravuka (about 40 miles away from Labasa) at a cost of $20 each way. He also spent about $200 on medicines.

Dr. Asaeli Matairavula the acting Consultant Surgeon at the Labasa Hospital confirmed the various fractures sustained by the plaintiff upon his arrival at Labasa Hospital from the scene of the accident.

In summary, he noted 3 open fractures where broken bones were protruding outside the skin, 2 closed fractures where the bone was either broken or in pieces under the skin surface and a fractured dislocated hip. In the doctor's own words:

"The patient was in a very bad shape."

He next described the various forms of treatment administered to the patient which generally comprised some remedial realignment of the fractured bones and immobilisation of the sites by the use of plaster casts; skeletal pins and counter-balancing weights.

Although the doctor was satisfied with the recovery of bone union the plaintiff's prognosis was not good with only limited movement of the right elbow, ankles and hip and the possibility of future arthritis and further deterioration in movement and seasonal variations in pain. There was also some deformity of the right foot and left leg.

He estimated that the patient had suffered a total disability of "over 50%" as a result of all his injuries.

As for loss of earnings the plaintiff who described himself as a cane farmer testified that at the time of the accident he was 44 years of age and was in good health. He worked on his cane farm which produced between 500 and 600 tons of cane annually. He also hired out his van carrying passengers and produce to the market and earned about $10 a day from his 'carrier business'.

Since the accident however he is no longer able to work on his farm and has had to employ labourers at a cost of about $400 per annum to work on the farm.

Furthermore as a result of the extensive damage to his van he was deprived of its use and could not continue his 'carrier business' for the 159 days that it was in the garage undergoing repairs.

In answer to the Court the plaintiff admitted that he has 2 sons aged 24 years and 22 years who live with him and help him on the farm. They also both possess driving licences and therefore presumably are able to continue the 'carrier business'.

As for special damages, I am satisfied that as a result of his immobility in hospital the plaintiff had to be attended to by members of his family and that his son had to travel from his home some distance from Labasa to care for the plaintiff in the nights, I am however not satisfied that it was necessary to hire a taxi both ways.

Equally, whilst I am satisfied that the loss of the use of the plaintiff's van would have deprived him of a minor source of earning income, its availability during the plaintiff's convalescence at home would have rendered unnecessary the hire of taxis for at least some of the plaintiff's review visits to the Labasa Hospital.

Furthermore in the absence of detailed evidence whilst I am satisfied that the plaintiff incurred some medical expenses in purchasing medicines such as pain killers, the nature of his injuries and the treatment received would not have necessitated in my view any unusual expenditure.

The plaintiff also claims a loss of earnings at the rate of "$10.00 per day for two years" from the date of the accident up until the issuance of the Writ.

Having regard to the absence of any evidence which could suggest that the plaintiff was engaged in any form of regular paid employment or had sold fruit or vegetables from which he received a regular daily or weekly income I am not satisfied that this claim is justified and it is therefore disallowed.

Accordingly, I award the plaintiff special damages in the following sums and under the following heads:

(1) Travelling expenses - $1,000.00

(2) Loss of carrier business earnings - $1,590.00

(3) Medical expenses - $ 100.00

making a total $(1,000 + 1,590 + 100) = $2,690.00.

=========

I turn next to the more difficult question of general damages which I propose to assess under the following headings:

(a) pain and suffering;

(b) loss of amenities and enjoyment of life; and

(c) loss of future earnings.

As for (a) having regard to the number and severity of the fractures sustained by the plaintiff and the less than perfect reunion of the boney tissue resulting in some disfigurement and deformity and taking into account his unfavourable prognosis and the likelihood of continuing pain and discomfort to the plaintiff I award him a sum of $5,000.

For 'loss of amenities and enjoyment of life' I have considered that the plaintiff a once healthy farmer can no longer work on his farm or for that matter do normal ordinary things such as feeding himself, wearing footwear, or walking without some pain and discomfort I award a sum of $2,000.

In respect of his 'loss of future earnings' I am mindful that there is no evidence that the plaintiff's future earnings from his farm and 'carrier business' have been or will be reduced in any significant way other than in meeting the extra costs of hiring some outside help on the farm. Under this head bearing in mind the age of the plaintiff, and the absence of any evidence in this regard I would award as reasonable a sum of $6,000.

The total award of general damages under the various heads is $(5,000 + 2,000 + 6,000) = $13,000 which when added to the award of special damages gives a total award of $(13,000 + 2,690) = $15,690 together with costs to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Labasa,
28th October, 1992.

HBC0491J.91B