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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. 302 OF 1995
Between:
SURAGNI CHAND
d/o Subbaiya
Plaintiff
and
1. EDDI NAUCHI
2. THOMAS COOK (FIJI) LIMITED
Defendants
Mr. H.M. Patel for the Plaintiff
Mr. D. Sharma for the Second Defendant
JUDGMENT
ASSESSMENT OF DAMAGES
This is a claim for damages for injuries sustained by the Plaintiff on 12 March 1994 in an accident. A default judgment was obtained on 28 July 1995 with damages to be assessed. The first defendant is believed to have left the country. Liability is admitted by the second defendant in that the accident was caused solely by the negligent driving on the part of the first defendant.
The injuries received by the plaintiff arose out of an accident which happened on 12 March 1994 at about 9.00 p.m. whilst the Plaintiff was a passenger in a motor vehicle Regd. No. CN027 driven by her husband, Ami Chand at the material time proceeding from Sigatoka to Nadi at Nabou on the Queen's Road. The first defendant (D1) who was driving a private car Regd. No. BY496 which was owned by the second (D2) collided with the vehicle Plaintiff was in and she received certain injuries.
The D1 was convicted of careless driving on 12 May 1994 by Nadi Magistrate's Court. He was fined $25 in default 25 days imprisonment.
As a result of the injuries received by the Plaintiff she was admitted to Lautoka Hospital and was discharged on 31 March 1994 but continued receiving treatment there.
The Plaintiff gave evidence and called witnesses to testify on her behalf. The defendant called just one witness, namely, Mr. Girish Jamnadas to testify as to the condition of the eye of the Plaintiff.
Plaintiff's evidence
The Plaintiff was 32 years of age at the time of the accident and is married with three children (all daughters) aged 15, 12 and 9 years respectively. She has given her occupation as domestic duties. Before the accident she was able to do gardening and sewing which she finds it difficult to do now.
The Plaintiff's evidence and that of her husband given on oath have been well summarised by Mr. Patel in his written submission and I can do no better than repeat them below:
She told the Court that she was involved in a car accident on 12th of March 1994 between Sigatoka and Nadi and taken to Nadi Hospital but later transferred to Lautoka Hospital. At the Lautoka Hospital she was treated first by Dr. D. Krishna for comminuted fracture of distal femur with intra-articular extension and multiple body laceration. She was then referred to the eye-department at Lautoka Hospital and on 13/3/94 she was treated for right corneal laceration by Dr. Luisa Cikamatana (refer to Exhibit P1 and P2). She was discharged on 31/3/94. She was on crutches for eight months. However, she told the Court from memory that she travelled about eleven times to Lautoka Hospital for her injuries to her leg and eye. She told the Court that she cannot anymore do her normal house work or do sewing or gardening she finds it difficult to climb stairs and walks with a limp. She also told the Court in cross examination that her sex life has also been hampered and due to the injuries there has been unhappiness between the couple. She also gave evidence about the disruption in her menstrual period. Because of bleeding she could not have sex for 3 to 4 months at times.
The next witness was the Plaintiff's husband, Ami Chand, who told the Court, about the accident. He told the Court that after his wife was discharged from Lautoka Hospital she still had to travel to Lautoka on several occasions in a taxi for follow up treatment to her left leg and right eye. In his evidence he categorically mentioned that his wife was not able to do the housework in the same manner as before the accident, could not do gardening or walk properly. He said that their sex life has definitely been marred, that is, it is not possible to have normal enjoyable sex with his wife anymore. Because of this there is constant arguments and frustration has built up. He is thinking of divorcing his wife but owing to religious believes he has not done so.
Both the Plaintiff and her husband have said that the services of a house girl and the next door neighbour called Tara had to be employed for at least one year after the accident. The husband on behalf of his wife had to pay for housekeeping at the rate of $35.00 per week, taxi fares from Suva to Lautoka and medical expenses.
Defendant's evidence
The only witness for the defendant was MR. GIRISH JAMNADAS, an opthalmologist. He testified as to the Plaintiff's eye condition. He examined her on 12 December 1995 with the purpose of giving a "second opinion" on her. His Report dated 28 December 1995 states, inter alia, as follows:
"I understand she sustained multiple injuries and one of the injuries had been sustained to her right eye. Her vision in the right eye was 6/9 and vision in the left eye 6/5. Anterior segment findings showed a curve linear 5 mm corneal scar at the edge of the pupillary axis. Refraction in the right eye showed she had a mixed astigmatism (-0.25/+1.50 90). Intraocular pressures were 16 mm mercury each eye. Anterior chamber, lens and iris were normal. Fundoscopy showed no abnormality or injury to the retina.
Suragni has sustained a minor corneal injury which has left her with a small scar reducing her vision to 6/9. Her percentage incapacity would be 11% with the other eye being normal according to workmans compensation act.
Injuries as established by evidence
On the evidence before me I accept that the injuries to the Plaintiff were as stated in Dr. Krishna's Report dated 5 May 1995. They are as follows:
"Injuries
Treatment
She was given emergency treatment for laceration and corneal damage. Fracture femur was treated with open reduction and plate and screw fixation. She was discharged on 31/03/94 and followed in Orthopaedic Clinic.
Last review on 04/05/95
Prognosis
The above findings are chronic and will lead to permanent disability especially the stiffness of knee and the osteoarthritis which is likely to worsen with time.
For the eye pain she might need glasses but a final report will be submitted through the eye department at a later date".
Dr. Luisa Cikamatana, the eye doctor, told the Court that she found that the Plaintiff suffered from right corneal laceration with a scar on the right cornea. On her last review she found that the vision in Plaintiff's right eye had stabilised at 6/12 and recommended on 11 July 1995 that the Plaintiff will have to wear spectacles to correct her vision. Whereas Dr. Girish Jamnadas an eye specialist who was called by the defendant came to the conclusion that the vision in the Plaintiff's right eye was 6/9 (Permanent disability of 11% under the Workmen's Compensation Act) and this I accept.
Assessment of damages
Damages is claimed under the following heads: (a) special damages, (b) general damages for pain and suffering and loss of amenities of life, (c) Interest and (d) costs. I shall deal with these items in that order and in doing so I have considered the submissions of both counsel in respect of them.
(a) SPECIAL DAMAGES
Because the Plaintiff has failed to produce any receipts (except one) for expenses claimed under this head and has not established her claim as she should, Mr. Sharma has attacked each and every item of the various claims under this head very vigorously. I have considered his comments.
Special damages are accrued and ascertained financial loss (per Edmund Davies L.J. in CUTLER v VAUXHALL MOTORS 1971 1 Q.B. 418 at 426) which the Plaintiff has incurred by the date of the trial. Subject to what I say hereafter unless agreed by the parties prior to the hearing special damages should be expressly pleaded. They must be claimed specially and proved strictly.
The absence of receipts and other acceptable evidence has been variously dealt with by the Courts. Where there have been agreements there is no problem. However, it is proper to make a calculation based on sufficient evidence. Even Mr. Sharma has in his submission agreed to reduced figures on certain items despite the absence of receipts or pleading.
In NARENDRA KUMAR (f/n) Shiu Kumar and SAIRUSI DRAWE (Action No. 60/89) PALMER J at p 12 of his judgment said:
"Notwithstanding that not a single receipt has been produced in evidence I am satisfied from the Plaintiff's evidence that he paid those amounts and I propose to allow the sum of $255 accordingly."
In that case the sum of $255 was amount paid to Dr. Sharma ($225 for his report and $25 for his first check-up and $5 to the hospital for its report).
Some Courts have taken a very hard line like in MAHENDRA NAIDU s/o Adiappa and RAVINDRA PATEL s/o Motibhai Patel C.A. No. 105/99 (West Div) when WILLIAMS J said:
"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 and not simply to say this is what I have paid or suffered in losses expect to be awarded those sums".
The Fiji Court of Appeal in TACIRUA TRANSPORT COMPANY LIMITED and VIREND CHAND f/n Ragho Prasad (Civ. App. No. 33/94) went to the extent of commenting on the desirability of strict proof when it said at p.3 that:
"While we realise that the Judge was endeavouring to give some recognition of the fact that the Respondent must have been put to some expense, we are unable to see how there was any basis for him to make the award that he did."
The plaintiff claims the sum of $200.00 for damage to clothing. She was wearing jeans and blouse at the time of the accident. On the Plaintiff's own admission of the value of clothes I allow the sum of $40.00.
The sum of $1000.00 is claimed for medical expenses which covers her Lautoka Hospital charges which were minimal but no amount is stated and cost of calling three doctors from Lautoka to Suva to give evidence thus incurring expenses for their air fare and accommodation. Also under this head the Plaintiff's claim is for the following items: blood transfusion - $20.00; spectacles - $70.00 (receipt produced), Dr. Welby Korwa - $50.00 and hospital stay $20.00.
I allow the last four items amounting to $160.00 (Mr. Sharma suggests $105) with the knowledge that these expenditures were legitimate and would have been incurred although with receipt for one item only. I cannot allow air fare and accommodation for the three doctors called to testify at the hearing. These are not medical expenses but are costs incurred in preparation for the hearing and are not special damages. These could be claimed as costs (either agreed or taxed) in this action.
No doubt it is the Plaintiff's duty to mitigate her loss. As far as taxi fare is concerned I consider that it is exaggerated and I am inclined to agree with Mr. Sharma on his arguments to a large extent. I agree it is not customary to get receipts for taxi fares but in this case the Plaintiff knew that a number of trips would be made therefore she should have obtained receipts. However, because of the nature of the injury I find that it was more convenient for her to travel by taxi. I therefore allow the sum of $500 in round figures for travelling to Lautoka for "review".
Under special damage the Plaintiff is claiming 'costs of care'. Mr. Patel submitted that upon discharge from hospital on 31 March 1994 the Plaintiff returned to Suva and had to employ a housegirl at the rate of $35.00 per week. He is asking that the Plaintiff should be allowed $140.00 per month for a period of 12 months which amounts to $1648.00.
Mr. Sharma strongly opposes this claim arguing firstly, that it has not been pleaded as special damages; secondly, evidence does not show that she employed a housegirl and paid her $35.00 per week as no receipt has been produced.
Under the strict rules as to pleading and proving special damages, I agree with Mr. Sharma's arguments in this regard. I draw the claimant's attention to the following passage from the Chief Registrar's Practice Direction No. 3 of 1993 to be followed:
"In any personal injury actions in which the damages claimed consist of or include a claim for:
particulars, where appropriate in the form of a schedule, shall be prepared by the party making such claim and, not later than 38 days after the case has been set down for hearing by the Registrar, shall be served upon all other parties against whom such claim is made. Not later than 14 days thereafter every party upon whom particulars have been served shall indicate in writing whether and to what extent each item is agreed and if not agreed, the reason why not and any counter proposals." (emphasis added)
Strictly, this should have been pleaded as a claim but this was not done. Apart from the Plaintiff's own evidence in this regard, no wages slip or other documentary evidence was produced to support this claim for domestic services. No doubt the Plaintiff is entitled to claim for this item. However, despite the absence of adequate proof, bearing in mind that the Plaintiff's 'femur' was fractured as found by the doctor, there certainly was need to obtain domestic help. In Fiji even in cases where there are no injured persons in the house people still seek domestic help on a full time basis. In FLETCHER v AUTOCAR and TRANSPORTERS LTD (1968) 2 Q B 322 at 323 DENNING M.R. said:
"The plaintiff should be compensated for his special damages to the date of trial and for all expenses to which he will be put by reason of the accident, including the cost of extra help in the house while he is at home and, ..." (emphasis mine)
On the facts of this case I am of the view that a fair and reasonable compensation would be to approve domestic help for 6 months (not 12 months as claimed) at the rate of $35.00 per week which comes to $840.00. The plaintiff is being compensated for a need to which the tortious conduct of the wrongdoer gave rise; I find that the services were reasonably necessary.
To summarize, I allow special damages as follows:
Clothing $ 40.00
Blood transfusion $ 20.00
Paid to Dr. Korwa $ 50.00
Spectacles (receipt produced) $ 70.00
Hospital stay $ 20.00
Travelling $ 500.00
Domestic help $ 840.00
$1540.00
Whilst I allow some of the claims without receipts and pleading, on the facts of this case, it would do well for counsel to pay regard to strict rules as to pleading and to the Chief Registrar's said circular.
(b) GENERAL DAMAGES
I shall now deal with the claim for general damages.
In general damages are included cost of future nursing and attendance and medical expenses, pain and suffering and loss of amenities and loss of future earnings. This list although often convenient, is not exclusive in the sense that losses which cannot be easily categorised within that are thereby excluded.
The Plaintiff makes the following claims under this head: (i) facial disfigurement, (ii) pain and suffering, (iii) loss of amenities and (iv) future care.
The practice of assessing the various components of general damages separately, referred to by Lord Denning MR in LIM POH CHOO v CAMDEN AND ISLINGTON AREA HEATLH AUTHORITY (1979) Q B 196 at 217 - 218 has since 1970 become general. Consequently it is now possible for awards to be appealed on the basis that individual components thereof have been wrongly assessed, and if an error of principle is disclosed which would make a substantial difference to the total figure the appeal will succeed. (THE MODERN LAW OF NEGLIGENCE 2nd by R.A. BUCKLEY at p.141).
However, as LORD SCARMAN said in LIM POH CHOO (supra) [1979] UKHL 1; 1980 AC 174 at 191:
"... the separate items, which constitute a total award of damages, are interrelated. They are parts of a whole, which must be fair and reasonable".
With these few preliminary remarks I shall now consider the subheads under this head separately.
(i) Facial disfigurement
There is evidence that there were body lacerations which were of superficial nature and no stitches were required. There are some scars but they have lightened and are not so visible. Hence they are not of any great moment to qualify for a high award.
No doubt 'disfigurement' has 'always been regarded as an important element in assessing damages', but it is
"more serious when it leads to a loss of career, or when the plaintiff is very conscious of the disfigurement and avoids social occasions". (DAMAGES for PERSONAL INJURIES AND DEATH by JOHN MUNKMAN 9th Ed. p.131-132).
According to Mr. Sharma's argument to entitle the Plaintiff for $5000 (as claimed) there has to be a facial disfigurement of 41% under the Workmen's Compensation Act. Although Mr. Sharma suggests the sum of $100, I am inclined to award the sum of $500.00 on the facts relating to 'disfigurement'.
(ii) Pain and suffering
The Plaintiff is entitled to damages under this head. As stated in KEMP & KEMP (Vol. 1 p.2007 2-010):
"...the court must take into account, in making its assessment in the case of any particular plaintiff, the pain which he actually suffered and will suffer and the suffering which he has undergone and will undergo. Pain and suffering are not measurable by any absolute standard and it is not easy, if indeed possible other than in the most general way, to compare the degree of pain and suffering experienced by different people, however, the individual circumstances of particular plaintiffs clearly have a significant effect upon the assessment of damages".
There is no doubt whatsoever that the Plaintiff did go through a lot of pain and suffering as a consequence of the injuries received by her. Details of these injuries have already been outlined hereabove suffice it to say that her range of motion of the knee is decreased and this according to Dr. Krishna will cause permanent disability especially with stiffness of knee and osteoarthritis. The pain in the knee could continue for a long time. The injuries have also brought about impairment to social and 'sex life'.
There is evidence which I accept that the Plaintiff has difficulties in walking, carrying out her house work and sitting down or squatting. The screws and plate are still in her leg.
Prospective as well as post suffering must be allowed for; in HEAPS v PERRITE LTD (1937) 2 All E R 60 GREER L.J. said:
"We have to take into account not the suffering which he had immediately after the accident but the suffering that he will have throughout his life in future."
"In actions for personal injuries, the court is constantly required to form an estimate of chances and risks which cannot be determined with anything like precision; for example, the possibility that the injury will improve, or deteriorate, or the possibility of improved earnings if the accident had not occurred: see FAIR v. LONDON AND NORTH WESTERN RLY CO (869) 21 LT 326". (MUNKMAN: Damages for Personal Injuries and Death 8th Ed. at p.10).
The Plaintiff received prompt treatment at the hospital and was discharged after two and half weeks. Thereafter she went to hospital for mobility reviews. The Plaintiff was operated under anaesthetic; the doctors agree that the fractures have healed. She walks with a gait.
Both counsel referred the Court to a number of decided cases bearing on the quantum under this head.
Mr. Patel suggests that the sum of $25,000 be awarded for pain and suffering.
I agree with Mr. Sharma that in ANITRA KUMAR SINGH v RENTOKIL LABORATORIES LTD F.C.A. Civ App. 73/91 the injuries were much more serious than this case and $60,000.00 was awarded. Also in VIREND KUMAR v MADHUKAR NATH SHARMA FCA 15/91 there was amputation of a leg and injuries were greater than here and an award of $35,000 was made. Similarly, in WAISALE NAICEGULEVU FCA No. 22/89 an award of $25,000.00 was made. In SUBHASH CHAND v A.G. & ANOR FCA 212/84 amount awarded was $27,500 pain and suffering which included, inter alia, shortening of right leg and confinement to wheel chair. This case has some comparison to TAKAYAWA BOGIVA v THE ESTATE OF BEN BAKAUNA & ORS (High Ct. C.A. 713/88 Scott J). There the victim had two comminuted fractures, leg was permanently shortened and this left her with a rocking limp and was likely to get osteoarthritis. There the sum of $12,000.00 was awarded which included loss of earning capacity as well.
Mr. Sharma referred the Court to the following cases which he says is more relevant to present case: ABDUL RAUF v HUSSAIN ALI (Sup Ct 126/78) for pain and suffering $2500.00 awarded, VIREND SINGH v RAM SUNDAR & ANOR (H.C. 388/91) - $6000 involving ankle fracture and spending six months in plaster, PARMANAND MAHARAJ v MOSESE SEIKAWAKULA F.C.A. 5/80 - dislocation of hip and fracture of actebalum - osteoarthritis - $5000, RAM KUAR v GHURAU PRASAD & ORS FCA 50/76 - fracture of the shaft of the femur - $1000.00. In SOMARI DASS v MOAPE WADUKI & ORS (FCA 621/88) which Mr. Sharma says is identical to present case involving a comminuted fracture of the midshaft of the femur - $3,500.00. In DIP NARAYAN v LEYLAND LIMITED & ANOTHER (Sup Ct. 1972, 22/6/72 Tuivaga J as he then was, now C.J.) where there was fracture of the knee cap and haematoma and permanent residual incapacity of 20% an award of $3,500.00 was made.
Mr. Sharma submits that here the residual incapacity was 22%. The maximum sum under the Workmen's Compensation was $12,000 (for 100% incapacity). He says that if she was working 22% of 260 weeks income would constitute a lump sum payment. Twenty-two per cent of the maximum sum of $12,000 would amount to $2240.00.
(iii) Loss of Amenities
(a) Sexual function
This sub-head falls under the head pain and suffering.
The Plaintiff said that there were problems associated with sexual intercourse and the "husband got frustrated". There was some variance between the evidence of the Plaintiff and her husband. He said that he could not have sex at all and that was different from what the Plaintiff said.
I am convinced and I accept the Plaintiff's testimony that as a result of the injuries the Plaintiff had difficulty in the performance of sexual act despite the fact that the doctors have not made any reference to it in their report. It is quite obvious from the type of injury that certain amount of discomfort and inconvenience will be encountered in this regard.
Damages awarded on this sub-head by the High Court was $5,000.00 in MADHUKAR NATH SHARMA (supra) which was a much more serious case.
Mr. Sharma suggests a figure of $500 whilst agreeing "there might be slight discomfort in having sex due to the stiffness below the knee but such discomfort is not so bad as to prevent the Plaintiff from having sex at all or to force the husband to want to divorce the Plaintiff".
On loss of sexual function I would incorporate this in general damages (rather than as a separate item) as it was done in GUASTO v ROBINSONS OF WINCHESTER LTD (Kemp & Kemp Nov 17, 1977 10-251 p 10251) which was a case of "amputation" of leg below knee and there was medical evidence there which stated that there was a "compressed fracture of the fourth lumber vertebra which caused weakness in the right foot and 50 per cent loss of sexual functions and an award was made and incorporated in general damages. I propose to do the same in this case rather than assessing separately for loss of sexual function on the facts of this case as stated above.
(b) Eye Injury
On damages for eye injuries both counsel referred the Court to a number of cases.
Mr. Patel says damages in ILAITA LOLO KABAIRA v NEMANI WAKA (Sup. Ct. Lautoka Action 559/81 was $10,000.00 for loss of left eye; in ARUNA DEVI v SATYA PRAKASH (Action No. 355/86 Lautoka Sup Ct) - housewife lost left eye - $9,000.00; and FIJI SUGAR CORPORATION LTD v SUBARMANI (FCA Civ. App. 47/93) which involved injuries to eye etc. where award of $37,500 was total damages.
Mr. Patel says that the Plaintiff suffered serious eye injury and he suggests a figure of $25,000.00 as damages.
Mr. Sharma on the other hand says that this is not a case where the Plaintiff lost an eye and the case referred to by Mr. Patel concerns loss of an eye totally. He said that Dr. Luisa Cikamatana's Report of 11.7.95 stated that the vision had been corrected to 6/6 from 6/12 with the prescription of spectacles. Therefore, he says it is "back to being normal". However Mr. Jamnadas, a qualified opthamologist found that her vision on the right eye had improved to 6/9. Dr. Jamnadas said that this impairment should not in any way impede her in doing housework. The doctor did say that there is slight corneal scar to the left of the pupillary axis. Mr. Sharma says that, since according to Dr. Jamnadas the disability is 11% according to Workmen's Compensation Act Cap. 94, the amount to which she is entitled is $528.00 made up as follows:-
Percentage of incapacity for
loss of sight of eye 40% of $12,000 = $4800
(total loss)(as set out in
the Schedule of the
Plaintiff suffered at 11%
of disability of vision and the
figure comes to 11% of $4800 = $528.00
(iv) Cost of future care
Under this head Mr. Patel asks the Court to apply a multiplier of 15 and to allow the sum of $35 per week which comes to $1680 per year. The total for 15 years is $25,200.00.
Mr. Sharma is against allowing any sum at all under this head of "future care". He has cited a number of cases (referred to above) where there were no separate awards and the Courts have given only one general award for pain and suffering.
In my view in an appropriate case the Plaintiff would be entitled to damages for future care. Bearing in mind the medical report and the strong possibility of developing osteoarthritis in the future, I will incorporate damages on this aspect under general damages. The court can only do the best it can on the facts it has before it on this aspect. To suggest that Court use a multiplier and arrive at a figure is misinterpreting the concept pertaining to the use of multipliers in assessment of damages and which applies particularly to loss of earning resulting from injury. Here also we have the Plaintiff who has never been in employment or having ever earned any wages before she suffered the injuries in the accident.
Under the head 'general damages', 'loss of income' has that as its main component and the method of assessing this sum there is need for the use of the "multiplier". 'Multiplier' is not applicable, in my view, to this case under the sub-head 'future care' because of the nature of the injury as found and this will become evident from the following passage from SALMOND & HEUSTON on the LAW OF TORTS 20th Ed. at p.543:
"The use of the "multiplier" is the favoured method of assessing the sum: the plaintiff's net annual loss is multiplied by a figure chosen so as to produce an overall sum which is intended to provide, by withdrawals of both interest and capital, compensation for the lost income in the years ahead. The multiplier should not be confused with the number of working years which would have been left to the plaintiff if he had not been injured, since allowance is made for contingencies such as illness, which might have struck him in any event, as well as for the fact that the plaintiff in a sense receives his compensation in advance as a lump sum. In practice the multiplier hardly ever exceeds 18, even in the case of young plaintiffs..... A plaintiff may sometimes be awarded damages for loss of earning capacity, i.e. a potential handicap in the job-market in the future. After some doubt the prevailing view appears to be that this is to be regarded as a factor to be taken into account in assessing damages for loss of earnings, rather than a separate head of damage."
On the aspect of 'future care' or nursing attendance the Fiji Court of Appeal in ROTHMANS PALL MALL (FIJI) LIMITED and EDWARD NARAYAN (Civ. App. No. 65/953) held that the award of additional $10,000.00 for nursing attendance cannot stand and went on to say:
"With respect His Lordship seems to have been persuaded by speculation rather than proof that such a sum - or indeed any sum - was likely to be required to cover future nursing services. There was no claim to this effect and no evidence to support it, and Mr. Sweetman rightly complains that the defendant had no notice of it and no opportunity to contest it."
For the above reasons, the claim under 'future care' is disallowed by the application of a "multiplier", but I will incorporate a sum by way of damages for future onset of osteoarthritis and other difficulties associated with it.
Interest
There is a claim for interest and this has been pleaded as required (vide USHA KIRAN v ATTORNEY-GENERAL OF FIJI F.C.A. 25/89 and ATTORNEY-GENERAL OF FIJI v WAISALE NAICEQULEVU F.C.A. 22/89). The Plaintiff is therefore entitled to interest on general and special damages.
It was held in PICKETT and BRITISH RAIL ENGINEERING LTD (1980) H.L. 136 at 137, which was a case of personal injuries, that "interest on general damages was awarded for the purpose of compensating a plaintiff for being kept out of the capital sum between the date of service of the writ and judgment..." As for interest on special damages it was held in JEFFORD AND ANOTHER v GEE [1970] EWCA Civ 8; 1970 2 WLR 702 at 703 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 ROTHMANS (supra) at p.8 there was some discussion on the date the interest at 4% should start. It went as follows:
"His Lordship awarded it from the date of the accident but Mr. Sweetman informed us that Fiji practice is to take the date the proceedings were issued as the starting date, and we did not understand Mr. Shah to disagree, although he said there were cases when by agreement it ran from the accident date. Mr. Sweetman referred us to the decision of the House of Lords in Wright v British Railway Board [1932] 2 All ER 698, in which the date of commencement of the proceedings was taken. There are arguments for selecting either date. Counsel did not dispute that interest was a matter in the discretion of the trial judge and we are not disposed to interfere with his decision that it should run from the date of injury to the date of trial."
Under section 3 of the Law Reform (Miscellaneous Provisions (Death and Interest) Act Cap. 27 there is discretion in the Court to fix rate of interest which should be paid. The section provides:
"3. In any proceedings tried in the (High) Court for the recovery of any debt or damages the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages ..."
In the exercise of my discretion I will award interest on general and special damages from the date of accident to date of judgment at the rate of 10% per annum.
Conclusion
To conclude, on general damages I have considered the submissions and cases which have been referred to me.
In regard to reliance on previous cases I have borne in mind the observations of JENKINS L.J. in WALDON v WAR OFFICE (1956) 1 W.L.R. 51 at 57 when he said:
"I think that counsel can be trusted only to refer to other cases very sparingly, bearing in mind that each case depends upon its own facts, and only rarely can another case be of real assistance to the judge. And secondly, I think that the discretion must always be on the judge himself to decide whether in his view the reference to such other cases would or would not assist him."
On the question of damages award, in 1993 when the Fiji Court of Appeal gave its judgment in ANITRA KUMAR SINGH and RENTOKIL LABORATORIES LIMITED (Civ. App. No. 73/91) it stated:
".... With some exceptions they (range of awards) are well below the figures we might think appropriate at this time August 1993 or at the time of judgment in this Action was given, October 1991".
The Court goes on to state further at p.12 that:
"We are mindful that in setting the figure it must be one appropriate for Fiji and the conditions which apply here. The level of damages in our neighbouring countries is persuasive but not decisive - to be otherwise, would require a very detailed and prolonged investigation of factors influencing awards in each of those countries.
We favour the global approach to general damages whilst not disregarding the checks and balances that may come from itemising each of the four conventional heads. This like the annuity tables approach to test the multiplier selected, is not more than that - a check which may or may not help."
Here there were a number of injuries involving disfigurement although minimal, fracture of femur, motion of knee reduced to 70% and injury to an eye. There is also the possibility of developing osteoarthritis sometime in the future. A certain amount of pain and discomfort and a limp is still present. The applicant's sex life is also affected.
I have approached the assessment of general damages based on the totality of the disability and in this regard I adopt the words of TOWNLEY J in FOWLER v PUNTER (1959) Qd R 510 (FC), 526 when he said:
"I deprecate any suggestion that one may take a list of physical injuries and, from previous awards, assign an amount of each injury and thus arrive at a total. That process may, and perhaps necessarily would, result in the duplication of some elements, particularly with respect to the restriction on future activities, economic and social. In regard to those latter aspects of damage it seems to me that it is the totality of disability which has to be considered and that will seldom, if ever, be the equivalent of the sum of separate disabilities individually assessed".
To sum up, therefore, in assessing general damages, pain and suffering, past, present and future, are taken into account; the loss of amenities of which evidence have been given and accepted as stated above are also considered. I have also given weight to other aspects like "facial disfigurement", "corneal laceration" and "sexual disfunction".
It is proposed to award a general figure for the sub-heads rather than attaching a figure to each sub-head because there are the multiple injuries suffered by the Plaintiff. As is said by HAROLD LUNTZ in ASSESSMENT OF DAMAGES for Personal Injury and Death 3rd Ed. at p.52:
"it is improper to award to each of the injuries a sum representing the amount which would have been awarded if that had been the only injury and then to add up the various sums to make the total award."
For the above reasons I award the sum of $25,000.00 (twenty-five thousand dollars) as general damages.
In the result, I assess and award damages and interest as hereunder:-
Special damages 1540.00
Interest thereon at 10% p.a.
from 12.3.94 (date of accident)
to 11.6.97 583.00 2123.00
General damages - pain and
suffering, loss of amenities
of life, eye injury,
sexual disfunction 25000.00
Interest thereon at 10% p.a.
from 12.3.94 to 11.6.97 8124.00 33124.00
$35247.00
Accordingly there will be judgment for the Plaintiff against the second defendant in the sum of $35247.00 (thirty-five thousand two hundred forty-seven dollars) with costs to be taxed if not agreed.
D. Pathik
Judge
At Suva
11 June 1997
HBC0302J.95S
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