IN THE HIGH COURT OF FIJI
(AT LAUTOKA)
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0063 OF 1994

BETWEEN:

PARVATI
PLAINTIFF

AND:

THE ATTORNEY GENERAL OF FIJI
1st DEFENDANT

THE MINISTRY OF HEALTH
2ND DEFENDANT

Mr Mishra for the Plaintiff
Mr Idris for the Attorney General

Date of Hearing: 2nd, 9th and 10th July 1997
Date of Ruling: 19th November 1997

RULING

This is an extremely tragic case.

FACTS

The present Plaintiff is the widow of one LATCHAMA SAMI, who died on the 3rd February 1990.

Mr Sami was born on the 22nd December 1941. By 1982 he was a reasonably healthy middle aged man with wife and family. He was fit it enough to play the occasional game of soccer. He had previously an active soccer player and once had being selected in the National Squad. He was employed as an Accountant with the PWD. He was undertaking further studies to enhance his employment ambitions and was hopeful of working towards the qualification of a Chartered Accountant.

In early 1982 he was promoted to the position of Acting Senior Accountant effective from the 3rd August of that year.

In early 1982 he developed kidney stones. He was admitted to the Lautoka Hospital for an operation to remove those stones. He underwent this operation on the 23rd June 1982. There was mishap in that, whilst the surgeon was attempting to cut out and remove the stone, the left ureter was completely severed at the pelvic ureteric junction.

Immediately surgical steps were taken to repair this. They were unsuccessful. Mr SAMI then developed a serious infection. He had a catheter inserted. This fell off several times and had to be re-inserted. He was again operated on in yet another unsuccessful attempt to repair the damage.

Further infection followed. No doubt Mr SAMI was in considerable pain and discomfort during the time.

By the end of September 1982, it became apparent that overseas treatment was necessary. He flew to Brisbane where the infection was eventually defeated. It was then confirmed that his left kidney was non-functioning and it would have to be removed at a later date when his general health improved.

In February/March 1984, Mr SAMI returned to Brisbane where he was again operated on and the left kidney removed.

He returned to Fiji. Recovered his health somewhat and returned to his work.

By April 1986 he had developed chronic osteomyelitis in the left leg which failed to respond to treatment here in Fiji. He again went to Brisbane for treatment. This treatment was successful.

On his return he resumed work.

On the 3rd February 1990, Mr SAMI passed away. The Death Certificate states that the cause of death as "Acute left ventricular failure, due to hypertension heart disease."

THE LEGAL PROCEEDINGS

Proceedings for damages for negligence were commenced on the 24th May 1984.

A Memorandum of Appearance was entered on the 28th May 1985.

No doubt because of Mr SAMI's continuing complications, a Statement of Claim was not filed until 11th September 1985.

The Defendant admitted liability for negligence and on the 8th December 1986 it appears consent was reached to admit such liability and to have the matter proceed only on an assessment of damages. By this time it seems that Mr SAMI had somewhat regained his health and there appears to be no reason why the matter could not have been concluded rather quickly. It was not to be.

Without detailing matters in full, it dragged on until the 24th January 1992, when Mr Justice BYRNE ordered the present Plaintiff, as the Administratrix of the Estate of the late Mr SAMI, be made the Plaintiff in this proceedings.

On the 28th January 1994, nearly 12 years from the date of the cause of action, the matter was by order, transferred to Lautoka.

There were change of solicitors for the Plaintiff. This hardly comes as a surprise. On the 23rd June 1987, some 15 years on and ten and half years from the admission of negligence, the Plaintiff's present solicitors were engaged. They immediately did what had not been done all those years by any of their predecessors - They applied to have the assessment of damages heard.

This Court heard the matter on the 2nd, 9th and 10th July 1997. On the 2nd July the matter was adjourned for a week to allow the Defendant to gather its papers. The Court file shows that the Attorney General's file had either been lost or had become victim of the perennial excuse in Fiji - papers were blown away in a Cyclone. It never ceases to amaze me how when warning is given of pending cyclones, certain persons or organisations fail to secure important papers and files in locked up safes and filing cabinets which are perfect for that purpose.

The facts, in this respect, sadly speak for themselves.

RULING

Before addressing the task of assessment of damages, there is before the Court a preliminary application which falls for determination.

When the action was commenced, Mr SAMI was alive. Having now died, his present solicitor sought to amend the Statement of Claim to plead at paragraph 18 thereof:- "The Plaintiff died on the 3rd February 1990 and the injuries suffered as a result of the negligence pleaded and resulting multiple operations, had a direct causal effect on his death and/or the shortening of his life."

Damages are thus claimed pursuant to the Law Reform (Miscellaneous Provisions - Death and Interest) Act (Cap 28).

Leave to amend was granted, despite opposition. It was clearly pointed out by the Defendant that they did not accept liability for the amendment as pleaded, either in law or in fact.

The Defendant argues that the Plaintiff is statute barred by Section 4(1) of the Limitations Act from succeeding on the amended pleading.

I now turn to this particular point.

The Defendant's position stems from what appears to be an admission of liability for negligence made on the 5th December 1986. This admission is somewhat curious and perhaps ill defined. It appears as an "Application for Consent Orders" and reads:

"The Plaintiff and the Defendants do hereby apply to this Honourable Court that following Order be made in this action:-

That Judgment be entered against the First and Second Defendants in this action in respect of all damages and costs claimed by the Plaintiff herein and that the issue of quantum of damages be tried by this Honourable Court as a separate matter on a date to be fixed by the Chief Registrar convenient to all parties."

No judgment seems to have been entered. The parties however have thereafter proceeded on the admission and all other proceedings relate to the quantum of damages. There is no doubt that negligence has admitted by the Defendant (See in particular the letter from the Defendant to the Plaintiff's solicitor on the 11th February 1986). It is important to note the effect of this admission in a personal injuries action such as this.

A personal injury action has two elements:- (1) Negligence and (2) Damages suffered by the Plaintiff resulting from that negligence.

The Plaintiff must thus prove two factors:- Negligence and Damage. In instant case, negligence having been admitted, the Plaintiff only has to prove damage resulting from that negligence. The application for or consent orders as drafted is misconceived. Judgment cannot be entered because damages remained to be proved (See BLUNDELL -v- RIMMER [1971] 1 ALL ER 1072).

The effect of an admission of negligence is that the Defendant must be taken to admit to all proven damage flowing from that act of negligence, whether or not, at the time of the admission such damage was apparent or not, or for that matter, proven. Such proof of damage can (and often does) come about subsequent to the admission of negligence. As an example, should the Defendant admit negligence where the Plaintiff suffered a head injury which later (and of course before trial) develops into epilepsy, the Defendant is liable in damages if a causal link is established between the head injury and epilepsy. Similarly, if death later results, and a causal link is established on the evidence, the Defendant is liable in damages.

Taken in this context, Section 4(1) of the Limitation Act is not applicable.

I can see the Defendant's argument. The Plaintiff died on the 3rd February 1990. The Summons to amend by adding a claim in respect of that death was filed on the 8th July 1997 over 7 years later. This is well outside the 6 years allowed under Section 4(1) of the Limitation Act.

Section 4(1) of the Limitation Act applies however, to the commencement of causes of action. The cause of action herein was the act of negligence on the 23rd June 1982.

The Plaintiff is not adding a new cause of action. The Plaintiff is adding another head of damage which, it is alleged, resulted from that original negligent act. Section 4(1) of the Limitation Act is not applicable. It is a matter of evidence as to whether the resultant damage pleaded did in fact flow from the admitted act of negligence.

There is no argument that the damage occasioned to the late Mr SAMI from the 23rd June 1982 up to and including the 11th April 1984 when he had his final examination in respect of the kidney condition, and any loss of amenity directly attributable thereto, is the responsibility of the Defendant.

Two areas are in dispute:

(i) That the Defendant is liable for damages relatively to Mr SAMI's condition of chronic osteomyelitis for which he was treated in or about April 1986;

(ii) That the Defendant is liable for damage flowing directly from the cause of action and causative of the death of Mr SAMI.

The above matters are to be decided on the evidence - principally the evidence of Drs GOUNDER and VINOD SINGH.

Before turning to my assessment of that evidence, and my findings in respect thereof, there are matters which must be established, and which I must bear steadily in mind when undertaking this task.

Firstly, as a mater of fact, the long delay in getting this matter to trial has had an adverse effect on the quality of the evidence.

As will become clearer, there were times when the expert witnesses were drawn to make general assumptions because this specific evidence was no longer available, if in fact it ever was. Appropriate weight and care must thus be applied when assessing all of this evidence.

Secondly, the medical witnesses fall into the category of expert witnesses. As such they are the Court's witnesses. They have a task to assist the Court within their field of expertise. They are neither the Plaintiff nor the Defendant's witnesses.

Thirdly, I find it necessary to carry with me, particularly in this matter, a clear understanding of the burden of proof required.

This is a civil case, and the standard of proof required is "on the balance of probabilities."

In Miller v Minister of Pensions [1947] 2 ALL ER 372 at p374, DENNING J. (as he then was) described the required standard thus:

"If at the end of the case the evidence turns the scale definitely one way or the other, the tribunal must decide accordingly, but if the evidence is so evenly balanced that the tribunal is unable to come to a determinate conclusion one way or the other, then the man must be given the benefit of the doubt. This means that the case must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as is required to discharge a burden in a civil case. That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: "We think it more probable than not," the burden is discharged, but, if the probabilities are equal, it is not,"

On the question of expert medical evidence a very crucial part of this case) his Lordship continued (when discussing a claim for injury resulting from war service):

This involves an assessment of the medical evidence. It is useless for a medical man to give an opinion that a disease is or is not attributable to, or aggravated by, war service without giving his reasons. Such an opinion should be disregarded by a tribunal because it involves not only his scientific knowledge, but also his views on causation, the meaning of "attributable", "war service," and so forth, all of which are matters for the tribunal and not for him. Such an opinion which, if rightly formed, could only be drawn from the same premises as those from which the tribunal are to determine the matter. To be of value, a medical opinion should not be in general terms such as to usurp the function of the tribunal, but should point out the probable or possible causes of the disease and of any aggravation of it, giving the degree of probability, and then leaving it to the tribunal to decide whether or not on the facts of the particular case the claim should be allowed.

(see Miller the Minister of Pensions [1974] All E.R. ... pages 372 and 374)

I find it also useful, in a matter such as this to remind myself of what Denning LJ later said in Batter v Batter [1950] All E.R. 458 and 459:

The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still does require a degree of probability which is commensurate with the occasion. Likewise, a divorce court should require a degree of probability which is proportionate to the subject-matter. I do not think the matter can be better put than SIR WILLIAM SCOTT put it in Loveden v. Loveden (3) (2 Hag. Con. 3):

"The only general rule that can be laid down upon the subject is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion..."

The degree of probability which a reasonable and just man would require to come to a conclusion - and likewise the degree of doubt which would prevent him from coming to it - depends on the conclusion to which he is required to come.

The important consideration is that the evidence must show, to the required degree, a direct causal link between the act of negligence, the subsequent ill health, and death of Mr Sami.

Taken as an overview, Parvati's evidence (Mr Sami's widow) was that her late husband suffered a severe reversal in health after the operation in 1982. There is no argument about this. Further, she says that, although he started to put on weight after the last operation to remove the kidney in 1984, he never fully recovered his health.

It is argued for the Plaintiff that this condition of poor health rendered the Plaintiff susceptible to other infections. This in turn made him susceptible to the chronic osteomyelitis he was treated for in 1986 which necessitated another journey to Brisbane for hospital treatment.

The proposition that a poor-state of health can lead to a susceptibility to infection was not doubted by either of the medical witnesses.

Dr Gounder advanced the opinion that the post-operative reversal of health and the osteomyelitis were causally connected. He describe the osteomyelitis "operative osteomyelitis".

Dr Singh gave evidence that the osteomyelitis was of a rare type. He did not think there was a causal connection, at least to the degree required by the court. As I understood Dr Singh's evidence it carried with it the important factor that the passages of time between the operation (and health reversal) and the complication (either the osteomyelitis or death and associated hypertension) weighed heavily on him when giving his opinion.

It has to be borne in mind that both medical experts were hampered by time delays and, as Dr Goundar expressed, an incomplete file. I must say, I am similarly disadvantaged by what I can only call a 'hotch potch' of evidence.

Doing the best I can with such evidence as is before the court, I am prepared to accept that the greater probability was that Mr Sami was so run down post-operatively so as to be susceptible to infection such as osteomyelitis.

He appears from the Prince Alexander Hospital notes (discharge letter) to have had a previous bout of the subject infection as a child.

Further, as I read the documentary evidence, the osteomyelitis developed much earlier than 1986, when he finally went to Australia for treatments.

There appear in the documents exhibited a letter for Mr Sami to the Medical Superintendent at Lautoka, dated, it seems, 15/1/86, wherein Mr Sami claims to have had the infection since 1983. This is supplemented to my mind by a note on "Investigation p7" on the 2nd last page of the hospital file which reads:

"Clinically discharge sinuses (illegible) 2 years X-ray; - osteomyelitis of left tibia".

This note appears to be dated 13/6/84.

The letter from Dr Hassan of 3/2/86 (found in the documentary exhibit files), gives weight to Mr Sami's claim.

These various dates (1983 and June 1984), were in the midst of Mr Sami's health crisis and immediately post the operation to remove the kidney. At this time Mr Sami was definitely in poor condition.

To my mind, in such condition, it is probable he was more susceptible to the infection which was eventually treated in April/May 1986.

In my view thus I consider there is a causal link between the initial act of negligence and the subsequent infection.

I turn to the 2nd question: - was Mr Sami's death caused directly by the defendant's negligence? The submission that the plaintiff puts in this respect is that the hypertension which led to the left ventricular failure was caused as a direct result of Mr Sami's health. Mr Sami's health, it is said, was not good and this related directly related to the act of negligence. In simple terms it is argued that the hypertension which most likely was the cause of the left ventricular failure was directly related to the act of negligence, or to argue the converse, if Mr Sami had not had such reversal of health, he would not have developed hypertension and, by inference, his death would been avoided.

I accept the medical evidence that Mr Sami died of left ventricular failure. This is clearly the reason given on the death certificate and as Dr Goundar pointed out, this could be clinically established at the time of death.

I accept Dr Singh's evidence that the usual cause of left ventricular failure is hypertension. But this is not the same as saying such hypertension was causally link to the defendant's act of negligence, at least to the required standard of proof.

There was no direct evidence of Mr Sami's treatment for hypertension. Indeed Dr Singh could find no note of this treatment anywhere although there was some reference to Mr Sami being hypertensive.

Parvati gave no evidence of her late husband's …… even saying he suffered from hypertension. He was, she said, in poor health. But this could mean many things. It could not be taken to include by implication a condition of hypertension.

I found the medical evidence to be in general terms only and short on the required objective element necessary so as to relate directly to the case of Mr Sami.

Both doctors agreed there were no known causes of hypertension. There are theories only. Any one of the theories mentioned by Dr Goundar for example (stress, inactivity, sedentary job) could apply to a wide cross-section of the community as well as to Mr Sami.

Both doctors agreed that the kidney plays a role in secondary hypertension but neither could offer subjective clinical or pathological evidence to support the conclusion that Mr Sami had such a specific kidney problems. As Dr Goundar said "I have no record of his (Mr Sami) blood/urea level or his crystalline level. In a way I agree these are critical (my emphasis) in determining his kidney role in hypertension".

Given that statement, whilst I respect Dr Goundar's general opinion that hypertension was linked to Mr Sami's death, I am not persuaded that the greater probability was that such hypertension flowed from either Mr Sami's period of poor health or his kidney condition. Also, on the evidence before me, there is no suggestion that Mr Sami's right kidney was anything but perfect and fully operational. I note that Mr Sami's left kidney was removed in 1984, some six years before his death. From the 23rd of January 1982 that kidney was non functioning, or at least the evidence would tend to support that.

Thus, logically, it follows, that if his left kidney were to be said to be presenting the problem which led to hypertension, it would have had to be before the 23rd of June 1982.

I accept the possibility that a serious kidney condition can cause hypertension in certain cases, but I prefer on the balance, Dr Singh's evidence that, in Mr Sami's case, it was not a probability. There was to my mind an absence of that critical evidence referred to and required by Dr Goundar to enable a definitive opinion (or finding) to be made.

If one discounts kidney problems as a cause of hypertension, one is left with Mr Sami's period of health, his post operative infection and stress, his inactivity after the operation and perhaps even his return to what was possibly a sedentary job. There is no satisfactory evident before this court that any of these matters related to his hypertension. If such evidence is there, it is by implication only and in general terms and unsuitable to support a finding of a causal link on the balance of probabilities.

Thus in the matter of a substantial claim for damages pursuant to The Law Reform (Miscellaneous Provisions, Death and Interest) Act, I am not persuaded on the balance of probabilities that the required causal link between the defendant's acts of negligence on the 23rd June 1982 in Mr Sami's untimely and unfortunate death in February 1990, has been made out.

QUANTUM

Mr Sami was a healthy man who no doubt suffered for sometime as a direct result the Defendant's negligence. On the material before me he suffered pain from the various operations and the post operative infections. I accept the greater probability is this pain was at its most intense from mid 1982 until at least 1984, after the second operation. Again the osteomyelitis would have caused the suffering to continue, perhaps not as intensely, but at least until that was finally treated in mid 1986.

I accept Parvati's evidence that Mr Sami continued to have some pain until his death, although it would seem from her evidence that her late husband showed some improvement.

Mr Sami's amenity of life was seriously affected at first, with, perhaps a small but gradual improvement in the years immediately before his death. His active sporting life was curtailed. His love of gardening temporarily halted but, it seems, was satisfied somewhat in his later years.

He understandably suffered a loss of consortium which although returning somewhat, was not 'what it used to be'.

Doing the best I can, I consider Mr Sami should receive general damages for pain and suffering loss of amenities of life during the 8 years he lived after the act of negligence

in the total sum of		$25,000

As to loss of consortium 	$3,000

As to scarring 			$750

Total General Damages 	$28,750

Mr Sami was promoted to Acting Senior Accountant effective from 3/8/86. His condition and illness prevented him from taking this position. I have little doubt about that. What I do not know is, had he been fit it to take up the position, would he have remained there and eventually been given a permanent position.

What I am prepared to accept is that he was a hard working man committed to a course of self-improvement through extra studies. He was ambitious and well capable, on my view, of progressing through the ranks. His illness and the necessity to take time off must have had a severe effect on his work and studies. This in turn, I accept, on balance, slowed his progression so that, in all likelihood had he not been ill, he may well have progressed beyond the position he was on at the time of his death.

In this respect I consider a global award for damages would be applicable under the head of damages for loss of earning capacity during the years 1992/3 to 1990.

Doing the best I can, I award the sum of		$15,000
for Loss of Earning Capacity

Total damages 					$43,750
(general damages for loss of amenities
and pain and suffering and loss of earning
capacity)

Interest on the above amount to be at 4%
for 4 years only. I see no reason to make it
for a longer period. The Plaintiff was well able
to resolve this matter earlier and the Defendant
should not be penalised because of the plaintiff's
failure to do so.

Interest at 4%, 4 years					$7,000

I note special damages have been agreed at		$11,100

Interest is agreed at a rate of 5%
on these special damages.
Again I will only award this for 4 years		$2,220

Total Award						$64,070

I note the special damages agreed includes $1300 for funeral. My ruling herein would normally deem the Defendant not liable for this. However, as the Defendant has so agreed, I treat this amount as a gratuity. It has no effect on my ruling by way of purported admission or otherwise.

I award judgement to the Plaintiff for $64,070 damages for negligence.

The Defendant is to pay the Plaintiff's cost on a party\party basis which I assess at $3,000.00 (including outlays).

Prior to submissions both Counsel said they had agreed on a range within which quantum would fall. My award herein is outside that range. As I see it, the matter is either settled at an agreed figure or it is not. The judicial function of assessing quantum is entirely discretionary. I do not know of any authority which supports the parties limiting the exercise of discretion to a certain range, and nor have I previously experienced it.

JOHN D. LYONS
JUDGE
HBC0063.94L