| Fiji Islands - Rokodovu v Rokobutabutaki - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. 1 OF 1997
BETWEEN:
LUSIANA ROKODOVU
Plaintiff
AND:
1. JOVESA ROKOBUTABUTAKI
2. THE ATTORNEY-GENERAL
Defendants
Mr. R.I. Kapadia for the Plaintiff
Lt. Colonel T. Bukarau with Mr. K. Tuava for the Defendants
JUDGMENT
(Assessment of Damages)
This personal injuries action was instituted by the plaintiff on 2 January 1997. Liability was admitted by the defendants and an Order
was made by consent that judgment be entered against the defendants for damages to be assessed by the Court and it was further ordered
that the plaintiff be examined by a doctor to be appointed by the Defendants.
At the hearing of assessment of damages parties adduced evidence. Written submissions were ordered to be filed at the conclusion of
the hearing. Mr. Kapadia filed his submissions but the defendants' counsel failed to comply with the order.
About the Plaintiff and background facts
On or about 17 July 1994 at Somosomo, Taveuni the first defendant acting as the servant or agent of the Government of Fiji as a driver
of the Fiji Military Forces drove the motor vehicle (an Army Truck) Registration Number GL026 (owned by the second defendant) so
negligently and unskilfully that it went out of control, capsized and rolled down the edge of the road.
Arising out of this accident the first defendant was prosecuted for the offence of causing death by dangerous driving to which he
pleaded guilty before the Magistrate's Court at Suva on 18 November 1996 and was convicted and sentenced.
As a result of the accident the Plaintiff who was a passenger in the vehicle sustained serious personal injuries and was flown to
the CWM Hospital, Suva in an unconscious state. It was revealed that it is a case of complete paraplegia at the T4 level due to dislocation
of T4 or T5 vertebrae.
Her paraplegia is permanent and she will remain without leg movement and without sensation from the mid-chest downward for the rest
of her life. She has been fitted with a catheter to remove urine as she has no control over her bladder.
At the time of the accident the Plaintiff was a healthy 26 year old woman. She lived in a de facto relationship with one Tomu intending
to marry him once he obtained his divorce from his former wife. But after this accident this man deserted her.
No doubt it was a horrific accident. The very thought of the vehicle with her and other passengers plunging down a cliff is a nightmare
in itself which will haunt this victim for the rest of her life. I might mention here that a good part of the Taveuni Coastal Road
is unusually narrow with cliff in various places along the edge of the road. I had experience of travelling on the road about forty
times 22 years ago as a Resident Magistrate but fortunately no accident of this nature took place but the fear was there that my
driver may find it difficult if he is not absolutely careful to go past vehicles coming from the opposite direction. Just a warning,
with yagona prices sky-rocketing with each farmer possessing at least two vehicles the need to provide safety measures on this road
becomes imminent if accidents of this nature and worse are to be avoided.
Plaintiff's injuries and medical history
I give below extracts from the Medical Reports on the Plaintiff.
The first Report dated 7 November 1996 from the CWM Hospital is, inter alia, as follows:-
Before the accident she was fit and able bodied.
After the accident she could not move her legs or feel any sensation from the level of the breast down. Other injuries included bruising
around the neck region, most of the left ear had been torn off, and there were numerous abrasions over other parts of her body.
Examination and investigations revealed a complete paraplegia at the T4 level due to a dislocation of T4 or T5 vertebrae.
She was nursed at CWM Hospital until the ear injury and the superficial abrasions had healed. She was then transferred to Tamavua
Rehabilitation Unit to help her deal with the paraplegia. Her time at CWM Hospital was from 18 July 1994 to 6 September 1994.
This injury is consistent with having been caused by the accident in Taveuni on 17 July 1994.
A further Report dated 25 July 1997 from CWM Hospital stated, inter alia, that her "permanent disability as a result of this injury" is assessed as "one
hundred percent (100%)".
Another Medical Report dated 30 July 1997 from the Chief Medical Officer, Fiji Military Hospital, Tamavua states as follows:-
History
1. The above named 28 yr old lady was involved in a motor vehicle accident in Taveuni on 17 July 94. She was travelling with a choir
group, a back seat passenger of a FMF Renault truck that was travelling from Vione Village to Somosomo. The truck had lost control
and had rolled over the edge of a cliff. She had lost consciousness and also suffered from lacerated wound, multiple contusion and
abrasion wounds. She was rushed to Taveuni hospital where she was admitted on same day and transferred to CWM hospital on 18 July
94.
Diagnosis
2. On regaining cousness inss in hospital she could not move her legs or feel any sensation from the level of the breast down. Further
examination and investigation at CWM hospital had revealed a COMPLETE PARAA at the T4 level vertebraeebrae. She was discharged from
CWM hospital after six (6) weeks admission on 6 Sept 94. She was transferred to Rehabilitation Unit at Tamavua on same date where
she was admitted for nearly 10 months.
Prognosis
3. The paraplegia is permanent. She will remain paralysed from the mid chest downwards for life. She has no control of bowel or bladder
function in which she will need constant personal care all throughout her life. She also needs constant assistance for daily activities.
The claim - consideration of heads of damage
Introduction - the law
In making awards which are fair and reasonable the Court does fall back on previous awards so that the figures arrived at are in proportion
to awards in other cases of those who have suffered injuries of comparable severity. (BRISTOW J in LIM POH CHOO v CAMDEN AND ISLINGTON AREA HEALTH AUTHORITY (1979) Q.B. 196 at 201 C.A.).
Here no reference to a Fiji case where an award on an injury such as the present has been made. However, in Australia the authority
on whether other judgments may be referred by way of comparison to the case at hand is PLANET FISHERIES PTY LTD v LA ROSA [1968] HCA 62; (1968) 119 CLR 118. There the court said (at 124-125):
"It is the relationship of the award to the injury in its consequences as established in the evidence in the case in question
which is to be proportionate.... Whether it is so or not is a matter of judgment in the sound exercise of the sense of proportion.
It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts
awarded in a number of other specific cases.... The principle to be followed in assessing damages is, in our opinion, not in doubt.
It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused.
It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even
if some similarity between the situations may be supposed to be seen.... The judgment of a court awarding damages is not to be overborne
by what other minds have judged right and proper for other situations. It may be granted that a judge who is making an assessment
will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different
thing from what we were invited by Planet's counsel to act upon in this case. The awareness must be a product of general experience
and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences
between the circumstances of those cases and the circumstances of the case in hand."
Each case will depend on its own facts but the awards should be kept in line with those granted elsewhere for the sake of fairness
and certainty and that is how I propose to approach the assessment of damages in this case.
Assessing damages for non-pecuniary loss is fraught with difficulties. This problem has been stated by EARL OF HALSBURY LC in THE MEDIANA (1900) AC at 116 thus:
"You very often cannot even lay down any principle upon which you can give damages..... Take the most familiar and ordinary cases:
how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish
what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason
of an accident..... But nevertheless the law recognises that as a topic upon which damages may be given"
The injured person is entitled to compensation and the Court does its best and this process is described by MEGAW LJ in FUHRI v JONES (1979 C.A. unreported) in the manner following:
"It will be appreciated, of course, though it is not always fully understood by persons who are not directly concerned with the
law, that the law cannot attempt to attribute any particular figure of damages to any particular physical injury, serious or trivial.
There is no way in which it can be said that such-and-such an injury is worth so much in terms of money. Indeed, in most cases for
most injuries, anybody would say 'I would rather have avoided this injury than have any amount of money whatever in compensation'.
But the court has to do the best it can by way of what are really conventional figures in relation to injuries, the court assessing, of course, on the individual facts of
the case, what is sometimes called the tariff, making adjustments for particular facts of the particular case."
(emphasis added)
In any assessment in a personal injury case and in particular when large sums are likely to be awarded it is important to bear in
mind the following passage from the judgment of LORD DENNING M.R. in LIM POH CHOO v CAMDEN AND ISLINGTON AREA HEALTH AUTHORITY (1979 1 Q.B. C.A. 196 at 215) which was a case of severe brain injuries:
"In considering damages in personal injury cases, it is often said the defendants are wrongdoers. So make them pay up in full.
They do not deserve any consideration. That is a tendentious way of putting the case. The accident, like this one, may have been
due to a pardonable error such as may befall any one of us. I stress this so as to remove the misapprehension - so often repeated
- that the plaintiff is entitled to be fully compensated for all the loss and detriment she has suffered. That is not the law. She
is only entitled to what is, in all the circumstances, a fair compensation - fair both to her and to the defendants. The defendants
are not wrongdoers. They are simply the people who have to foot the bill. They are, as the lawyers say, only vicariously liable.
In this case it is in the long run the taxpayers who have to pay. It is worth recording the wise words of Parke B. over a century
ago:
"Scarcely any sum could compensate a labouring man for the loss of a limb, yet you don't in such a case give him enough to maintain
him for life... you are not to consider the value of his existence as if you were bargaining with an annuity office... I therefore
advise you to take a reasonable view of the case and give what you consider a fair compensation": see Armsworth v. South-Eastern Railway Co. (1847) 11 Jurist 758, 760, quoted in Rowley v. London and North Western Railway Co. [1852] EngR 1037; (1873) L.R. 8 Ex. 221, 230".
It is quite evident from the condition the Plaintiff is in, that she will never be able to enjoy life to the full as a normal person
would do. Her life will revolve around her wheelchair to which she will be confined for the rest of her life. She will be denied
all social, sporting or sexual life for as long as she lives.
The Plaintiff claims (A) damages general, (B) special damages, (C) interest and (D) costs of this action.
Consideration of heads of Damages
(A) General damages
Under General Damages the Plaintiff claims as follows:
(i) pain and suffering and loss of amenities of life
(ii) loss of prospective earnings in the future
(iii) future accommodation costs and
(iv) cost of future care.
(i) Pain and suffering and loss of amenity
The Plaintiff is entitled to damages for pain and suffering. 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".
Looking at the way the accident happened and the locality where it took place one can imagine the pain and suffering the victim must
have gone through and is still suffering from the consequences of the injuries received by her. Now she is confined to a wheelchair
for the rest of her life as a result of paralysis mid-chest down. As borne out by the Medical Report on her she will be almost completely
dependent on other people for her care.
In her condition prospective as well as past suffering must be allowed for, as 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 PLY CO (869) 21 LT 326". (MUNKMAN: Damages for Personal Injuries and Death 8th Ed. at p.10).
As for loss of amenity, damages under this head will compensate the Plaintiff for her loss of enjoyment resulting from the accident,
namely, when she can no longer do the things she was accustomed to doing. "Damages within this category are included loss of any of the five senses, loss of sex drive, damage to the Plaintiff's marriage
prospects, loss of enjoyment of hobbies, employment and, indeed loss of any facet of life. The court will take into account how long
the Plaintiff will be deprived of these amenities; if it is for the rest of his life the amount of damages will be awarded in proportion
to the plaintiff's age and life expectancy. However, age is not necessarily the determinative factor ..." (Book on Medical Negligence by M. KHAN and MICHELLE ROBSON, 1997 p.204-205).
The question under this head is what is fair compensation in this case having regard to the general level of roughly comparable awards.
By way of general damages in respect of pain and suffering and loss of amenities, Mr. Kapadia has referred the Court to awards in
cases such as: KYLIE JANE ANDERSON v IOWANI SALAITOGA (High Court No. 353/89 and FCA No. 26/94 - award $217,000 (1994); PAUL PRAVEEN SHARMA v THE ATTORNEY-GENERAL & ANOR. (High Court No. 728/99 and FCA No. 41/93 - award $369,000 (1993); PENIASI DOBUI v PIONEER MACHINERY (High Court No. 220/91 - award $192,000 (1992) and SUBHASH CHAND v MUNI NADAN & ANOR (High Court No. 314/87 (Lautoka) - award $244,651,000 (1997).
I have looked at the cases on "paraplegic" in KEMP & KEMP Vol 2 reference A3-001 et seq. particularly cases of WELSH v ROBSON HAULAGE LTD [1995 C.A., Kemp & Kemp A3-001], where general damages awarded was £115,000 - RE HUGHES (1993 - Kemp & Kemp A3-002) which was case of incomplete tetraplegia the general damages was £100,000 - total award was £1,148,760;
CHAPMAN v LIDSTONE (Forbes J; 1982, Kemp & Kemp A3-006) which was a case of a 25 year old woman permanently confined to a wheelchair general damages
was £50,000 with total award at £266,000 and RE READ (1991, Kemp & Kemp A3-012) which was a case of female diabetic aged 46 and rendered paraplegic (complete) at Level T4; general
damages awarded was £75,000 and the total award was £375,000.
In the Plaintiff's condition as outlined above and bearing in mind particularly her paralytic condition and being denied many of the
amenities of life, I consider that the sum of $200,000.00 (Two Hundred Thousand Dollars) as suggested by Mr. Kapadia to be the appropriate
level of award for pain and suffering and loss of amenity.
(ii) Loss of earnings
Awards are made for loss of earnings in personal injury claims of this nature. The Plaintiff is unlikely to obtain a job because of
her paralytic condition and the fact that she has no control over her bladder.
This is a case where the plaintiff will never be able to work. It is not easy to assess as ROSE J in the case of CASSEL v HAMMERSMITH and FULHAM HEALTH AUTHORITY (1992) P.I.Q.R.Q1 said:
"this, as it seem to me, is much the most difficult matter to resolve with fairness to both sides because of the imponderables"
Looking at the Principles involved in making an award under this head, the fact remains that the Applicant is entitled to an award
taking "all the various probabilities, possibilities and imponderables".
Although in CASSEL (supra) ROSE J was dealing with assessment of damages concerning a child of tender age with severe brain damage, the approach to the estimate for
loss of earnings has been dealt with as follows and I think I can make a similar approach in this case.
"I turn to the multiplier. It is likely, almost to the point of certainty, that Hugo would have started earning between the ages
of 18 and 23. I find it impossible to state precisely when within that bracket he would have done so, though I find that an age nearer
the upper limit than the lower would have been a likelier starting point. He is now just over eight and, as I found earlier, his
life expectancy is such that he will probably have a normal working life to the age of 65. Having regard to these matters, a multiplier
of 10 is, in my view, appropriate. I therefore award as damages for future loss of earnings £350,000."
In DAYA RAM v PENI CARA & ORS (29 FLR 1983) the Court of Appeal on the aspect of loss of earnings said:
"Accordingly the claim on behalf of a deceased estate for loss of earnings for lost years is now firmly established as on the
same footing as the same claim by a living person, subject to the reservation as to deduction of personal living expenses. Authorities
relied upon before this Court were Pickett v. British Rail Engineering Ltd. (1980) A.C. 136; Gammell v. Wilson (1980) 2 All E.R. 557 (C.A.) and (1981) 1 All E.R. 578 (H.L.) and White & Anor. v. London Transport Executive (1982) 1 All E.R. 410, and are not the subject of challenge".
In view of what has been stated above, future loss of earnings and expenses are assessed at the date of trial by reference to a multiplicand
and a multiplier. The basis for an award for this item has been well explained by KHAN and ROBSON (supra at 206) thus:
"The multiplicand will be the plaintiff's net annual loss which in practice will already have been calculated in determining
the special damages schedule (see p 211). The courts will then apply a multiplier - the figure is an arbitrary one calculated as
from the date of trial. The multiplier will be arrived at by reference to the Pearson Commission data, possibly government actuary
tables (which are now specifically admissible, see p 225) and previously decided cases. The multiplier is supposed to cover the period
from the date of trial up to the time when the loss of earning or expenditure would cease. What is certain is that the court will
not fix the multiplier as the number of years from the trial until retirement or death as that would result in over compensation.
The general principle is that the interest and capital should be exhausted at the same time as the plaintiff's need is extinguished.
Additionally, the court will have to assess what is the real return after tax, national insurance and inflation, and on investment
of the money. In looking at the plaintiff's life expectancy, account will be taken of the general vicissitudes of life, and the fact
that the lump sum can immediately be invested. In estimating the real return of money a discount rate of 4.5%, has been adopted (see,
for example, Cookson v Knowles [1979] AC 566). In other words, according to the Pearson Commission data, the court will assume that the plaintiff who receives compensation will
subsequently invest it and receive a rate of return of 4.5% per annum after tax and inflation are taken into account.
The need to give a separate assessment for "past and future loss of earnings" has been clearly stated in COATES v CURRY (The Times 22.8.97 at p36 C.A.) thus:
"It was not appropriate, in determining damages for personal injury, to lump together past and future loss of earnings without
allocating or indicating a means of identifying a specific figure for each. Past losses were generally more easily assessable and
it was necessary to know their size so as to calculate interest on special damages."
In this case the Plaintiff and her de facto husband on evidence earned $500.00 approximately per week between them. I assess her income
at $125.00 per week.
Mr. Kapadia suggests that I use a multiplier of 16 to arrive at loss of future earnings and I agree. Based on weekly income of $125.00
and using a multiplier of 16 it will give a total of $104,000.00 (one hundred and four thousand dollars) ($125 x 52 weeks = $6500.00
per year x 16 years = $104,000.00).
(iii) Future accommodation costs
In her condition the Plaintiff will definitely need to rent a flat at ground floor level and I agree with Mr. Kapadia in this regard.
It will have to be specially adapted to suit the plaintiff's condition. The rent could be $200.00 per month over a period of 16 years.
At present she lives with her father but he will not be able to support her indefinitely. Eventually she will have to live independently
of him.
The reasonable amount in this case is $38,400,00 (made up of 12 months x $200.00 per month = $2400.00 per year x 16 years = $38,400.00).
(iv) Future Nursing Care
In her condition she will need to employ someone to look after her. The likely cost will be on my estimate and also as suggested by
Mr. Kapadia $60.00 per week; she is entitled to recover the costs even where help is provided gratuitously e.g. by a family or friend
[vide DONNELLEY v JOYCE [1973] EWCA Civ 2; (1974) Q.B. 454].
So far care has been provided by the plaintiff's parents. It was decided in GRIFFITHS v KERKEMEYER [1977] HCA 45; (1977) 139 CLR 161 that a plaintiff should receive damages representing the value of gratuitous services necessitated by the injury done to a plaintiff
by a negligent defendant. That decision was further explained by the High Court in Van Gervan v Fenton (1192) [1992] HCA 54; 175 CLR 327. It is now clear that the damages are to be awarded, not by reference to the sum, if any, expended upon services rendered to the plaintiff
or to the loss incurred by any carer, but by reference to the market cost of providing the services needed by the plaintiff as a
result of the damage suffered.
According to Mason CJ, Toohey and McHugh JJ, the quantification of the sum to be awarded for attendant care depends on the answer to two questions, at 338,
(a) What are the services required to satisfy the plaintiff's need resulting from the defendant's wrong?
(b) What is the value of those services?
I estimate the future care costs to be $49.920.00 (Forty-nine thousand nine hundred and twenty dollars) (made up of $60.00 per week
x 52 weeks = $3120.00 per year by 16 years = $49,920.00).
(a) Future cost of appliances and transport
I agree that the Plaintiff will need to replace her wheel chair every two years as by constant use and carrying a heavy body weight
of the Plaintiff there will be the normal wear and tear.
In the absence of any other figure for its cost I accept the sum of $400 and using the multiplier of 16 the total cost would be $3200.00
(three thousand two hundred dollars (made up of 8 chairs x $400 each = $3200.00)
(b) Special chair for bathroom and toilet:
Similarly she will need a special chair for use in the bathroom and toilet. It costs $500.00. It is possible that it will have to
be changed every two years; using the multiplier of 16 it will be changed eight times which would cost $4000.00 (four thousand dollars)
(made up of 8 chairs x $500 = $4000.00).
(c) Change of urine container:
The Plaintiff will need to change the container for urine once or twice a month. At $4 per container at $48 per year for 16 years
it amounts to $768.00.
(d) Future transport costs
This is also an allowable item (BISHOP - supra). The Plaintiff will need to travel to hospital by taxi once or twice a month for cleaning
up of infection caused by catheter. A reasonable figure should be $1600.00 (made up of $8.00 per trip at $100 approx. per year for
16 years).
(B) SPECIAL DAMAGES and other heads of damage (past)
(i) Loss of earnings (past)
The past loss of earnings falls under item 'special damages'. This item is allowable [BISHOP v HANNAFORD (1988) KEMP & KEMP Vol 2 A4-004]. This was a case of a 22 year old with severe brain damage and other injuries. There past loss of earning was allowed.
In the case before me the Plaintiff should be entitled to it from the date of accident to date of this decision i.e. 17 July 1994
to 9.11.98 (date of assessment judgment) which is a period of 4 years 4 months. I would assess her income as already stated hereabove
at the rate of $125.00 per week which comes to $28,166.00 for this period.
(ii) Cost of visiting plaintiff in hospital
(a) Past parental care: This item is also allowable (vide BISHOP (supra). She required care and attention on a constant basis by parents and relatives. The
mother visited her while she was being hospitalised for one whole year calculated at $40 per week comes to $2080.00
(b) Food to hospital and transport expenses: In addition there were expenses involved in travelling, such as going to hospital and buying food and other incidentals while the
Plaintiff was hospitalised. The sum of $10.00 per day would be a reasonable amount. This comes to $3650.00; then there was cost of
travel by taxi to CWM Hospital twice a month for the Plaintiff which is $8.00 per return from July 1995 to October 1997 i.e. 27 weeks
which comes to $176.00.
(c) Past cost of appliances: This involved change of urine container once or twice a month. The Plaintiff does not have control over her bladder. The amount of
$100 is reasonable.
(iii) Past accommodation costs:
The father of the Plaintiff accommodated her in his home for the whole period, namely July 1995 to date.
The father had also adapted the home to suit the condition of the Plaintiff. This involved an extension to the home which the father
says cost him $12,000.00. This I accept and I allow this sum as a claim.
For monetary value of accommodation and help provided by relatives I will assess it at $200.00 per month and that gives a figure of
$5600 for 28 months.
This brings the total to $17600.00 (seventeen thousand six hundred dollars) under this item. This sum should be paid by the plaintiff
to the father out of the total sum awarded.
Summary of special damages
The total sum awarded for special damages comes to $51772.00 being made up as follows:
(i) Loss of earnings (17 July 1994 to 9.11.98 i.e. 4 years 4 months - $28166.00
(ii) Parents' attendance at hospital
(a) Parental care - $2080.00
(b) Food ($3650) and transport ($176) - $3826.00
(c) Past cost of appliance (urine container) - $100.00
(iii) Past Accommodation costs
(i) accommodation by parents ($5600)
(ii) home extension ($12000) $17600.00
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&nsp; &bsp;;nbspp  &nbs;&nbs; &nbbs;&nnbsp;; span>$5B">$51772.1772.00
Interest
Since it has been pleaded the Plaintiff is entitled to interest on general and special damages. The purpose of giving interest on
general damages was to compensate a plaintiff for being kept out of the capital sum (PICKETT and BRITISH RAIL ENGINEERING LTD (1980) AC 136 at 137. As for interest on special damages it was held in JEFFORD AND ANOR. v GEE [1970] EWCA Civ 8; (1970) 2 WLR 702 at 703 that "in general interest s be allowellowed on special damages from the date of accident to the date of trial at half the appropriate rate" lang=EN-GB style="font-size:12.0pt;font-family:"Times New Roman";mso-ansi-languaanguage:
EN-GB">. This case has offered
guidelines for the normal practice in exercising it. These guidelines have been approved with variations by the House of Lords in
COOKSON v KNOWLES [1978] UKHL 3; (1979) AC 556 and WRIGHT v BRITISH RAILWAYS BOARD (1983) 2 ac 773. There will be no interest at all on general damages for loss of future earnings. Similarly there will be no interest
on future financial loss.
Under our LAW REFORM (MISCELLANEOUS PROVISIONS)(DEATH AND INTEREST) Act Cap. 27 the Court has a discretion to fix the rate of interest. Section 3 provides:
"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 at 4% per annum on general damages of $200,000.00 for pain and suffering and
loss of amenities and on special damage on just loss of earnings (past) on the said sum of $28,166.00.
The interest on general damages amounts to $34,666.00 and on special damages it comes to $4882.00 making a total for interest in the
sum of $39548.00 (thirty-nine thousand five hundred forty-eight dollars).
Conclusion
The total sum awarded comes to $493,208.00 (Four hundred ninety three thousand two hundred and eight dollars) made up in summary form as follows:
1. General damages for pain and suffering and loss of amenities of life -$200,000.00
2. Loss of prospective earnings $104,000.00
3. Future accommodation costs $38,400.00
4. Cost of future nursing care $49,920.00
5. Future cost of appliances (wheel chairs ($3200.00);
special wheel chair for bathroom and toilet ($4000.00);
nursing aids $768 (urine containers), future transport costs ($1600) $9,568.00
6. Special damages (vide details hereabove referred to) $51,772.00
7. Interest at 4% on special and general damages as stated above from the date of accident to date of this assessment judgment $39,548.00
$ 493,208.00
There will therefore be judgment for the Plaintiff against the defendants in the sum of $493,208.00 (Four hundred ninety three thousand and two hundred and eight dollars) with costs to be taxed if not agreed.
D. Pathik
Judge
At Suva
9 November 1998
Hbc0001j.97s
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