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Valentine v Attorney-General [1998] FJHC 176; Hbc0225.94s (12 March 1998)

IN THE HIGH COURT OF FIJI
(AT SUVA)

Civil Action No. HBC 225 of 1994S

BETWEEN:

CHARLES VALENTINE
Plaintiff

and

THE ATTORNEY-GENERAL
1st Defendant

and

BISUN DEO
2nd Defendant

A. Seru for the Plaintiff
S. Idris for the Defendants

ASSESSMENT OF DAMAGES

On 7 November 1996 I gave Judgment for the Plaintiff against the Defendants with damages to be assessed if not agreed.

On 23 December 1996 I awarded the sum of $20,000 against the Defendants by way of interim payment under the provisions of Order 29 Rule 11.

On 2 June 1997 I heard the evidence relating to the damages which was given by the Plaintiff and by Dr. Eddie McCaig, then consultant orthopaedic surgeon at Lautoka Hospital.

At the conclusion of the hearing Counsel reached a measure of agreement. As noted on the file the agreement was as follows:

(i) Loss of net earnings: @ $559.80 per month or $6719.76 per annum totalling for the period 1 July 1993 to 7 November 1996 in all $22,529.86

(ii) FNPF: $1877.57

(iii) Medical & Associated expenses: $5298.00

(iv) Rent to Employer: $7250.00

Total special damages: $37,000.00

After this agreement was recorded there was a further clarification by Counsel. It was also agreed that for the purposes of this award the Plaintiff’s total loss of earnings, both incurred and prospective amounted to $36,958.68 of which the above figure of $22,529.86 represented special damages. The balance, on the basis of an agreed multiplier and multiplicand amounted to $14,428.82. In these circumstances the only matters left for evaluation by me were the Plaintiff’s pain and suffering and loss of amenities of life together with interest.

Between the conclusion of the hearing and the preparation of this assessment (the delay in the delivering of which, occasioned partly by my own ill-health, I much regret) a letter was received from Counsel for the Plaintiff dated 28 August 1997 the contents of which are stated to be consented to by Counsel for the Defendants. This letter referred to the inclusion of a sum of $4983 representing payment of rent. Unfortunately it was not clear to me whether this sum was supposed to be additional to the sum of $7250 already referred to and agreed or whether it had already been taken into account. This sort of difficulty illustrates one of the disadvantages of communicating with the Court by letter. In the absence of any clear assistance by Counsel on this point I do not propose to vary the already agreed figures. If however the new figure is agreed to be additional to the total which I shall now award then Counsel will have liberty to restore the matter by way of Motion so that it can be dealt with.

The Plaintiff suffered very bad injuries to both his legs. In addition to the injuries set out in detail in the 2 medical report (Exhibits 1 & 2) Dr. McCaig told me that the “Plaintiff had suffered a very serious shock to the whole of his system both psychological and physical”. He was initially detained in hospital for 2 months. Altogether over the next months he underwent a further 7 operations. He has a permanent incapacity calculated at 50%. His right knee is permanently rigid. The left knee is also restricted in its movement. The Plaintiff will always walk stiffly, sitting is difficult and painful, driving impossible and sporting and gardening activities greatly circumscribed. Although he will probably not require a wheelchair he will in due course develop osteo-arthritis in both legs.

The Plaintiff told me that he had been forced to give up work, previously he had been an active maintenance supervisor with a staff of 12. Now he finds great difficulty in walking, suffers cramps to his legs, cannot squat and has to be helped into and out of the sitting position. He rarely uses public transport because of the inconvenience of getting in and out of buses and, being unable to drive is forced to rely on taxis.

As is clear from the medical reports and the evidence which I heard the Plaintiff, hitherto an active, energetic open air type of person had his life completely changed by the very serious injuries which he suffered to his legs as a result of this accident. He endured and continues to endure considerable pain and suffering and psychological distress.

The 4 leading Fiji authorities involving awards for damages for personal injuries are Anitra Singh v. Rentokil (FCA Reps 92/213); Attorney-General v. Paul Praveen Sharma (FCA Reps 94/351); Tacirua Transport v. Chand (FCA Reps 95/67) and Iowane Salaitoga v. Anderson (FCA Reps 95/306).

In Anitra’s case $60,000 was awarded by way of general damages where 3 out the 4 limbs as well as the pelvis were fractured and where a compound fracture of the mandible was likely to present continuing problems.

In Attorney-General v. Sharma a young man of 19 who lost the lower part of his right leg as a result of negligence following a sporting injury was awarded approximately $52,000 in general damages.

In Tacirua Transport an award of $20,000 for considerably lighter injuries was upheld while in Salaitoga’s case an award of $85,000 for severe multiple injuries, including head injuries which left the Plaintiff “severely disabled” was left undisturbed.

Being guided by these awards and having considered the injuries suffered by the Plaintiff in this matter I am of the view that a proper award for pain and suffering and loss of amenities is $55,000 and I so award.

Finally, in addition to the above, the special damages award of $37,000 and the general damages award for pain and suffering (but not the damages award for future loss of earnings) will bear interest at the rate of 6% from the date of the issuance of the writ until today.

In summary I award:

Special Damages : $36,000.00

General Damages (Pain & Suffering) $55,000.00

Sub Total $91,000.00

Plus Interest at 6%

Plus $14,428.82 (future earnings)

Less $20,000 (Interim payment)

M.D. Scott
Judge

12 March 1998

HBC0225.94S