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Nasedra v Khan [1998] FJHC 96; Hbc0056j.96s (16 July 1998)

Fiji Islands - Nasedra v Khan - Pacific Law Materials

IN THE HIGH COURT OF FIJI

(AT SUVA)

CIVIL JURISDICTION

ACTION NO. HBC0056 OF 1996

BETWEEN:

ILIKIMI TAUVAUCA NASbr> of Lakena Nausori, Labourer
Plaintiff

AND:

MANSOOR KHANn>
(son of Nazim Khan) of Nausori, Driver

AND:

ATTORNEY-GENERAL OF
Defendants

R.I. Kapadia for the Plaintiff
Miss N. Basawand T. Tabaiwalu for the Defendants

Dates of Hearing and Submissions: 23rd and 30th March 1998
Date of Judgment: 16th July 19pan>

JUDGMENT

In this case the Plaintiff who is a labourer employed by the Government of Fiji in the Fry Department claims damageamages for personal injuries sustained by him when he fell from the back of a truck owned by the Forestry Department and injured his right foot on the 3rd of April 1995 at Tailevu.

At the time with a number of other employees of the Foy Department he was going to a Forestry Station at Serua beua beyond Nabua when as the truck was going down a hill the driver lost control causing the truck to hit a cliff turning the truck on its side.

The Plaintiff was sitting at the back of the truck near a lgasoline cylinder full of gas and as there were no seats ints in the back of the truck the Plaintiff and his colleagues had to sit on the floor.

During the accident the Plaintiff's right leg became tangled in the rails of the tray of the truck and the gas cylinder rolled down and hit the Plaintiff's right leg which was then crushed by one of the rails on the side of the tray.

As a result of thident the Plaintiff who at the time was aged 27 suffered temporary loss of consciousness anss and a compound fracture, and dislocation of two bones in his right foot which required operative treatment under anaesthetic to clean and reduce the injury at the Colonial War Memorial Hospital, Suva.

The Plaintiff was an in-patient at the hospital until 14th April 1995 and then was discharged tend the fracture clinic forc for further treatment and review and was finally discharged from the hospital on the 23rd of November 1995.

Liability was admitted by the Defendants so that the case is now one for an assessment of damages.

The Plaintiff gave evidence. He d that he had been employed by the Government of Fiji as an unestablished worker in the Fore Forestry Department since about 1993 after his father, who had worked for the Forestry Department for about 32 years, died in that year.

The Plaintiff is married with onld but he also supports his wife and two younger sisters who are wholly dependent on him. Him. He was educated to Form 4.

Immediately the accident he was taken to the Nausori Health Centre but then transferred to the Colonialonial War Memorial Hospital where he was taken to the operating theatre about an hour after his arrival and his injuries cleaned and the fracture reduced.

He was in pain ost of the time he was in the hospital and after discharge attended the fracture clinic forc for review about ten times until the 23rd of November 1995. He still complains of pain and attends a hospital twice a month to obtain pain-killing tablets.

He resumed wor the Forestry Department after his final discharge from the hospital and ever since has beas been given only light duties, for example carrying small tools. He says that he forces himself to do this because of his need to support his family. He estimates that he is now able to work at only between 20% and 30% of his previous working capacity.

At the time of his accident his nett weekly was $102.00 but since then there have been pay increases foes for unestablished Government workers and at the date of trial he was earning $113.96 nett per week.

He complains now that he cannot climb hills or trees or run. His work for the Forestry Department prior to the accident involved the cutting of lines for planting small mahogany trees and spreading gravel and weeding the road sides in Forestry reservations. He had to carry up to 600 young trees a day to plant them. He also had to climb trees which blocked the truck driver's view and then cut off the branches. He also cut branches to get the road dry after rain.

After the accident he sa could no longer climb trees but still performs his other former duties. He works up to fouo four hours overtime per day regularly.

Before the accident he used to do his own farming to support his family but is no longer able to do this to the same extent as before the accident and consequently has to buy more food than he did before the accident. This is because his ability to work in his garden has been greatly reduced.

In the 12 months before the trial the Plaintiff used all his annual entitlement of 12 days sick leut said that he was off worf work for 15 more days for which he received no sick pay.

Before the accident he played rugby for Tailevu ow cannot play. He and his family live in a Government quar quarters at the Forestry Station but says that if he were dismissed from his employment he would naturally lose his entitlement to these quarters.

Because of his limited education and his injuries he dot expect he will be able to find a job anywhere else if he f he is dismissed and says that he does not expect to be kept on as an unestablished labourer. He has no other source of income.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> During his evidence the Plaintiff demonstrated how he walks by walking up upreme Court Room. He has ahas a noticeable limp.

Medical reports were tendered by consent from the Colonial War Memorial Hospital andBayly Clinic. According to g to the Colonial War Memorial Hospital Orthopaedic Surgeon Dr. Frank Piscioneri the Plaintiff has suffered permanent damage to the mid part of his right foot and is now fit for work which is not heavy.

He was examined by Dr. A.W. KhanMedical Superintendent of the Bayly Clinic on the 20th of March 1998 for the purpose of obtf obtaining a pre-trial report. According to Dr. Khan the Plaintiff walks with a slight limp, his foot pain is worse at the end of the day and in colder weather. He is unable to run or walk for long periods of time for long distances and is unable to climb trees. He told Dr. Khan that his chances of job advancement had been affected due to frequent absences from work. (I interpolate here that the evidence of Dr. Khan' and the Plaintiff himself on this aspect was not contradicted by the Defendants.)

On examination Dr. Khan noted that the right foot wformed with scarring in the middle aspect of the foot and tand there was reduced ankle flexion, extension and rotation. Dr. Khan had x-rays taken and the radiological assessment report dated 20th March 1998 states:

"In the initial tr the forefoot was displaced laterally and resulted in chip chip fracture of the distal end of the os calcanei. Degenerative changes of the alcaneo-cuboid joint and also the navicular-cuneiform joint."

According to Dr. Khan:

"This young man's life has been dramatically changed as a consequof his injuries. His recreaecreational activities have been curtailed and promotional opportunities at work has also been affected.

Radiological evidence shows degenerative bony changes - a process which cannot be arrested. It is envisaged that he may eventually have extensive bony degeneration and deformities of the affected joints.

I assess his physical disability at twenty percent (20%)."

I have received helpful submissions the parties and been referred to a number of decided cases on damages for personal injuriejuries. In none of these cases however have the injuries been identical with those suffered by the Plaintiff, possibly the closest being the decision of Lyons J. in Civil Action No. HBC0167D of 1995L on the 14th of March 1997. There the judge awarded $9,500.00 general damages to a 39-year old Staff Nurse who sustained a fracture of the left wrist (her non-dominant hand) and a fracture of the right ankle. She was in plaster for five and half weeks and off work for six weeks. She suffered visible scarring on her shoulder and both knees which the judge accepted caused her embarrassment. At page 9 of his judgment Lyons J. said:

"There is of course aneased risk of osteo-arthritis developing in these regions, ons, but there is no evidence of it as yet."

ass=MsoNormaNormal style="margin-top: 1; margin-bottom: 1"> In contrast toinjuries suffered by the Plaintiff in that case, significantly in my opinion as a result oflt of the injuries suffered to the Plaintiff in the present case there is radiological evidence of degenerative bony changes, a process which cannot be arrested.

Accordingr. Khan the Plaintiff may eventually have extensive bony degeneration and deformities of hiof his affected joints.

Each case has to bessed on its own facts and although the Plaintiff is fortunate that his employer has kept hipt him on in his former job, I have little doubt that as he grows older the Plaintiff will find it more and more difficult to perform even his present work so that I regard his eventual dismissal from employment as most likely. No employer can be reasonably expected to employ indefinitely a person whose working capacity has been affected, but especially noticeably affected as I find in the case of the Plaintiff. I accept that as an unestablished worker the Plaintiff is disadvantaged compared with those in established employment in the Government and that he may well have difficulties if he is dismissed in finding other employment.

Special damages have been agreed at $1,439.or general damages the Plaintiff's counsel submits an awardaward of $60,000.00 would be appropriate whereas counsel for the Defendants submits that the award should not be above $9,500.00 for general damages. I consider both these figures should be rejected, in the case of the Plaintiff's submission because I consider an award of $60,000.00 would be much too high and in the case of the Defendants' submission because I consider such an award would be unreasonably low.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In my judgment taking all the factors given inence into account and allowing for the contingencies of liff life I consider that in this case an award of $20,000.00 general damages is appropriate together with the agreed special damages. This award will carry interest at the rate of 4% from the date the Writ was issued, the 9th of February 1996 until the date of judgment. I therefore give judgment for the Plaintiff in the total sum of $23,580.00. The Defendants must also pay the Plaintiff's costs to be taxed if not agreed.

E. BYRNE
JUDGE

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Case referred to in Judgment:

Civil Action No. HBC0167D of 1995L Gyan Kuar Nand and Another v. Hira Sappa Kutti and Attorney-Gene-General of Fiji - unreported judgment of Lyons J. dated 14th March 1997.

The following additional cwere mentioned in submissions:

Subhash Chand v. Attorney-General and Another HCCA No. 212. 212/1984(S).

Kemp & Kemp, The Quantum of Damages Vol. 3 (1996 edt.) page 59803.

Edward Narayan v. W. Amputch & Another HCCA No. 51/1993(L).

British Transport Commission v. Gourley [1955] UKHL 4; (1956) A.C. 185.

Munkman Damages for Personal Injuries and Death 8th Ed. Butterworths.

Anare Robinson v. Joseph Shackley & Lautoka City Council, High Court No. 0022 of 1990 Lautoka.

Seremaia Senibua v. Attorney-General of Fiji HBC 528 of 1995 Lautoka.

Paul Praveen Sharma v. Attorney-General and Another Civil Action No. 728 of 1984.

Anitra Kumar Singh v. Rentokil Laboratories Ltd Civil Appeal No. 73/91 FCA.

Jainendra Prasad Singh v. Kinijoji Katonivere and Attorney-General High Court Action No. 242/94.

Virend Singh v. Ram Sundar & Another C.A. 388/91.

Hbc0056j.96s

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