IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL CASE ACTION NO. HBC . 575 OF 1994

BETWEEN:

SUSHILA WATI f/n RAN CHARAN
Plaintiff

AND:

RATTAN SINGH & SONS LIMITED
1st Defendant

UMESHWAR NARAYAN BALI f/n Ram Bali
2nd Defendant

Counsel : MR. M.B. PATEL for Plaintiff
NO APPEARANCE for Defendant

Hearing : 25th August 1999
Decision : 1st October 1999

JUDGMENT

On 28th February of 1995 the Plaintiff filed writ of summons in the High Court claiming damages for personal injuries caused by a motor vehicle accident in March 1993 when she was a passenger in a car registration number BS 423, which was driven by the 2nd Defendant. The 1st Defendant was sued in his capacity as the owner of the motor vehicle, but service of the writ on him was never effected.

The 2nd Defendant did not file acknowledgement of service, and Judgment in Default was entered on 27th September 1995, with damages to be assessed.

The matter was set for assessment of damages on 25th August 1999. The 2nd Defendant made no appearance. Three witnesses gave evidence on behalf of the Plaintiff,

Dr. Champak Rathod, Sagar Wati the plaintiff's mother, and the plaintiff herself. 

The Plaintiff gave evidence that she was married to the 2nd Defendant on 25the February 1993. She was a passenger in the car driven by the 2nd Defendant when the accident occurred. She sustained injuries to her face and to her left eye. She lost her vision in her left eye. Her right eye is weak. The 2nd Defendant left her. She can no longer work as a machinist, and was unemployed for four years. She is now employed as a packer in a garment factory and is paid $44.00 per week. Before her accident she received $60.00 per week as a machinist. When she resumed work she received $38.00 until her wages increased to $44.00 in February 1997.

She said that she often missed work and that she had been rejected, by the 2nd Defendant's family. She cannot travel alone especially at night. She cannot focus on things and finds household chores difficult. Her social life is limited. She no longer plays sports. She suffers from joint pains and headaches. She tendered a photograph taken on the day of their marriage, which showed that the Plaintiff had been an attractive looking person. In the witness box, the Plaintiff had visible scars on the face and the jaw line. 

She's 37 years old. She lives with her elderly parents. She is the sole breadwinner and supports her parents. 

Dr. Champak Rathod, Consultant Ophthalmologist at the C.W.M. Hospital also gave evidence. He tendered a medical report prepared by Dr. Zhang Ling Jie who examined the plaintiff on 14th September 1994. He gave evidence that the plaintiff had received multiple facial injuries as a result of the accident. Her left eye was injured with the perforation of the left cornea. The injury had cut the lens in her eye, producing traumatic cataract. She had lost part of lens and the jelly inside her eye. She could only see the light with her left eye and needed an immediate eye operation. Her vision did not improve and she then developed retinal detachment which led to permanent loss of vision. Her right eye was not injured and she has 6/12 vision in it. She has been short-sighted all her life. The loss of vision in one eye however has resulted in loss of depth of focus. She continues to receive follow-up treatment at the hospital, but is likely to have a normal life-span.

Sagar Wati gave evidence. She is the plaintiff's mother . She said that after the accident the plaintiff was admitted in hospital when she had her eye-operation. She complains of headache and pain in her eye.

Before the accident, the plaintiff was a happy, strong and healthy person. She is now not likely to marry again. She supports her parents. She cannot travel alone.

In his submissions, Mr. M.B. Patel for the Plaintiff suggested an award of $45,000 for pain and suffering and loss of amenities, referring to the Court of Appeal decision in Subarmani and Tangavellu v. Fiji Sugar Corporation as a comparable case. In that case $37,500 was awarded to the Plaintiff who had receive facial and eye injuries.

Mr. Patel submitted that $450 should be awarded as special damages, $14,584.00 for loss of earning $62,400 for loss of future earnings $850.00 for facial disfigurement, and interest at 6% on general and special damages. The total sought is $144.791.34.

On general damages, the Plaintiff has completely lost vision in her left eye . However, with glasses, her sight in her right eye is normal. In Subramani and Tangavellu Civil 

Appeal No. 47 of 1993, the plaintiff had suffered injuries to both eyes and there was a possibility of total blindness in the future. 

In Vijay Anand v. Island Bottlers of Fiji Civil Action N0.37 of 1989, $15,000 had been awarded for the loss of one eye, in 1990. That decision however predated the Court of Appeal decision in Anitra Kumar Singh v. Rentokil Laboratories Limited Civil Appeal N0.73 of 1991. That case involved a claim for injuries which are not comparable to this case. However the Court of Appeal said that the figures for pain and suffering and loss of amenities were well below what Court considered to be appropriate that case an award of $25,000 was increased by the Court of Appeal to $60,000.

In Apimeleki Kava v Jiko Industries Limited Civil Action No. HBC 0283 of 1996, Byrne J canvassed overseas decisions on damages for the loss of an eye. These ranged from $112,500.00 in Nominal Defendant v Ishac NSW No. 40439/97, to F28,000.00 in Kyci v Utility Tyre Services October 1997 Current Law Digest p.65.

However, Byrne J said that a more appropriate sum for Fiji was $50,000 "for the loss of sight for his eye and the cosmetic defect arising from the scar on his left eyebrow and the unpleasant appearance of his eye due to the accident."
 
In this case, taking into account the Plaintiff's extensive facial and eye injuries, the length of hospital treatment, the surgical complications she endured, the complete loss of vision in one eye the loss of a healthy and normal lifestyle and her reduced chances of re-marriage I am of the view that the sum of $45,000 is the appropriate sum for pain and suffering and loss of amenities.

On past economic loss, the Plaintiff's evidence was that she earned $60.00 a week prior to the accident. She earned nothing until February 1996. She therefore lost a total of $12,240.00. Between February 1996 to February 1997 she earned $38.00 per week
which was a loss of $22.00 per week. From February 1997 to August 1999 she earned $44 per week which was a loss of $16.00 per week. I therefore accept that past economic loss is as follows:

1. 	$60.00 x 204 weeks = $1224.00

2.	$22.00 x 52 weeks = $1144.00

3. 	$16.00 x 75 weeks = $1200.00

On future economic loss, I cannot accept a multiplier of 20 for the plaintiff . She is 37 years old and a multiplier of 15 is appropriate . Furthermore as she is able to get some employment I intend to calculate the award under this head at $16 loss per week. At $16.00 x 15 x 52, the total is $12,480.00

I accept that the Plaintiff should receive a special award for facial disfigurement but do not agree that an appropriate sum is $2000.00, I award $600.00 since the degree of disfigurement is less than in Subarmani and Vendally (opp cit).

On special damages, the Plaintiff has tendered no receipts of expenditure travelling to hospital. There is evidence of time spent at the hospital, and of taxi trips, but these matters have not been particularised . I consider the sum of $450.00 for taxi fares and medication to be excessive. I award $300 for medication, travel and medical fees.

I now turn to interest. Under section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27, the Court may in its discretion award interest for the whole or part of the period between the date when the cause of action arose and the date of judgment. The appropriate rate in similar cases was 4% - 6%. Interest may be calculated either from the date the writ was filed, or from the date of the accident.

In Attorney-General and Kinijoji Katonivere v. Jainendra Prasad Civil Appeal N0. ABU 0001 OF 1998s, The Court of Appeal said -:

"Interest is awarded to compensate the plaintiff for being wrongfully kept out of the money to which he or she was entitled. But unlike most claims for simple debt, in these claims for damages, th  defendant may not know until the writ is issued (or at least until a  letter of claim is sent), the basis on which general damages shouldbe calculated and paid. Therefore it can hardly be said that the defendant is wrongfully retaining the plaintiff's money before then and on principle interest should not start to run in respect of non- economic loss in personal injury cases until the action is commenced."

Applying this principle, I award interest on special and general damages at 5% from the date of the issue of the writ. On past economic loss, interest is due from the date of the accident. Interest on facial disfigurement is to run from the date of the issue of the writ

In summary the award is as follows:

1.	General Damages
	$45,000.00	
2.	Special Damages 
	$ 300.00	
3.	Past Economic loss 
	$14,584.00	
4.	Future economic loss 
	$12,480.00	
5.	Facial Disfigurement 
	$ 500.00	
6.	Interest on 1, 2 and 5 
	$10,305.0	
7.	Interest on 3, and 4 
	$ 9012.31	
Total	$91,881.31 	

The Defendant is to pay the Plaintiff costs of this action which I set at $200.

(NAZHAT SHAMEEM)
JUDGE

1st October, 1999