IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0252/1992S/ HBC0157J.1997L

Between:

PETER DOUGLAS ELSWORTH
of 84 Strathalbyn Street, East Kew.
First Plaintiff

PARKANSON PTY LTD
a duly incorporated company of 155 Burnfield
Road West Heidelburg Melbourne, Victoria, Australia.
Second Plaintiff

And:

YANUCA ISLAND LIMITED
a duly incorporated company having its registered office at 
Yanuca Island Resort and P O Box 9195 Nadi Airport, Nadi.
Defendant

Counsel: V M Mishra & R Prakash for the Plaintiff
J Poulos QC & R Krishna for Defendant

JUDGMENT

Peter Douglas Elsworth the plaintiff sues Yanuca Island Limited the defendant for general and special damages for its alleged breach of duty as occupier in failing to take precautions to prevent his falling from the defendant’s premises on 4 January 1990. The plaintiff had been at the Black Marlin Bar of the Fijian Hotel which is owned by the defendant. He sat on a window ledge and fell some ten feet into a pit. The plaintiff sustained head injuries as a result and after some treatment locally had to be medically evacuated to Australia. His mental faculties have been affected and his physical condition has deteriorated, his balance is impaired and there is reduced sensation on the right side of his body.

The particulars of the defendant’s alleged breach of duty are set out in paragraph 5 of the statement of claim which states:

“5.	The accident occurred by reason of the breach by the defendant of the common duty of care which it owed to the first named plaintiff pursuant to section 4 of the Occupier Liability Act 1968 (Fiji) as an occupier to take such care as in all the circumstances of the case is reasonable to see that the first named plaintiff as a visitor would be reasonably safe in using the premises for the purposes for which he was permitted by the defendant to be upon the premises, and without limiting the generality of the foregoing, by reason of the breach of the defendant of one or more of its duties pursuant to the said Act.

PARTICULARS

a)	Creating or alternatively permitting the continuance of a situation of danger;

b)	Failing to take any or any adequate steps to avoid the risk of injury to the plaintiff;

c)	Failing to render the premises safe for use by the plaintiff;

d)	Failing to guard the said window adequately or at all;

e)	Failing to implement and/or enforce any or any adequate system of inspecting the said window so as to ensure that persons did not use it as a seat;

f)	Failing to install any or any adequate locks or latches upon the said window;

g)	Permitting overcrowding in the said bar;

h)	Failing to provide adequate seating in the said bar;

i)	Failing to give to the plaintiff any or any adequate warning as to his height above ground level when located at the said window;

j)	Permitting the continuance of a hidden trap in that vegetation created in illusion that the said window was at ground level.”

In his evidence, the plaintiff stated that the Black Marlin Bar was crowded that evening and the tables and chairs were occupied. A frog race was being held in the dance area. Looking for seats and find none available, he saw the window ledge. They were large sliding windows about 5 to 6 feet in height by 9 feet, the width of the frame was about six inches. The ledge was about three feet off the floor. The plaintiff, his daughter and her friend proceeded to sit on the ledge. His next recollection was waking up in their room at the hotel. While sitting on the ledge, the lights inside the Black Marlin Bar and the darkness outside created an illusion of lack of height. It appeared the window was at ground level whereas it was some ten feet above ground level. The plaintiff fell off the ledge and into the pit.

Netani Koroi was the defendant’s guest activities co-ordinator that evening. Chairs were made available if one asked but none were requested. The window ledge the plaintiff sat on was about 4 to 5 feet wide and 5 to 6 inches deep. It was approximately 3 feet off the floor. They were open because it was a warm evening. Mr Koroi stated there was a light that illuminated the pit where the plaintiff fell. It was about 6 to 7 feet from the ledge to where the plaintiff fell. Standing at the window, he saw the latter lying in the pit. In cross examination Mr Koroi allowed that there was no light in the pit area. He also stated that the Black Marlin Bar had been altered and the window the plaintiff had fallen from had been changed.

In the court’s respectful opinion there is little doubt that the defendant has breached the duty of care it owed the plaintiff under section 4 of the Act. It operated a bar as part of the services it provided as a hotelier. The window ledge was at such a level and in such a position as to attract guests in the Black Marlin Bar. The issue is not that chairs were available on request. It is whether someone in the plaintiff’s position would be reasonably safe in using the defendant’s facilities. The latter did not see fit to secure the window ledge. It ought to have reasonably foreseen given the behaviour of patrons that the ledge would be used for such a purpose whether or not the Black Marlin Bar was crowded. At no stage were the plaintiff or his charges told by the hotel authorities that sitting in that particular spot was proscribed. There was no warning of the apparent danger and the lighting was poor. In those circumstances, the defendant was clearly in breach of its duties and the court finds that the particulars set out in subparagraphs (a) to (j) of paragraph 5 have been made out.

The court accepts that the plaintiff has suffered brain and physical damage. That emerges from the evidence of both the plaintiff himself, his wife Rhonda Elsworth and from the neurosurgeon, Mr David Wallace. However what has been problematic is determining to what extent the plaintiff has been affected. In the course of his being treated by Mr Wallace, what emerges from the medical reports over time is the plaintiff’s insistence he was well on the road to recovery. Mr Wallace was perhaps not as sanguine about matters and he allowed there was some improvement although the plaintiff by temperament appears to have been an optimist, convincing himself he was recovering well was a preferable alternative to the realisation that what had been lost would never be regained. In Mr Wallace’s medico-legal report dated 23 June 1998 (Exhibit P6) he concluded as follows:

“This man’s condition does not appear to have altered since I last saw him in April 1993. He has ongoing problems with impaired numeracy skills, impaired memory and concentration, and has undoubtedly suffered a permanent impairment of higher intellectual function, as documented by Dr Bernard Healey some three years after his accident.

He has impaired sensation of part of the right side of the body involving the lips, tongue and lower portion of the right arm and leg.

He still has a balance disorder and is prone to attacks of acute vertigo with a tendency to fall over if he arises too suddenly from the seated position, or moves his head too briskly. There is also impaired balance apparent when he is put to the test with heel-toe walking. His impaired balance has led him having to give up tennis and has notably diminished his high level of skill at golf.

I believe all of his current disabilities are likely to be permanent. There is no doubt whatsoever that this man’s injury has led to a significant diminution in his former high level of skill and expertise in business, engineering, sales and retailing, and has significantly diminished his self confidence and his level of function as an executive in a successful business.”

Although Mr Wallace was subjected to searching cross-examination by learned counsel for the defendant, J Poulos QC, his testimony was unshaken. As was Mr Bernard J. Healey the clinical psychologist. In his report dated 2 July 1998 (Exhibit P10A) Mr Healey noted the physical effects of the plaintiff’s injuries including reduced sensation on his right side, lack of balance and dizziness. His irritability, frustration and impatience stemmed from his reduced ability to cope with the mental and physical challenges of daily living. His intellectual and memory functions have fallen appreciably. In the absence of the defendant offering contrary expert opinion, the court accepts Mr Wallace’s and Mr Healey’s conclusions. It is satisfied that the plaintiff’s condition was directly attributable to the injuries he sustained from the fall on the defendant’s premises and excludes the alternatives such as liver ailments that were raised by the defendant. At the same time it cannot ignore the remarks made by Burchett J in Altendorf Australia Pty Ltd v Parkanson Pty Ltd & Ors Civil Action NG 493 of 1991 Federal Court of Australia 9NSW) wherein his Honour at pp 7 to 12 makes reference to the plaintiff taking part in complicated business discussions in about April to June 1990. On that basis the court discounts the award for loss of amenities by $20,000.00. 

The court will not allow any damages for financial loss of the second plaintiff because it is not persuaded that its business misfortunes were attributable to the unfortunate fall the plaintiff sustained at the Fijian Hotel. As regards loss of earnings, the plaintiff prior to the accident was a successful chief executive and businessman earning about A$100,000 per annum. The plaintiff was about forty eight years old at the time of this accident and a multiplier of five will be allowed. He is now a shadow of himself, his previous career a distant memory. Subsequent efforts to re-establish himself have floundered on the diminution of his intellectual abilities and his physical frailties. A plethora of authorities were cited to the court of learned counsel and it has found the decision of Byrne J in Kylie-Jane Anderson v Iowane Selaitoga Civil Action No. 353 of 1989 particularly helpful both as a comparative analysis and in relation to the issue of interest.

General Damages are awarded as follows:

Pain and suffering, loss of amenities $120,000.00 - 20,000.00 =
	100,000.00		
Interest on past pain & suffering of $60,000.00 at 6% p.a.
(from 8 July 1992 to 6 October 2000)
	29, 700.00		
Loss of Earnings A$100,000.00 x 5 yrs (A$1 = F$1.22)
	610, 000.00		
		739, 700.00
	
Special damages in full of
	117,548.98	117,548.98	
		$857,248.98	

Judgment will accordingly issue for the plaintiff in the sum of $857,248.98 and costs are summarily assessed against the defendant at $30,000

Joni Madraiwiwi
PUISNE JUDGE

At Suva
6 October 2000