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Nisha v Eastern Apparels Company Ltd [2001] FJHC 221; HBC209.1997 (7 August 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 209 of 1997

Between:

NAZRUL NISHA d/o Mohammed Saizad
Plaintiff

And

EASTERN APPARELS COMPANY LIMITED
Defendant

Mr. R. I. Kapadia for Plaintiff
No appearance of Defendant

JUDGMENT
(Assessment of Damages)

On 29 May 1997 the plaintiff Nazrul Nisha d/o Mohammed Saizad instituted
this action by way of writ of summons against her employer the defendant (Eastern Apparel Company Limited), claiming damages for personal injuries received by her at her workplace.

An Interlocutory judgment with damages to be assessed was obtained on 7 April 1998 as no acknowledgment of service was filed and served by the defendant. At one time Mr. H. Lateef appeared for the defendant to take a date for assessment of damages but later leave was granted to him to withdraw.

The defendant was served with Notice of hearing of assessment of damages for 30 January 2001 but it failed to appear. The hearing proceeded without any representation from the defendant.

It is for me now to assess damages recoverable by the plaintiff.

Facts and circumstances leading to accident

The plaintiff is a married woman born on 24 February 1971. She has three children 12 years, 11 years and 8 years old respectively. At the time of the accident in which she suffered personal injuries she was a garment worker for the defendant having worked for them for 8 months.

Her work was as ‘material cutter’. It involved lining up material and cut in sizes as instructed by her supervisor. They worked in ‘partners’ (pairs). She would measure material and cut in machine. Her partner will switch on the machine and push it forward to cut. This machine is fixed at the end of the table; it has sharp and round blade which would cut the material. There is no guard on the blade for protection.

On 20 June 1996 her little finger of left hand was cut in the machine. The plaintiff described how it was cut thus:

"I bent down to pick up the material from floor while partner pushed the machine towards me. She didn’t warn me before doing that. My hand was on the table. My left hand on table and I bent down to pick material from the floor."

The finger was bleeding heavily. She was taken to Valelevu Health Centre where after giving injection and bandaging her finger she was sent to CWM Hospital. She said that it was very painful. She was taken to the Theatre where the damaged part of her finger was amputated and stitched.

The plaintiff testified that it took some months to heal and she had to go for check up once a week for 4 months. She did not go back to work as she could not work being left-handed. She said that if she touched something she could feel pain in her hand like an electric shock. The pain would sometimes be felt in the head and shoulder.

The plaintiff finds it difficult to do housework as she still feels shock in her hand while ‘brooming’, washing, and touching water. Even the handgloves will not prevent shock if she touched anything by mistake.

The doctor who prepared a report on the plaintiff’s medical condition testified in this case and confirmed his written report dated 25 October 1999 which is as follows:

The above is a patient in this clinic. She had an accident at her work place in June 1995 whereby she lost the terminal phalanx of her left little finger through amputation at the CWM Hospital consequent to the crush injury.

Nazrul’s left hand is the registered hand with which she always works, writes and does her household chores.

Ever since her amputation she complains of symptoms conforming with the phantom limb. She is not able to write well and drops articles often from her hands due to the handicap thus preventing her from doing perfect household

chores. One of her hobbies was doily making which she cannot do now with the absence of the terminal phalanx used for manipulating needle and thread.

She complains of frequent debilitating shock like sensation when accidentally hit in the stump.

She has received no further attention from the Hospital and has had to go through the suffering and pain ever since.

In my opinion even rehabilitation will not make her function a hundred percent as her loss is total and irreparable now.

The Claim

The plaintiff claims general damages, special damages and costs.

I shall now assess damages under these heads.

General damages

I am satisfied on the evidence before me that the plaintiff has suffered the injuries as stated by her and this has been confirmed by the doctor’s evidence.

In ‘general damages’ are included pain and suffering, cost of future nursing and attendance and medical expenses, loss of amenities and loss of future earnings. It is a convenient list but not conclusive.

Assessing damages for non-pecuniary loss is fraught with difficulties. How is one to measure pain and suffering in moneys counted. In this case the plaintiff is still complaining of pain. As was said by Earl of Halsbury LC in The Mediana (1970) AC at 116:

"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 "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".

In any assessment in a personal injury case 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) Q.B. 196 at 215:

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 assessing general damages no local cases were referred to by counsel. But a case very close to the one before me from Kemp & Kemp, The Quantum of Damages In Personl Injury and Fatal Accident Claims Volume 3 was drawn to the Court’s attention. The case is Davis v British Steel Corporation (1987). U.K. where there was ‘crush injury to right (dominant) index finger. Surgical amputation across intermediate phalange’ the sum of £5000 (equivalent to $15,318 Fiji dollar) by way of general damages was awarded.

As for loss of amenities, 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.

In this case I award by way of general damages for pain and suffering and loss of amenities and enjoyment of life the sum of $15,000.00.

Loss of earnings

In view of the nature of her injuries and her inability to do the work which she did to earn a living she is entitled to loss of prospective earnings. Her disability has resulted in economic loss to her for it has adversely affected her competitive earning capacity in the open labour market.

The plaintiff’s economic loss (loss of prospective earnings) is $35.59 per week and a multiplier of 12 is appropriate in this case for a person of plaintiff’s age.

Therefore the sum I would award in this case is $35.59 p.w x 52 weeks x 12 years which comes to $22, 208.16.

Special damages

I allow claim for special damages in the sum of $6362.66 being made up as follows: (a) medical and transport expenses - $170.00; (b) Loss of income as a garment factory worker at $35.59 for 46 weeks for period 20.6.96 to 9.5.97 - $1637.14; (c) loss of income as a garment factory worker at $35.39 per week from 10.5.97 to 29.10.99 (128 weeks) - $4555.52.

Interest

The plaintiff has not claimed interest in the Statement of Claim for general and special damages except in one of his letters to Messrs. Lateef & Lateef who then acted for the defendant after the issue of Writ of Summons in talking settlement said ‘we will also seek interest on the award’.

If there is a claim for interest in the pleadings then under section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27, the plaintiff will be entitled to interest.

Not having pleaded interest in the writ and only raising it at the time of submission after hearing of assessment of damages, does not permit interest being awarded. Counsel is bound by his pleadings. In support of this proposition I refer to three cases. The first is the Fiji Court of Appeal case of Usha Kiran and The Attorney-General of Fiji (Civ. App. 25 of 1989 delivered 23.3.90) where the Court referred to the English Order 18 Rule 8 under which "it is mandatory to plead specifically any claim for interest under the English Act." The Appeal court said that there is "no comparable rule in Fiji and it stated that the following passage on interest in the 1985 ‘White Book’ at Note 18/8/11 commends itself" to it:

"INTEREST - A claim for interest must be specifically pleaded whether it is claimed under s.35A of S.C.A. 1981 (see 0.1), r.4(1) or otherwise, see para. (4) of this rule negativing Riches v. Westminster Bank Ltd [1934] 2 All ER 735. For s.35A, inserted by A.J.A. 1982, s.15(1) and Sched. 1, Pt.1, see Vol.2 Pt.17, para. 5161 para (4) which requires a claim for interest to be pleaded reflects the fundamental principle that the pleading should give fair notice to the opposite party of the nature of the claim which is being made against him, with the relevant facts relied upon, so as to enable him to meet such claim and to prevent surprise at the trial. Thus, if the defendant has due notice of the plaintiff’s intention to seek an award of interest he will know the extent or totality of the plaintiff’s claim and he can better calculate what sum, if any, he should pay into court under O.22, r.1(8) or what sum he can fairly offer to settle the claim out of court, or even whether in all the circumstances he should allow the plaintiff to enter judgment in default of pleading. The claim for interest must be pleaded in the body of the pleading, and not only in the prayer though it should also be repeated in the prayer. (See O.18, r.5(1). It must identify precisely the ground or basis on which it is claimed, and whenever possible, the date from which and the rate at which the interest is being claimed, assuming, that is, that the date to which it is claimed is the date of judgment. If the interest is being claimed under s.35A, the pleading should specifically so state, since it is not sufficient to state the claim as being "interest under the statute."

The second case is that of Waisale Naicegulevu Civ. App. 22/89 FCA (judgment delivered on 18.5.90) where the court referred to Usha Kiran and stated:

"As to the second ground of the cross-appeal that the learned Judge ought to have upheld the claim for interest our answer is short. The Respondent cannot succeed because he did not ask for interest in his pleadings nor did his Counsel raise the issue of interest before the Chief Registrar, this latter fact was in fact taken in consideration by the learned Judge. Before us Mr. Kapadia did not press the issue of interest. In fact he indicated that in future he would claim interest in his pleadings.(As to the need to include claim for interest in pleadings see this Court’s recent judgment in Usha Kiran v. Attorney-General - Civil Appeal No. 25 of 1989.)"

The third case is that of Tacirua Transport Company Limited v Virend Chand f/n Ragho Prasad Civ. App. No. 33 of 1994 (judgment 2.3.95) where with reference to section 3 of the Law Reform Act (supra) the Appeal Court said that "this provision must, however, be regarded as subject to the general provision that a claim for interest, as for any other relief, must first be pleaded". However, the Appeal Court went on to say that:

"In the present case, not only was there no claim for interest in the Statement of Claim, but the topic of interest was apparently not raised at the hearing and is not referred to at all in the written submissions made to the Judge on behalf of either party. In these circumstances there was no power for the Judge to include the provisions for interest in his assessment of damages".

For these reasons the claim for interest is refused.

Order

I summarize the awards as follows:

There will therefore be judgment for plaintiff against the defendant in the sum of $43,570.82 with costs in the sum of $750.00 making a total of $44,320.82.

D. Pathik
Judge

At Suva
7 August 2001