IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 353 OF 1995

Between:

GUY ANDERSON
Plaintiff

and

1.	PLANTATION VILLAGE LTD
2.	PLANTATION ISLAND RESORT (FIJI) LTD
3.	MINIKA TAPPEN MANAGEMENT LIMITED
Defendants

Mr. A.J. Bartley with Mr. V. Maharaj for the Plaintiff
Mr. H. Lateef for the Defendants

JUDGMENT

By this action Guy Anderson (hereafter referred to as the ‘plaintiff’) claims damages for personal injuries suffered by him on 6 September 1992 at Lautoka in the Fiji Islands whilst attempting to para-sail in the waters surrounding the Plantation Village Ltd’s (the first defendant’s) premises. The equipment and personnel engaged in the parasailing exercise were the equipment and servants and/or agents of the said defendant.

The defendants admitted liability for the accident which caused the injuries to the plaintiff.

At the hearing of assessment of damages, the plaintiff testified on the injuries he suffered and the treatment he received from time to time and his present condition. He also tendered to Court a number of Medical Reports which were accepted as exhibits by consent. His evidence has been well set out in Mr. Maharaj’s written submission and also a summary of it in Mr. Lateef’s submission in writing. The defendants did not adduce any evidence but cross-examined the plaintiff on the extent and consequential effects of the injuries sustained.

As ordered both counsel filed helpful written submissions and I have given due consideration to them.

The plaintiff’s claim for special damages in the sum of Australian dollars $1,361.00 (One thousand three hundred and sixty-one dollars) is conceded by the defendants.

It is to be noted that the sum of F25,000.00 was paid into Court on 25 February 2002, which the defendants say is in ‘full and final satisfaction of the claim’.

The only issues for the Court’s determination are assessing the plaintiff’s claim for damages and fixing sums for interest and costs.

About the plaintiff

The plaintiff is an Australian and was born on 28 July 1969 in New South Wales, Australia. At the time of the accident in 1992 he was about 23years of age and is now 33 years old. He was a coal miner by occupation at the time and still 

is but not where he worked before. The plaintiff was married early September 1992 and immediately after the wedding, he and his wife travelled to Fiji for a pre-booked honeymoon. They intended to spend the whole of their honeymoon at the first defendant’s Plantation Island Resort.

Circumstances leading to injuries

Liability has been admitted and the facts surrounding the circumstances in which the accident took place are not in dispute. Briefly, it is as follows as stated by Mr. Maharaj in his written submission:

On 6 September 1992, in the afternoon, the plaintiff had paid to participate in para-sailing which was one of the leisure activities offered by the Resort.

He was taken to a pontoon where he was connected to a harness which attached him to the motor boat which was to tow him and also to the parachute which was to bring about his elevation.

The defendants had omitted to release a part of the harness. The Plaintiff felt himself being dragged forward by the boat which was towing him. He then felt a very substantial blow to the side of his head. He ended up in the water still attached to the parachute which was dragging him across the bay.

He put his hand to the side of his face which had been struck and his hand was covered in blood and pieces of flesh.

He was in the water for approximately five minutes before he was rescued. During this time he was struggling to free himself (the life jacket had been put on by the defendants over the harness). He felt fearful that he might be dragged under the water and drown.

Eventually he was taken onto the shore where he was attended to immediately by a Dr Roger Williams. 

Nature of injury and medical reports

The hand written Report of Dr. Williams dated 7 September 1992 was tendered to Court as exhibit P1. There was fear that he may have had a brain injury. He was kept under regular review overnight thus passing a miserable and painful evening. The doctor recommended that he return to Australia immediately and seek a neurological assessment. The plaintiff and his wife returned to Sydney and immediately consulted his local medical practitioner Dr. D. Mackay.

The Court has before it the medical reports of Dr. Williams made on 7 September 1992 (exhibit P1), Dr. Bosanquet of 26 March 1996 (exhibit P2), Dr. John H O’Neill dated 24 June 1994 (exhibit P3) and Dr. G.D. Patrick dated 1.3.96 (exhibit 4) and 2.7.01 (exhibit 5).

Dr. Mackay did recommend specialist consultation with an ‘oral and maxillo facial’ surgeon. No appointment could be made until 27 October 1992 because the plaintiff was a public patient and because of delays in the public hospital system in New South Wales at the time.

Dr. Arthur Bosanquet was on 27 October 1992 presented with the plaintiff’s following problems:

1.	Jaw clicking every time he opened and closed his mouth.
2.	Intermittent jaw locking
3.	Reduced movement of the right side of his upper lip on smiling, and
4.	Pain on the right and left side of his face.

Dr. Bosanquet on examination diagnosed as follows:

1.	Laceration of his right cheek
2.	Damage to the buccal branch of the right facial nerve
3.	Menisco condylar dysfunction involving the TMJ with the likelihood of an anteriorly displaced intra-articular disc.

The Plaintiff was advised conservative management of the menisco condylar dysfunction and referred to a Prosthodontist in Sydney.

The plaintiff described what he went through with this treatment. He said he had to wear a dental occlusal splint for a period of six months. He described in evidence the splint as being somewhat similar to a mouth guard worn when playing sport but that it took up almost the whole of his upper and lower dentition. It was markedly uncomfortable, awkward and embarrassing. Furthermore, although he used it for the period recommended by Dr Fenton, it did not improve the dysfunction.

The problems with his injury were not solved. There was further reference to Dr. Bosanguet; then Dr. Mackay thought it necessary to refer the plaintiff to a specialist neurologist Dr. John O’Neill at the St. Vincent Hospital, Sydney; Dr. O’Neill’s evidence is contained in his Report of 24 June 1994.

On 20 November 1992 when Dr. O’Neil first saw him from a neurological point of view, he found that there was a right lower facial weakness. He ascribed this to trauma to the buccal (supplying buccinator and orbicularis oris muscles) and mandibular (supplying the orbicularis oris muscle) nerves, “both of which are peripheral branches of the facial nerve.”

However on 8 March 1994 when he reviewed him he noted in his Report that whereas he had previously thought that the facial weakness might improve with time, “there had been no improvement in the right lower facial weakness and it is now likely that this will be permanent”. He summarised his opinion in these words: “my view, therefore is that as a direct result of the accident in September 1992, Mr Anderson sustained permanent right lower facial weakness” as outlined before.

Present symptoms and medical condition

The symptoms at 1 March 1996 have been recorded by Dr. W.G. D. Patrick, a specialist general surgeon and a fellow of the Royal Australian College of Surgeons when examined by him.

Dr. Patrick’s findings, inter alia, are correctly stated by Mr. Maharaj in his written submission thus which includes ‘mild paresis’ which means ‘muscular weakness’:

On examination Dr. Patrick found a faint traumatic scar which had faded to result in only mild cosmetic disfigurement, that the site of the scar that the nerve damage previously nominated by Dr. O’Neill as having occurred, had occurred where the scar was located, and there was some apparent weakness of musculature to the right upper lip and right cheek (“not complete paralysis however, just a paresis”). He noted that whilst the facial asymmetry at rest is mild, but “becomes more apparent using facial expression such as smiling”.

Again the plaintiff was re-examined by Dr. Patrick on 2 July 2001 to bring the medical evidence up to date for the trial of this action. The following symptoms, as stated by Mr. Maharaj correctly in his submission, were noted by Dr. Patrick.

1.	There is ongoing jaw pain bilaterally. He continues to have clicking sensation in the tempero mandibular joints both right and left.

2.	He has difficulty chewing. He has difficulty eating a large hamburger, difficulty eating steak, and has to take just a very small bite from an apple or else cut it up.

3.	He has difficulty opening his mouth wide.

4.	On one occasion at the dentist in attempting to open his mouth wide a TMJ subluxed with a very loud clunk, startling the dentist somewhat.

5.	After attending the dentist for a filling, for example, he will often have significantly increased pain at the jaw (TMJ’s left morso than right) for some hours afterwards.

6.	Chewing results in a dull aching discomfort about both TMJ’s and masseter regions. The right side of his face he feels is slightly droopy, more at the right side of the mouth. The right facial scar itself is now well healed, and represents minimal disfigurement (almost invisible).

7.	He continues to have some diminished confidence, partly because of a somewhat “crooked” mouth, and because of difficulties eating.

8.	Recreational activities largely revolve around home and the children. He works away for two weeks at a time at the mine. He has a house built, and has been involved in the indoor work and landscaping himself.

Dr. Patrick’s final diagnosis was as follows:

“The major ongoing problems (emphasis added) resulting from this accident is the tempero mandibular joint dysfunction, with some jaw pain and difficulty chewing”. “The post traumatic facial asymmetry is not major, and the degree of this is (not) readily apparent to the observer. (The word “not” has been added as sense dictates.)”

The doctors had advised the plaintiff against facial surgery because of the ‘slight possibility of facial nerve damage resulting from the surgery itself, and this is understandable’ (Dr. Patrick 1.3.96).

Again on 2.7.01 on this the doctor said that there was ‘the possible risk of facial nerve injury, however remote’.

The above is the sum total of the injuries suffered by the plaintiff and his present condition. No evidence has been tendered by the defendants to add to or modify the opinions and findings of the doctors referred to hereabove except that in cross-examination the plaintiff said: there is a ‘little bit of scar tissue … mainly internal’. The Court noticed and asked about ‘some little marks’ and he said it was a ‘scar’; apart from his face there is nothing else wrong with him physically, he can work as an underground miner; there are no other medical expenses; he is healthy to do the housework, gardening etc but not without discomfort; there is ‘somewhat of a crooked mouth’ on the right hand side when he smiles and he feels that when he shaves because of some damaged nerve, there is some difference between the right and left side of face as the right hand side is lower than the left hand side and one is ‘fuller’ than the other.

Consideration of claims

General damages for pain and suffering

The plaintiff’s claim is for ‘general;’ and ‘special’ damages. Special damages has been agreed upon. The claim for General Damages is for ‘pain and suffering’.

Great emphasis has been placed on ‘pain and suffering’ in this case and lengthy submissions have been made.

I state hereunder the principles involved and factors to be taken into account in assessing damages under this head.

Assessing damages for non-pecuniary loss is fraught with difficulties. This problem has been stated by Earl of Halsbury LC in the Mediana (1900) AC at 116 thus:

“You very often cannot even lay down any principle upon which you can give damages….. Take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest hat 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.”

In assessing compensation the Court does its best and this process is described by Megaw LJ in Fuhri v Jones (1979 C.A. unreported) in the manner following:

“It will be appreciated, of course, though it is not always fully understood by persons who are not directly concerned with the law, that the law cannot attempt to attribute any particular figure of damages to any particular physical injury, serious or trivial. There is no way in which it can be said that such-and-such an injury is worth so much in terms of money. Indeed, in most cases for most injuries, anybody would say ‘I would rather have avoided this injury than have any amount of money whatever in compensation’. But the 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.”

The Plaintiff, the injured person, is entitled to damages for pain and suffering. As stated in Kemp & Kemp (Vol I p200, 2-010):

“…the court must take into account, in making its assessment in the case of any particular plaintiff, the pain which he actually suffered and will suffer and the suffering which he had undergone and will undergo. Pain and suffering are not measurable by any absolute standard and it is not easy, if indeed possible other than in the most general way to compare the degree of pain and suffering experienced by different people, however, the individual circumstances of particular plaintiffs clearly have a significant effect upon the assessment of damages”.

As can be gathered from the whole of the evidence and looking at the Medical Reports of the various doctors including specialists, the plaintiff has certainly gone through a lot of pain and suffering and continues to suffer pain although not constant even after ten years since the accident.

To start off with the plaintiff was at the defendants’ Resort for his honeymoon. That was short-lived and shattered due to this nasty incident giving rise to a lot of pain, suffering, uncertainty, fear of suspected brain injury and anxiety spreading over a long period of time.

I have already outlined hereabove the nature of injuries suffered and the pain and suffering the plaintiff has gone through as a result of the accident. He still suffers from pain and certain disabilities.

Prospective as well as past suffering must be allowed, for in Heaps v Perriete Ltd (1937) 2 All E R 60 Greer L.J. said:

“We have to take into account not the suffering which he had immediately after the accident but the suffering that he will have throughout his life in future.”

“In actions for personal injuries, the court is constantly required to form an estimate of chances and risks which cannot be determined with anything like precision; for example, the possibility that the injury will improve, or deteriorate, or the possibility of improved earnings if the accident had not occurred: see FAIR V LONDON AND NORTH WESTERN RLY CO. (869) 21 LT 326”. (MUNKMAN: Damages for Personal Injuries and Death 8th Ed. At p.10).

In making awards which are fair and reasonable the Court has to fall back on previous amounts so that the figure arrived at are in proportion to awards in other cases of those who have suffered injuries of comparable severity. (Bristow J in Lim Poh Choo v Camden and Islington Area Health Authority (1979) Q.B. 196 at 201 C.A.).

Both counsel referred to previous cases in which general damages were awarded. In assessing damages I have taken into account pain and suffering (past, present and future). Each case has to be considered on its own facts although note could be taken of assessments in other cases bearing in mind the relative severity of the injuries and of the pain and suffering and disabilities. In regard to reliance on previous cases the following observations of Jenkins L.J. in Waldon v War Office (1956) 1 W.L.R. 51 at 57 are apt: 

“I think that counsel can be trusted only to refer to other cases very sparingly, bearing in mind that each case depends upon its own facts, and only rarely can another case be of real assistance to the judge. And secondly, I think that the discretion must always be on the judge himself to decide whether in his view the reference to such other cases would or would not assist him.” 

In Australia, the authority on whether other judgments may be referred by way of comparison to the case at hand is Planet Fisher Pty Ltd. v La Rosa (1968) 119 CLR 118. There the principles involved have been very well put by the Court at p124-125 as follows and I have borne these in mind.

“It is the relationship of the award to the injury in its consequences as established in the evidence in the case in question which is to be proportionate … Whether it is so or not is a matter of judgment in the sound exercise of the sense of proportion. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases… The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between the situations may be supposed to be seen… The judgment of a court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing from what we were invited by Planet’s counsel to act upon in this case. The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand.”

As stated by the Court of Appeal in Anitra Kumar Singh v Rentokil Laboratories Limited (Civil Appeal No. 73/91 the figure must be an appropriate one for Fiji. I say this because some reference was made in the submission that the award could be made in Australian currency in this case. In Anitra (supra), in this regard the Court said:

“We are mindful that in setting the figure it must be one appropriate for Fiji and the conditions which apply here. The level of damages in our neighbouring countries is persuasive but not decisive – to be otherwise, would require a very detailed and prolonged investigation of factors influencing awards in each of those countries”.

In the plaintiff’s case there is no visible injury or mark except a faint scar. Hence it cannot be said that there is any disfigurement for which damages could be claimed. However, there is what I would say internal disabilities in the face particularly in the jaw movements while eating etc. coupled with pain in that area. There is also the general feeling that internal functioning in the mouth area are not normal.

I have in the light of the authorities approached the assessment of damages in this case based on the totality of the injury and disability and in this regard I adopt the words of Townley J in Fowler v Punter (1959) Qd R 510 (FC) at 526 when he said.

“I deprecate any suggestion that one may take a list of physical injuries and, from previous awards, assign an amount of each injury and thus arrive at a total. That process may, and perhaps necessarily would, result in the duplication of some elements, particularly with respect to the restriction on future activities, economic and social. In regard to those latter aspects of damage it seems to me that it is the totality of disability which has to be considered and that will seldom, if ever, be the equivalent of the sum of separate disabilities individually assessed”.

The learned counsel for the defendants referred to a number of cases and pointed out the awards that the courts made in somewhat comparable cases and the principles involved. Mr. Lateef said that in Marika Lawanisavi & Isei Ravisivi v Pradeep Raj (Civil Appeal No. ABU0050.1998S) the Court of Appeal reduced the award of $90,000.00 to $50,000.00 for a leg injury which he says was far more serious than the case on hand. He also referred the Court to an unreferenced, presumably a High Court case of Kay Lynette Bamforth & Anor. v Fuel Supplies (Pacific) Limited in which an award of $40,000.00 was made for facial injuries and in upper portion of the body on some facts similar to the case before me.

To conclude, on the authorities, taking into consideration the pain and suffering and the present condition of the affected area on which there is evidence and which has been accepted I assess the general damages in the sum of $40,000.00 (Forty thousand dollars).

Special damages

The special damages agreed upon is A$1361.00 for treatment made up of payments to Dr. D. Wheatley - $770.00, Diagnostic Radiologists - $271.00, Dr. A. Bosanquet - $130.00 and Dr. J.O. O’Neill - $190.00.

Interest

The plaintiff has claimed interest and this has been pleaded as required (vide Usha Kiran v Attorney-General of Fiji F.C.A. 25/89 and Attorney-General of Fiji v Waisale Naicegulevu F.C.A. 22/89). The plaintiff is therefore entitled to interest.

Interest on general damages are awarded “for the purpose of compensating a plaintiff for being kept out of the capital sum between the date of service of the writ and judgment ….” [Pickett v British Rail Engineering Ltd (H.L.) 1980 A.C. 136 at 137].

In Rothmans Pall Mall (Fiji) Ltd v Edward Narayan FCA 65/95, the Court of Appeal upheld the award of interest from the date of injury to date of judgment. In Rothmans (supra) there was some discussion as to when the interest should start. There it is stated:

“His Lordship awarded it from the date of the accident but Mr. Sweetman informed us that Fiji practice is to take the date the proceedings were issued as the starting date, and we did not understand Mr. Shah to disagree, although he said there were cases when by agreement it ran from the accident date. Mr Sweetman referred us to the decision of the House of Lords in Wright v British Railway Board [1932] 2 All ER 698 in which the date of commencement of the proceedings was taken. There are arguments for selecting either date. Counsel did not dispute that interest was a matter in the discretion of the trial judge and we are not disposed to interfere with his decision that it should run from the date of injury to the date of trial.”

In this case the plaintiff was injured on 6 September 1992 and the writ was issued on 31 July 1995. Liability was denied by the defendants until a few days before the date of hearing in 2002. It is almost 10 years from the date of accident and 7 years from a date of issue of writ that the plaintiff has been kept out of compensation.

Under section 3 of the Law Reform (Miscellaneous Provisions (Death and Interest) Act Cap 27 which provides as follows, there is discretion in the Court to fix rate of interest which should be paid:

“3.	In any proceedings tried in the (High) Court for the recovery of any debt or damages the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages …”

In all the circumstances of this case, in the exercise of my discretion I award interest on general damages from date of issue of writ, namely, 31 July 1995 to date of judgment at the rate of $6% per annum.

Conclusion

In summary, the awards for damages and interests in Fijian currency are as follows:

General damages –

Pain and suffering					$40,000.00

Interest thereon at 6% p.a.
from 31.7.95 to 13.2.03 (date of judgment)
taking into account the payment of $25,000
(below)						$14,100.00

Special damages
(converted into ($A1,361.00)
Fijian Currency 					$ 1,531.00

Interest thereon at 6% p.a.
From 31.7.95 to 13.2.03
(converted into Fijian Currency)		 	 $ 639.00
_________
$56,270.00
Less amount deposited in Court
on 25.2.02						$25,000.00
_________
Amount payable 	$31,270.00
_________

There will therefore be judgment for the plaintiff against the defendants in the said sum of $56,270.00 (fifty-six thousand two hundred and seventy dollars). It is ordered that the said sum of F$25,000.00 deposited in Court be paid to the solicitors for the Plaintiff for payment to the plaintiff. It is further ordered that the balance sum of $31,270.00 out of the judgment amount be paid by the defendants to the plaintiff’s solicitors for payment out to the plaintiff. The defendants are further ordered to pay costs to be taxed if not agreed.

D. Pathik
Judge

At Suva
13 February 2003