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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC0392 OF 2001L
BETWEEN:
MOHAMMED FAIYAZ SHAIBAN
f/n Mohammed Shafiq
Plaintiff
AND:
SABETO VALLEY INVESTMENTS LIMITED
1st Defendant
AND:
REIAZ ALI
f/n Riyasat Ali
2nd Defendant
Counsel:
Mr. R. Chaudhary for the plaintiff
No Appearance for the defendants
Hearing: 8 November 2004
Judgment: 8 December 2004
JUDGMENT
Judgment having been entered against the defendants on the 23rd May 2002, this matter comes before the court for assessment of damages.
Background
The plaintiff was on the 27th July 2001 employed by the 1st defendant and was a passenger in a motor vehicle registered number DL600 which was being driven by the 2nd defendant when it left the road and overturned. As a result of the accident, the plaintiff suffered injuries and was admitted to the Lautoka Hospital.
The plaintiff was born on the 21st July 1979 and was at the time of the accident 22 years of age. He was not married.
The Injuries
The plaintiff was hospitalized for a period of 4 days during which time he was treated by Dr. Viliame Taoi who reported on the 20th November 2001, that the plaintiff was on admission, unconscious and awoke after admission.
The plaintiff suffered:
1. Deep scalp deep laceration 6cm long.
3. Bruised and tender chest.
4. Contused lungs.
The injuries were treated by:
1. Intravenous Antibiotics.
2. Wound cleaning and suturing.
3. Pain Relief.
5. Intranasal Oxygen.
The plaintiff was reviewed by Dr. Viliame Taoi on the 20th November 2001. When he reported that the plaintiff had:
1. Recurrent headache especially in hot weather.
2. Pain over the scar on his scalp during cold weather.
3. Feeling of giddiness in hot weather.
4. Some pleuritic chest pain and back pain.
The plaintiff was again examined by Dr. Taoi on the 5th November 2004 and the doctor in his evidence confirmed that the same disabilities continued and he anticipated that they would continue.
The scar on the plaintiff’s head was indeed visible to the court as a large area where no hair has grown as a result of the injury.
The plaintiff is unable to undertake heavy work and it would seem would continue to be unable to do so. He is and was at the time of the accident married but without children. Since the time of the accident, the plaintiff says he has been taking pain killers and that these have been costing at $5.00 per week.
Economic Loss
The plaintiff was at the time of the accident earning $50.00 net per week. Following the accident, there was a total of 20 weeks during which, he was unable to work as he was attending the Health Centre daily for treatment on a total of 50 days. He was required to take a carrier at a cost to $5.00 per day to enable that treatment to be effected.
The plaintiff deposes that he is now working as a driver for his father driving a carrier. His income is dependant upon the income of the business but he estimates he earns between $30.00 and $40.00 per week and whilst he is married, he stays with his father. He says he is unable to do any hard work as his back pains and his ribs hurt. He says he continues to pay to take pain killers at a cost of about $5.00 per week. Prior to the accident, he participated in sports as a soccer player but now can only undertake this on an intermittent basis.
Damages
The damages by way of pain and suffering of the plaintiff are indeed significant as is the scar on his head. Not only is the scar visually unpleasant but also from the evidence impacts on the plaintiff in other ways in that he feels giddy and gets pain in that area in cold weather and headaches in hot weather.
There is nothing in the evidence, the doctor to suggest that the issues with respect to the plaintiff’s head, back and chest will change in the future.
Taking into consideration the decision of the Fiji Court of Appeal and the Fiji Supreme Court in Peter Douglas Elsworth v Yanuca Island Limited – Civil Appeal No. CBV0008 of 2002S, I think it appropriate to allow a total of $15,000.00 by way of a general damages for pain and suffering and loss of amenities. This $15,000.00 might be divided as to $10,000.00 for the past $5,000.00 for the future.
The past component will by virtue of Attorney General of Fiji v Charles Valentine – Civil Appeal No. ABU0019 of 1998S attract interest at the rate of 6% from the date of issue of the writ to the date of judgment.
It is very difficult to determine the future loss of earning capacity of the plaintiff however it is clear that his ability to work is most definitely reduced and some 3 years after the accident, his income is still less than it was at the time the accident occurred.
He is now only 25 years of age and it seems necessary to allow some cushion in this regard. I think an amount of $10,000.00 is appropriate doing the best I can.
The special damages will comprise loss of wages for 20 weeks of $50.00 per week together with the transport on 50 days for dressing se and pain relief tablets for 3 years at $5.00 per week. These items were in accordance with Attorney General of Fiji v Charles Valentine, attract an interest at 3% from the date of the accident to the date of judgment.
Pain killers will be required indefinitely and an allowance of $1,200.00 seems reasonable.
Conclusion
Pain and Suffering – past - $10,000.00
Interest @ 6% from 10/12/01 to 8/12/04 - $ 1,800.00
Pain and Suffering – future - $ 5,000.00
Loss of Earning Capacity - $10,000.00
Lost Wages – 20 weeks @ $50/week - $ 1,250.00
Transport of 50 days at $5.00/day - $ 1,250.00
Pain Relief Tablets for 3 years @ $5.00/week - $ 750.00
Interest @ 3% from 21/7/2001 to 8/12/04 - $ 322.00
Future Pain Killers - $ 1,200.00
-----------------------------------------------------------------------------------------
TOTAL = $31,572.00
====================================================
Orders
JOHN CONNORS
JUDGE
At Lautoka
8 December 2004
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URL: http://www.paclii.org/fj/cases/FJHC/2004/511.html