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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC0345 OF 2001L
BETWEEN:
PRANIL KUMAR
f/n Parmendra Kumar
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 dependants on 5th December 2001, 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 17th April 1977 and was at the time of the accident 24 years of age and was married but without children.
The Injuries
The plaintiff was hospitalized for 3 months during which time his wife stayed with him night and day to assist in caring for him. He was unconscious and woke up after admission to the Lautoka Hospital.
He suffered:
1. 4 cm laceration above right eyebrow.
3. 2 x 2 cm puncture wounds on left thigh.
4. 1 cm laceration on left medial left knee.
5. Comminuted fracture of left patella
The injuries were treated by:
1. Wound cleansing and suturing.
2. Daily dressing of the wounds.
3. Antibiotic therapy.
5. Internal fixation with K-Rod on 28th August 2001.
6. Internal fixation and wiring of fractured patella.
The plaintiff was treated by Dr. Viliame Taoi who reported on the 24th October 2001 that the plaintiff had:
1. Recurrent headache and giddiness.
2. Painful left thigh.
3. Neck stiffness.
4. Left knee stiffness.
5. Recurrent lower backache and stiffness.
6. Left knee stiffness flexion.
7. Left leg shortened by 2cm.
8. Externally deviated foot.
9. Unstable gait due to externally deviated left foot.
10. Wasting of left thing and left calf muscle.
A further examination of the plaintiff on the 5th November 2004 by Dr. J. Mareko confirmed the continuing disabilities detailed above and detected by X-ray a fracture of the L4 vertebra. The evidence of the doctor was that this would trouble the plaintiff for the rest of his life and would cause radiating pain to his hips and legs and prohibit strenuous work or pleasure.
In addition to the ongoing need for painkillers the doctor show a need for continuous physiotherapy and hydrotherapy. Oesteoarthritis problems will develop in the knee and back as the plaintiff ages.
The evidence of the plaintiff and his wife is that prior to the accident, he was an active sportsman, playing soccer for a local team and a very keen dancer. He participated in South Indian dancing at 3 local temples. He is now unable to participate at all. His gait is unstable and he can only walk with the aid of a knee guard. The relationship between him and his wife is strained due to his pain and lack of desire to communicate with her due to his tiredness when returning from work.
The plaintiff’s wife massages him to ease the pain.
Economic Loss
The plaintiff was at the time of the accident earning $50.00 net per week. He was unable to work for 2 years, as he was hospitalized and then on crutches for that period of time. Throughout that period he was also going to the hospital clinic for treatment or a regular basis.
The plaintiff obtained work in a garment factory for 2 months earning $60.00 per week net and he is now working for Tappoos as a sales representative in Lautoka. He has had this employment for the past 3 months. The position is not permanent as he his employers are looking at his performance. He said he has to do a lot of walking and he is required to rest regularly. He was educated to Form 6.
The plaintiff says he spends $5.00 per week on pain killers.
Damages
The pain and suffering experience by the plaintiff to date is very significant and it will continue for the whole of his life, in the opinion of Dr. J. Mareko, Consultant Orthopedic Surgeon. Similarly, the loss of enjoyment of life will get worse not better as the plaintiff experiences the onset of oesteroarthritis in his knee and back.
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 $50,000.00 by way of damages for pain and suffering. This amount is to be divided as to $30,000.00 for past and $20,000.00 for future.
The past amount 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 very limited and this limitation will get greater as he ages.
Doing the best I can, bearing in mind that the plaintiff is only now 27 years of age to allow a cushion of $25,000.00 is reasonable.
The special damages will comprise 2 years wages of $50.00 per week and the purchase of pain killers for 3 years of $5.00 a week. These items will attract interest in accordance with Attorney General of Fiji v Charles Valentine, a write off 3 % from the date of the accident to the date of judgment.
Pain killers will be required indefinitely and an allowance of $2,500.0o seems reasonable in this regard.
Dr. Mareko in his evidence recommends future physiotherapy and hydrotherapy. Whilst no cost has been provided it seems reasonable to allow an amount to cover transport costs at least at $2,500.00 appears appropriate in this regard.
Conclusion
Pain and Suffering – past - $30,000.00
Interest @ 6% from 1/11/01 to 8/12/04 - $ 5,400.00
Pain and Suffering – future - $20,000.00
Loss of Earning Capacity - $25,000.00
Lost Wages – 2 years @ $50/week - $ 5,200.00
Purchase of Pain Killers – past - $ 750.00
Interest @ 3% from 21/7/2001 to 8/12/04 - $ 589.00
Future Medicine – pain killers - $ 2,500.00
Future Physiotherapy - $ 2,500.00
-----------------------------------------------------------------------------------------
TOTAL = $91,939.00
====================================================
Orders
JOHN CONNORS
JUDGE
At Lautoka
8 December 2004
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URL: http://www.paclii.org/fj/cases/FJHC/2004/515.html