Kumar v Permanent Secretary for Health [2006] FJHC 130; Civil Action 45.2004 (20 July 2006)

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ARVIND KUMAR f/n Deo Prasad and
KAMNI DEVI f/n Appalsami and
JASHNIIL KUMAR f/n Arvind Kumar
Plaintiffs

1. THE PERMANENT SECRETARY FOR HEALTH
2. THE ATTORNEY-GENERAL OF FIJI
Defendants

This is a medical negligence action instituted by the Plaintiffs against the defendants claiming damages for injuries suffered by the infant Jashnil Kumar (hereinafter referred to as the 'infant/child').

The plaintiffs claim as follows (as stated in the Indorsement of Claim in the Writ of Summons):

The Plaintiffs as parents on their own behalf and on behalf of the Infant namely Justin Jashnil Kumar born on the 21^st of January, 1996 at Lautoka Hospital claim from the First Defendant as the duly authorised representative of Lautoka Hospital and the Second Defendant as the legal representative of the Government of the Republic of Fiji, general damages from injury and loss occasioned to the Plaintiffs by the negligence and or breach of duty on the part of the Defendants, their doctors, anaesthetist, nurses and all other servants, staff and or agents employed at the Lautoka Hospital and who attended upon the birth or delivery and all treatments of the Plaintiffs (the said Infant) who was in fact born in the said hospital on the 21^st of January, 1996 and thereafter until he was discharged after a month or so from the said hospital. The Plaintiffs further claim from the Defendants, general damages, special damages, exemplary and aggravated damages, for complete loss of eye sight, mental shock and anguish and loss of amenities of life occasioned and resulting through the negligence of the Defendants and their servants and agents vicariously.

The aforestated compensations or claims are claimed with interest from the 21^st day of ,January, 1996 to the date of payment at the rate of 13.5% per annum pursuant to Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Cap 27) together with cost of this action on an indemnity basis.

At the close of the hearing of the case both counsel wished to file written submission which the Court allowed because of the voluminous evidence and the trial lasting a few days. Counsel for the Plaintiffs filed his submissions but the defendants did not file theirs at all.

The background facts of the case are well set out in Mr. Maharaj's submission as follows (as therein stated):

"1. Jashnil Kumar (infant) father's name Arvind Kumar was born at Lautoka Hospital on the 21^st of January, 1996 at around 6.00 am in the morning.

2. Jashnil Kumar was born prematurely and according to medical report provided by the Lautoka Hospital (See P4 in Exhibit P1) with twenty eight (28) weeks gestation and birth weight of 1.52 kilograms (1520 grams).

3. Jashnil Kumar (the infant is suing the Defendants in negligence through his parents namely Kamini Devi (mother) and Arvind Kumar (father) and is claiming for compensation as a result of being blinded through the negligence of the Defendants.

4. That as Jashnil Kumar was born prematurely, the Lautoka Hospital after birth kept the baby Jashnil in an incubator in the prem nursery in the Maternity Ward of the Lautoka Hospital for three (3) weeks.

5. That after being kept for three (3) weeks in the prem nursery in an incubator, Jushnil Kumar was kept in the Lautoka Hospital in the Maternity Ward for another week.

6. That according to Kamini Devi (mother of Jashnil (PW 1)) and who gave evidence in the Trial of the Action told the Court that Jashnil was kept in the incubator and he was given supplemental oxygen.

7. Kamini Devi (PW 1), father told the Court that on the 8^th of April, 1996, Dr. T Oo, the Eye Specialist at Lautoka Hospital had called her with the baby Jashnil for check up again, after he had first examined Jashnil's eyes on the 25^th of March, 1996 under general anesthesia. On that day, that is on the 25^th day of March, he did not tell anything about the results and his findings regarding the eyes of Jashnil Kumar to his mother Kamini Devi (PW 1).

According to PW 1 (the mother) when she took the infant to Dr. Oo on 8
April 1996 he told her that his 'eyes are damaged because he was given more oxygen'.

That later Dr. T. Oo came back with the two(2) doctors from the pediatitrics Department and in particular the doctors from the prem nursery namely a Rotuman doctor and another doctor known to Kamini Devi as Dr. Yashmin to the eye Department. The Rotuman lady doctor and doctor Yashmin were the attending doctors who looked after Jashnil when he was kept in the incubator in the prem nursery in the Pediatitrics Ward and then he was given supplemental oxygen in the incubator for three (3) weeks unmonitored.

According to PW1 on 8 April in her presence, after Dr. Oo brought the Rotuman lady doctor and Dr. Yashmin after examining the infant's eyes he asked the two doctors to also do the sane, Dr. Oo said to Dr. Yashmin 'when babies are given overdose oxygen, this is what happens to the eyes, look, look'. Dr. Yashmin did not say anything. The other doctor also looked at the infant's eyes.

It was on 8^th April that PW1 learnt through Dr. Oo that the giving of the overdose of oxygen to the infant while he was kept in the prem nursery in an incubator caused the damage or ROP (Retinopathy of Prematurity) to his eyes and which ultimately led to his loosing his eye sight.

The Report of Dr. Oo after he examined the infant on 25 March 1996 under general anesthesia has recorded his findings as follows:-

(2) Retinoblastoma can't be ruled out due to opacity, in the vitreous, but still can be".

The evidence of the various witnesses have been well summarised by Mr. S. Maharaj in his written submission and I can do no better than reproduce them below in his own words which are:-

That according to Doctor Viliame Sotutu (PW 2) and Dr. V: G. Hawley (P4) the Retinopathy of Prematurity (ROP) is classified into five stages, that is 1 to 5.

That both these doctors namely Dr. V. Sotutu and Dr. V. G. Hawley have stated in their evidence into his Court that ROP up to stage III can be treated successful if properly managed after it is diagnosed.

That at times or most of the times the ROP may itself regress but it does require careful monitoring and if it progresses further then if treated on a timely basis, the eye sight in the baby could be preserved without causing total blindness. They both in their evidence in this Court have told the Court that ROP at an early stage III (and which was the case in Jashnil's case) could have been treated by cryotherapy (freezing - treatment) or laser surgery.

That although in 1996, these treatments were not available in Fiji, they were available in New Zealand and in Australia.

The limited Medical folder (See exhibit P1 - 9) provided by the Lautoka Hospital does not have any notes to suggest that Dr. T. Oo even considered or adverted to avail treatment for the eye condition of both the eyes of Jashnil Kumar overseas such as in New Zealand or in Australia. Dr. T Oo also did not tell Jashnil Kumar's parents that nothing could be done in Fiji and that they should seek treatment for ROP diagnosed in Jashnil's eyes. Both parents (PW 1) and (PW 3) told this Court that Dr. T Oo did not tell them to seek treatment for their son's eye condition (ROP) overseas.

Indeed it must be noted that there is nothing in the medical folder to suggest that it was done.

Further, both doctor Hawlev and doctor Sotutu looked in the medical eye department folder and found nothing in there suggesting overseas treatment was considered or parents were given option to seek treatment abroad.

Dr. Luisa Cikamatama, "DW1" also could not find anything in the medical eye department folder that parents were told to seek overseas treatment for Jashnil's ROP condition or it was even considered.

That subsequently, the Lautoka Hospital called for routine checks only on 08/05/1996, 12/06/1996, 26/09/1996.

On these visits, Dr. T. Oo or whoever attended the child did nothing to monitor the ROP, whether it was regressing or progressing and no treatment or management was charted at all.

The child Jashnil Kumar was basically left with ROP to fare for himself. The Defendants did not manage or treat the condition of ROP which was at early stage III when first diagnosed on 25/03/1996 by Dr. T. Oo.

That in search for treatment of the eye condition (ROP), Jashnil's parents saw Dr. Jamnadas in Lautoka and later Dr. Rathod an eye specialist based at CWM Hospital in Suva. Both these doctors told Kamini Devi (PW 1) (Jashnil's mother)) that they could not do anything as Jashnil's eyes had been damaged by excessive overdose of oxygen.

That parents also saw visiting eye doctors from overseas including, seeking help from the Fred Hollows - Foundation in Australia (see P5 in Exhibit P1). They wrote to Arvind Kumar (the father) on 10^th November, 1998, inter-alia, stating-

"....From the report, Dr. Brian says that there is no likelihood of successful treatment of your baby and that corneal grafting will not fix the problem. He says that Dr. T. Oo's report shows major problems which are beyond treatment ..."

That the Plaintiffs tried to get Medical Folder of the baby Jashnil Kumar and even got a Court order to obtain the same.

That all that the Defendants could provide was the eye department folder and not the birth folder.

The birth folder would have shown how and what treatment and management was provided by the Defendants at the maternity ward and prem nursery at Lautoka Hospital.

The Defendants have conveniently lost the medical folder and thus could offer no evidence with regards to how they managed and treated baby Jashnil while he was kept in the incubator in the prem nursery and in particular how much oxygen was administered to him and whether the same was monitored or not.

The Plaintiff in the last resort instituted the within Action in negligence against the Defendants on 20/01/1999 followed by the filing of the claim as per the Statement of Claim on 13^th December, 1999 and as amended on 12^th July, 2004.

The defendants by their Statement of Defence deny being negligent and therefore not liable in damages at all.

Apart from denying liability they pleaded that the cause of "Retinopathy of Prematurity had causal link to his (Jashnil Kumar) very premature birth and low weight and/or in the alternative he was born with it" (vide para 9 of statement of defence).

Two witnesses, namely, Dr. Luisa Cikamatama and Setareki Mananawai were called to testify on behalf of the defendants. The learned counsel for the plaintiffs submits that their evidence does not advance or provide any defence to the defendants against the specific claims of the plaintiffs' claims, namely:

Counsel says that the defence did not produce the medical folder relating to and recording birth of the infant born on 21 January 1996.

There is no indication what amount of oxygen was administered to the infant. There is no evidence whether, if the oxygen was administered, was it most importantly monitored.

The witness Dr. Luisa Cikamatana (DW 1) agreed in cross-examination that apart from gestational age and very low birth weight, oxygen was a very important and major factor contributing or causing ROP when administered unmonitored.

The Court does not have the benefit of any submission from the learned counsel for the defendants despite him having been granted opportunity to file it on his own application.

The Court, however, has the defendant’s statement of defence and evidence adduced through witnesses.

In determining the issues I have before me the very useful and comprehensive submissions from the learned counsel for the plaintiffs. I must commend him for his industry in the preparation of his submissions. On the other hand I have no submission from the learned counsel for the defendants as I said.

This was a lengthy trial with a voluminous record of proceedings. A number of expert witnesses (doctors) were called to testify on an area in which evidence of medical experts was required.

I have given a very careful consideration to all the evidence adduced in this case as well as counsel's written submissions.

The law on the subject of medical negligence has been covered very well by Mr. Maharaj in his written submission and I will follow very closely what he has submitted in this regard with which I agree.

In this case by virtue of the nature of the action vicarious liability attaches to the defendants.

The Plaintiffs' claim for damages arises out of alleged negligence on the part of the Defendants. The Second Defendant (D2) is liable for the acts or omissions of the staff of Lautoka Hospital and all the employees, including doctors and surgeons of the Hospital working with him. It can hardly be argued that if negligence is proved on the part of any of the staff and doctors or surgeons of the Lautoka Hospital, the Second Defendant would not be vicariously liable to the Plaintiff for compensation as herein claimed. In fact, the D2 has not pleaded or argued otherwise and therefore will be liable for the actions of all the employees, doctors, surgeons and the support staff.

(a) The hospital doctors, surgeons and or their support staff all or anyone of them involved in the management, treatment of the Plaintiff namely, Jashnil Kumar (baby born prematurely on 21^st January, 1996) owed him a duty to take care;

(b) That duty of care has been breached by the Defendants in not discharging the standard of care required and;

On this aspect of 'duty of care' Butler-Sloss L.J. had this to say in Airedale N.H.S Trust v Bland 1993 AC (HL) 789 at 818:-

"A doctor owes a duty of care towards his patient and in the case of a patient unable to give instructions or consent to treatment, a duty to treat him in the patient's best interests: see In re F. [1991] UKHL 1; [1990] 2 A. C. 1. The general duty of a doctor is to act in accordance with a responsible and competent body of relevant professional opinion based upon the principles laid down in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582: ("the Bolam test"). In carrying out his duty towards his patient a doctor is faced all the time with a series of decisions each of which requires choices - a choice whether to operate, whether to initiate other invasive treatment such as chemotherapy, whether to give antibiotics. As his care of the patient progresses he may have to decide either to discontinue a process conscious that such a choice marks not only the cessation of effective treatment but also brings closer the end of his patient's life. Medical ethics draw no distinction between the withholding of treatment and the withdrawing of treatment." (emphasis added)

In this case the doctors, nurses and the paediatricians all owed a duty of care to the infant patient. I shall elaborate on the alleged breach of duty when I consider the evidence hereafter.

It should be noted that the 'duty to act' "vis-a-vis a person who presented himself at the casualty department", arises "notwithstanding that the patient" had not yet been received into the hospital in any way. The failure to act "when he so presented himself was negligent" it was so held by Neil J in Barnett v Chelsea and Kensington Hospital Management Committee (1969) 1 Q.B. 428 (quoting from book Medical Negligence by Charles Lewis at p. 181). He goes on to say:

"Once he has started the activity of treatment and care, by examinations in the first instance, it is his duty to take all reasonable steps, which in this particular case would have required the admission of the caller to the works." (p181, ibid).

The following passage from the judgment of Denning L.J in Cassidy v Ministry of Health (1951) 2 K.B. 343 at 359 on the exercise of reasonable care on the part of the doctor and duty of care vested on the hospital is apt:

"If a man goes to a doctor because he is ill, no one doubts that the doctor must exercise reasonable care and skill in his treatment of him: and that is so whether the doctor is paid for his services or not. But if the doctor is unable to treat the man himself and sends him to hospital, are not the hospital authorities then under a duty of care in their treatment of him? I think they are. Clearly, if he is a paying patient, paying them directly for their treatment of him, they must take reasonable care of him and why should it make any difference if he does not pay them directly, but only indirectly through the rates which he pays to the local authority or through insurance contributions, which he makes in order to get the treatment? I see no difference at all. Even if he is so poor that he can pay nothing, and the hospital treats him out of charity, still the hospital authorities are under a duty to take reasonable care of him just as the doctor is who treats him without asking a fee. In my opinion authorities who run a hospital, be they local authorities, government boards, or any other corporation, are in law under the selfsame duty as the humblest doctor; whenever they accept a patient for treatment, they must use reasonable care and skill to cure him of his ailment". (emphasis added)

I agree with counsel that whenever there is doctor/patient relationship there exists duty of care on the part of the doctor. In this case as soon as the Plaintiff Jashnil Kumar's mother presented herself, pregnant with the baby experiencing labour pains and was admitted in the Lautoka Hospital Maternity Ward and the staff nurses, doctors surgeons thereafter attended to her and when she delivered baby Jashnil Kumar on 21^st January, 1996 at around 6.00 am, the Defendants owed duty of care to the infant to manage and treat him with requisite standard of care expected of a competent medical facility which the Lautoka Hospital professed and held itself out to be able to provide.

The infant in this case was a baby born prematurely with gestation period of about twenty-eight (28) weeks. Hence there was need for the requisite degree of care in the particular circumstances at and after birth.

On the evidence before me I find as fact on a balance of probabilities that there was a breach of that duty of care in the delivery, management and treatment administered to this prematurely born baby. 'The plaintiffs do not have to prove which particular defendant caused the harm (Cassidy v Ministry of Health (1951) 2 K.B. 343).

The following passage from the judgement of Mason J in The Council of the Shire of Wyong v Shirt & Others [1980] HCA 12; (1980) 146 CLR 40 at 47-48 is apt on matters which ought to be taken into consideration in deciding on whether there has been a breach of duty of care:-

"In deciding whether there has been a breach of the duty of care the tribunal of fact must, first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore ,foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors. "

On burden of proof the following extract from the hook Medical Negligence by Michael Jones (1991) at 96-97 is appropriate for consideration on the facts and circumstances of this case:-

"Of course, to say that the Plaintiff has the burden of proof does not necessarily mean that he must provide direct evidence that the defendant has fallen below the requisite standard of care. He may rely upon any legitimate inferences that can be drawn from the proved facts, and in the absence of evidence to the contrary the inference may well be that the defendant has been negligent. ... An inference is a deduction from the evidence, which, if it is a reasonable deduction, may have the validity of legal proof, as opposed to conjecture which, even though plausible, has not value, "for its essence is that it is a mere guess." (Jones v Great Western Railway Co. (1930) 47 TLR 39, 45 per Lord MacMillan (emphasis added).

The plaintiffs have discharged that burden of proof that lies upon them to prove that breach.

On the evidence adduced I find that there was a breach of the standard of care owed to the infant.

Dr. Sotutu (PW2) was called as an expert witness by the plaintiffs. His evidence is that when a baby is born prematurely, he/she requires extra attention and care in his/her management compared to one born at full gestation period.

On the issue of 'prematurity' Dr. Sotutu the following guidelines (exhibit P2) as headed 'Management of the Premature Infant' is very material in understanding the problem and to assist the Court in determining the cause of ROP. At page 7 it is stated:

"The early transition of a baby from the safety of the womb into the world is an untimely event fraught with problem. The management of such babies present complex challenges to any health service.

Outlined below are some of the important factors that must be considered in the management of any preterm baby ..... "

The factors are listed thereafter and it is to be noted that included therein is the Retinopathy of prematurity as one of the factors and which number up to 13.

"The collective consideration of the abovementioned factors necessitates the creation of a very carefully controlled environment with a highly intensive level of care and monitoring - hence the term neonatal intensive care. From the moment a baby arrives it is carefully monitored, and therapeutic interventions are initiated based on the baby's level of prematurity and clinical condition. Improvements in the field have led to the successful survival of babies born sooner and smaller than ever before. Extremely low birth weight (ELBW) babies are < 1000g and tend to be < 27 weeks gestation. Very low birth weight (VLBW) babies are < 1500g

The article with details of each of the Factors and with regard to Retinopathy of Prematurity (ROP) observes:-

Retinopathy of prematurity (RQP) is a disease of premature retina that is not yet fully vascularized. Changes in oxygen exposure have been postulated to cause a disruption in the natural course of vascularization and may result in abnormal growth of blood vessels, which can result in retinal detachment and blindness,

On this aspect counsel has referred the Court to a number of authorities which are quite pertinent and I refer to them below.

In Bolam v Friern Hospital Management Committee (1957) 2 All E.R 118 at page 121 McNair J said:-

"The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of any ordinary competent man exercising that particular art. '

But at p 122 McNair J went on to say that the defendant had to have acted in accordance with the practice accepted as proper by a "responsible body of practice recognised as proper by a competent reasonable body of opinion'.

In Sidaway v Board of Governors of the Bethlem Royal Hospital and Maudsley Hospital & Others [1985] UKHL 1; (1985 1 AC 871 at 881) Lord Scarman stated the Bolam principle in these terms

"The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment. "

However, he refused to apply the Bolam principle to cases involving the provision of advice of information. His lordship stated at page 876:-

"In my view the question whether or not the omission to warn constitutes a breach of the doctor's duty of care towards his patient is to be determined not exclusively by reference to the current state of responsible and competent, professional opinion and practice at the time, though both are, of course, relevant considerations, but by the Court's view as to whether the doctor in advising his patient gave the consideration which the law requires him to give to the right of the patient to make up her own mind in the light of the relevant information whether or not she will accept the treatment which he proposes"

"In Bolitho (administratrix of the Estate of Bolitho (Deceased) v City and Hackney Health Authority [1997] UKHL 46; (1997) 4 All ER 771 at 778, the House of Lords discussed the Bolam Test and Lord Browne Wilkinson in his speech with which, the other Law Lords concurred, stated that he agreed with the submission that ultimately it was for the Court, not for medical opinion to decide what was the standard of care required of a professional in the circumstances of each particular case".

"My Lords I agree with these submissions to the extent that, in my view, the Court is not bound to hold that a Defendant doctor escapes liability for negligent treatment of diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the Defendant's treatment or diagnosis accorded with sound medical practice. "

It is now clear that a doctor could be liable on negligence in regard to diagnosis and treatment despite a body of professional opinion sanctioning his conduct where it has not been demonstrated to Court's satisfaction that the body of opinion relied on was reasonable and responsible.

On this King C.J in F v R (1983) 33 SASR 189, which was decided by the full court of the Supreme Court of South Australia, the Court did not apply the Bolam principle and at p 194 it is stated:

"The ultimate question, however, is not whether the Defendant's conduct accords with the practices of profession or some part of it, but whether it conforms to the standard of reasonable care demanded by law. That is a question for the Court and the duty of deciding it cannot be delegated to any profession or group in the community." (emphasis mine)

The above approach in F v R (supra) was endorsed by the High Court of Australia in Rogers v Whitaker [1992] HCA 58; (1992) 175 C.L.R. 479 which did not follow Bolam or Sidaway cases.

In my view Rogers's case (supra) is an important case on the matter under consideration and the principles involved.

I would adopt the view's expressed in Roger's case and for ease of reference I briefly state the facts of that case.

There Whitaker was suing Rogers for his failure to warn her that as a result of the surgery on her right eye in which she had no eyesight, she might develop a condition known as a 'sympathetic ophthalmia' in her left eye resulting in losing eyesight of that eye as well. As it happened she developed 'sympathetic ophthalmia' and thus virtually lost her left eye but after the operation she more or less became a totally blind person. The High Court held:

"Except in the case of an emergency or where disclosure would prove damaging to the patient, a medical practitioner has a duty to warn the patient of a material risk inherent in proposed treatment. A risk is material if, in the circumstance of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk would be likely to attach significance to it. The fact that a body of reputable medical practitioners would have given the same advice as the medical practitioner gave does not preclude a finding of negligence. Generally speaking, whether the patient has been given all the relevant information to choose between undergoing and not undergoing the progressed treatment is not a question to answer to which depends upon medical standards or practice."

In the light of the cases referred to hereabove there is close agreement between the English and Australian cases on the standard of care required to be discharged by hospitals, medical practitioners, doctors and surgeons.

One can safely deduce from the cases that a doctor could be 'liable for negligence' in respect of diagnosis and treatment despite a body of professional opinion sanctioning his/her conduct where it has not been demonstrated to the Court's satisfaction that the body of opinion relied on was reasonable or responsible. It boils down to saying that it is the Court not for medical opinion to decide what the standard of care required is of a professional in the circumstances of each particular case.

In this case the plaintiffs rely heavily on the maxim res ipsa loquitur in that ROP was caused by the defendants culminating in the infant suffering from blindness. This doctrine which is in Latin means simply that "the thing speaks for itself".

In this case I find as a fact that ROP was caused by overdose of oxygen administered unmonitored to this infant who was born prematurely and was kept in an incubator in the 'prem nursery'.

As the evidence reveals the infant was born prematurely at 28 weeks gestation with birth weight of 1520 grams. He did not suffer from any complications and was otherwise healthy.

"Retinopathy of prematurity (ROP) is a proliferative retinopathy, which typically affects premature infants exposed to high ambient oxygen concentrations" (See Exhibit P2 – page 3).

Authorities on the maxim res ipsa loquitur are as hereunder and have been borne in mind by me in considering the issue.

In the case of Amina Shah v Nalini Narayan and the Attorney-General Civil Action HBC No. 0098 of 1994L Gates J at P8 stated:-

"The maxim res ipsa loquitur [the thing speaks for itself] is used in actions for negligence where no proof of negligence is required beyond the accident itself, which is such as to involve a prima facie inference of negligence on the part of the Defendant". Jowett, The Dictionary of English Law. In certain cases one fact raises a presumption of another fact, unless and until the contrary is proved. The fact or the accident here is the abandonment of the broken surgical needle in the perineum of the Plaintiff whilst she underwent an obstetric procedure at the Lautoka Hospital......"

Further, in Scott v London and St. Katherine Docks Co. [1865] EngR 220; (1865) 3 H & C 596 at p.667 Erle CJ delivering the majority decision of the court said:-

"There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the Defendants, that the accident arose from want of care."

The following extract from the judgment of Lord Porter in Barkway v South Wales Transport Co. Ltd [1959] 1 All E.R. 392 at 394 is pertinent:

"The doctrine is dependent on the absence of explanation, and, although it is the duty of the defendants, if the desire to protect themselves, to give an adequate explanation of the cause of the accident, yet, if the facts are sufficiently known, the question ceases to be one where the facts speak for themselves, and the solution is to be found by determining whether, on the facts as established, negligence is to be inferred or not".

"but it is accepted doctrine that each case must depend and depend only on the evidence presented".

The Defendants have not produced any evidence to rebut or refute the Plaintiffs' claim that baby Jashnil was exposed to high ambient oxygen concentration or was given overdose of oxygen while he was kept in an incubator.

They have not produced the medical folder recording and showing the birth of baby Jashnil with the attendant management and treatment of him, particularly having regard to the fact that he was born prematurely and susceptible to ROP.

As to how much oxygen was given and whether it was monitored or not, nobody knows.

They have provided no explanation whatsoever as to how ROP was caused in the eyes of baby Jashnil whilst it is a known factor and acknowledged by the Defendants in the trial that ROP is caused by excessive unmonitored oxygen administered to a baby born prematurely and which was exactly the case in the birth of baby Jashnil.

Baby Jashnil was healthy otherwise and had no other complications such as being sick or requiring ventilation.

His weight, as above the threshold of weight normally held to be more susceptible to ROP, that is not less than 1300g. In Jashnil's case he was 1520g, that is 220g in excess.

Dr. Sotutu in his evidence told the Court that Jashnil was not in the category of babies at high risk for developing ROP. In his opinion, the more probable gestation of 31-33 weeks, his birth weight and the fact that Jashnil had no other complications suggest that he should not have developed ROP.

In other words the evidence boils down to this that the cause of ROP, was so improbable without the negligence of the Defendants being the cause. The Defendants exposed baby Jashnil to high ambient oxygen concentration without any monitoring.

In this case the defendants have given no explanation or evidence as to the cause of blindness in the infant.

In these circumstances one can come to no other conclusion but that ROP as caused through the negligence of the defendants. The doctrine of res ipsa loquitur also applied here.

The Court did not have the benefit of the Hospital Folder on the infant at the time of his birth. Dr. Sotutu doubted the assessment of the gestation period. He assessed it was more likely that it was within the gestation period of between 31-33 weeks and he has given a number of reasons for arriving at this period. He said "that the child did not behave like 28 weeker baby. A 28 weeker baby has another 3 months (12 weeks) to develop before he becomes a terms baby. The babies at 28 weeks tend to be smaller than this infant who was 1520g. Only very occasionally a baby at 28 weeks baby would weigh 1500g and it is rare."

The Doctor goes on to say that a: "28 weeker baby has a stormy course ahead of him/her. They are admitted for long term. In Jashnil's case he was kept only three (3) weeks in the incubator and one (1) week in post natal ward before he was discharged. When he was discharged he had by then gained weight to 1.65 kg or 1650g and generally, it must be noted that babies of less gestation really struggle with their weight. A 28 weeker will take a considerably longer period to regain such weight."

The doctor said that in Jashnil's case he was able to take sucking feeds from the first three (3) weeks period. The ability to take sucking feeds depends on the, development of the sucking reflex as well as a coordinated swallowing reflex. These will not be present before 32 weeks gestation. It is not possible that Jashnil was taking sucking feeds so soon if he was born at 28 weeks. For these reasons Doctor Sotutu in his opinion as an expert Pediatrician concluded that Jasnil was more in-keeping with being of gestation period of between 31-33 weeks.

In this case the infant was not of extreme low birth weight (LBW) category and was less likely to develop ROP. Hence he was not in the risk area to develop ROP.

The remaining risk factor is how much oxygen was administered when the infant was in the incubator. This could not be ascertained because of the non-availability of the folder on the infant for the relevant period. Hence one can only go by the evidence adduced by both the plaintiffs and the defendants.

As far as the defence evidence is concerned there is nothing to assist the Court in this regard. It is the counsel's submission that the defendants have conveniently lost the 'folder' as it would have shown what and how they managed the infant after birth.

Whether the oxygen was monitored or not one does not know. No nurses, the paediatrician or anyone administering oxygen was called to testify in this regard particularly when he was kept in the incubator in the prem nursery in the Lautoka Hospital.

Even the defence counsel when cross-examining the plaintiffs' witnesses did not touch on the issue of monitoring of oxygen.

The defence witness Doctor Luisa Cikomatana (DW1) the Acting Clinical Director who was called as an expert witness was not of any assistance to Court. But she agreed in crass-examination that 'oxygen' was a very important and major factor contributing or causing ROP when administered unmonitored.

The infant's mother Kamini Devi (PW1) testified that oxygen was administered when he was in the incubator for three weeks.

When PW1 took the infant to Dr. T. Oo on 8 April 1996 for a follow up after the infant's examination on 25 March 1996, he called the two doctors, a Rotuman doctor and Dr. Yashmin and told them that the giving of overdose of oxygen was the cause of damage to Jashnil's eyes.

Dr. Sotutu stated, inter alia, that there is a reason to administer oxygen "when babies are born significantly prematurely, as they have difficulties both with immature lungs and presence of infections and sometimes they haven't had all the fluid squeezed out of their lungs when they came through the birth canal as bigger babies do and so the presence of fluid means that they breathe more rapidly. That is always a concern and a reason to administer oxygen". To avoid ROP "oxygen is one of the factors that the paediatrician looking after the baby in the prem nursery will have to look at"; it is a key aspect. The doctor said that in the absence of the folder he does not know 'what they did with oxygen'.

An eye specialist Dr. V. Guy Hawley (PW4) testified having seen Dr. T. Oo's Report dated 9 March 1999 (vide p6 Exhibit pl ); the Report stated, inter alia, that the infant's eyes diagnosed as suffering from "extensive retinopathy of prematurity on both the eyes".

With reference to the book by Kanski 2^nd Ed. Clinical Opthalmalogy that ROP "typically affects premature infants exposed to high ambient oxygen concentrations". It most frequently occurs in infants whose weight is less than 1300g at birth; but he said that he is prepared to say that it can occur in children who are heavier than that but I say that it "frequently" occurs.

In this infant's case his weight does not put him out of that risk area which says 1300g below. He mentioned the three things which affect ROP which Dr. Sotutu said. He said that the oxygen has to be monitored in a premature baby. He said that the 'high ambient oxygen is the oxygen surrounding you'. Here 'the child is in an incubator and the oxygen level will be higher than outside the incubator.' The oxygen has to be kept at a certain level, and not being a paediatrician he cannot say to what level it should be kept but it should be always monitored and recorded.

The Doctor testified that there is really one cause of ROP where you have a preterm child of low birth weight exposed to high ambient oxygen levels, for a prolonged period of time. He said that it is not possible to develop ROP in the absence of high ambient oxygen.

As an expert it was the Doctor's opinion that the ROP in this infant's case was caused by unmonitored high dose of oxygen. He said that ROP is known to cause blindness and it did in this case of Jashnil Kumar.

The evidence is that the infant's eyes should have been screened to ensure that eyes do not develop ROP within 4 to 6 weeks of birth. The child was discharged after 4 weeks and the parents were not told anything about any special precautions.

On the evidence it is abundantly clear that the doctors, nurses and ophthalmologist were all negligent in not screening the baby's eyes. If they had done so they would have found ROP at an earlier stage of development and not on 25 March 1996.

The condition the child was in, he was not given the appropriate standard of care required of the defendants through their staff doctors, nurses and eye specialist to screen the child's eyes at between 4 to 6 weeks of age.

In his evidence Dr. Sotutu explained fully the warning and purpose of screening. Among other things, he said that all that preterm babies need to have an eye check to rule out the possibility of ROP. This is done for preterm babies to find out if ROP is present or not and not for other reasons. This should be done by Opthalmologist experienced in that area.

On the evidence it is clear and I do so find that the defendants breached that standard of care required of them to screen the infant's eyes at the appropriate required time of 4 to 6 weeks of age.

For these reasons I find that the defendants failed in their duty of care which they owed to the infant for ROP purposes and hence there was a breach of standard of care which an ordinary competent hospital would have provided.

After the infant was diagnosed for ROP no treatment was given to him nor was any suggested by Dr. Oo. On 25 March 1995 the infant was first diagnosed ROP at early third stage.

It is an accepted fact that ROP up to stage III can be treated by cryotherapy (freezing) and laser surgery. The doctor explained that 'cryotherapy' is freezing, "they use nitrogen to freeze the regions of retina and which kills some of the retina in order to reduce the demand that retina has for oxygen and so reduce the drive to create further blood vessels; and so by sacrificing some retina you actually stop the abnormal growth of blood vessels; and halt the progress of disease that is ROP". The se treatments were available in New Zealand and Australia in 1996 according to Doctors Sotutu and Hawley.

I find that Dr. Oo failed to offer and manage and treat the infant's eye conditions and hence there was a breach of duty of care as an opthalmologist employed by the defendants to provide the necessary management and treatment or advise thereon if treatment not available locally.

Dr. Hawley was asked by Mr. Maharaj 'if properly managed, could Jashnil's eyesight could be preserved at this stage. Do you know it could stop any progression any further? Could it have been stopped?'

The doctor said "I would need to use a qualifier to answer the question Sir, because I would have to say - I would have a much better chance of retaining or regaining some vision if he had treatment - if he had appropriate treatment. I cannot say that the vision would necessarily come back 100% of normal. I can say that he would have vision very highly. There's a very ..... likelihood that he would have retained vision and would not be in the state he is right now."

The defence witness Dr. Luisa Cikamatana (DW1) who is Acting Clinical Director at Lautoka Hosptial testified that the infant had 'leukocoria' and not ROP despite the specific findings made by Dr. Oo.

She had nothing to do with the case but was trying to form certain views by looking at the folder on eye examination.

It is clear that this witness was trying to protect the defendants for after all she works at the Lautoka Hospital and would incline towards it.

I prefer to accept the evidence of Dr. Hawley in preference to Dr. Luisa's evidence.

Dr. Hawley told the Court that when you examine a normal eye with an opthalmoscope you see a red reflection, but when you see an eye with ROP condition, you will get white reflection.

In order to diagnose properly, the clinical finding of Leukocoria an opthalmologist has to by process of elimination rule out Retinoblastoma, Cataract, Coats' disease, Retinopathy of Prematurity and so on.

In this case, Dr. Hawley told the Court that Dr. T. Oo correctly went through the elimination process and diagnosed that Jashnil had ROP.

In the outcome on the evidence before me and for the above reasons I find that the defendants were negligent in treating the child as they did.

I further find that that negligence contributed to the damage suffered by the child leading to total blindness in both his eyes.

There was clearly and relevantly present in this case the relationship of proximity so as to require each of the defendants to have exercised their respective skills and abilities so as to have avoided a foreseeable risk of harm to the plaintiff [vide Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424].

In the instant case the risk of harm was big. It was asserted in Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty [I967] 1 AC 617 (The Wagon Mound (No. 2)) that even if the risk of harm is small, it cannot be ignored unless there was a valid reason to do so.

On the notion of "foreseeable risk" Mason J in The Council of Shire of Wyong v Shirt and others [1980] HCA 12; (1980) 146 CLR 40 expressly supported by Stephen and Aickin JJ said at 47-8.

"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."

I would conclude on the evidence that the doctors and nurses should have been well aware of the possible risk of ROP occurring in the case of this prematurely born child.

They should have maintained the care expected of them. Oxygen should have been monitored. The Court is completely in the dark as to what amount of oxygen, if any, was administered in the absence of any record being made available and worse still the relevant folder on the child is missing.

It should have been foreseeable to the defendants who should have known of the danger lurking arising out of failure to monitor the administering of oxygen to the infant which could result in adverse effects. And that is what happened in this case short of death.

In the context of the instant case it is pertinent to note that in Giurelli v Girgis (1980) 24 SASR 264, 276, White J approved the following statement of the duty of medical professionals from "Nathan on Medical Negligence" 22:

"A medical man [or woman] who holds himself out as being a specialist in a particular field, whether it is in the treatment of certain conditions or in the use of certain apparatus or in any other way, will necessarily be judged by higher standards than the ordinary practitioner who does not profess any such specialised skill. But here again the specialist will be required to attain not to the very highest degree of skill and competence but to the ordinary level obtaining amongst those who specialise in the same subject."

In Albrighton v Royal Prince Alfred Hospital & Others [1980] 2 NSWLR 542, 562-3) Reynolds JA made comments as follows and it is worth noting:

"It also, in my view, is based on a wrong assumption that a jury should be directed that, if what is charged as negligence is shown to have been done in accordance with the usual and customary practice and procedure then prevailing in what was called a particular "medical community ", they cannot find negligence. This, in my opinion, is plainly wrong, because it is not the law that, if all or most of the medical practitioners in Sydney habitually fail to take an available precaution to avoid foreseeable risk of injury to their patients, then none can be found guilty of negligence. Medicine is of course, a science, and the total of human knowledge increases day by day."

I turn now to the assessment of damages. There is no challenge concerning the infant's profound disability that he ended up being completely blind.

The history of the infant has been sufficiently outlined hereabove since his birth.

The plaintiffs claim special damages details whereof amount to $755.40 (Seven hundred fifty five dollars and forty cents) are contained in Exhibit P3 (Schedule of Special damages) tendered at the trial.

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. This is a convenient list but not conclusive.

The basic principle in awarding damages is to put the Plaintiff in the position he would have been had the accident not occurred. Assessing damages for non-pecuniary loss in 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 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."

When liability is established or admitted, the Court applies the principle of 'restitutio in integrum' and it must award damages. There is no discretion. The injured person is entitled to compensation and 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."

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) QB 196 at 201 C.A.]

Pain and suffering forms part of the general damages award and the Applicant is entitled to damages for it. As stated in Kemp & Kemp (Vol 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 has 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."

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

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

In Munkman: Damages for Personal Injuries and Death 8^th Ed. at p. 10 it is stated:

"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".

For the infant being blind since very shortly after birth brings with it many difficulties in the life of not only the infant but also his parents (the plaintiffs).

The plaintiffs' house is on a hill top which is a lean to set up with bathroom and toilet outside the house.

The infant lives in a world of darkness. He has a painful existence both mentally and physically having completely lost one of the body's most important senses when he can only hear sound and perhaps imagine.

There is no doubt that the infant will be almost completely dependent on others for his living and care throughout his life.

In this connection I refer to my own judgment in Lusiana Rokodovu v Jovesa Rokobutabutaki & The Attorney General (Civil Action No. 1 of 1997), where at p9 I stated:

"As for loss of amenity, 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. "Damages within this category are included loss of any of the five senses, loss of sex drive, damage to the Plaintiff's marriage prospects, loss of enjoyment of hobbies, employment and, indeed loss of any facet of life. The Court will take into account how long the Plaintiff will be deprived of these amenities; if it is for the rest of his life the amount of damages will be awarded in proportion to the Plaintiffs age and life expectancy. However, age is not necessarily the determinative factor ..." (Book on Medical Negligence by M. Khan and Michelle Robson, 1997 p. 204-205)"

The infant is now 10 years old and for the rest of his life he will suffer pain and suffering and loss of amenities in that (as stated by Mr. Maharaj):-

(a) Without eye sights, he cannot see anything and will be depended on others for support, care and assistance.

(b) He cannot take part in daily chores of life like others with eye sights. Events and incidents of life are too numerous to name.

Someone may get married out of pity or for money if he happens to have some in future.

(e) He will suffer loss of enjoyment for various hobbies that one with eye sight is able to participate in.

(h) Jashnil will not be able to do all those things which a person with eye sights can do.

In Rokodovu which was a paraplegic case the sum of $200,000.00 was awarded for pain and suffering and loss of amenities of life.

Counsel submits that a sum of $220,000.00 under this head as an award would be appropriate.

In assessing damages the question is what is fair compensation in the instant case considering the general level of roughly comparable awards.

Just to get an idea of the general damages awarded in very serious injuries I refer first to the 1997 case of cerebral palsy in which Higgins J of the Supreme Court of Australian Capital Territory awarded A$359,246.00 by way of general damages in the case of Tomislav Lipovac bhnf Maria Lipovac v Hamilton Holdings Pty Ltd, Peter Black, Tom Gavranic and The Australian Capital Territory (No. SC501 of 1993 Sup. Ct. of ACT). There the child had "profound brain damage ... The plaintiff will require constant care and attention both medical and otherwise for the remainder of his life". There the amount included numerous items of expenditure not appropriate in the instant case. What the award indicates is that the applicant was entitled to very substantial amount by way of general damages.

The parents of the child as plaintiffs have claimed in this action compensation for 'mental shock and anguish'.

They say that they have suffered from nervous shock and mental anguish and continue to suffer in seeing their prematurely born child being blinded in both his eyes at the hands of the defendants through their negligence. Consequently they have incurred special damages, they say.

The plaintiffs claim this item under general damages. No doubt it was a shocking news for the parents of the child when informed of their child's blindness.

The evidence is that both of them suffered mentally and continue to suffer as a consequence of seeing their child in that condition.

The question now arises is whether they are entitled to this claim on the facts and circumstances of this case particularly bearing in mind the evidence of the parents in regard to their alleged sufferings mentally.

The learned counsel Mr. Maharaj referred to a number of cases in his submission which point in the direction that compensation is allowed in a situation such as the present.

"... and it is now well recognized that an action will lie for injury by shock sustained through the medium of the eye or the ear without direct contact..."

Furthermore, "a plaintiff can recover for nervous shock caused by an accident even though he did not fear for his own personal safety and even though he did not witness it, if the shock resulted from what he realized by his own unaided senses and he feared for the safety of his close relatives." (Hals. 4^th Ed. Vol 34 para 8).

Also the House of Lords in Alcock & others v Chief Constable of South Yorkshire Police [1991] UKHL 5; (1992) 1 A.C. 310 at 311 it was held:

"(1) that in order to establish a claim in respect of psychiatric illness resulting from shock it was necessary to show not only that such injury was reasonably foreseeable, but also that the relationship between the plaintiff and the defendant was sufficiently proximate; that the class of persons to whom a duty of care was owed as being sufficiently appropriate was not limited by reference to particular relationships such as husband and wife or parent and child, but was based on ties of love and affection, the closeness of which would need to be proved in each case, that remoter relationships would require careful scrutiny; and that a plaintiff also had to show propinquity, in time and space to the accident or its immediate aftermath."

In the instant case I do not find strong enough evidence to constitute what is referred to as nervous shock. At best all that can be said here is that the parents of the child have suffered from mental stress which anybody would knowing of the child's serious condition.

I would bear the plaintiffs' submission in mind and would include compensation under pain and suffering and loss of amenities of life.

In the light of the above observations and decided cases, in the exercise of my discretion bearing in mind the circumstances of this case I award general damages in the sum of $190,000.00 (one hundred ninety thousand dollars).

Claims for loss of prospective earnings do arise in personal injury cases. There are certain factors which militate against any exactness in the assessment of the loss.

In this case the child's disability will certainly last all of his life. But there is uncertainty as to the precise pattern that the infant's future earnings would, but for the injury, have taken. However, this does not prevent the court from making an assessment of the probable loss.

The application of 'multiplicand' and 'multiplier' comes into play in considering this head of damages. The authors of the book Medical Negligence (1997), Malcolm Khan & Anor at p206 said:

"..... future loss of earnings and expenses are assessed at the date of trial by reference to a multiplicand and a multiplier. The multiplicand will be the plaintiff's net annual loss.... The Courts will then apply a multiplier - the figure is an arbitrary one calculated as from the date of trial..... The multiplier is supposed to cover the period from the date of trial up to the time when the loss of earning or expenditure would cease. What is certain is that the court will not fix the multiplier as the number of years from the trial until retirement or death as that would result in over compensation. The general principle is that the interest and capital should be exhausted at the same time as the plaintiff’s need is extinguished. Additionally, the court will have to assess what is the real return after tax, national insurance and inflation, and on investment of the money. In looking at the plaintiff's life expectancy, account will be taken of the general vicissitudes of life, and the fact that the lump sum can immediately be invested. In estimating the real return of money a discount rate of 4.5%, has been adopted (see, .for example, Cookson v Knowles [1978] UKHL 3; [1979] AC 556). In other words, according to the Pearson Commission data, the court will assume that the plaintiff who receives compensation will subsequently invest it and receive a rate of return of 4.5 % per annum after tax and inflation are taken into account."

Awards have been made under the head of loss of earnings in the case of young children. But difficulties do arise in assessing future earnings of a child much more so in the case of a permanently disabled child as in the instant case.

Here is a case where job availability is scarce and almost nil because of his condition of blindness. Assessing future earnings 'is much the most difficult matter to resolve with fairness to both sides because of the imponderables' [Rose J in Cassel v Hammersmith and Fulham Health Authority [1992] P.I.Q.R.Q. 168 - C. A.). After taking into account all the possibilities, the probabilities and imponderables an applicant is entitled to an award.

In Cassels (supra) at p.198 Rose J worked out the award by the use of multiplier as follows:

"I turn to the multiplier. It is likely, almost to the point of certainty, that Hugo would have started earning between the ages of 18 and 23. I find it impossible to state precisely when within that bracket he would have done so, though I find that an age nearer the upper limit than the lower would have been a likelier starting point. He is now just over eight and, as I found earlier, his life expectancy is such that he will probably have a normal working life, to the age of 65. Having regard to these matters, a multiplier of 10 is, in my view, appropriate. I therefore award as damages for future loss of earnings £350,000."

In Daya Ram v Peni Cara & Ors. (29 FLR 1983 p147 at 149) the Fiji Court of Appeal on this aspect of loss of earnings said:

"Accordingly the claim on behalf of a deceased estate for loss of earnings for lost years is now firmly established as on the same footing as the same claim by a living person, subject to the reservation as to deduction of personal living expenses. Authorities relied upon before this Court were Pickett v British Rail Engineering Ltd. (1980) A.C. 136; Gammell v, Wilson (1980) 2 All E.R. 557 (C.A.) and (1981) 1 All E.R. 578 (H. L.) and White & Anor. v London Transport Executive (1982) 1 All E.R. 410, and are not the subject of challenge" . (underlining mine for emphasis).

In Parker v Parker (1979) Qd. R 50 the Plaintiff an 8 year old girl at the time when she suffered grave brain injuries and a severe leg disability was awarded $94,000 for loss of earning capacity. At the date of trial she was 15 years old. There Lucas .J at p.53 said:

"I have no doubt that if it had not been for the accident Jacqueline would have been able to earn a substantial income; it seems to me to be reasonable to assume that she would earn no less than $150.00 per week. The span of years which should he applied to this amount should I think be 35; this takes into account the fact that she would probably have married and been lost to the workforce either temporarily or permanently. "

Now that leaves the important question of damages. It is quite true that no sum of money can compensate for the loss of sight as also for the loss of limbs or for the loss of health and general well-being; whatever sum is assessed has to be a reasonable sum by way of compensation arrived at after considering the evidence and not by way of punishment.

The child is 10 years old now and arrangements are being made for him to attend full time at the Fiji School for the Blind in Vatuwaqa, Suva.

Although there are a very few blind people in employment it is very difficult to say whether this child will be so lucky as those in employment.

As counsel submits he would not be looking at being employed until the age of 19-23 years.

Bearing in mind the retiring age of 60 years and if he starts work at 23, counsel suggests 22 years as the "multiplier".

Counsel submits that he would have earned $200.00 per week in fifteen years' time. Using this figure as the multiplicand and 22 as the multiplier the loss of future earning capacity would amount to $200 x 52 x 22 = $228,800.00. He is therefore claiming that amount.

In considering what amount to award I have perused a number of awards for loss of sight in The Quantum of Damages by Kemp Vol I (2^nd Ed) at p289 et seq.

Some of assessments (English cases) are: Bates v Store Parish Council [1954] 1 W.L.R 1249 C.A. - 3½ year old boy - permanently blind - damages £9000.00; Paris v Stepney Borough Council (1951) - 101 L.J. 77 - 30 years old man - damages £9000.00; Heapy v Cheshire County Council (105 L.J. 410 - 1955) - 21 years old - both sights lost - £7500 - difficulty in finding a job. The cases I have referred to will not be of any assistance as they are too old.

In Croke & Another v Wiseman & Another [1982] 1 WLR 71, which was a case of a child who was seven at the date of the trial and who was 21 months old when he had a cardio-respiratory arrest while he was being examined in hospital which caused him to suffer from severe spastic quadripligea so as to be in need of constant care and attention for the rest of his substantially diminished expectation of life, Griffiths L.J. at p.80 said:

"I think the multiplier of 16 to 17 years is too high, and this is particularly so when one bears in mind that in the Lim Pap Choo case [1979] UKHL 1; [1980] A. C. 174 the House of Lords, working on an expectation of life of another 36 years, approved a multiplier of 12. It is desirable that on comparable life expectation there should not be too great a disparity between the multipliers used in the different cases, although complete uniformity can never be expected because different circumstances will affect different cases. Bearing these factors in mind I would reduce the multiplier in this case to 14 years".

I would in all the circumstances of this case apply the multiplicand 22 as that could be the age at which he is likely to be employed and start earning. He would have carried at least $100.00 per week. Because of the serious nature of the case I would use the multiplier of 15.

Therefore I assess and award future earnings at $100 per week x 52 weeks x 15 years = $78,000.00 (seventy-eight thousand dollars).

Compensation for past and future care are recoverable by the plaintiffs and this they claim. On this I refer to the following passage from the judgment of Megaw L.J. in Donnelly v Joyce [1973] EWCA Civ 2; [1973] 3 All E.R 475 at 479-480:

"We do not agree with the proposition, inherent in counsel for the defendant's submission, that the plaintiff's claim, in circumstances such as the present, is properly to be regarded as being, to use his phrase, "in relation to someone else's loss", merely because someone else has provided to, or for the benefit of the plaintiff - the injured person - the money, or the services to be valued as money, to provide for needs of the plaintiff directly caused by the defendant's wrongdoing. The loss is the plaintiff's loss. The question from what source the plaintiffs needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are, so far as the defendant and his liability are concerned, all irrelevant. The plaintiff's loss, to take this present case, is not the expenditure of money to buy the special boots or to pay for the nursing attention. His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages - for the purpose of the ascertainment of the amount of his loss - is the proper and reasonable cost of supplying those needs. That, in our judgment, is the key to the problem. So far as the defendant is concerned, the loss is not someone else's loss. It is the plaintiff's loss. "

It is in evidence which I accept that the plaintiffs as parents have cared for the child ever since birth continuously 24 hours a day.

The mother is confined to home when previously she worked full time for Punja & Sons Limited. She says that even if the child is taught the basic skill of going to bathroom and toilet, changing his clothings etc, he needs someone to help guide him and look after himself now and for all his life for most of the things in life.

Whether or not the child is required to pay for cost of care to his parents, the cost or value for such care is recoverable even if such services are provided gratuitously (Griffiths v Kerkemeyer, [1977]139 CLR 162).

"The respondent's relevant loss is his incapacity to look after himself as demonstrated by the need for nursing services and this loss is to be quantified by reference to the value or cost of providing those services. The fact that a relative or stranger to the proceedings is or may be prepared to provide the services gratuitously is not a circumstance which accrues to the advantage of the appellant. If a relative or stranger moved by charity or goodwill towards the respondent does him a favour as a disabled person then it is only right that the respondent should reap the benefit rather than the wrongdoer whose negligence has occasioned the need for the nursing service to be provided..... "(emphasis mine).

In this case I accept that it will cost at least $100.00 per week for someone to look after the child and the plaintiffs expect to be paid from the age of one year of the infant. They should be paid until he is 22 years old, that is payment to be made for 21 years until it is hoped he will find employment and perhaps marry.

Also it is reasonable to allow for future modifications to the house the plaintiffs live in or wherever they live because of the child's condition. In round figures I allow $15,000.00 (fifteen thousand dollars).

I will therefore in the circumstances of this case award as follows under this head:-

(i)	Past cost of care from 21.1.96 until judgement (20/7/06) for child 10 years old (52 weeks x $100 per week = $5,200 x 10years)	$52,000.00
(ii)	Future cost of care using multiplier 15, 15 years x $5,200 per year = $78,000)	$78,000.00
(iii)	There is also the past and future care expenses of alteration to the house the parents and child live in to suit requirements of the child in his condition. I consider the sum $15,000 as a reasonable figure	$15,000.00
(iv)	There are other future sundry expenses which I consider appropriate for medical expenses special equipments for walking, Braille books, special computers and other technical equipments. I allow the sum of $15,000	$15,000.00 ___________
		$160,000.00 ___________

There is a claim for interest which has been pleaded [vide Usha Kiran v The Attorney-General of Fiji (F.C.A. Civ. App. 25/89) and The Attorney-General of Fiji v Waisale Naicegulevu (F.C.A.22/89)]. The Plaintiff is therefore entitled to interest on general and special damages.

It was held in Pickett and British Rail Engineering Ltd (1980) AC 136 at 137, which was a case of personal injuries, that "interest on general damages was awarded for the purpose of compensating a plaintiff for being kept out of the capital sum ". As for interest on special damages it was held in Jefford and Another v Gee [1970] EWCA Civ 8; 1970 2 WLR 702 at 703 that "in general interest should be allowed on special damages from the date of accident to the date of trial at half the appropriate rate". However, under section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27 there is discretion in the Court to fix rate of interest which should be paid. The section provides:

"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 the exercise of my discretion I will award interest on general damages at the rate of $5% per annum from 20 January 1999 (date of issue of writ).

Although loss of earnings is a special damage the Applicant is not entitled to any interest on it for he is 10 years old at present and would not have commenced work in my estimation until he reaches about 23 years of age if he was not disabled.

For cause the plaintiffs have succeeded in their claim they are entitled to costs payable to them by the defendants.

The plaintiffs' counsel has submitted a detailed Bill of Costs with his written submission.

The costs include instructions, trial, researches, preparation for trial and legal submission. I reduce the total sum claimed for these by $1505.25 leaving this claim at figure $20,795.75.

So the total claim allowed in round figures for Legal and Professional costs and disbursements is $30,000.00 (thirty thousand dollars).

In the result, I assess and award damages and interest in round figures as follows:

1.	Special damages (as per exhibit P3) agreed	$755.00
2.	General damages Pain and suffering and loss of amenities including mental anguish to parents	$190,000.00
3.	Loss of earning capacity	$78,000.00
4.	Past economic loss- past and future care (see details p43- how made)	$160,000.00
5.	Costs- legal and professional and disbursements	30,000.00 ___________
		$458,755.00
6 (a)	Interest at the rate of 5% from the date of issue of writ 20.1.1999 to the date of this judgment (20.7.06) on general damages of $190,000.00 to be calculated	$
(b)	Interest on past cost of care on said $52,000.00 (care by mother for 10 years) and $755.00 (being special damages) at 2 ½ % (from 20.1.96 to date of judgement – 20.7.06) – to be calculated	$
		___________ $

There will therefore be judgment for the plaintiffs against the defendants in the abovementioned sums of money including costs to be paid by the defendants to the plaintiffs' counsel.

It is ordered that the judgment sum be paid into Court as it is the Court's view that, as Jashnil Kumar is an infant, his interest will be best looked after by the Public Trustee as far as damages ordered is concerned And it is further ordered that the Chief Registrar upon receipt of the said judgment sum pay out the said sum of $30,000.00 being solicitor's costs to counsel for the plaintiffs AND the sum of $755.00 special damages to the counsel to be paid to the plaintiffs (parents) AND to pay out the balance of the judgment sum to the Public Trustee for the infant's benefit to be disbursed as the Public Trustee in his absolute discretion deems fit until the infant reaches the age of 21 years with liberty reserved to the parties including the Public Trustee to apply to Court generally on any aspect of the administration of the Fund.

High Court of Fiji

Kumar v Permanent Secretary for Health [2006] FJHC 130; Civil Action 45.2004 (20 July 2006)