IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL JURISDICTION

ACTION NO. HBC266 OF 2003

08/2006

BETWEEN:

INDIRA WATI
PLAINTIFF

AND:

THE ATTORNEY GENERAL OF FIJI
FIRST DEFENDANT

SHIREEN AIYUB
SECOND DEFENDANT

LOSANA BURUA
THIRD DEFENDANT

Mr. S. Maharaj for the Plaintiff
Ms. S. Tabaiwalu & Mr. A. Vakaloloma for the Defendants

Dates for Submissions: 14 October, 28 October & 4 November 2005
Date of Judgment: 03 February 2006

FINAL JUDGMENT OF FINNIGAN J.

On 16 September I issued an interim judgment setting out my findings as to the facts and my tentative conclusions as to the heads of damages available to the Plaintiff. I then invited submissions from Counsel for both parties on;

1. What heads of damages are now available to the Plaintiff

(a) as widow

(b) as administratrix of the estate of the deceased; and

2. Quantum of damages.

I set a timetable for submissions by both parties. Each party has filed a submission. Counsel for the Plaintiff continues to seek all the damages he sought in his first submission under both Cap 27 and Cap 29. Counsel for the Defendant, I assume for that reason, continues to rely on her earlier submissions in reply. Both Counsel have addressed the issues that I set out for them (above).

The Supplementary Submissions:

I shall follow the headings above.

(1) (a)		Counsel for the Plaintiff submits that damages are payable to the Plaintiff as widow for;	
			
	(i)	Loss of consortium;	
	(ii)	Mental anguish and shock including aggravated damages;	
			
(1) (b)		and as administratrix of the estate, for:	
			
	(i)	Funeral expenses;	
	(ii)	Loss of expectation of life;	
	(iii)	Pain and suffering;	
	(iv)	Loss of earnings of the deceased - "lost years".	

Notwithstanding my interim findings, Counsel continues to maintain his claim for compensation to the relatives of the deceased under Cap 29 and for special damages.

He also seeks interest on damages awarded and costs in the action, both as before.

The submissions of Counsel for the Defendants are brief in that they refer me to three numbered paragraphs in her initial submissions but they have not given me the help I was looking for. I return now to the headings adopted by Counsel for the Plaintiff. These are all claims made under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27.

1 (a) (i): Loss of consortium.

Counsel seeks damages for loss of consortium "in the sum of at least $5,000.00". He supported the claim by reference to the evidence and cited Ismail -v- The Medical Superintendent & Anr, HBC310/998S, Judgment 25 July 2000. This submission overlooks the fact that in the cited case the Court found the Defendants liable to the Plaintiff in negligence for the death of the deceased. I have been unable to do that in the present case. There is no ground for an award of damages to the Plaintiff under this head.

(1) (a) (ii) Mental Anguish and Shock including aggravated damages

Counsel for the Defendants submits that whatever damages are awarded would have the effect of aggravated damages. Implicitly, she submits that there is no basis for a further award of aggravated damages. However, there can be damages awarded to the Plaintiff for her mental anguish and shock caused by the negligence of the Third Defendant if they are based on the abdication by the Third Defendant of her duty to care for the deceased. In my interim judgment I found that the Third Defendant had abdicated her responsibilities. I have no hesitation in saying now that I find the behaviour of the Third Defendant as a doctor in a public hospital very disturbing. I am prepared to hold she is liable to the Plaintiff for mental anguish and shock caused to the Plaintiff by her abdication of her responsibilities, i.e. her breach of her duty of care first to the deceased and second to his wife who was present. I think the Third Defendant's conduct in the circumstances she faced was "outrageous and scandalous" iii the terms of Rookes -v- Barnard [1964] AC 1129, as relied on by Counsel. I also accept the authority of Alcock & Others -v- Chief Constable of South Workshare Police [1992] AC 310. I accept the submission of Counsel for the Plaintiff that an award of $5,000.00 is appropriate under this head for what the Plaintiff suffered and I make that award. There will be interest on this amount at 6% per annum simple from the date of filing the writ 29 July 2003 until the date of this judgment.

(1) (b) Damages to Plaintiff as Administratrix of the Estate

(1)(b) (i) Funeral Expenses

I have already declined this application in my interim judgment (at page 13). Counsel now refers me to Section 2 [c] of Cap 27. This is Section 2 (2) (c), and I cannot find much help there. The claim under that provision can arise only where the death of the person has been caused by an act or omission which gives rise to the cause of action. My findings of fact in the interim judgment are that the death was not caused by the Third Defendant's acts or omissions. I can make no award.

1(b) (ii) Loss of Expectation of Life

Counsel seeks a nominal award of $2,500.00. He relies on Ismail (above). As stated above, there is no factual finding that the Third Defendant is liable for the death of the deceased in the present case. I can make no award.

1(b) (iii) Pain and Suffering

I presume from the submission under this head that Counsel means the pain and suffering of the deceased. This is a claim which I see as a claim of the deceased which arose before his death and survived for the benefit of his estate under Section (2) of Cap 27. Counsel makes a detailed submission setting out the pain and suffering of the deceased in the hours before his death. I accept every part of those detailed submissions. I find Counsel's claim for $15,000.00 is amply supported by the facts of what the deceased suffered in the days that followed his first visit to the Nadi hospital for treatment and I make that award accordingly. There will be interest on that amount at 6% per annum simple from 29 July 2003 until the date of this judgment.

1(b) (iv) Loss of Earnings of the Deceased, "Lost Years"

I accept the authority of Daya Ram -v- Peni Cava & Ors Civil Action No 189/1980 upon which Counsel relied and particularly the authority of the statements which he set out in his submissions. Regrettably the essential ingredient in the dictum "where a person died in consequence of a Defendant's negligence before he himself could bring a claim for negligence" is missing in my findings of the facts of the present case. I can make no award.

Summary

I now conclude this final judgment by summarizing the findings I have made both in my interim judgment and hearing.

I find no liability has been established against the Second Defendant. I find that the First Defendant and Third Defendant are liable to the Plaintiff for the failure of the Third Defendant to treat adequately the symptoms of myocardial infarction displayed by the deceased in the days and hours before his death. Arising from the breach of duty by the Third Defendant to care adequately for the deceased as a patient in the hospital the Defendants are liable to the Plaintiff in the following amounts.

Damages in her own person as set out above;

1. (a) (ii) (Her mental anguish) $5,000 plus interest at 6% from the date of the writ till today's date, which is 2.5 years
- $750.00.

Damages in her role as administratrix of the estate of the deceased,

1(b) (iii) (Suffering of the deceased) $15,000 plus interest on the same basis, which is 2.5 years - $2,250.00.

This is a rare case where the Court should award indemnity costs to the Plaintiff, who should never have been put in the position of bringing in this action. However the matter was considerably lengthened by the blending of the personalities of the Plaintiff and the deceased. I will assess the amount summarily and fix costs at $3,000.00.

D.D. Finnigan
JUDGE

At Lautoka
03 February 2006