IN THE HIGH COURT OF FIJI
AT LAUTOKA

HBC 232/2006

BETWEEN

SARILA DEVI (father’s name Ram Rup)
of Viseisei, Lautoka, Housekeeper
First Plaintiff

AND

ANKIT CHANDRA (father’s name Adesh Chandra Surat)
of Viseisei, Lautoka, Student, a minor by his mother
and next friend, SARILA DEVI of Viseisei, Lautoka, Housekeeper
Second Plaintiff

AND

ISHWAR CHAND (father’s name Ram Jattan)
of Viseisei, Lautoka, Driver
Defendant
Appearances:
Plaintiffs: Mr K. Kumar
Defendant: No Appearance

Dates of Hearing: 26/03/08, 28/04/08
Date of Judgment: 29/05/08

JUDGMENT

1.	The Claim – Introduction

On or about 19 October 2003 a motor vehicle accident occurred on the road to Viseisei. A commission van or carrier, sometimes known also as a utility truck (the van), collided with a truck on Queen’s Road at Lautoka in the Western Division. The truck was loaded with cane and on its way to the Lautoka Sugar Mill. The van, driven by Mr Ishwar Chand, the Defendant herein, was on its way to Viseisei. The Plaintiffs, Ms Sarila Devi and Mr Ankit Chandra, were passengers in the van. Mr Chandra was sitting next to Mr Chand, and Mr Chandra’s mother, Ms Devi, sitting next to him by the window. A third passenger, Ms Devi’s cousin, sat in the back of the van, on the tray. They were on the way home. 

1.1	In consequence of the accident, Ms Devi and Mr Chandra suffered injury and were taken to hospital by a passing car. The accident and resultant injuries and damage come before this Court in a claim against the Defendant for:

•	Damages under the Law Reform (Miscellaneous Provisions)(Death & Interest) Act;
•	General damages;
•	Special damages vis-à-vis medication and traveling expenses to and from Lautoka Hospital, and relating to Ms Devi’s inability to engage in paid employment for a period of six (6) months and twelve (12) days as a consequence;
•	Interest;
•	Costs;
•	Such further or other relief as deemed just.

1.2	In his defence to the claim, amongst other matters Mr Chand admits he drove negligently so that his van collided with the truck, however denies that the collision was a result of his sole negligence. Rather, his defence says that he drove through Viseisei Back Road from Viseisei Village side and upon reaching the Viseisei by-pass road he ‘turned left to go to Vuda Road, … saw a cane truck traveling towards Lautoka and since the truck’s break light was not on, … thought … the truck [was] moving’. When the van ‘reached near the truck’, Mr Chand ‘suddenly realised that the truck was rolling backwards and before [Mr Chand] could turn to avoid [it], the truck rolled and bumped on the front side of his van’: Statement of Defence, para 5

1.3	Upon the day of the trial, Mr Chand was not present; neither was he represented. Counsel for the Plaintiffs advised his information was that Mr Chand may have gone to Australia and that Mr Chand’s former solicitors no longer represented him. 

1.4	As it appeared that Mr Chand was unlikely therefore to be represented or may well not be, as a matter of caution I requested that the Clerk check with the solicitors who had represented Mr Chand. The Clerk then advised that the solicitors’ office confirmed that they had no instructions from Mr Chand. The trial therefore occurred in his absence.

2.	Minutes of Pre-Trial Conference

At the Pre-Trial Conference held on Tuesday 31 October 2007, the following facts were agreed between the parties:

•	Ms Devi was at all material times a lawful passenger in the van;
•	Mr Chandra was at all material times a lawful passenger in the van;
•	Mr Chand was at all material times the driver and owner and in control of the van;
•	On or about 19 October 2003 Ms Devi and Mr Chandra were lawful passengers in the van when it collided with the truck (the accident);
•	Mr Chand was charged for the offence of careless driving and was convicted by the Magistrate’s Court, Lautoka. That charge and conviction is relevant to the issue of Mr Chand’s negligence in this action. Mr Chand appealed his conviction to the High Court Lautoka and the conviction was set aside;
•	At the time of the accident Ms Devi was 31-32 years of age, employed as a Machinist in a Shoe Factory and earning $70.00 nett per week;
•	At the time of the accident Mr Chandra was 10 years of age and a student;
•	Due to injuries sustained by Ms Devi she was unable to work for a period of six (6) months and twelve (12) days (38 weeks): Minutes of Pre-Trial Conference, paras 1-1.8

2.1	Facts and issues to be tried were listed as follows:

•	Whether the accident took place due to Mr Chand’s negligence;
•	Whether Ms Devi and Mr Chandra have suffered personal injuries as a result of the accident and, if so, what is the nature of such injuries;
•	Whether Ms Devi and Mr Chandra suffered and continue to suffer pain and have suffered and continue to suffer loss and damage as a result of the injuries sustained by them in the accident;
•	Whether Ms Devi and Mr Chandra have suffered loss of income and special damages as a result of the injuries sustained by them in the accident and if so what is the quantum of such damages;
•	Whether Ms Devi and Mr Chandra lost the ability to take part in sports and/or outdoor activities and lost opportunity in terms of academic qualifications and future employment as a result of injuries sustained by them in the accident;
•	Whether Ms Devi and Mr Chandra are entitled to interest on any damage assessed by the Court and, if so, what is the rate of such interest;
•	Whether Ms Devi and Mr Chandra are entitled to costs of this action: Minutes of Pre-Trial Conference, paras 3-3.7

2.2	Various documents were agreed, as referred to later in the course of this judgment.

3.	The Evidence

The following witnesses were called and gave evidence:

•	Dr J. Mareko of Lautoka Hospital;
•	Ms Devi;
•	Mr Chandra;
•	Corporal Tevita Nadumu (Cpl 1333), Police Officer of Lautoka Police Station.

3.1	(a)	Dr J. Mareko: Dr Mareko brought with him under subpoena Lautoka Hospital files relating to Ms Devi and Mr Chandra. These files contained, amongst other material:

•	In relation to Ms Devi – 

o	a medical report dated 15 April 2004 from Dr Osea Gavidi – agreed document no. 2;
o	a medical report dated 15 April 2004 from Dr Vimlesh Prasad - agreed document no. 3;

•	In relation to Mr Chandra – 

o	a medical report dated 31 March 2004 from Dr J. Mareko – agreed document no. 4;
o	a medical report dated 3 May 2005 from Dr J. Mareko – agreed document no. 5.

3.2	He gave evidence by reference to the file both in relation to Ms Devi and Mr Chandra. As a preliminary matter, he stated he had been working for 21 years as an orthopaedic surgeon. He confirmed that the reports of 31 March 2004 and 3 May 2005 are his reports and that his signature appears on them. He also showed the Court x-rays from the file relating to Mr Chandra. From his experience and expertise as an orthopaedic surgeon and by reference to the medical reports he gave evidence in relation to Mr Chandra.

3.3	Insofar as his evidence in relation to Ms Devi, he stated that he did not see her however he provided to the court evidence by reference to the reports of 15 April 2004. As noted, these were documents in the agreed bundle of documents before the Court.

3.4	(b)	Corporal Abbas Hussain: Corporal Hussain gave evidence in relation to the accident which he attended on 15 April 2004. He stated that he is in his twenty-fourth year as a police officer and that he has been with the Traffic Department for some 18 years. He recalled the accident as on that day he was on duty for the afternoon/evening shift. He attended at the accident on the bypass road together with a constable. He said that he viewed the cane laden truck pointing towards Lautoka City. The back of the van, he said, had bumped into the rear of the truck. The drivers were at the scene and the occupants of the van were taken to Lautoka Hospital by a passing motorist. At the scene, he said, the van driver admitted having bumped into the back of the truck. The van driver, said Cpl Hussain, was the Defendant herein, Mr Chand.

3.5	Cpl Hussain said that at the scene of the accident he followed the required procedure, including drawing a rough sketch plan of the accident, he conducted an investigation, and took the necessary action in relation to the accident.

3.6	He stated that at the scene the driver of the van, Mr Chand, wanted to reconcile with the truck driver and pay the damage to the truck driver. When Mr Chand said this to Cpl Hussain, Cpl Hussain told him that he (Cpl Hussain) was dealing with the offence and that it was not a matter for the police to engage in negotiations or reconciliation efforts between Mr Chand and the truck driver. Cpl Hussain stated that he said to Mr Chand that such negotiations or reconciliation efforts were a matter between him (Mr Chand) and the truck driver.

3.7	Agreed document no. 6 is, as noted, the decision of the Magistrates Court wherein Mr Chand was found guilty and convicted of ‘having driven careless[ly] bordering on dangerous’. The decision does not refer to sentence, however, Cpl Hussain stated that Mr Chand was fined $250.00. Cpl Hussain said further that his observation of the accident scene led him to the view that Mr Chand was wholly responsible for the accident. Cpl Hussain said that the van was going up a slope, where the road consists of two lanes to enable heavy vehicles to go to the left, leaving the right-hand path for passing of other vehicles. The truck was on the extreme left lane carrying a sugar can load. The van came up from the back of the truck and bumped into the truck. Cpl Hussain said that his investigations of the accident revealed that Mr Chand was speeding at the time, that this had worried the passengers, and the Mr Chand had been warned at the time in consequence of the passengers’ concern to slow down. The accident then occurred.

3.8	Counsel for Ms Devi and Mr Chandra put to Cpl Hussain that the reason Mr Chand’s appeal was successful was that he was discharge because he had not been charged with the offence within the 12 months limitation period. Cpl Hussain did not provide any evidence on this aspect, however, it was when this was put to him that he gave the aforesaid evidence as to the accident and his investigation of it, including his assessment that Mr Chand was wholly responsible for the accident. There was no evidence that anyone else was charged in relation to the accident and from Cpl Hussain’s evidence and from the Magistrate’s Court decision despite the success of the appeal I draw an inference that Mr Chand was, despite the terms of his Defence herein and the success of his appeal from his conviction and sentence, wholly responsible for the accident. I note also that there is no evidence before the Court that the appeal was in fact successful and that that information (as to the success of the appeal) was properly supplied to the Court by Counsel for Ms Devi and Mr Chandra.

3.9	This Court is not of course bound by any decision in another Court relating to a criminal charge, conviction and sentence and I draw my conclusion independently as to Mr Chand’s responsibility for the accident. However, the Magistrate’s Court decision is before this Court as an agreed document and I have properly had reference to it, drawing my own conclusions and any relevant inferences in relation to liability from the evidence before me.

3.10	(c)	Ms Devi: Ms Devi’s evidence related to the circumstances of the accident, her injuries and outcomes, and the injuries and outcomes sustained by her son, Mr Chandra. As to the accident, her evidence confirms that of Cpl Nadumu as to liability.

3.11	Ms Devi said that she was a passenger in the van, sitting beside her son who was sitting beside the driver, Mr Chand. Her cousin was sitting in the carrier. They were traveling to her house. She said the vehicle was a commission van or carried, where passengers generally sit in the front beside the driver, with the carrier attached to the back of the cabin of the vehicle. Mr Chand was the driver and the van generally operates as a hired vehicle. 

3.12	As she was sitting in the van, Mr Chand was driving. As they were coming towards Viseisei, Ms Devi said, she was concerned that Mr Chand was ‘driving fast’. She was worried that they may have an accident. She told Mr Chand to slow. She saw the truck and told the driver. Mr Chand wiped the windscreen and then there was a crash and Mr Chand called out: ‘Oh, my god, what I have done.’ 

3.13	The police came, Ms Devi said, and ‘we went to hospital’. She then described her injuries and their aftermath and as noted the matters relating to Mr Chandra. This evidence is dealt with below.

3.14	(d)	Mr Chandra: Mr Chandra’s evidence as to the accident was that they were traveling home in the van, which hit the truck. He then gave evidence in relation to his injuries and aftermath as noted earlier. This evidence is dealt with below.

14.	Ms Devi’s Injuries and Losses – Ms Devi, Dr Mareko & Medical Record

Evidence as to Ms Devi’s injuries and losses was provided by Ms Devi, Mr Mareko and by reference to Ms Devi’s medical record, subpoenaed to the Court.

14.1	(a)	Ms Devi: Ms Devi said that through the accident she suffered injuries being a cut to the forehead and a cut under the chin, both of which have left scars, as well as a cut to her tongue and injuries to her teeth and gums. Treatment consisted of tablets and wiring of her teeth for some four months ‘so that the teeth would come closer’. Before the accident, she said, her teeth were ‘normal’ and it was because of the accident that this defect/injury and the need for wiring occurred.

14.2	Ms Devi said her injuries were painful. With the cuts, she had stitches under her chin and a dressing to the forehead. The cut to her tongue was remedied by pills. She was obliged to attend four or five times at Lautoka Hospital for checking, as a follow-up. She continues to have a scar on her forehead and under her chin. Her injuries have healed generally, however, she retains the scarring as aforesaid and when she drinks cold water it hurts her teeth and gums. Hence she continues to experience pain or discomfort in that regard.

14.3	As to expenses, the travel to hospital involved her in expenses for herself and her son, and she was obliged to purchase medicine for herself and her son. This obligation is continuing in terms of her son’s medicine. Sometimes she has to purchase two lots a month and this engages her in expenditure of some $10.00 per month.

14.4	As to loss of wages, Ms Devi said she was employed at Forum Shoes Company, working at the factory, and was off work for some four months due to her injuries. She gained employment after those four months. The Company no longer operates so that she has no records of her payments for that was some two years ago and the Company closure means she cannot obtain their records.

14.5	She is now employed as a housekeeper at some $70.00 per week. She was thirty-one to thirty-two (31-32) years of age at the date of the accident, being born in 1972.
 
14.6	(b)	Dr Mareko and Lautoka Hospital Medical Record: Dr Mareko said that he did not see Ms Devi however he referred to the Lautoka Hospital record which he said shows she presented to hospital and reports were written in relation to her presentation at the Hospital and her injuries. Dr Gavidi’s report appears on the hospital file as does Dr Prasad’s.

14.7	(c)	Medical Record: The report of Dr Vimlesh Prasad of Lautoka Hospital confirms he examined Ms Devi on 19 October 2003 who had presented from a motor vehicle accident (MVA), with the following injuries:

1.	2 inch long cut left forehead
2.	Tender/Swelling of left elbow
3.	Mobile teeth lower jaw 1, 2, 3 – case referred to Dental.
4.	1inch long cut lower chin and right shin bone.
5.	BP 100/70, Temp. 66
6.	X-ray Skull/Left Elbow – no bony injuries seen.

14.8	Treatment is listed as ‘Stitch and Antibiotics’, ‘Tablets: Brufen’.

14.9	Dr Osea Gavidi is located at the Department of Oral Health and saw Ms Devi on 20 October 2003. He notes she was involved in an accident the day before and is suffering ‘Pain on biting with her front teeth’, ‘Pain is experienced only on stimuli i.e. eating and biting’. Extra-oral examination revealed: ‘No obvious swelling’ and ‘Presence of hematoma on chin area’. Intra-oral examination showed: ‘[Presence of all dentition’, ‘Lower anterious moderately mobile’, ‘Cut on left lateral border of the tongue’. Periodontal assessment revealed: ‘Presence of plaque/calculus accumulation’, ‘bleeding on probing’, ‘Slight gingivitis’. 

14.10	Dr Gavidi lists immediate treatments as: ‘Intra-oral x-ray which revealed no bony lesion’, ‘Local anaesthesia of 1:80,000 adrenaline’, ‘Immobilized the tooth with the placement of interdental wires/splints’. The report concludes that Ms Devi was advised to ‘complete Propane injections’ and ‘continue Indomethacine tablets for pain’. She was reviewed on 4 November, 18 November, 26 November and 11 December 2003 ‘where assessments of the tooth and gums were carried out’. Personalised dental care was emphasised and (including a final note as to oral hygiene and the gingival condition, the report concludes:

Wires were removed on 30/12/03 and [Ms Devi] made another visit on 27/01/04 where full mouth prophylaxis was recommended. Scaling was done on 12/02/04 and 18/03/04 with advice given on the use of desensitizing agents to relieve sensitivity to cold and heat’

15.	Mr Chandra’s Injuries and Losses – Ms Devi, Mr Chandra, Dr Mareko & Medical Record

Evidence was given by Mr Chandra’s mother Ms Devi, Mr Chandra, Dr Mareko and from the Lautoka Hospital file (by Dr Mareko).

15.1	(a)	Mr Chandra: Mr Chandra’s evidence was that he is a student and was a student at the time of the accident. He suffered injuries to his head, arm and leg and these injuries were painful. In December 2003 he was sent home from hospital, but then had to go back to hospital because of his injuries This was a painful experience also. He said his leg continues to hurt every now and then, and especially in the morning and when it is cold. 

15.2	Mr Chandra said that before the accident, he had played soccer however because of the injury does not do so now. He said he plays no games now as his leg hurts. If he walks too long, his leg hurts and he no longer engages in or enjoys to run.

15.3	(b)	Ms Devi: Ms Devi gave evidence in relation to her son, referring to Mr Chandra’s injuries and losses. She said that when the accident occurred, Mr Chandra was sitting between her and the driver. He (Mr Chandra) fell under the dashboard, suffering injuries to his left leg, left hand and a cut to the forehead from which he bears a scar. At the time, it was a deep cut and was bleeding badly: ‘there was a lot of blood’. 

15.4	On 19 October 2003, Mr Chandra was admitted straightaway to Lautoka Hospital and remained there until December 2003. He was readmitted in February 2004 ‘because the bone was not healing.

15.5	Ms Devi said that a plate was inserted into Mr Chandra’s leg and it was removed after some time. She said he spent 3 months in hospital meaning he missed school. He was in Class 5 when the accident occurred and he went in to class 7 when he returned to school: he missed class 6. He was put into class 7, she said, as the school said he ‘was very bight’ however, he ‘was no good’ in class 7. Once a month he stayed home from school, and she said that walking was too much of a strain on his leg. He suffered from pay and stayed home more often in the cold weather because of the pain. He had been good at sport, and active in the garden and elsewhere, however, after the accident he was ‘not anymore’. 

15.6	Ms Devi said that Mr Chandra was born on 24 August 1992 and was 10 years old at the time of the accident. He suffered from constant headaches after the accident although he is not complaining about headaches now. He bears scars on his leg and head, she said.

15.7	(c)	Dr Mareko: Dr Mareko’s evidence was that he has been working for 21 years as an orthopaedic surgeon. He saw Mr Chandra upon his admission to Lautoka Hospital, and noted reports of 31 March 2004 (Document 4) and 3 May 2005 (Document 5) on Lautoka Hospital file as his (Dr Mareko’s) reports: Exhibit 1: two medical reports being documents 4 and 5 in the Bundle of Documents

15.8	Dr Mareko said Mr Chandra suffered injury to his left upper and lower limbs. The thighbone was fractured and after Mr Chandra’s release from hospital the thighbone was found not to be knitting, causing Mr Chandra’s readmission. Dr Mareko explained the x-rays as showing:

•	First x-ray - the break to Mr Chandra’s thigh bone;
•	Second x-ray - the break was not knitted;
•	Third x-ray - the presence of the screws in Mr Chandra’s thigh, placed there to assist in the knitting of the thighbone, in September 2004, some seven months after a major operation Mr Chandra went through to correct the deformity in his leg as a consequence of the failure of the knitting of the thighbone.

15.9	Dr Mareko said that Mr Chandra suffered a shortened limb (left limb) as a result of the thighbone injury, and he suffered ‘a lot of pain’ which prevented him moving around. Dr Mareko said that Mr Chandra will be resilient because he is young, however, he bears an external scar and boney deformity. The x-ray he said shows the screw marks and Mr Chandra suffers scars as a result of this. It means that he may suffer pain from possible arthritis in the future.

15.10	The report of 31 March 2004 reveals that upon examination at his admission to Lautoka Hospital on the day of the accident, Mr Chandra ‘had swelling and tenderness of the Left Wrist and swollen deformed Left Thigh with shortening of the left Lower Limb and flexed at the Knee and at the hip externally rotated’. A radiological x-ray investigation ‘revealed fracture of the proximal Left Femur’ and ‘Fracture of the Left Distal Radius’. Treatment included pain relief, antibiotics and skeletal traction. 

15.11	The report confirms Mr Chandra’s discharge in December 2003 and readmission in February 2004 ‘when the Femur was found to be not uniting and deformity of the Left Thigh’. At that time, an ‘Open reduction was done where plate and screws were implemented to hold the bones together’. On review on 31 March 2004 Mr Chandra was revealed as having ‘Scars of the Left Thing’, ‘Weakness of the Left Lower Limb’, ‘Deformity of the Left Wrist’, and ‘Scars on the Left Forehead’. At that time, Mr Chandra was ‘still being reviewed in ‘Lautoka Hospital Orthopaedic Clinic’.

15.12	The 2 May 2005 report repeats the earlier recitation of injuries suffered on 19 October 2003 from the accident and says that upon review on 3 May 2005 Mr Chandra had ‘Scars of the Left Thing’, ‘Weakness of the Left Lower Limb’, ‘Deformity of the Left Wrist’, and ‘Scars on the Left Forehead’. On that day he was readmitted for ‘removal of plate’ and was noted as being an inpatient. Dr Mareko recommended in the report that Ms Devi ‘be assisted financially to cater for this child’.

16.	Submissions for Plaintiffs

Counsel for Ms Devi and Mr Chandra provided written submissions received by the Court on 3 April 2008. as to liability, Counsel submitted that it is ‘well established that a driver of [a] Motor Vehicle owes a duty of care to the passengers in his/her vehicle and other road users’. Summarising the evidence before the Court, Counsel submitted that Ms Devi, Mr Chandra and Corporal Abbass Hussain’s evidence established the accident as having taken place due to Mr Chand’s negligent driving. 

16.1	Counsel’s submissions then set out various matters going to quantum of damages, incorporating reference to authorities providing a guide in this respect. I have taken Counsel’s submissions and the authorities into account.

16.2	As noted later in this judgment, the matter was relisted for brief submissions in relation to one aspect which was of concern to me, and have taken into account Counsel’s brief oral submissions at that time.

17.	Conclusion as to Facts and Issues to be Tried

Taking into account all the foregoing, as to the facts and issues to be tried, I find as follows:

1.	The accident took place due to the negligence of Mr Chand.
2.	Ms Devi suffered personal injuries as a result of the accident.
3.	Mr Chandra suffered personal injuries as a result of the accident.
4.	Ms Devi suffered and continues to suffer pain, loss and damage as a result of the injuries sustained by her in the accident.
5.	Mr Chandra has suffered and continues to suffer pain, loss and damage as a result of the injuries sustained by him in the accident.
6.	Ms Devi suffered loss of income and special damages as a result of the injuries sustained by her in the accident.
7.	Ms Devi suffered special damages as a result of the injuries sustained by Mr Chandra in the accident.
8.	Mr Chandra lost the ability to take part in sports and/or outdoor activities at least insofar as his ability to take part in such activities prior to the accident has been harmed and the extent to which he had that ability has been reduced substantially in relation to particular sports and outdoor activities.
9.	Mr Chandra lost opportunity in terms of academic qualifications and future employment as a result of injuries sustained by him in the accident, at least to a relative extent contrasted against his opportunity prior to the accident.
10.	The Plaintiffs are entitled to interest on damages assessed by the Court.
11.	The Plaintiffs are entitled to costs of this action.

18.	Award of Special Damages

As Counsel’s submissions observe, there is no challenge to Ms Devi’s evidence of special damages for medication, traveling costs to and from hospital for herself and Mr Chandra, and her loss of wages. Therefore, an award of $8,710 as special damages is properly due to Ms Devi in accordance with the evidence and particulars set out by Counsel, namely:

Medication/Travelling costs to and from hospital Re Ms Devi and Mr Chandra 
	
$ 800.00	
Loss of wages for Ms Devi at $70.00/week x 13 weeks (19 October 2003 to 31 December 2005)

$7910.00	
Total Special Damages	$8710.00	

18.1	Counsel submits the appropriate interest rate as 4 per cent from the date of the accident to the date of trial – 19 October 2003 to 26 March 2008, which is $1547.27. In Anderson v. Salaitoga [1994] FJHC 42 (4 May 1994) the High Court said that the custom in Fiji with special damages has been to award interest at the rate of 4 per cent from the date of issue of the Writ until date of trial. The Writ in the present proceeding was issued on 4 August 2006.

18.2	In Shainaz Khan v. Abdul Fahim and Car Rental Pacific Limited Action No. HBC 310 of 2003, No. 135/2006 (24 July 2006) the Court set awarded interest at 6 per cent on general damages ‘not from the date of the accident’ as Counsel for the Plaintiff suggested, but from date of issue of the Writ. Although here we are dealing with special damages, it seems to me appropriate to apply the same principle, namely that interest date from the issue of the Writ rather than the date of the accident.

18.3	I therefore make that award, namely $8710.00 special damages plus interest from 4 August 2006 to 26 March 2008 at 4 per cent.

19.	Note re General Damages

As indicated by reference to Anderson v. Salaitoga [1994] FJHC 42; Hbc0353j.98s (4 May 1994), in the course of considering the question of general damages I became concerned about the aspect of what might be termed ‘cosmetic damage’: that is, damage suffered which (for example) leaves residual scarring, particularly in places (such as the face). This can have a particularly disturbing effect or can raise personal anxiety for both women and men, as well as children and young persons. 

19.1	In both the case of Mr Chandra and Ms Devi, it appeared to me that there could be an issue in this regard: for Mr Chandra it is not a question of scarring to the face, but there is considerable scarring to his upper leg or thigh. For Ms Devi, there is some scarring to her face which although advised to be slight I consider requires attention as indicated herein and below. 

19.2	I therefore had this matter relisted for 28 April 2008 to provide the parties with an opportunity to address the Court on this aspect. I was concerned that Counsel for the Plaintiffs be able to do this, and that the Defendant should be alerted to the fact that the Court was considering this aspect. I was particularly concerned in respect of the Defendant, for the Defendant had made no appearance at the trial and I wished to ensure that he was alerted to the possibility that damages taking into account this particular aspect were in issue. 

19.3	In the event, Counsel for the Plaintiffs appeared however there was no appearance by or for the Defendant. 

20.	Award of General Damages – Mr Chandra

Mr Chandra was a young person of some ten years of age at the date of the accident and spent some months in hospital (a long time in the life of a young person), was released then readmitted, and faces ongoing medical treatment at least for some time in the future. Although the injuries and treatments were more serious in Anderson v. Salaitoga [1994] FJHC 42; Hbc0353j.98s (4 May 1994) I note that there are parallels in the instance of Mr Chandra and Ms Anderson, and also that (in terms of quantum) that case was decided more than ten years ago. In adverting to Anderson I bear in mind also what was said in Planet Fisheries Proprietary Limited v. La Rosa & Anor (1968) 119 CLR 118 by the High Court of Australia:

The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be a fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen: at 125

20.1	In Anderson, His Lordship said amongst other matters:

A fair summary of [Ms Anderson’s] present situation is that she has a useless left elbow with painful degenerative changes, a right knee which will require replacement and established osteo-arthritis in both ankles. In addition to this she had a head injury which has left her with scarring and severely damaged teeth.

In short here we have a young lady in the bloom of her youth facing a life-time of deprivation of her normal expectations of her salad days, that is, loss of enjoyment from dancing, walking, sporting activities, and all those pursuits which are so important to the young. She has been left with visible physical deformities which in themselves can be devastating since there is no horror worse to the younger generation especially the females – than to be different from their friends. This difference, in itself, will cause her severe psychological pain.

I have to view the injuries the Plaintiff has suffered as one whole, and cannot separate the different components. 

I have considered the submissions on damages made by counsel for the parties. In my view the case calls for a substantial sum by way of damages for pain and suffering and loss of amenities of life. 

In assessing what damages [Ms Anderson] should be awarded I bear in mind that the task of the Court is to provide the Plaintiff with a fair compensation to accord with her needs. That this fair compensation could be achieved, it is incumbent upon a tortfeasor to take his Plaintiff as he finds him …: at 23

20.2	There, one of the matters in issue was that the Plaintiff was returning to Australia, her place of citizenship and residence (she had been injured whilst holidaying in Fiji). This meant that her damages award took into account, as I understand it, the possibility of higher costs for ongoing treatment and amenity. That is not an issue here. What is in issue is pain and suffering which will be no less if suffered in Fiji by a Fiji national, citizen or resident, than by a person ordinarily resident outside Fiji and who intends returning to their ordinary place of residence. The principle of equality surely applies to pain and suffering, contrary to the notion that a person from outside Fiji is entitled to a higher award of damages because they come from a country with what is said to be a ‘higher living standard’. Living standards do not, in my opinion, dictate levels of pain and suffering, particularly so as to make those from countries with higher living standards somehow suffer higher levels of pain and higher levels of suffering. Bluntly, this does not follow and ought not to have jurisprudential imprimatur. On the other hand, it is true that where living costs are different, then this must also have some relevance to the setting of a damages award: this is not to draw a distinction between pain and suffering of people according to where they live or their nationality or geographical origin, but is to see as relevant ‘how far’ an award of damages will go in terms of spending power. see Wai Tong v. Li Ping Sum [1985] 2 WLR 396 

20.3	Returning to Anderson, I have quoted the extract in full because Mr Chandra, too, is a young person with his life ahead of him, and he has suffered injury which is ongoing insofar as his inability to play sport and engage in activities involving the mobility he previously enjoyed. I also consider the visible physical consequences of his injuries, particularly the scarring of his upper leg, as a matter which requires inclusion in any general damages claim. 

20.4	His Lordship in Anderson referred to the Plaintiff’s being female in regard to the ‘visible physical deformities’. I do not believe, however, that His Lordship’s intention was to lessen regard for that which young men may experience in such circumstances. That Mr Chandra is male does not detract from the possible embarrassment and feelings of humiliation that can accompany visible remains of injuries. For a young man who delighted in playing soccer, the loss is not only in terms of no longer experiencing that enjoyment, but in the scarring he now bears. Young men may be able to ‘throw off’ evidences of injuries through bravado or ‘joking’, or may be perceived as doing so, but the Court ought not to assume that they do so or do so universally. Nor should the Court fail to acknowledge that bravado and ‘joking’ can and often do provide a mask: underneath can lie ongoing distress at being ‘different’ from mates, and the psychological consequences should not be considered less by reason of the sex/gender of a Plaintiff. It is the particular Plaintiff to whom the Court must look and in this I had the advantage of seeing Mr Chandra giving evidence and presenting himself as a young man of some apparent sensitivity.

20.5	It appeared to me that within the scope of general damages some consideration should be given to this aspect. Because it had not been adverted to by Counsel for Mr Chandra, I relisted the proceeding specifically to obtain submissions and to ensure that the Defendant, Mr Chand, was alerted to this possibility. In the event, despite the Court’s efforts, contact with Mr Chand again proved elusive. In the interests of ensuring an end to litigation, the matter proceeded in his absence.

20.6	Counsel for Mr Chandra calculates the sum of $40,000 as appropriate for past pain and suffering, and $20,000 for future pain and suffering, with interest set at 5 per cent from 19 October 2003 (date of accident) to the date of the judgment. Looking at interest first, I find Anderson v. Salaitoga [1994] FJHC 42 (4 May 1994) useful here, too. 

20.7	Observing that there is ‘surprisingly little authority’ on this subject in Fiji, in Anderson His Lordship said it has ‘been customary to award successful Plaintiffs interest at the rate of 4% from the date of the issue of the writ until the date of trial on special damages’ with interest on general damages being a ‘more difficult … question’:

In Jefford v. Gee (1970) 2 QB 130 the English Court of Appeal considered this matter and held that the rate of interest payable on general damages should be that which is payable on money in Court which is placed on short term investment account. The Court then noted the interest rates for the five years up to the trial of the action which varied from 5 to 7% and allowed the Plaintiff an average of the rate obtainable on short term investment of 6%: at 27

20.8	In Anderson Counsel for the Plaintiff sought 10 per cent interest from the date of issue of the writ until commencement of trial, whilst Counsel for the Defendant said the rate should be two per cent – less than the rate on special damages which had not been disputed. Ultimately His Lordship calculated by reference to section 3 of the Law Reform (Miscellaneous Provisions) Act (Cap 27) whereby the Court ‘may, if it thinks fit, order interest to be payable on the sum on which judgment is given at such rate as it thinks fit on the whole or any part of damages awarded, for the whole or any part of the period between the date when the cause of action arose and the date of the judgment’: at 27

20.9	Applying the Jefford v. Gee principle, His Lordship said it would be fair to award 7 per cent interest on general damages of $85,000, namely a sum of $23,800. In the present case, I consider 6 per cent interest from the date of the accident, namely 19 October 2003, to the date of judgment is appropriate. I have accepted the submissions of Counsel for Mr Chandra on this date, and select it because as the pain and suffering in relation to which general damages are relevant commenced on 19 October 2003, interest from that date seems more relevant than the date upon which the Writ issued. I do not see any delay in the issue of the Writ, taking into account the need for those suffering from injury to be able to give the Court a fair indication of the outcomes of injuries and their future in a reasoned way. This means not issuing immediately so that reports on progress can be sought and Statements of Claim can be more focused vis-à-vis injuries.

20.20	In any event, I accept what this Court said in Anderson v. Salaitoga [1994] FJHC 42 (4 May 1994) by reference to the NSW Court of Appeal in Bennett v. Jones (1977) NSWLRE 355, per Hutley, JA at 375-76. There, delay in progress of proceedings was sought to be applied by Counsel for the Defendant as a means of truncating the period over-which interest should be calculated. Hutley, JA said he was ‘by no means convinced that the conduct of the parties should ordinarily affect the award of interest …’ He based this on a number of considerations, including that both parties could delay or progress an action and if a Defendant were aggrieved by delay then it was within the Defendant’s power to ‘speed up’ proceedings whether by an application for striking out or other ordinary processes. In any event, as I have said, in my opinion that question does not figure here.

20.21	As to level of general damages, taking into account the Anderson point earlier adverted to, and having provided an opportunity to the Plaintiffs and Defendant to address the aspect of my concern in that regard, I set the level of general damages for past pain and suffering at $45,000 and for future pain and suffering at $25,000. I do this also by reference to the authorities cited by Counsel in addition to Anderson. In my opinion, the sums here stipulated are properly indicated by those authorities, including Pranish Prakash Chand v. Ganpati Bula and Anor Civil Action No. 112 of 2004, High Court Lautoka; Habib Irshad Ali v. Lautoka General Transport Co. Ltd and Anor Civil Action No. 295 of 1999, High Court Lautoka; Sheik Abdul Nazim v. Nishar Akhtar and Anor Action No 183 of 2002L, High Court Lautoka; Ratu Dovi Tavutavuvanua v. Western Wreckers Ltd Civil Action No. 43 of 2006, High Court Lautoka; and Shainaz Khan v. Abdul Fahim Civil Action No. 135 of 2006, High Court Lautoka, taking into account the type of injuries suffered in conjunction with calculations of past pain and suffering and the prospect of future pain and suffering, as well as scarring, sensitivities (particularly those of a teenage boy), and the fact that the Defendant must take the Plaintiff as he finds him: Anderson Mr Chandra as I have said presents as a sensitive person, both decorous and credible. His presentation in the witnessbox gave no indication of any exaggeration, self-pity or overt and inappropriate concentration upon the injuries he suffered, the pain he experienced, nor difficulties he presently confronts by reason of his injuries and the consequences. I have also taken into account, vis-à-vis future pain and suffering, that physical scars do generally fade and that Mr Chandra’s youth provides him with a greater prospect of this than would generally be so for an adult or at least an older person.

21.	Award of General Damages - Ms Devi

Counsel for Ms Devi calculates an appropriate award of general damages as $15,000 for past pain and suffering and $5,000 for future pain and suffering, within interest calculated at the rate of 6 per cent from the date of the injury (19 October 2003) to the date of judgment. I accept the interest calculation vis-à-vis the period and the level of interest – 6 per cent.

21.1	Insofar as the award for pain and suffering past and future, I raised with Counsel (and would so have raised it with the Defendant had the Defendant appeared at the relisted date) the fact that Ms Devi suffered injuries including scarring to her face (forehead and under the chin) and that the injuries to her teeth were such as to require wiring for a not insignificant period, not only creating difficulties in eating, drinking and oral hygiene, but in other everyday activities including talking, and affecting appearance. In my opinion, injuries to teeth are significant in terms of pain and suffering from a wellbeing and cosmetic perspective also. 

21.2	Having heard from Counsel on this aspect, and taking into account the authorities as aforesaid, I consider the appropriate award of general damages as $25,000, including $17,500 for past pain and suffering and $7,500 for future pain and suffering. In this regard I note that Counsel for Ms Devi observed that the scarring to her forehead was not particularly noticeable. At the same time, I consider that facial scarring has an impact which should be taken into account. In addition to Anderson where particular reference was made to the effect on a young woman – and I see no reason to ignore cosmetic damage vis-à-vis a woman in her early thirties, as was Ms Devi at the time of the accident. Albeit it may appear slight to others, to the person concerned it can loom large and this is common, in my opinion, and I believe it is appropriate to take judicial notice of the fact that this follows at least insofar as most or at least many people are concerned. The way a person presents to the world is significantly directed by their facial appearance and damage or scarring to the face has an impact which in my view should be recognised in an award for damages.

21.3	I have also taken into account that in Pranish Prakash Chand v. Ganpati Bula and Anor Civil Action No 112 of 2004, High Court Lautoka, an award of $50,000 for pain and suffering and loss of amenities was made where the injuries suffered were: (i) laceration about left eye – 4cm; (ii) laceration across right temple – 10cm; (iii) laceration to right knee; and (iv) contusion to right hip. These injuries do not appear to me to be any ‘worse’ than those suffered by Ms Devi, taking into account the lacerations suffered by her, an injury to her elbow and the damage and treatment for teeth. The other cases cited by Counsel wherein there were injuries such as ‘loss of sight – right eye’ and thigh fracture: Shiek Abdul Nazim v. Nisha Akhtar and Anor Action No. 183 of 2002, injuries more serious than those suffered by Ms Devi. In regard to that case, the award by the High Court Lautoka might be considered to be low on the scale of damages taking into account the injuries suffered.

22.	Costs 

In written submissions Counsel for the Plaintiffs suggested costs be calculated summarily in the sum of $2500. As it is my view that generally in relation to costs an indication should be given to the Court as to what the costs actually entail, by reference to the scale or standard, I took advantage of the relisting of the matter for this purpose. Counsel was requested to give an estimate of what was incorporated into the $2500 figure, and undertook to provide that information.

22.1	In these orders I have provided an opportunity for the Plaintiffs to submit this information in written form so that an award of costs can be made taking into account the scale and work done. I have also included ‘Liberty to apply’ should Counsel wish to make oral submissions on this matter or should any issue as to calculation of interest arise.

Orders

1.	Special damages to the First Plaintiff in the amount of $8710.00 plus 4 per cent interest from date of Writ (4 August 2006) to date of hearing (26 March 2008).
2.	General damages to the Second Plaintiff in the amount of $70,000, plus interest at 6 per cent from date of injury (19 October 2003) to date of judgment.
3.	General damages to the First Plaintiff in the amount of $25,000, plus interest at 6 per cent from date of injury (19 October 2003) to date of judgment.
4.	Brief written submissions on costs by reference to scale and work done to be provided to the Court within 21 days of the date of this judgment for a order for costs to be made to the Plaintiffs.
5.	Liberty to apply.

Jocelynne A. Scutt
Judge
29/05/08