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Tuwere v Headteacher, Qalitu District School, Bagata, Cakaudrove [2009] FJHC 130; HBC021.2008 (24 June 2009)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 21 of 2008

BETWEEN:

LAITIA TUWERE
by his father and next friend ILIESA TABUYAQONA
Plaintiff

AND:

THE HEADTEACHER,
Qalitu District School, Bagata, Cakaudrove
1st Defendant

AND:

THE PERMANENT SECRETARY,
Ministry of Education, Marela House, Thurston Street, Suva
2nd Defendant

AND:

THE ATTORNEY GENERAL,
Suvavou House, Victoria Parade, Suva
3rd Defendant

Cor: Inoke J.

Appearances: Mr. H. Robinson of Counsel for the Plaintiff
Ms. Lord of Counsel for the Defendants

Plaintiff’s solicitors: Robinson Esquire
Defendants’ solicitors: State Solicitors

Date of Hearing: 27, 28 March 2009 in Labasa High Court.
Date of Judgment: 24 June 2009 delivered in Suva High Court.

JUDGMENT

INTRODUCTION

[1] The infant Plaintiff was injured on 16 February 2007 whilst at the Qalitu District School, Bagata in Cakaudrove, a public school run by the Ministry of Education. He fell into a hole dug into the ground used as an incinerator. He burnt the bottom of both feet and now sues the School, the Ministry and Government for damages. He was 7 years old at the time he fell into the incinerator.

[2] He now sues, by his father, the Defendants for loss and damage for the injuries that he suffered alleging negligence on the part of the Defendants.

[3] After a two day trial and having heard from 10 witnesses and analysing their evidence I have come to the conclusion that the Defendants were negligent and now award damages and costs to the Plaintiff. My reasons appear below.

SUBMISSIONS

[4] At the end of the hearing I ordered Counsel to file submissions. Only Counsel for the Plaintiff filed submissions and I am grateful for his industry and respect and for his efforts to assist the Court in the timely delivery of this Judgment. Counsel for the Defendants did not file her submissions and no explanation has been given. It did lead to some delay in the delivery of this Judgment. I do urge Counsel, whether they be State Counsel or members of the private bar, that they do file submissions as they assist the Court greatly in its efforts to hear cases and deliver Judgments in a well reasoned and timely manner.

THE PLAINTIFF’S CLAIM

[5] The Plaintiff’s Statement of Claim alleges that the injuries suffered by the Plaintiff were caused by the negligence of the First Defendant. The Particulars of Negligence were given as:

1. That the 1st Defendant failed to take any or adequate precaution for the safety of the Plaintiff while he was engaged in the said duty;
2. That the 1st Defendant failed to take any or reasonable care to prevent injury or damage to the Plaintiff from unusual dangers of which they ought to know or have known;

100. That the 1st Defendant failed to provide any safe or proper system of work for the children; and

4. That the 1st Defendant left the children unsupervised and failed in its duty of care to the Plaintiff.
   

THE DEFENCE CASE

[6] The Defendants deny negligence on their part and allege that the incident took place at a time when school had ended and the infant Plaintiff was at the school in the care and supervision of his father. They further allege that the Plaintiff was forbidden by the school rules from going to the incinerator or taking rubbish there.

THE AGREED FACTS

[7] The Minutes of Pre Trial Conference states the agreed facts as follows:

1. The Plaintiff is a young child of school age from Bagata Village, Cakaudrove.
2. The Plaintiff is suing the Defendants through his father and best friend, Ilieasa Tabuyaqona.

100. The Plaintiff was a student of Qalitu District School, Vunivesi, Cakaudrove at the relevant time.

4. On or about 16 February 2007 the Plaintiff fell into a school incinerator and suffered burns to his lower limbs.
5. The Plaintiff was hospitalised from 16 February to 7 March 2007.
6. The school incinerator is located within the school compound.
7. The Plaintiff suffered loss and damage.
   

[8] Further, the Defendants admit in their Defence that the “Second Defendant is a Government body entrusted with all the duties and functions required to oversee, care, maintain and improve the education of children in Fiji” and the “Third Defendant is the Government Authority and agent empowered to provide legal advice, litigate and be sued on behalf of the Government of Fiji.”

THE EVIDENCE AT THE HEARING

[9] Six witnesses gave evidence for the Plaintiff. They were the Plaintiff’s father, the Plaintiff himself, two other school boys, the mother of one of these boys and the Doctor that attended on the Plaintiff’s injuries at the hospital. Four witnesses gave evidence for the Defendant. They were 3 teachers and the Consultant Surgeon at the Labasa Hospital, called as an expert witness.

[10] The Plaintiff and the two other school boys that gave evidence were aged 9, 11 and 12 years old when they were called to give evidence. I questioned them in a voir dire and was satisfied that they were of sufficient intelligence and understood the oath and the need to tell the truth and that they could be punished if they did not tell the truth.

[11] After watching and hearing the witnesses I find the following pertinent facts established:

1. This was a school of 145 to 154 students with eight teachers.
2. At the time of the incident, there were 3 teachers present at the school but only one on duty.

100. The three teachers were busy with other duties and were not supervising the infant Plaintiff.

4. It was a normal and accepted practice that school children do tasks for the school including the picking up of rubbish and taking it to the school incinerator.
5. One of the teachers told the infant Plaintiff to “pick up rubbish” and take it to the incinerator as part of this practice.
6. The Plaintiff went to the incinerator in obedience to this direction.
7. The school incinerator was a “pit” in the school grounds which was a “round hole of about three quarter metre in diameter used to burn leaves and paper.”
8. It was not protected by any railings or guards.
9. The Plaintiff and another boy were playing by jumping across the incinerator when they collided and fell into the fire in the incinerator and burnt his feet.
10. There were no teachers present at or near the incinerator at the relevant time.
11. The Plaintiff had not been told to go home.

50. The Plaintiff did not know that his father was at the school at the relevant time.

13. The Plaintiff’s father was at the school helping with construction of teacher’s quarters but did not know that his son was still at the school when the incident happened.
14. The school had rules and a practice forbidding students of the Plaintiff’s age from going to the incinerator but these were not followed in this instant.
    

THE LAW

[12] This is not a case of vicarious liability for alleged negligence. The case proceeded on the basis that it was not necessary, and so it was not pleaded, for the Plaintiff to prove that the school and the Government were vicariously liable for the teachers’ alleged negligence. As supporting his submission, Counsel for the Plaintiff referred me to the High Court of Australia case of Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258. The facts of this case were:[1]

“[1.] Roldano Introvigne was fifteen when he was injured. He attended the Woden Valley High School in the Australian Capital Territory. One morning, shortly before school hours, he was injured in the school grounds. A "truck" - a cylindrical mass of particle board sheathed in copper - fell from its position on the top of a flagpole and struck him on the head. He was grievously injured. (at p277)

2. The truck fell because a group of boys, including Introvigne, had been swinging on the halyard which ran through the pulley on the truck and swung free below. The steps of one of the classrooms provided a convenient spot from which to swing on the halyard. There were no teachers nearby to stop them. The teachers were at a meeting called by the acting principal of the school to inform them of the death of the principal earlier that morning. Usually not less than five, and sometimes as many as twenty, teachers would supervise in the playground. That morning only one teacher had been left on playground duty. He did not see the skylarking; nor could he reasonably be expected to have seen it. There were some nine hundred pupils at the school. (at p277)

3. The halyard could have been padlocked to the base of the flagpole. Sometimes it was, but not to stop boys swinging on it. It was padlocked to safeguard a flag hoisted on the pole. That morning the halyard swung free. (at p277)

4. Introvigne sued for damages in the Supreme Court of the Australian Capital Territory. The first defendant was the Commonwealth of Australia. The Commonwealth had established the school and the Commonwealth maintained it. The second and third defendants were respectively the architects of the school and its builder. The learned trial judge (Blackburn J., as he then was) rejected the claim against the first and second defendants and the claim against the third defendant was not pressed. The plaintiff's action was dismissed. The Full Court of the Federal Court allowed an appeal by the plaintiff against the judgment in favour of the Commonwealth and remitted the action to the Supreme Court to reassess the plaintiff's damages. The Commonwealth appeals against the judgment of the Full Court, and seeks an order restoring the judgment of Blackburn J. (at p277)

5. In their joint reasons for judgment, the Full Court (Bowen C.J., Connor and Lockhart JJ.) found: "In our opinion it is more probable than not that the accident would not have occurred if proper supervision had been exercised over the pupils in the grounds of the school on the morning of 19 February 1971. Nor as a matter of probability would it have occurred if the halyard had been padlocked to the pole." The Commonwealth challenges these findings of fact. Even if they stand, however, they do not expose the Commonwealth to liability unless the Commonwealth was under a duty to provide proper supervision or to padlock the halyard. The Commonwealth denies that such a duty rested on it. (at p278)”

[13] The High Court of Australia found that such a duty existed and dismissed the appeal. On the question of liability of the school authority, Mason J (with whom Gibbs CJ agreed) in Introvigne (supra) said this:[2]

“26. The liability of a school authority in negligence for injury suffered by a pupil attending the school is not a purely vicarious liability. A school authority owes to its pupil a duty to ensure that reasonable care is taken of them whilst they are on the school premises during hours when the school is open for attendance. In Carmarthenshire County Council v. Lewis [1955] UKHL 2; (1955) AC 549 the House of Lords held that the authority was liable for an injury to a motorist caused by a little child wandering onto the road through an unlocked gate at the school due to the failure of the authority to take reasonable steps to prevent the escape of the child. The Court of Appeal had held that a teacher, Miss Morgan was negligent in allowing the child to escape. However, by majority, the House of Lords held that the teacher was not negligent but that the authority was liable on the footing that it was in breach of duty to the child and to the plaintiff. Lord Reid said (1955) AC, at p 563 : "However careful the mistresses might be, minor emergencies and distractions were almost certain to occur from time to time so that some child or children would be left alone without supervision for an appreciable time. The actions of a child of this age are unpredictable, and I think that it ought to have been anticipated by the appellants or their responsible officers that in such a case a child might well try to get out onto the street and that if it did a traffic accident was far from improbable. And it would have been very easy to prevent this, and either to lock the gates or, if that was thought undesirable, to make them sufficiently difficult to open to ensure that they could not be opened by a child so young that it could not be trusted alone on the street." (at p269)

27. The decision recognizes that there is a liability on the part of the school authority for its failure to take reasonable steps to prevent the escape of the child on to the highway. It proceeds on the footing that the duty is not discharged by merely appointing competent teaching staff and leaving it to the staff to take appropriate steps for the care of the children. It is a duty to ensure that reasonable steps are taken for the safety of the children, a duty the performance of which cannot be delegated. As Denning L.J. said in Cassidy v. Ministry of Health (1951) 2 KB 343, at p 363 : " . . . where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services." (at p270) “.

[14] Similarly, Brennan J said this:[3]

8. If the plaintiff had relied upon a duty of care which owed its existence to the actions of the teaching staff at the Woden Valley High School, the capacity of the staff to create the duty would have required consideration. In the case of a school authority, however, there is a duty of care resting upon it which depends in no way upon the actions of the teaching staff, a duty which arises directly by reason of its acceptance of a child as a pupil in the school. In Ramsay v. Larsen, Kitto J. said (1964) 111 CLR, at p 28: "In the absence of a special arrangement to the contrary, it is, I think, the necessary inference of fact from the acceptance of a child as a pupil by a school authority, whether the authority be a Government or a corporation or an individual, that the school authority undertakes not only to employ proper staff but to give the child reasonable care."

The primary duty of the school authority is, so to speak, antecedent to its employment of staff. The existence and nature of that duty do not depend upon the staffing arrangements which it makes; nor is the duty discharged or extinguished by making arrangements for the staffing of the school. Though the primary duty, so far as it requires supervision of the pupils, will ordinarily fall to be discharged by the teachers at a school, a school authority's liability for damage caused by a failure to provide supervision is founded on the school authority's failure to discharge a duty which it assumed when the child was enrolled and which is sustained by the continued acceptance of the child as a pupil. Of course, a teacher may be under a like duty to the child, but the teacher's duty is not determinative of the duty of the school authority. (at p279)

9. The primary duty of care owed by a school authority extends to the provision of the staff and resources necessary to discharge the duty to the pupil which it undertakes by accepting him (Geyer v. Downs [1977] HCA 64; (1977) 138 CLR 91, at p 94 ). That duty is no less than the duty of the schoolmaster, who is bound to take reasonable steps to protect the pupil against risks of injury which should reasonably have been foreseen (per Murphy and Aickin JJ. in Geyer v. Downs (1977) 138 CLR, at p 102 ). (at p280)

[15] Also, Murphy J:[4]

“6. In this case the damage to the plaintiff may be attributed to causes for which the Commonwealth is liable, unsafe premises and lack of supervision of the children. It is enough that Introvigne's injuries were due to the inadequate system of supervision and care. The system did not provide for sufficient staff to exercise proper supervision over the children in the playground. As well, there was a failure to ensure that the system was carried out. The departure from the system by the teachers was understandable because of the death of the school principal, but this does not excuse the breach by the Commonwealth of this non-delegable duty. (at p276)

7. The injuries were also attributable to the system's defect in failing to provide for padlocking the halyard of the flagpole. The flagpole and the halyard in particular were lures for children. If as the evidence suggests, the supervising teachers did not see children swinging on the halyard, this does not excuse the Commonwealth. The question is not what supervised, but what unsupervised or inadequately supervised, children might do. The Full Federal Court stated the question as whether "it was reasonably foreseeable in any event that the flagpole more likely than not would be used in this way". That was an application of the erroneous test of foreseeability formulated in Caterson v. Commissioner for Railways [1973] HCA 12; (1973) 128 CLR 99 . A moment's reflection will show that such a test would absurdly confine the tort of negligence. As I pointed out in Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40 it would reduce the scope of the negligence action almost to instances of deliberate harm, to cases where the defendant's act or omission was foreseeable as more likely than not to cause harm. Regrettably however, the erroneous test seems to have gained currency. A recent example which reached this Court was in Warren v. Coombes [1979] HCA 9; (1979) 142 CLR 531 . The trial judge applied as a test of foreseeability whether when a car in a residential suburb approaching a T-intersection (one into which the joining road was sloping down to the intersection) it was "more likely than not" that a child would suddenly ride down the intersection from the sloping road. On that test, it was inevitable that the defendant would succeed. That any other vehicle or person, let alone a child on a bicycle, would enter the intersection as the defendant approached in this quiet residential suburb was unlikely. This Court, in reversing the judgments below, stated that the test was whether "a reasonable driver should have foreseen that other persons, drivers or pedestrians, adults or children might be using those streets in a suburban residential area" (1979) 142 CLR, at p 553 . Following that, members of this Court expressly disapproved the erroneous test in Wyong Shire Council v. Shirt. The later application of the erroneous test in this case by the Full Federal Court (although they held it was satisfied) shows that it requires more emphatic disapproval. There should be no misunderstanding about the standard which is required to be applied in hundreds of cases every week throughout Australia. The "more likely than not" test of foreseeability is not part of the common law in Australia. (at p276) “

[16] On the test of foreseeability, Mason J similarly expressed disapproval of the “more probable than not” test[5]:

“16. In passing I note that the Full Court applied a test of foreseeability that was overly stringent. They said: "Although there is no evidence that any of the teaching staff knew that these pranks had been played, it was reasonably foreseeable in any event that the flagpole more likely than not, would be used in this way." (at p266)

17. The decision of this Court in Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40, at pp 44-49 establishes that a risk of injury is foreseeable, so long as it is not far-fetched or fanciful, notwithstanding that it is more probable than not that it will not occur. (at p267)."

[17] Counsel for the Plaintiff also referred me to the Fiji High Court decision in Ranji Roashendra Lal v Jainendra Singh & Ors [Civil Action HBC 225of 1996Lautoka], a case where an 11 year old student was punched, poked in the eye, fell to the concrete floor at school and suffered permanent head injuries. The students were left unsupervised. Justice Lyons, at pages 4-5, made this observation:

"Young children of that age have neither the maturity or sense of responsibility to regulate their own behaviour or that of each other. They also lack the mature insight to enable them to assess the dangers and consequences of any mischievous or raucous behaviour. They are surely like the metaphorical "barrel-load of monkeys". They need adult or at least mature supervision. In this instance the Defendants admit that they did not get it.

It is self evident and entirely foreseeable that mischief, lack of self control, over exuberance or simple innocent childish excitability could well lead to a situation where injury or damage could result...

Unfortunately, young boys left unsupervised in this situation may well fight. Unknowing of the full consequences of their actions due to an understandable lack of maturity, they can easily cause more damage than could have first been contemplated..."

APPLICATION TO THE FACTS

LIABILITY

[18] Clearly, on the authority of Introvigne, the Defendants in this case owe a duty of care to the Plaintiff by virtue of the admission referred to in paragraph 8 above.

[19] I have found as a matter of fact, that the infant Plaintiff was sent by one of the teachers to pick up rubbish and take it to the incinerator. Applying the test in Introvigne I find that it is reasonably foreseeable that school students such as the Plaintiff would play at or around the incinerator if left unsupervised.

[20] It is also reasonably foreseeable that if the incinerator is unfenced or otherwise unguarded that a student would fall in and get injured.

[21] Whether the Plaintiff’s father was at school or whether he knew that his son was there did not discharge the Defendants from their duty towards the Plaintiff.

[22] The failure to supervise the Plaintiff or to provide fencing or other forms of protection around the incinerator amount to breaches of the duty that is owed by the Defendants.

[23] The Defendants’ argument that there were school rules against the Plaintiff being at the incinerator is not sustainable on the facts as I have found that he was there because a teacher had sent him there. Obviously, the teacher did not follow the school’s own rules.

[24] No issue of contributory negligence was raised in the Defence and in light of the statements in Introvigne[6] and Ranji Roashendra Lal[7], even if it was raised, it cannot succeed.

[25] These breaches caused the Plaintiff to suffer burns to his feet.

[26] I therefore find that the Defendants were negligent and liable for the Plaintiff’s injuries.

QUANTUM

[27] The Plaintiff claims:

1. Special Damages of $500 for medical and traveling expenses.
2. General Damages for pain and suffering, loss of enjoyment of life, scarring and discomfort, physical disfigurement and impairment, and mental anxiety and emotional stress.

100. Interest.

4. Costs.
   

SPECIAL DAMAGES

[28] There was no documentary evidence tendered for the medical and traveling expenses but the Plaintiff’s father said in evidence that he lived some 13 km from the hospital and he visited his son in hospital, sometimes sleeping there. His wife was at the hospital and he had to go home to get food for them. He also applied herbal medicine and creams to his son’s feet.

[29] The amount claimed in the Writ under this head is $500. However, it came out in evidence that the Plaintiff needed special shoes and four pairs are bought each year. The Doctors’ evidence was that the Plaintiff’s injury is permanent. The Plaintiff said that he suffers pain when playing sport. His father says that his son’s legs get pain during wet weather and if he walks for long distances he takes rests and holds his knees. He also says that he has to buy shoes with thick soles. Counsel submitted that that would amount to a yearly expense of $60 and taking into account that the cost would rise over time a sum of $2,000 would be appropriate. I do not have the benefit of Defence Counsel’s submissions. However, a sum if awarded now can be appropriately invested for future expenditure. I therefore think $1,000 is more appropriate.

[30] I therefore award $1,500 to the Plaintiff for Special Damages. No interest is payable on this amount.

GENERAL DAMAGES

[31] There are no cases on all fours with this case on what I should award to the Plaintiff under this head. The closest is the case of Ranji Roashendra Lal (supra). There the 11 year old Plaintiff suffered some brain damage and severe head injury and pain, lost and eye, and had grim future prospects with his amenity for life permanently and significantly diminished. The Lautoka High Court awarded, in 1997, $25,500 for past pain and suffering and loss of amenity of life, and $40,000 for future pain and suffering and loss of amenity of life, i.e. a total of $65,500. This was an extreme case of injury and suffering as is obvious from the case report.

[32] I will also refer to the medical negligence cases to give me some guidance as to the amount that I should award for pain and suffering and loss of amenities of life.

[33] In Dre v Ministry of Health & Attorney General [HBC 20 of 2007, Labasa], I referred to a summary of High Court of Fiji awards for pain and suffering and loss of amenities of life and repeat it here:

"In Kotoiwasawasa & Another v Govind & the Attorney General [Civil Action 192/2000], the Plaintiff suffered an injury to her leg in a motor vehicle accident in 1996 which resulted in amputation of her leg below the knee. Justice Pathik awarded $95,000 for pain and suffering in a judgment delivered in 2003. His Lordship has conveniently summarised the awards that His Lordship had made over the years, for which I am grateful, and re-list them here for convenience:

Sharma v Prasad [HBU 40/88, Civ Appeal 73/91] – amputation of leg - $100,000.

FSC & Anor v Subramani & Anor [HBU47/93] – loss of both eye sight- 75 % - $37,500.

Salaitoga v Anderson [Civ Appeal 26/94] – severe head injury - $85,000.

AG & Dr Elliot v Sharma [Civ Appeal 41/93] – loss of leg - $50,000.

AG v Waqabaca [Civ Appeal 18/98] – cerebral palsy – loss of all bodily function - $85,000.

Flour Mills of Fiji Ltd v Raj [2001] FJCA 35 – loss of right arm - $85,000.

In Flour Mills of Fiji Ltd v Raj (supra) the Plaintiff’s right arm required amputation above the elbow and he has been left with severe limitation of movement in his left hand and arm, his disability being assessed by a medical witness at 100% loss of working capacity. The trial Judge’s assessment of $85,000 for pain and suffering was upheld by the Fiji Court of Appeal.

[34] In Dre (supra) I awarded $70,000 to the Plaintiff for pain and suffering and loss of amenities of life for losing her right arm by amputation below the elbow. In Suruj Narayan v. Ministry of Health & Anor [Civil Action 43/2004Labasa] the Plaintiff received an award of $70,000 for pain and suffering and loss of amenities of life for the loss of his leg.

[35] Counsel for the Plaintiff submits that an award of $30,000 for pain and suffering is reasonable in the circumstances. He also claims $10,000 as a separate head for loss of enjoyment of life and a further $3,000 for disfigurement. A total of $43,000 for General Damages.

[36] I am inclined to award a lump sum to cover all these heads of claim by the Plaintiff rather than treat them individually as suggested by his Counsel. This is not an exact science and the Courts do not approach the task in that fashion.

[37] I do not think the pain and suffering of the Plaintiff in this case was as severe as those cases where a limb was injured and amputated. It would be closer to the case of an injury to the eye as in FSC & Anor v Subramani & Anor [HBU47/93] – loss of both eye sight- 75 % - $37,500 awarded.

[38] The Doctor that prepared a report on the Plaintiff’s injuries said burn scars could remain for life. There was 15% incapacity but could not say that it was permanent or not. That was the best that she could put it. According to her report, the Plaintiff suffered "burns to his lower limbs (36% area burns)". The 15% incapacity figure was arrived at by reference to the Schedule for Workers Compensation.

[39] Dr Choudhari, the Consultant Surgeon at the Labasa Hospital, was called by the Defendants as an expert witness. He prepared a report that was tendered as an exhibit. His assessment of the Plaintiff’s incapacity was 5% permanent incapacity (by reference to the Guides of Evaluation of Permanent Incapacity, 4th Edn.) and the scars were permanent. He said that some of the area of the Plaintiff’s feet sustained deep burns.

[40] Taking all these matters into account, I think the amount claimed of $43,000 as General Damages is a fair and just amount and I so award it to the Plaintiff.

[41] No doubt Counsel for the Plaintiff is well aware of the need to advise his client to wisely invest the sum awarded and in the words of Lyons J in Ranji Roashendra Lal (supra), at page 11, in reference to the plaintiff’s mother and Counsel: "I trust that their collective efforts will see to it that when the Plaintiff finally receives it in total, he does not fritter it away or be overborne by the irresponsible demands of avarice."

INTEREST ON DAMAGES

[42] The Plaintiff claims interest. Under section 3 of the Law Reform (Miscellaneous Provisions)(Death and Interest) Act, the Court, if it thinks fit, may award interest on the whole or any part of the damages for the whole or any part of the period between the date when the cause of action arose and the date of judgment.

[43] The usual interest rate on damages now is 6% p.a.

[44] The cause of action arose on the date the Plaintiff fell into the incinerator, i.e. 16 February 2007. It is now more than two years since. I therefore award interest on General Damages for two years, i.e. $43,000 x 6% x 2 = $5,160.

COSTS

[45] The normal rule that costs follow the event should apply. Taking into account the duration of the trial and the number of witnesses involved I summarily assess costs at $3,500. The Defendants shall pay the Plaintiff’s costs of $3,500.

ORDERS

[46] The Orders that I make are therefore as follows:

1. The Defendants pay to the Plaintiff the sum of $49,660 made up as follows:

i. Special Damages $ 1,500.

ii General Damages 43,000.

iii. Interest on General Damages 5,160.

2. The Defendants pay to the Plaintiff the sum of $3,500 for costs.
   

Sosefo Inoke
Judge

^[1] Per Brennan J, paras 1-5
^[2] at paras 26 and 27.
^[3] at paras 8 and 9.
^[4] At paras 6 and 7.
^[5] At paras 16 and 17.
^[6] Per Mason J at para 38.
^[7] Cited in para 17 of this Judgment.