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Labaivalu v Seruwaqa [2014] FJHC 467; HBC20.2012 (25 June 2014)

In the High Court of Fiji at Suva
Civil Jurisdiction

Civil Action No. HBC 20 of 2012

Between:

Mere Finau Labaivalu
Plaintiff

And:

Apakuki Seruwaqa
First Defendant

And:

Pacific Transport Company Limited
Second Defendant

Appearances: Mr Amrit Sen for the plaintiff
Mr A.Koli for the defendants

Date of hearing: 8th April,2014

JUDGMENT

1. The statement of claim
   

The statement of claim provides that on 13th September,2011,the plaintiff, Mere Finau Labaivalu,(Mere) a Form 6 student at Bucalevu Secondary School Road in Taveuni, was returning home in bus bearing registration no.EC 610 belonging to the second defendant, when the bus got out of control and collided with several objects and buildings.The first defendant negligently drove the bus, in the course of his employment with the second defendant.

The particulars of negligence are pleaded.As a consequence of the collision, Mere sustained severe injuries.The first defendant was charged for dangerous driving causing death and bodily harm.

The particulars of injuries are stated as follows:

Penetrating wound injury to the abdomen. The entry point was from the left inguinal region and exited from the right middle portion of the abdomen.

Severe pain with tenderness over the foreign object.

Mere alleges that she suffered socially, psychologically, physically, distress with pain, limitation in mobility, and social wellbeing and her education has been affected. She claims general damages for pain and loss of amenities.

2. The statement of defence of the first and second defendants

The defendants, in their statements of defence, state that the collision was caused by a sudden mechanical defect over which the first defendant had no control. The first defendant pleaded not guilty to the charge of dangerous driving.

3. The hearing
   

3.1 PW1 (Mere)

PW1 testified.She said that she was sitting behind the driver in the front seat of the bus. The bus drove into a community hall. A piece of wood went through her left hip and came out on her thigh on the opposite side. The piece of wood was 3 feet long.She could not stand up and stayed in the bus for more than an hour.She was in great pain. After an hour, the timber was cut by villagers. She was taken out through a window of the bus and taken to the Taveuni hospital. She was conscious. At 1 am,the timber was removed by doctors from Taveuni and the doctors from Labasa hospital.

On 22nd September, 2011, she was transferred to Labasa Hospital. Her wound was debridged. She received 68 stitches. Her thigh was patched. There is a big scar and a patched hole in her thigh. She was in pain and felt weak. She could not walk to the toilet or bathe for a week. Her mother attended to her. She could eat only mashed food.He was given injections and medication.She was discharged on 13th October,2011.

Mere said that she was in Form 6 and came 10th in her class of 35. She enjoyed school, but has not gone back, since she could not sit on the chairs provided. She was aspiring to be a computer teacher.She followed computer classes.She could no longer carry dalo seedlings for her father. She used to help her mother. She played volleyball, shot put and took part in 400 meters running. She was inter-school captain.She cannot participate in village activities sitting on the floor. She still has intermittent pains. Her father buys painkillers. She cannot have a normal married life.In cold weather, her left thigh gets numb.

Her birth certificate and medical reports from Taveuni and Labasa hospitals were produced.

In cross-examination, it transpired that she last took medications in October,2013. She said that she found it difficult to go to school, as she has to leave home at 4am. Earlier she left home at 4.30 a.m. It was put to her that she was able to sit in a chair in court and despite the air conditioner being on.It emerged that she did not have any pain killers with her.

3.2 PW 2 (Dr Maloni Bulanauca)

Dr Maloni Bulanauca,Chief Medical Officer, Labasa hospital said Mere came to Labasa hospital on 23rd September,2011.He said that she suffered a penetrating injury to her abdomen. She had a wound one metre in length above her hip extending diagonally to her opposite upper thigh. She was operated by a team of doctors from Labasa hospital who went to Taveuni. There was loss of skin, muscle and a cavity. In the category of 1 to 5,she would have suffered pain on a scale of no 4.He agreed with the contents of the medical records. She would find it difficult to sit, as she has lost tissue.

In answer to Mr Sen, counsel for Mere, Dr Bulanauca said that "it is possible" that she finds it difficult to walk and experiences pain, but he would need to physically examine her. He said that she would have limitation of movement. She would require post traumatic treatment. She would not be the same, after such an injury.

In re-examination,Dr Bulanauca said that Labasa hospital has the bare necessaries of a provincial hospital.He reiterated that he had basic experience in psychiatry.The psychological effect of Jaysheel's injury should be assessed by a psychologist or neuro-surgeon.

4. The determination
   

4.1 At the hearing, Mr Koli, counsel for the defendants conceded liability. The question before me is the quantum of damages to be awarded, to Mere.The closing submissions filed on her behalf, claims $ 95000 for pain and suffering and $ 60000 for loss of future earnings.Mr Koli, in his closing submissions, suggests a sum of $ 40000 for pain and suffering.

4.2 Mr Sen takes the plaintiff in several decided cases,as a standard of comparison with the injuries suffered by Mere. In assessing damages, past awards are useful guides, but the facts of each case has to be decided.

4.3 I do not think one can compare the position of Mere with that of a plaintiff who lost his right arm, and was awarded $ 85,000 in Flour Mills of Fiji Ltd v Raj, (2001) FJCA 35.

4.4 Nor can there be a comparison with a plaintiff with 18% whole person impairment, had to walk in crutches and was rendered permanently unfit for any further employment, as in Amin v Chand, (2012) FJHC 1015. The plaintiff, in that case, was employed by the second defendant as a porter/driver, since 1994. His claim arose out of accidents that had occurred at work in 2005. The award of $ 85000 for pain and suffering and $ 52000 for loss of future wages, was fully supported by the evidence.

4.5 In Nasese Bus Co Ltd v Chand, (2013) FJCA 9 as referred to by Mr Sen,the respondent had a crushed injury/fracture of her left leg and injury to her right thigh. Her incapacity was assessed at 14% There was no satisfactory plastic surgical procedure to rehabilitate her.Calanchini PA increased the damages of $ 65000 awarded by the lower court for pain and suffering to $90,000.00. He found that sufficient regard had not been given to the future pain and suffering that she would suffer due to progressive arthritis.

4.6 Mere's medical report of 14th October,2013,provides that surgery was conducted at the Taveuni hospital, to remove the piece of wood from her body. She was transferred to Labasa hospital on 22nd September,2011, and discharged on 13th October,2011.The report goes on to state that she "Continued to receive medical attention at Taveuni Hospital even after discharge from Labasa Hospital from as early as 18th October 2011 to her last out-patient consultations on 11th October2013".

4.7 The report describes her injury as a "traumatic penetrating injury involving a wooden object which had pierced the left hip and extended through the pelvis superficially and obliquely across to the right iliac fossa where it protruded through the anterior abdominal wall"(emphasis added).

4.8 Her medical report continues:

Her usual complaint ranged from intermittent pains at the wound and operation sites to abscesses at the mentioned sites (28/08/2013) which are normally managed at the hospital. She has remained stable in the past couple of weeks and her latest physical examination as of 11/10/13 revealed an anxious young lady with stable vital signs and extensive scars on the interior aspect of the lower abdomen obliquely from the anterior aspect of left thigh extending superiorly to the contra-lateral iliac fossa across the external abdominal wall. There were no tenderness or masses in the abdomen, other systems remained unremarkable.

Prognosis appears good but there may be occasional abscess formation and bouts of intermittent pain at the wound and operational scar sites secondary to adhension formation. (emphasis added)

4.9 Mere complained that she suffered pain sporadically.It transpired in her cross-examination, that she had last taken medication six months ago, in October,2013.Her last physical examination was on that day.Dr Bulanauca opined that it is a possibile that she still experiences pain, but he would need to examine her .

4.10 Mere endured agonising pain in the aftermath of the accident,as resonated in the closing submissions filed on behalf of the defendants. She had a harrowing experience, when a piece of wood one metre in length pierced her left hip and protruded through her opposite thigh. She testified that she had 68 stitches across her body and a big scar of a patched hole in her thigh.

4.11 In my judgment, a sum of $ 60,000 is an appropriate figure for pain and suffering and loss of amenities, in consideration of all the circumstances, including her limitation of movement and the post traumatic treatment she would require,as testified by Dr Bulanauca.

4.12 Mr Sen, in his closing submissions, argues that Mere will not have access to employment, because of her disability. There was a paucity of medical evidence to that effect.

4.13 Mere gave two reasons why she discontinued school. The first was that she could not sit in a chair. Mr Koli quite correctly pointed out that she was able to sit in a chair in court and testify. I need hardly deal with the second assertion that she had to leave home for school half an hour earlier than before.

4.14 I decline the claim for future earnings.

4.15 I allow the claim for special damages in a sum of $ 107.50 for obtaining the medical report and damage to clothes. Mr Koli,in his closing submissions agrees to this sum.

4.16 I decline the claim for miscellaneous expenses, medication and travelling. No evidence was led in support. It also does not appear that a schedule of special damages has been filed.

4.17 The plaintiff has claimed interest.Interest on damages is awarded to compensate a plaintiff for being kept out of the capital sum. In the exercise of my discretion, I award interest at 6% per annum on the damages awarded from date of service of writ(3rd May,2012,) to date of trial and 3 % per annum on special damages of the sum of $ 107.50 from date of accident to date of hearing.

5. Orders
   

The total sum awarded to the plaintiff as damages is $ 67015.90 made up as follows:

There will therefore be judgment for the plaintiff against the defendants in the sum of $ 67015.90 together with a sum of $3000 payable by the defendants to the plaintiff as costs summarily assessed.

25th June, 2014

A.L.B.Brito-Mutunayagam
Judge