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Utonivesi v Chand [2015] FJHC 173; HBC37.2014 (11 March 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. 37 of 2014

BETWEEN:

ULAMILA UTONIVESI by her next
friend and father TUKOLI VISAWAQA of Nabalebale, Savusavu, cultivator.
PLAINTIFF

AND:

UBHAY CHAND of Labasa, Driver
1st DEFENDANT

AND :

DALIP CHAND & SONS LTD a limited
liability company having its registered office at Ritova Street, Labasa.

2nd DEFENDANT

Before : Master H Robinson
Appearances : Mr. S Prasad of Sarju Prasad Esq., Solicitor & Barrister Labasa for the Plaintiff;
: No appearances for both Defendants.

ASSESSMENT OF DAMAGES

1. By a writ of summons dated 15 July 2014 the plaintiff by her next friend, her father, claimed from the defendants damages for injury suffered by her as a result of an accident on the 27 April 2012. The young plaintiff who was fifteen (15) at the time was a passenger on a bus registration number FH 914 owned by the 2nd Defendant and driven by the 1st Defendant. The bus was travelling from Savusavu to Labasa when for some reason or other it caught fire at Urata Hill not far from the village of Urata in Cakaudrove. In the rush to get out of the vehicle the young plaintiff jumped out of the bus and suffered injuries which resulted in her admittance firstly at the Savusavu Hospital and later at the Labasa Hospital. The cause of the bus fire and her subsequent injuries was claimed to be the result of the negligence of the defendants.
   

2. Both defendants were served with the writ, the 2nd Defendant on the 16 July and the 1st Defendant on the 22 August of the same year. When no defences were filed by the defendants, the plaintiff obtained judgements by default against both of them with damages to be assessed with costs. Both defendants were then served with notices of assessment of damages and neither of them appeared when damages were assessed on the 20 November last. The plaintiff's counsel was then given 14 days to file a written submission and more particularly a schedule of damages to help in this assessment this was received on the 19 February.

The Claim

3. The plaintiff through her best friend and father claims:-

(a) Special Damages at $850:00;

(b) General Damages

(i) Pain and suffering

(ii) Loss of amenities of life

(iii) Aggravated Damages

(iv) Pecuniary Damages

(v) Costs

(c) Interest under the Law Reform (Miscellaneous Provision) (Death and Interest) Act. Cap 27 on the award of damages at the rate of 6% per annum on general damages and at the rate of 3% per annum for special damages.

(d) Cost of this action on indemnity basis.

(e) Any other and further relief that this honourable Court deem fit and proper.

The Evidence

4. Counsel for the plaintiff called two witnesses. The first witness was the father and next friend of the plaintiff. He gave sworn evidence. This witness confirmed the incident which resulted in the injuries suffered by his daughter. That his daughter was taken to theSavusavu Hospital where she remained for three days and was transferred to the Labasa Hospital on the 30 April. That she remained at the Labasa Hospital until the 19th of May. On her discharge from the Labasa Hospital she was further admitted to the Savusavu Hospital for another three days. That she was bedridden for a further two weeks before she went to school. He states that his daughter cannot play any sports as a result of the injury and has become unhappy as a result. The School Report which was tendered in evidence states that the plaintiff is not "capable to play or do any physical activity"and she attends the Savusavu Hospital for rehabilitation and that she has difficulty walking from home to the bus stop to catch a bus to school. And that finally "that this has affected her education at Nasavusavu Secondary School". This witness further states that the plaintiff could not do what she used to do like going fishing with her mother or going to the garden with her father, she was always in pain. It is clear that the plaintiff's parents depended on their daughter in some of the chores to be performed within the household and that her role has diminished after the accident. No remedy was sought for this possible claim.

5. The next witness called was Doctor Dinesh Lingum, the Medical Officer at Savusavu Hospital. His sworn evidence was that he saw the plaintiff two weeks after the accident. He confirmed the injuries suffered by the plaintiff. A medical by one Doctor Saumalua was tendered which states that the plaintiff was first seen at the Savusavu Accident & Emergency Unit on the 27 April 2012 complaining of an injured right knee. That after the initial treatment of cold compression and the prescribed pain relief medication she was further X-rayed and booked for orthopaedic assessment at Labasa Hospital on the 10 Mayat Labasa Hospital where she was admitted until the 19 May 2012. She was admitted back at the Savusavu Hospital on the 19 May 2012 awaiting physiotherapy treatment and follow up. The report states that the patient will be temporarily restricted until full recovery after four to six weeks from the period of injury. The doctor further states that he examined the plaintiff approximately two weeks before the hearing and confirms that she is still suffering from pain in the right knee and may need specialist treatment.What that treatment entails is unclear and there was no indication from the plaintiff's counsel on future plans for such a treatment or whether such treatment is available here. What is clear though is that she still suffers from pain in the right knee and continues to walk with difficulty.

Damages

6. The plaintiff is entitled to general damages. The basic principle in awarding damages is to put the Plaintiff in the position she would have been had the accident not occurred. Assessing damages for non-pecuniary loss is fraught with difficulties. This problem has been stated by Earl of Halsbury LC in The Mediana [1900] AC at 116 thus:

"You very often cannot even lay down any principle upon which you can give damages ..... Take the most familiar and ordinary case: how is anybody to measure pain and suffering in m counted?nted? Nobody can suggest that you can by any arithmetical calculation to establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident ..... But nevertheless the law recognises that as a topic upon which damages may be given."

7. By virtue of there being no defence filed and default judgement obtained thereafter liability is presumed to be admitted and the Court thereafter applies the principle of 'restitutio in integrum' and it must award damages. There is no discretion. The injured person is entitled to compensation and the Court does its best and this process is described by Megaw LJ in Fuhri v. Jones (1979 C.A. unreported) in the manner following:

"It will be appreciated, of course, though it is not always fully understood by persons who are not directly concerned with the law, that the law cannot attempt to attribute any particular figure of damages to any particular physical injury, serious or trivial. There is no way in which it can be said that such-and-such an injury is worth so much in terms of money. Indeed, in most cases for most injuries, anybody would say 'I would rather have avoided this injury than have any amount of money whatever in compensation'. But the court has to do the best it can by way of what are really conventional figures in relation to injuries, the court assessing, of course, on the individual facts of the case, what is sometimes called the tariff, making adjustments for particular facts of the particular case."

8. Because of the difficulty in arriving at a fair and reasonable figure the Court relies very much on previous amounts so that there is some proportionality with other similar cases or those who suffered injuries of a similar nature; refer [Bristow J. in Lim PohChoo v. Camden and Islington Area Health Authority [1979] Q.B. 196 at 210 C.A.].

Pain and Suffering

9. Pain and suffering is part of general damages award and the plaintiff is obviously entitles to it. In Kemp & Kemp (Vol. 1 pages 200- 2-010) the principle was stated in this way;

"..... the court must take into account, in making its assessment in the case of any particular plaintiff, the pain which he actually suffered and will suffer and the suffering which he has undergone and will undergo. Pain and suffering are not measurable by any absolute standard and it is not easy, if indeed possible other than in the most general way to compare the degree of pain and suffering experienced by different people, however, the individual circumstances of particular plaintiffs clearly have a significant effect upon the assessment of damages".

Prospective as well as past suffering must be allowed for. In Heaps v. Perriete Ltd (1937) 2 All E.R 60 Greer LJ.said:

"We have to take into account not the sufferingh he had immedimmediately after the accident but he will have throughout his life in future."

"In actions for personal injuries, the court is constantly required to form an ate of chances and risks whks which cannot be determined with anything like precision; for example, the possibility that the injury will improve, or deteriorate, or the possibility of improved earnings if the accident had not occurred;"(Munkman: Damages for Personal Injuries and Death 8th Ed. at p. 10).

10. The plaintiff still suffers from pain and discomfort, she is still limited to some extent in mobility and as a result and particularly for a young girl of seventeen (17) has been psychologically affected by it. Although there was no sworn evidence given by any of her teachers it is clear from the school report that her education has suffered as a result. She could not play any sport and her full recovery depends on medical specialist attention. It may very well be that with specialist attention she would fully recover and the longer it remains unattended to the more unlikely full recovery will be attained or full recovery will take a lot longer.

11. Plaintiff's counsel submitted that she is entitled to $50,000:00 for pain and suffering and refers to a number of cases in which awards for pain and suffering range from $85,000 (see Broadbridge and the Salaitoga cases) to $60,000:00 (see Anitra Kumar Singh case). What is unclear though is whether pain and suffering differs between adults and teenagers or children. Pain and suffering has been treated as equal and that age does not make any difference, to say that a young person suffers more pain than an adult or an adult suffers more pain than a young person is hypothetical. What is critical though is the type of injury suffered. In this case the plaintiff jumped from a burning bus to save herself and landed on her knee and part of her leg on the tar-sealed road. The bus was ascending the Urata Hill at the time and having judicial notice of the terrain I am certain that the bus was travelling slowly at perhaps less than ten (10) kilometres per hour. Her injuries would have been more serious otherwise. Notwithstanding the above the plaintiff is still suffering from pain and continues to do so.

12. The Court is not convinced however that the amount which ought to be awarded under the circumstances is $50,000:00 as claimed by the plaintiff's counsel. The most probable figure is $40,000:00 and I accordingly award this figure under this head. The pain and suffering will differ from the above cases because the extent of the injury differ.
    

Aggravating and Pecuniary Damages

13. The plaintiff also claims aggravating and pecuniary damages in the prayer. There was no evidence led to determine these two claims. Aggravating damages are compensatory because the conduct of the defendant in causing the injury is a relevant consideration. This would arise where there is a clear contumelious disregard by the defendant of the plaintiff's rights. This does not appear to be the case in this instance, the bus caught fire the plaintiff reacted and suffered an injury as a result.

14. Neither in my view has the claim for pecuniary damages established hence the Court will not award any damages under both these claims. The aim of an award under this head is to put the plaintiff in as good a financial position as he/she had been in if he/she had not sustained the injury. I am of the view that the claim under special damages and future expense would cover this head of damage.

Future Expense

15. The plaintiff's counsel in his submission has made a claim for future expense as a result of the need for further specialist treatment. Future expenses are a component of general damages and need not be specifically pleaded. The plaintiff claims $5,000:00 under this head on the basis that the plaintiff would need further specialist treatment. There was no explanation as to how this figure was calculated and arrived at, this is understandable given that the Medical Report was not specific as to the specialist treatment required. There are therefore two possibilities, one is that the amount could be exaggerated or it could be less than that claimed. For the benefit of the plaintiff the Court will take into account that the estimated time to recover stated in the report as between four to six weeks is under estimated and she still suffers from the injury to date. I will therefore grant the amount claimed notwithstanding the above. The Court will therefore allow the sum claimed and award it accordingly.

Special Damages

16. The plaintiff claims the sum of $850:00 under this head. The claim consists of the following:-

17. There was no proof of the claims given in evidence particularly in relation to medical expenses. The plaintiff's father in evidence states that there was no receipt but now claims only $200:00. It is clear that some travelling costs was incurred and it is common knowledge that not many receipts are issued by taxi drivers in Fiji even if you asked for it. Given the fact that the plaintiff had to visit the Savusavu Hospital for further treatment it is clear that travelling costs has been incurred. I will allow the claim under this head but limit it to that given in evidence at $200:00. This appears to be reasonable under the circumstances.

Interest

18. The plaintiff further claims interest under the Law Reform (Miscellaneous Provision) (Death and Interest) Act. Cap 27 at the rate of 6% per annum on general damages and at the rate of 3% per annum for special damages. The plaintiff is entitled to interest under section 3 of the above act. This provision states:-

In any proceedings tried in the High Court for the recovery of any debt or damages the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment:

19. I would award interest on general damages (on pain and suffering and future expense) at the rate of 6% per annum on $45,000.00 from 15 July 2014 (date of writ) to 26.02.2015 (date of ruling) which amounts to$1,575:00.

Cost

20. Plaintiff is also entitled to costs which is summarily assessed at $1,500:00.

Summary of awards

21. The summary of awards and costs are as follows:

Orders

22. That the defendants to pay the plaintiff the sum of $48,275:00 inclusive of costs.

Master H Robinson
High Court, LABASA

11 March 2015