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High Court of Fiji |
AT LABASA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 74 OF 2014
BETWEEN : KAMAL RAJ of Nagigi, Labasa, Driver
PLAINTIFF
AND : ARUN PRASAD of Nasisi, Labasa, Supervisor
1ST DEFENDANT
AND : PARMENDRA NATH BHAROS and SHAILENDRA
NATH BHAROS both trading as Matavolivoli Taxi &
Tours at Matavolivoli, Nadi
2ND DEFENDANT
Appearances: Mr. S Prasad of Sarju Prasad Esq for the plaintiff
No Appearances for the defendant.
ASSESSMENT OF DAMAGES
Introduction
[1] By a statement of claim dated the 19 December 2014 the plaintiff claims from the defendants damages for the injuries suffered by him whilst he was in the employ of the 2nd defendants. The 1st defendant was his immediate supervisor who gave him instructions to perform the work which resulted in his injuries.
[2] The work which he was required to perform was to remove the damaged collar and bearing from a farrow wheel shaft of a Massey Ferguson Tractor. He was given a chisel and hammer to remove the collar but without a pair of safety glasses. The result was that a piece of metal from the collar hit the plaintiff in the left eye causing serious injury to him. The accident occurred on the 29 June 2014 at Nagigi near Labasa.
[3] The plaintiff lost consciousness as a result of the injury and was immediately rushed to Labasa Hospital where it was established that he had suffered total loss of vision in his left eye. The plaintiff claims that he suffered the injury as a result of the defendant’s negligence.
[4] The statement of claim was served on the defendants on the 1st Defendant on the 11 February 2015 and on the 2nd Defendants on the 16 June 2015. When there was no acknowledgement of service or defence filed by the defendants within the time allowed under the rules the plaintiff obtained default judgment with damages to be assessed. Order 12 rule 4 when read together with Order 18 rule 2 (1) prescribes the time for acknowledging service and filing defence as 28 days from the date of service of the writ. The default judgement with damages to be assessed was obtained on the 19 August 2015 and was well after the prescribed time for filing of the defence.
[5] The summons for the assessment of damages and the default judgements were served on the defendants on the 28 September 2015 and damages was assessed on the 4 May 2016 and the plaintiff’s counsel’s submission on 1 June 2016.
[6] The plaintiff claims from the defendants the following:-
The evidence and assessment
[7] The first witness called was the plaintiff who described the incident at Nagigi and that he was transported to the Labasa Hospital on the 30 June 2014.He was later transferred to CWM Hospital and then to Lautoka Hospital. He was approximately 35 years of age at the time of the accident and is married with no children.
[8] His evidence regarding the accident was consistent with the claim. He was employed by the second defendant and was receiving approximately $140:00 per week from which FNPF deductions were made. In this regard he exhibited his FNPF statements which showed payments made to his account from the second defendant company since 2012. He states that he is unable to work anymore and is embarrassed when in public about the loss of the left eye. He has suffered from a permanently loss of vision.At the time of the accident he was not given any safety glasses to protect his eyes whilst trying to remove the bearing with a chisel and hammer.
[9] The second witness called was Doctor Varanisese Naviri who obtained a Graduate Diploma in Ophthalmology in 2010 and a Master of Medicine in Ophthalmology in 2015. She works at the Labasa Hospital and prepared a medical report which was exhibited. She stated that the injury was permanent in that the plaintiff has now completely lost the vision in his left eye. The report states that as a result of the injury his total incapacity is 40%.The plaintiff needs to have a proper artificial left eye fitted and sadly the one originally fitted fell and was lost. A proper fitted left eye could only be obtained from overseas.
[10] The plaintiff’s loss and damages are calculated below taking into account the submission and the evidence given. I accept that in relation to specific damages it is difficult to obtain receipts and that decisions on the lack of receipts sometimes require it to be proved but on the whole accepted if considered reasonable under the circumstances. In this regard I refer in particular to the decision by Justice Byrne in Paul Praveen Sharma -v- Attorney General’s (1993) FJHC 143 39FLR 228 where in exercising his discretion after vigorous objections to the absence of receipts particularly in respect of airfares stated:-
“I reject this submission. I believe that these expenses were reasonably incurred and that it was only natural and by no means extravagant or unreasonable for the Plaintiff's parents to be with their son while he was undergoing treatment in Sydney.”
Special Damages
[11] It appears obvious to me that it is necessary for the plaintiff to incur expenses travelling to the hospital at frequent intervals for eye clinics. These expenses can include future travelling costs and he claims the sum of $255:00 for this. I am of the view that this is reasonable and I allow this claim.
[12] He further claims the sum of $300:00 for accommodation costs whilst attending clinic in Lautoka and again although no receipts was tendered I am of the view that this is not excessive under the circumstances given that he still has to have a properly fitted artificial left eye. I would allow the amount claimed.
[13] The plaintiff has not been able to obtain any employment since the injury. His weekly earning is approximately $140:00. Therefore loss of earning to date would be $140:00 per week from the 19 June 2014 to date, which is $140:00 X 108 (weeks) =$15,120:00. I would allow this amount as claimed.
[14] The plaintiff claims the sum of $2,368:80 as loss of FNPF contribution, this claim is allowed. Contributions to FNPFare allowed in personal injury cases where the plaintiff was receiving wages or a salary and I need not state the cases in which these has been determined but note the Supreme Court Decision in Vateitei -v- Ports Authority of Fiji & Anor:2013FJSC 10and I award it accordingly.
The total for specific damages would therefore amount to $18,043:00.
General Damages
[15] Unfortunately there are similar cases to the present where injuries suffered resulted in the loss of one eye; see for example of Apemeliki Kava v Jiko Fisheries Ltd HBC 283 of 1996;Baravi v Fiji Fish Marketing Group Ltd [2009] FJHC 229; Civil Action No. 43.2006 (20 January 2009)and John v Tebara Transport Ltd [2005] FJHC 396; HBC0327.2003 (28 October 2005, There is no doubt that the injury causes a lot of pain and suffering for the plaintiff not to mention embarrassment and uncertainty about his future.
[16] The accident in last case mentioned of John –v- Tebara Transport Ltdwas very similar to this matter, the plaintiff was trying to remove the bearing from a shaft by the use of a hammer and chisel without the necessary safety glasses. Justice Jiten Singh awarded the sum of $45,000:00 under this head. The plaintiff submits that a figure similar to Justice Byrne in the Apimeleki Kava matter appropriate. I agree with the amount submitted and I award the sum of $50,000:00 for pain and suffering.
[17] The plaintiff was 35 years of age when he suffered the injury and assuming that he will remain employed but for the injury until he reached 55 he would have earned approximately $140 X 52 X 20 =$145,600:00.
[18] However this calculation, although precise mathematically, does not take into account additional elements of uncertainty. The now accepted method is the use of a multiplicand and a multiplier. The multiplicand being the plaintiffs earning capacity at the time of the injury. The multiplier being the number of years calculated in which the loss would last. The plaintiff has approximately 20 years of working life left if he works until he reached 55 years of age.
[19] The plaintiff’s counsel submits that a multiplicand of 10 is appropriate in this instance and submits that a sum of $29,120:00 taking into account the 40% disability is sufficient. I accept the amount submitted and therefore allow the sum of $29,120:00 under this head.
[20] The FNPF contribution is submitted as 18% of the total loss of future earning as calculated above this would bring the figure to $5,241:60. I allow this figure as the total loss of FNPF contribution.
[21] The plaintiff’s counsel submits under the heading “scarring” that the plaintiff will have to go overseas to have a custom made prosthetic eye which could cost him at least $5,000.00 (Five Thousand Dollars) inclusive of travelling costs. The doctor gave evidence that proper prosthetic eye is not available locally and that the plaintiff needs to travel overseas to obtain it. There were no estimate of costs given but I am of the view that inclusive of travelling costs this figure is not unreasonable and I would award it accordingly.
[22] The Plaintiff is asking for interest on the damages awarded. An award of interests is at the discretion of the court and are often given and are payable on the past losses and special damages under section 3 of the Law Reform (Miscellaneous Provisions) Death and Interest Act. In this action I would allow interest to be payable as follows:-
(i) Special damages
[23] I would allow interest of 4% p.a. to be payable from the date of injury to the date of decision. That is 4% of $18,403:00 multiplied by 2yrs = $1,472:00 (approximately)
[24] The total awarded for special damages inclusive of interest would therefore be $19,875:00
(ii) General Damages
[25] The total amount awarded for general Damages amounts to $79,120:00 and the interest payable would be 6% for 2years is $9,494:00, the total under this head inclusive of interest is therefore $88,614:00.
(iii) Costs
[26] The costs as submitted is $3000:00 and I am of the view that given the matter was uncontested the amount suitable under the circumstances would be $2000:00 and I award this sum accordingly.
Conclusion
[27] Total damages awarded are as follows:-
1. Special Damages = $19,875:00;
2. General Damages = $88,614:00;
3. Loss of future FNPF contribution = $5,241:00
4. Miscellaneous expenses = $5,000:00
5. Costs = $2,000:00
TOTAL DAMAGES payable = $120,730:00
[28] I therefore award damages to the Plaintiff inclusive of costs to the sum of $120,730:00.
H Robinson
Master, LABASA
19 July 2016
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