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Ali v Gounder [2023] FJHC 656; HBC157.2011 (5 September 2023)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

HBC 157 of 2011

BETWEEN:
ROSHAN ALI of Nawaka, Nadi, Fiji, Unemployed.
PLAINTIFF

A N D:
ANIL GOUNDER of Karta Ram Estate, Votualevu, Nadi, Fiji, Businessman.
DEFENDANT

Appearances: Mr. Chaudhary R. for the Plaintiff
Ms. Swamy A. for the Defendant
Date of Hearing: 24 August 2022 & 06 December 2022 & 16 February 2023
Date of Ruling: 05 September 2023

JUDGEMENT

INTRODUCTION

1. This is my judgement following the trial of this matter on 24 August 2022, 06 December 2022 and 16 February 2023.
   
2. The plaintiff, Mr. Roshan Ali (“Ali”) filed a writ of summons and statement of claim on 03 September 2011 against the defendant, Mr. Anil Gounder (“Gounder”). Ali seeks damages for personal injuries he sustained after he was assaulted by Gounder on 13 June 2009.
   
3. On 16 April 2021, I entered judgment on liability by admission in favour of Ali based on Ms. Swamy’s submissions in Court. Hence, it is not an issue in this case that Ali was assaulted by Gounder.
   
4. I must state here that the parties had explored settlement for some time over the years. Gounder’s decision to admit liability in April 2021 was, perhaps, influenced by the fact that he was finally convicted on 02 September 2019 in the Nadi Magistrates Court on a charge of Assault Causing Actual Bodily Harm contrary to section 245 of the Penal Code. The charge emanated from the same facts before me. Gounder was subsequently sentenced to twelve months imprisonment suspended for three years, and fined $2,500 of which $2,000 was to be paid to Ali as compensation.
   
5. These are all pleaded in paragraph 16 of the Amended Statement of Claim filed on 06 February 2020.
   
6. The three main issues in this case are (i) the extent of the assault, and (ii) flowing from that, the extent of the injuries sustained, and (iii) flowing from that, the quantum of damages assessable.
   
7. The extent of the assault is an issue because of some inconsistency in Ali’s account as to how he was assaulted. In the statement of claim, he pleads that Gounder had hit him with a piece of timber. However, in court and in his statement to the Police and to the first Doctor who examined him, he is on record to have stated that Gounder did hit him with a stick.
   
8. The extent of injuries sustained is an issue for two reasons. Firstly, the injury(ies) that are likely to occur on a person as a result of being hit with a piece of timber, which is a heavier object, would be different from the injuries which are likely to be sustained as a result of being hit with a piece of stick, which would be lighter in weight. Secondly, at the time of the assault, Ali had a pre-existing medical condition which, it appears, has somewhat regressed over the years. This, in turn, raises the question as to whether some of the persisting pain and suffering which Ali claims to be suffering even to this day, are caused by the assault by Gounder or whether these are entirely attributable to his underlying medical condition.
   
9. All the above must have a bearing on how quantum will be assessed.
   

TRIAL ON QUANTUM

10. The trial on quantum finally happened on 24 August 2022, 06 December 2022 and 16 February 2023. The plaintiff called the following witnesses:
    
    • (i) Roshan ALI - PW1 gave evidence on 24.08.22
      
    • (ii) Doctor Ram RAJU - PW2 – 24.08.22
      
    • (iii) Doctor Mark ROKOBULI - PW3 – 06.12.22
      
11. The defendant called the following witnesses:
    
    • (i) Doctor Alipate
    • (ii) Doctor Ryan Dominic SHANKAR - DW1 – 16.02.23
      

BACKGROUND

12. The background which I set out below is based on the uncontroverted facts which I gather from the pleadings, from the Pre-Trial Conference, and also from the evidence which emerged during the trial of this case.
    

Events Leading to the Assault

13. On Saturday, 13 June 2009, at the material times, the main street of Nadi Town was blocked to all traffic. This was to allow a public procession along that street. Ali happened to be in that part of town at the time just. He was driving an ambulance for Dr. Raju (PW2) and was trying to get to Denarau to pick up a patient.
    
14. As Ali was manoeuvering his vehicle along a side street which led away from the main street, he found a broken-down truck (registration number FH 869) parked in the middle of the road. Ali stopped, alighted from his vehicle, and proceeded to the truck.
    
15. According to Ali, he spoke to a man who was meddling around the truck. The man told Ali that the truck was immobile. Ali then inspected the vehicle. Ali thought that the problem was that the battery terminal being loose. He told the man.
    
16. According to the defendant’s pleadings, Ali then helped himself onto the driver’s seat after inspecting the truck and immediately turned the ignition on. That action resulted in some damage to the engine which cost Gounder a considerable sum of money to repair.
    

The Assault

17. It is not in dispute that Ali was taken to Gounder’s restaurant which was located in the immediate vicinity. It was there that the assault happened.
    
18. According to Ali, Gounder swore at him and also slapped him very hard on the face. Gounder then picked up a piece of stick and hit him all over his body. When Ali lifted his hand to cover himself, Gounder hit his left arm. Ali’s left arm was broken as a result. Ali said that someone in the small crowd which had gathered around the compound alerted the Police.
    
19. Gounder was not called to give his side of the story. The defendant only called the two doctors (DW1 and DW3) who gave their opinion on the
    

Nadi Hospital

20. At some point, the Police intervened and took Ali to the Police Station. At the Station, he was interviewed and told to fill up a Medical Form. From the Police Station, Ali then went to Nadi Hospital for medical examination. He took the Medical Form with him which he had filled at the Police Station.
    
21. At the Nadi Hospital, Ali gave the Medical Form to a Dr. Tuidraki who then attended to Ali. Dr. Tuidraki interviewed and examined Ali and directed that Ali be x-rayed. Ali said he was feeling immense pain. He was given some medication and then sent home with a referral letter to take to Lautoka Hospital – which Dr. Tuidraki had written.
    

Lautoka Hospital

22. From Nadi Hospital, Ali went home and spent the Sunday there. On Monday 15 June 2009, he then went to Lautoka Hospital on the referral of Dr. Tuidraki.
    
23. Ali said that, when he was at home on Sunday, he found it very hard to sit down properly. He felt immense pain whenever he tried to place himself into a sitting position. He said that he was not able to sleep very well at all during that time.
    
24. At Lautoka Hospital, he was admitted there for two or three days. He said he was x-rayed and later, some surgical operation was performed on his left hand.
    

Post Dicsharge Consultations

25. Ali was discharged from Lautoka Hospital two days after admission. He said he still felt a lot of pain. He said he was taking some pain relief tablets. His hand was on plaster. He said he was on plaster for a total of three months or so.
    
26. After Lautoka Hospital, Ali said he consulted Dr. Raju in his clinic. He also consulted Dr. Mareko who occasionally was in attendance at Dr. Raju’s clinic as a Consultant.
    

Pre-Existing Medical Condition

27. Ali (PW1) is now an amputee and is on wheelchair. His right leg was amputated on 31 December 2019. This was because of a diabetic condition which caused a reduced blood flow to the leg. Ali said his amputation in 2019 was due to his diabetic condition and has nothing to do with the injuries he sustained from the assault by Gounder.
    
28. Dr. Raju said Ali is a known case of diabetes mellitus and hypertension. He (Ali) is a registered patient at the Nadi Hospital where he receives regular treatment and attention. Dr. Raju said Ali has a very severe case of diabetes and is insulin dependent.
    
29. In re-examination, Ali said that he has had diabetes for almost twenty-five years now. At the time when Gounder assaulted him, he already had diabetes. He says he injects himself with insulin twice daily. When asked if he has a kidney problem, Ali said he does not, although, he is getting his kidney checked regularly.
    

Injuries Suffered – the Medical Reports

30. It is not in dispute that Ali suffered a fracture of the left forearm as a result of the assault.
    
31. The Medical Officer’s Report which was filled by Dr. Tuidraki on 13 June 2009 records inter alia as follows:
    

32. A Medical Report form Lautoka Hopsital dated 06 July 2015 by Dr. Joeli Mareko states as follows:
    

EXAMINATION

His whole body was bruised and painful. His left forearm was swollen and could not move.

INVESTIGATIONS

Radiological X-Rays revealed he fractured his left forearm ulna bone.

TREATMENT

1. Pain Relief

2. POP Backslab

3. Physiotherapy

4. Open reduction and internal fixation of left ulna

5. Antibiotic

Review on 06.06.15, he had:

1. Mutiple joint pain

2. Weakness of the left forearm and hands

3. Pain in the neck

4. Pain in the back

5. Cannot lift heavy load

His capacity is 10%.

Yours sincerely

........................

Sg. D. Joeli Mareko

Consultant Ortheopaedic Surgeon

LAUTOKA HOSPITAL

33. A Medical Report by Dr. Ram Raju dated 08 July 2015 states, in its relevant part, as follows:
    

X-rays done here confirmed the left forearm fracture with screws and plate applied. .......

............................................................................................................

Roshan gradually recovered from the various injuhries inflicted upon him, including the fractured arm. However he complained of on and off joint and muscle pain, weakness, back ache, fatigue, dyspepsia and letharginess. This continued for several years and he attended my clinic on a regular basis.

Roshan is a known case of Diabetes Mellitus and Hypertension for which he gets regular treatmebnt from NAdi Hospital where he is registered as a patient.

34. A Medical Report dated 03 June 2020 by Dr. Ryan Dominic Shankar of Zens Medical Centre opines as follows:
    

On examination, Rohan came in to the clinic on a wheelchair with note made of a right below knee amputation. He also looke generally medically unwell and admitted to suffering from diabetes. According to the patient, the amputation of his right leg was a result of diabetic complications?? Diabetic foot sepsis but full details are not clear. He was also noted to be a pit pale looking/anaemic. His examination was as follows:

.........................................................................................................................................................................................

My impression is that Roshan may in fact have a lot of silent complications from his diabetes and the fact that he has a right below knee amputation as a complication of his diabetes throws further weight to this suspicion. His absent knee jerk reflex and weak finger flexion may indeed be the result of diabetic neuropathy. His general body pains may also be because of diabetic neuropathy. His pale appearance may suggest the presence of anaemia and the possibility of silent renal impairment that the patient is unaware of. Most of Roshan’s disability may be a result of his diabetes and the associated complications from his diabetes. I do not believe there is any clear-cut evidence that injuries sustained in 2009 can account for the complains he has today. Furthermore I would recommend that Roshan be made to undergo a full medical workup including eye check (retinopathy screen), full bloods – FBC, RFT, LFT, Lipids, Hba

ASSESSMENT

35. Ali was born on 31 March 1967. He was 42 years old at the time of the assault. He is now 56 years old.
    
36. Dr. Raju said that the main injury which Ali suffered from the assault was a compound fracture on the left forearm. This was not a simple injury. Accordingly, Ali had to be referred to the Lautoka Hospital for open reduction and fixation. This is a surgical procedure to repair severely displaced or open bone fractures. These are fractures where the bone has pierced the skin. In Ali’s case, his forearm was surgically opened and plates and screws were are applied to stabilize the bone.
    
37. Dr Raju said there are generally three types of fractures. An open fracture is usually the most serious of the three.
    
38. Dr. Raju confirmed that in 2015, Ali still had the plate and the screws in his left forearm. He said this could explain why Ali continued to feel pain in that area. He also said that the screws and the plate would limit the mobility and functionability of his left forearm. For example, his grip would be reduced and the range of movement of his left arm would be severely reduced.
    
39. Ali first attended his clinic on 06 July 2009 with a fractured forearm. This was about three weeks after Ali was assaulted by Gounder. He said Ali came to him because he wanted a second opinion.
    

Pain & Suffering & Loss of Ammenities

40. I accept that Ali suffered pain during the assult and immediately after. Ali says that he still takes pain relief to this day. On the balance of probabilities, I would have to accept that given the extent of surgical procedure on his left arm. Mr. Chaudhary submits that Ali should be awarded $60,000-00 for pain and suffering and loss of amenities of life, mental and psychological trauma and that the sum of $2,000 should be deducted from this as this sum was paid to Ali as compensation in the Nadi Magistrates Court Criminal Case.
    
41. Ms Swamy’s extensive cross-examination was very helpful. She did put to Ali that his pre-existing diabetic condition is the cause of whatever pain he claims to have to this day and that as far as the Medical Report of Doctor Ryan from Zens Medical Centre dated 03 June 2020.
    

Q: I will take you to paragraph 2 on the second page. If you see the first it says that:

My impression is that Roshan may in fact have a lot of silent complications from his diabetes and the fact that he has had a right below knee amputation as a complication of his Diabetes throws further weight to the suspicion. His absent knee jerk reflex and weak finger flexion may indeed be the result of diabetic neuropathy. His general body pains may also be because of Diabetic neuropathy. His pale appearance may suggest the presence of anemia and the possibility of silent renal impairment that the patient is unaware of. Most of Roshan’s disability may be a result of his Diabetes and the associated complications from his Diabetes. I do not believe that there is any clear cut evidence that the injuries sustained in 2009 can account for the complaints he has today.

Q: So according to the Doctor all the complaints that you are giving today your body pains, you are not able to perform properly. You have lot of other issues is not related to the injuries that he sustained in 2009 but it is because of your Diabetes and other diseases that you are suffering from. I put it to you that these are reasons why you are getting body pains you have to carry on with your pain killers.

A: No because of diabetes I don’t have that pain. Diabetes just numbs our body which I’m facing from long time diabetes terms, and this injuries are hurting my all the body, where I was hurt which is the big pains I’m facing.

Q: But according to the Doctors Sir you injury of 2009 has completely healed and there is no further issues with your injuries of 2009?

A: There’s no Doctor can prove about the injuries of 2009 has been healed till now. Which we face we know what is the problem of that pains.

Q: Yes I think that’s the reason why Doctors examine again and again. To show and this particular Doctor has confirmed that you’re medical problems that you are facing at the moment is due your diabetes and not to the injuries of 2009?

A: That’s what his saying.

42. Dr. Raju also said he was of the view that Ali would also have suffered PSDT as a result of the assault. He said this based on the history of what Ali went through. Several men held him down and beat him up in Gounder’s premises.
    
43. However, Ms Swamy questioned Dr. Raju’s evidence that Ali continues to suffer Post Traumatic Stress Disorder (PTSD) to this day as a result of the assault and whether Dr. Raju is qualified to express an opinion on PTSD. Dr. Raju conceded that he does not.
    
44. In more sophisticated jurisdictions, the first screening of such cases may be done by a primary care physician who will then refer the case to a mental health specialist for an official diagnosis. A specific diagnositic procedure may even involve lab tests to eliminate the possibility of an underlying medical condiction producing PTSD symptoms. In this case, there is no clear evidence of what PTSD symptoms Ali suffers. The evidence given on this point appears to be no more than a mere hypothesizing. It lacks a solid basis. I cannot accept it.
    
45. However, I accept that Ali would have suffered fear and trauma whilst he was being assaulted in and around Gounder’s restaurant. He was surrounded and being barricaded while being assaulted. Having said that, Ali does not claim damages for the tort of false imprisonment.
    
46. Ms Swamy questioned whether the pain and suffering which Ali claims to continue to suffer to this day would have anything to do with the injuries he suffered as a result of the assault – or whether they are rightfully the result of Ali’s diabetic conditions.
    
47. Mr. Chaudhary, relying on the evidence of Dr. Rokobuli, submits that Ali’s injuries were the result of the assault and that diabetes would have prolonged healing and recovery. He also relies on the “Thin Skull” principle, that Goundar must take Ali as he (Gounder) found Ali (Watts v Rake [1960] HCA 58).
    
48. Mr. Chaudhary refers to the following cases to guide the Court in assessing an appropriate award for Ali:
    

49. Ms Swamy however relies on the so-called “Crumbling Skull” rule. This approach was developed by the Canadian Courts to reduce rather than avoid an award. The same approach has been applied one way or another in Australia.
    
50. The Thin Skull rule would make a defendant liable for the plaintiff’s injuries, even if the injuries are unusually serious or worse on account of a pre-existing medical condition. However, the Crumbling Skull rule would reduce liability. It appears that the applicability of the Crumbling Skull rule will depend on whether the plaintiff’s pre-existing medical condition was stable or unstable. If unstable, then the defendant’s liability would not extend to include injuries caused by the pre-existing condition.
    
51. In Athey v Leonati [1996] 3 SCR 458 para 35, the Canadain Supreme Court said as follows:
    

If there is a measureable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award.

52. In Wallace v Thibodeau 2008 NBCA 78 para 49, the New Brunswick Court of Appeal said:
    

“courts are not to dismiss otherwise meritorious claims in crumbling skull cases. Rather, they must reduce the award to reflect the risk that the crumbling skull would have actually crumbled and brought about, in any event, the loss experienced by the claimant”

(see also discussion in QBE Insurance (Australia) Ltd v Griffin [2021] NSWSC 906 (26 July 2021); New South Wales v Burton [2006] NSWCA 12 (10 February 2006); Oyston v St Patrick's College [2011] NSWSC 269 (13 April 2011)

53. Notably, in New South Wales v Burton [2006] NSWCA 12 (10 February 2006), Spigelman CJ, Basten JA and Hunt AJA, after referring to a passage from Athey v Leonati [1996] 3 SCR 458 at [35] – said as follows in paragraph 72:
    

This is, perhaps, merely a colourful way of expressing the principles established in Australia in Watts (Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 at 160 (Dixon CJ)), Purkess (Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 at 168) and Malec (Malec v J.C. Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638)

54. The Court said as follows at paragraph 69:
    

69 There may be a difficulty in reconciling the application of the principles stated in Watts and Purkess and those in Malec, as explained by this Court in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [101]- [112] (Ipp JA, Mason P agreeing). The concurrent operation of Watts and Purkess, with Malec, is succinctly stated by Professor Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) at [1.9.14]:

“Neither Watts v Rake nor Purkess v Crittenden was referred to in Malec v J C Hutton Pty Ltd. To reconcile these different lines of authority, it is necessary to say that the plaintiff must prove on the balance of probabilities that the defendant’s negligence did contribute materially to the present symptoms (this is the legal onus that rests on the plaintiff). Once that is satisfied, there is an evidential onus on the defendant of proving that the alleged pre-existing or subsequent natural condition did exist and that this condition in its natural progression would have produced similar symptoms. If the defendant is unable to satisfy the evidential burden, the court will reduce the plaintiff’s damages for contingencies to no greater extent than in the ordinary case. If, however, the defendant shows that there was a real chance that the plaintiff would have developed similar symptoms from a natural condition attaching to the plaintiff, the court will make a greater reduction than normal to reflect this increased chance.”

55. The evidence suggests that Ali has had diabetes for many years. At the time of the assault, he was already diabetic - although - his condition was not as severe at that point. The evidence is also clear that he is insulin dependent and that he was amputated in 2019 – some ten years or so after the assault.
    
56. It would appear that Ali’s diabetic condition did naturally deteriorate and became worse over the years. The assault and/or the injureis sustained from the assault had no bearing on the natural progression of Ali’s diabetic condition. During his appearance in Court, he looked pale and weak in his wheelchair.
    
57. Having said that, there is no denying the pain and suffering he would have endured at the time of the assault, at the time of his surgical procedures, and immediately after.
    
58. I accept that Ali did endure pain and suffering as a result of injuries on the left arm. I also accept and take into account Mr. Chaudhary’s submissions on the Thin Skull rule and Ms Swamy’s submissions on the Fractured Skull rule. I also take into account the relative seriousness of the injuries suffered in the cases which Mr. Chaudhary has referred me to. I consider $30,000-00 to be a fair award for the pain and suffering and loss of amenities suffered by Ali. This should cover past and future pain and suffering and loss of amenities. On this, I order interest at the rate of 6% per annum.
    

Loss of Earning Capacity

59. Ali claims he was an ambulance driver at the time of the accident. Mr. Chaudhary submits he was earning $90-00 per week. What I gather from Ali’s evidence is that he was not employed by Dr. Raju. Rather, Dr. Raju engaged him on a needs basis. Ali did say that sometimes he would get $50 in a week and at times between $90 to $100 per week. This all depended on the number of cases referred to him.
    
60. I gather Ali was a freelance ambulance driver. He did not tender any wages slip. I am prepared to make an assessment for him but not as high as he makes it out to be. I am of the view that $70 per week is reasonable.
    
61. Ali said he had a farm. He said he planted some crops and also kept a few cattle on this farm. He said that he was not able to maintain the farm because of his hand and leg injuries. As a result, he could not maintain the farm. Eventually, he lost the farm. There was no evidence tendered that he did own some land. I refuse to accept this.
    
62. Ali said he earned some money selling vegetables. Without evidence that he had a farm, it is hard for me to accept that he earned money from selling vegetables. I refuse to make an award for loss of income from selling vegetables.
    
63. Having said that, I am of the view that the injuries that Ali received from the assault would have resulted only in some incapacity. In saying that, I am influenced by the evidence that he had metal plate and screws insterted in his left forearm to stabilize the fracture. I have no doubt that this would have limited his range of movement on his left forearm for some time and would have caused some pain.
    
64. As for the compensation for the pain, I have already worked this out above which is included in the past and future pain. However, this clearly would have affected his ability to earn for several years.
    
65. In the overall scheme of things, I am of the view that Ali’s inability to earn today is the result of his amputation which is caused by his diabetic condition and in his being wheel-chair bound. The amputation itself would have made it impossible for him to drive or farm.
    
66. The question I then ask myself is - for how long was Ali not able to work and make a living as a result of the injuhries he received from the assault before amputation. As I have said, the fact is that Ali’s left arm suffered a fracture and as a result, he has had a metal rod/plate and screws fitted to hold the fracture in place.
    
67. In addition to all the above, I also take into account that Ali was 42 years of age at the time of the assault in 2009. He was amputated in 2019. I gather that he did work for a few years after the surgical procedure on his left arm – but probably on a reduced capacity. I think five years for loss of earning capacity could be attributable to his injuries from the assault. Hence, if I take $70 being the appropriate median point between $50 to $100 per week multiply by 5 years = $18,200 (i.e. $70 x 52 (weeks) x 5 (years)).
    

Outstanding Medical Bills

68. Ali said he also consulted Dr. Raju and Dr. Mareko who was a consultant surgeon at Dr. Raju’s clinic. He tendered a medical invoice from Dr. Raju dated 08 July 2015 which he says he has yet to clear. The arrangement he has with Dr. Raju is that he will pay up whenever he has the money. This was confirmed by Dr. Raju.
    
69. The Medical Bill states as follows:
    

70. One may question the need for an ongoing consultation with Dr. Raju when all the surgical attention which Ali needed had been performed at the Lautoka Hospital and any follow up required could have been done at the Nadi Hospital or at Lautoka Hospital. I accept Ms. Swamy’s submissions on this point.
    
71. However, having said that, I accept that Ali would have incurred travel costs and incidental expenses to and from Lautoka Hospital for all his visits. I am inclined to award $1,000-00 for all this.
    
72. I make a note here that Ali did suffer such humiliation in the hands of Gounder who acted rather callously in the circumstances of this case. I would have been inclined to make an award for false imprisonment but this was not pleaded.
    
73. Having said that, I am of the view that this case could have been settled much earlier as the facts were not in dispute. Instead, it has languished in the Court system for more than ten years which would have cost Ali extra legal costs. Accordingly, I award costs in favour of Ali which I summarily assess $6,500 – 00 (six thousand and five hundred dollars only).
    

ORDERS

74. I make the following awards in favour of Ali against Gounder:
    

75. Post-judgement interest of course applies at 4% per annum.
    

...................................

Anare Tuilevuka

JUDGE

Lautoka

05 September 2023