Attorney-General of Fiji v Kotoiwasawasa [2003] FJCA 56; ABU0004.2003S (14 November 2003)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CIVIL APPEAL NO. ABU0004 OF 2003S
(High Court Civil Action No. 0192 of 2000)

BETWEEN:

ATTORNEY-GENERAL OF FIJI
VIMAL GOVIND
Appellants

AND:

ALIANA KOTOIWASAWASA
AVAIATA KETENILAGI
Respondents

Coram: Smellie, JA
Davies, JA
Penlington, JA

Hearing: Tuesday 4th November 2003, Suva

Counsel: Mr. J.J. Udit and Mr. S. Sharma for the Appellants
Mr. V. Maharaj for the Respondents

Date of Judgment: Friday 14th November 2003, Suva

JUDGMENT OF THE COURT

This is an appeal against two awards of damages in a High Court action for personal injuries arising out of a motor accident.

On 22 May 1996 the two respondents, the original plaintiffs, were passengers in a motor vehicle driven by the second appellant. The latter was a doctor employed by the state at the CWM Hospital in Suva. At that time the respondents were students at the Fiji School of Medicine and were studying for a degree of Bachelor of Medicine and Bachelor of Science which is a six year course. The respondents together with the second appellant were returning to the Nabouwalu Hospital from the Lekutu Secondary School when the second appellant lost control of the vehicle. It veered off the road and tumbled into a ditch. Both the respondents were seriously injured in the accident.

The respondents subsequently commenced an action in the High Court against the appellants seeking damages for personal injuries.

Liability was admitted by the appellants. In October and November 2001 there was a trial before Pathik J for the assessment of damages.

Written submissions were made by Counsel between December 2001 and August 2002. Pathik J delivered his Judgment on 13 February 2003. It is that Judgment which is now under appeal.

We shall hereafter refer to the second respondent as Avaiata and the first respondent as Aliana.

Background – Avaiata

At the time of the accident Avaiata was aged 20 years. He was in his 3^rd year at the medical school. Earlier at school he had been regarded as fairly bright and had been the head boy in his last year. He is one of three siblings in an achieving professional family. He was bonded to work for the government for 6 years after he completed his medical degree. Before the accident his ambition was to be a general practitioner.

In the accident he suffered an infected open fracture of the left tibia and fibula. He was rendered unconscious. He regained consciousness on the way to the Labasa Hospital. On regaining consciousness he felt severe pain in his left leg and was bleeding severely. A temporary plaster cast was placed over the injuries to his leg and he was transferred to the Lautoka Hospital on the following day where he was an inpatient for 5 weeks until 1 July 1996. Altogether he had 6 operations. On 24 May the wound was cleaned. On 25 May the leg was considered unsaveable and a below knee amputation was carried out at the fracture site. He then underwent 3 further operations for the cleaning of the wound and a split-skin graft for the stump on 21 June. While he was in Lautoka Hospital he received considerable medication to relieve the pain as well as blood transfusions and physiotherapy. On discharge from hospital he underwent further physiotherapy.

An artificial leg was not available in Fiji and so he was referred to the Auckland Limb Centre for a below the knee prosthesis. He was in Auckland between November 1997 and January 1998 for this purpose. He then returned to Fiji where he resumed his studies at the School of Medicine for the first time since the accident.

During 1998 the artificial limb became loose with the shrinking of the stump; and this made walking difficult. Abscesses and sores developed. Avaiata again went to New Zealand between November 1998 and January 1999, when a replacement prosthesis was fitted.

Again, Avaiata continued with his medical studies. He graduated in December 1999. On graduation he did a one year internship at the CWM Hospital. He completed his internship with a good report in all four sections of the work, that is, medical, surgical, obstetrics and gynaecology and paediatrics. He then applied for an appointment to the radiology department at Lautoka Hospital, where later, he became a registrar. He did not apply for rural service because of the hardship and difficulties he anticipated in that work.

A medical examination was conducted in April 2001. Avaiata walked without a walking aid except when his stump abscessed due to infection which occurred about every 2 months. Such occurrences were expected to continue in the future. The prosthesis had become loose and required additional bandaging around the stump. He walked with a short limp. He had a full range of knee flexion and extension. He was assessed as having a 45% permanent disability with the prosthesis requiring periodic assessment and changing.

The Artificial Limb Centre at Auckland considered a replacement prosthesis would be required every four or five years. The prosthesis which he was wearing in 2001 cost $1,800.00. A modern type of prosthesis was also available. It would cost in the vicinity of 6000 - 7000 New Zealand dollars. Re-adjustment would be required every two years.

Indeed, in September 2001 Avaiata again journeyed to Auckland for an adjustment of the prosthesis. That visit involved an expenditure of $2430. This figure formed one of the bases of the claim for future medical care to which we shall later refer.

In July 2002 Avaiata was admitted to the Lautoka Hospital for 8 days for stump abscesses which required treatment with intravenous antibiotics. A medical report on this event was placed before the trial judge, without objection, with the submissions of Avaiata’s counsel in reply which were lodged in early August 2002.

In his present work, long periods of standing cause Avaiata discomfort. He can only drive an automatic motor car; he cannot squat at Fiji ceremonies; he has to use crutches to go into the shower; he does not do any swimming; he continues to play cricket but he has to have a runner; he now only wears long trousers to avoid revealing his prosthesis.

Avaiata accepted that with the shortage of doctors in Fiji there was a good chance of promotion and that there was the possibility of being sent overseas for further study. He now wanted to pursue the specialty of radiology. His income as a state-employed doctor had not been affected by the accident.

Avaiata was not married at the time of trial.

Background - Aliana

At the time of the accident Aliana was aged 22 years. She was then in her 4^th year as a medical student. In the accident she suffered a displaced fracture of the left thigh bone, a fracture to the left thumb metacarpel and injuries to the left eye and forehead.

Initially Aliana was taken to the Nabouwalu Hospital where the lacerations were stitched. She was then transferred to the Labasa Hospital. Ultimately she was transferred to the Lautoka Hospital where a pin was inserted in the left thigh and her left leg was placed in plaster. (At the time of the trial the pin on the choice of Aliana was still in the leg). Aliana spent 4 weeks in the Lautoka Hospital during which time she was on medication and pain relief. She was in bed for 3 of the 4 weeks during which time everything had to be done for her. On discharge from hospital she was on crutches and still in plaster for 4 months. She returned to her medical duties at the Nabouwalu Hospital. She carried out these duties with some difficulties while she was on crutches. During this time she required medication for pain relief.

The accident did not impede her medical studies. She graduated at the end of 1998. She then did an internship at the Lautoka Hospital for 1 year. That was followed by a posting to the Natewa Health Clinic (at her request) which covers 13 villages that are visited in rotation. She is one of 3 doctors at the Clinic. They either walk or go by boat to carry out their duties.

By the time of the trial Aliana had married a school teacher. There is one child of the marriage. During the last two days of her pregnancy and after the birth of her child for two days she had considerable pain. She gets exhausted easily when she has to work long hours and remain on her feet. She had some restriction in movement in the left hip and she also complained of some pain at the thigh fracture site. There was some thigh wasting.

Since the accident she has been unable to play volleyball and she has not taken part in any aerobics or distance running. She asserted that she has some memory losses and pain in the left thigh during sexual intercourse. This last mentioned impairment requires to be given appropriate weight.

She has disfiguring scars on the left side of her thigh (which could be removed by plastic surgery). Arthritis is a possibility in the future. A permanent partial disability of 10% was assessed.

The awards of Pathik J

The Judge awarded Avaiata $225,090.00 being:

- $95,000.00 damages for pain and suffering and loss of amenities together with interest at 6% from the date of the accident to the date of judgment amounting to $21,366.00;

- $25,000.00 for future economic loss;

- $89,640.00 for future medical care;

- $3,346.00 as agreed special damages together with interest 6% from September 2001 to the date of judgment amounting to $738.00.

Ahead of judgment $10,000 had been paid on account.

And to Aliana the Judge awarded $86,754.00 being:

- $70,000.00 damages for pain and suffering and loss of amenities together with interest at 6% from the date of the accident to the date of judgment amounting to $16,014.00;

- $400.00 agreed for special damages together with interest at 6% from the date of the accident to the date of judgment amounting to $90.00;

- $250.00 agreed for future medical care.

The appellants now attack, as excessive:

- the awards to both respondents of the damages for pain and suffering and loss of amenities; and

- the award of $89,640.00 for future medical care for Avaiata.

At the hearing of the appeal the appellants abandoned their attack on the awards of interest.

We shall now deal with the appellants’ complaints in turn.

Pain and Suffering and Loss of Amenities

The appellants attack the award of $95,000.00 to Avaiata and $70,000.00 to Aliana for pain and suffering and loss of amenities.

The appellants accepted that each case must be decided on its own facts and that a claimant for personal injuries is entitled to an award of damages which is fair and reasonable in all the circumstances of the particular case.

The appellants complaint was that the awards under this head made by the judge were excessive. They asserted that the judge erred in that:

- the amount awarded to each respondent was not appropriate in the circumstances of that respondent having regard to that person’s condition at the time of trial and his or her future prospects (as the case may be) and the absence of any special features; and

- the amount awarded when viewed objectively against the background of other cases was exceptionally high and out of touch with the established levels of awards in Fiji for significantly more serious cases.

In support of the appellants’ attack on the judge’s award Mr. Udit, the appellants’ counsel, referred to a number of previous decisions of this Court and the High Court, the most significant of which were two decisions of this Court handed down in the last 18 months – Yanuca Island Ltd v. Peter Elsworth ABU 0085 of 2000S judgment 16 August 2002 and Attorney General & Another v. Edward Broadbridge ABU 0063 of 2001S judgment 30 May 2003. In both cases the general damages awarded in the High Court were held to be excessive and the need for consistency with awards in comparable cases was stressed.

Mr. Maharaj for the respondents resisted the appeal. He submitted that the onus was on the appellants to demonstrate that the awards transcended the bounds of a proper exercise of sound discretion.

The respondents’ counsel contended that the judge had not fallen into error in respect of either respondent in that the amounts awarded were not disproportionate to the situation of each respondent. He accepted that a trial judge will be aware of the general levels of awards. He contended that the awards to each respondent were essentially within the range of awards for the kind of injuries involved.

In considering this matter we record that we have been assisted by the helpful joint judgment of Barwick CJ, Kitto J and Menzies J in Planet Fisheries Pty Ltd v. La Rosa [1968] HCA 62; [1969-70] 119 CLR 118. At page 124 their Honours said:

“It is the relationship of the award to the injury and its consequences as established in the evidence in the case in question which is to be proportionate. It is only if, there being no other error, the award is grossly disproportionate to those injuries and consequences that it can be set aside. Whether it is so or not is a matter of judgment in the sound exercise of a sense of proportion. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases. .......... The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen.”

And later at p.125 their Honours continued:

“The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing from what we were invited by Planet’s counsel to act upon in this case. The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand.”

We have also reminded ourselves of two observations of this Court in Jovesa Rokobutabutaki v. Rokodovu Civil Appeal 88 of 1998 Judgment 11 February 2000. First that the sum awarded must be appropriate for Fiji and the conditions which apply here; and secondly:

“It would be wrong to read into the note of caution sounded in Tevita’s case any suggestion that $85,000 should be regarded as a general upper limit for damages for pain suffering and loss of amenity. While the Court has expressed the view that awards of this magnitude should be limited to very serious cases, there can be no freezing of damages at a particular level, even if it might be a record for Fiji.”

Tevita’s case – Attorney General v. Tevita Tabua Waqabaca Civil Appeal ABU0018 [1998] judgement 13 November 1998 - was a claim for damages for negligence. The male plaintiff was 2 years of age when the medical negligence occurred. He suffered irreversible brain damage and was left with a permanent condition of spastic cerebral palsy. The trial judge awarded $386,504.00 including $85,000.00 for pain and suffering and loss of amenities. This sum was attacked on appeal to this Court. That submission was rejected. This Court emphasised that it was a very special case and added:

“one would hope that one would not encounter injuries of this magnitude in any other case. It would be unwise of those charged with the task of assessing damages in other cases or in advising victims of other accidents to take any guidance from this case unless the facts and circumstances with which they are concerned have a substantial similarity to those of this one”.

With these observations in mind we now turn to each award which was under attack.

The award of $95,000.00 to Avaiata

We have already set out the nature of Avaiata’s injuries and his medical history down to the date of trial and after.

The judge after setting out the general principles relating to the assessment of damages (in respect of which there was no attack by the appellants) went on to say:

“Bearing in mind the authorities and the principles relating to assessment of damages in personal injury cases, I have considered the case before me on the basis that (Avaiata) has suffered enormous pain and suffering and loss of amenities of life and will continue to do so for the rest of his life.

Here is a case of a young man who in the prime of his life in the early stages of his medical course had the misfortune to be involved in this tragic accident resulting in his one leg being amputated below the knee leaving a stump. He was fitted with his first below the knee prosthesis in January 1997 at the Auckland Limb Centre. Prosthesis service is not available in Fiji and for this the plaintiff had attended the Limb Centre three times; the first was in November 1997, the second on 30 November 1998 and the third in September 2001.

There is undisputed evidence that the plaintiff will require replacement of prosthesis every four to five years. He will be required to visit the Limb Centre on an average every two years for re-adjustment to his prosthesis. It is understood that the life of any prosthesis is between 4 to 5 years when the old one would need to be replaced with the new one. It appears from the submission of counsel for the plaintiff from the Report of Doctor J. Tudravu dated 31 July 2002 that the plaintiff was admitted to Lautoka Hospital for eight days on 22 July 2002 for abscess of left below knee amputation stump. All this is indicative of the fact that the plaintiff continues to suffer pain and suffering despite his prosthesis and much discomfort. This state of affairs is likely to continue for the rest of his life irrespective of the kind of prosthesis fitted to his amputated leg.”

The judge concluded this section of his judgment by awarding Avaiata $95,000.00.

In approaching this appeal in accordance with the principles set out earlier we have reached the clear conclusion that the amount awarded to Avaiata for pain and suffering and loss of amenities was not appropriate given his medical history, his condition at the time of the trial and his future prospects. Indeed we conclude that the award under this head was manifestly disproportionate to his injuries and the consequences of them.

We accept that the judge saw and heard Avaiata and viewed his stump. With respect, however, we consider that the judge’s conclusion that Avaiata suffered “enormous” pain when viewed objectively was an over statement and that such a finding lead him into error in his assessment of the amount which would be fair and reasonable in all the circumstances of Avaiata’s case.

The trial judge appears to have accepted the conclusion that Avaiata was unlikely to marry. He asserted that since the accident he did not go to discos and that he had not been successful with girls in terms of marriage because of the embarrassment of his artificial limb. He is, however, an intelligent and talented professional and the probability is that he will attract a partner before long.

Without seeking in any way to minimise Avaiata’s injuries and his loss of a limb we agree with the submission for the appellants that his case was devoid of any special features either in the past or in the future. In our view the judge’s assessment did not give sufficient weight to a number of important factors. First the prompt amputation of the damaged limb and the fitting of a prosthesis within seven months of the amputation. Secondly in spite of the injuries and the resulting disability suffered by Avaiata he continued his medical studies, completed his degree within the minimum time and carried out a successful and well-reported internship in the year following graduation. Thirdly he has already risen to the rank of registrar in the Radiology Department at the Lautoka Hospital with good prospects of further study and further promotion, having so it would seem abandoned the idea of rural practice by not making an application for such a posting at any time. And fourthly Avaiata has been able to resume playing cricket albeit with the assistance of a runner.

In reviewing Avaiata’s past history and future prospects we do not overlook the fact that he has had and will continue to suffer stump abscesses and that he has had some recurring problems with his prosthesis which clearly, an award for pain and suffering and loss of amenities must bring into account. We do not consider however that they can be regarded as a special feature which would lift the level of damages for the kind of injury and disability suffered by him out of the normal range. With the exception of the recurring abscesses most of the pain suffered by Avaiata is in the past and he has, on the evidence, accommodated well to the prosthesis and his permanent partial disability.

In our view there was also substance in the submission for the appellants that the amount awarded when viewed objectively against the background of other cases was exceptionally high and out of touch with the established level of awards in Fiji for significantly more serious cases. We have approached this part of the case in the same way as this Court did in the recent appeal of Maka v. Broadbridge (supra).

Having reached these conclusions we consider that the award for Avaiata for pain and suffering and loss of amenities must be reduced to the maximum justifiable in all the circumstances. We fix that sum at $60,000.00.

The award of $70,000.00 to Aliana

Likewise in the case of Aliana we have, earlier in this judgment, reviewed the injuries suffered by her, the relevant events which followed the accident, her condition at the time of the trial and her future prospects.

The judge stated that he had to assess the damages for pain and suffering and loss of amenities bearing in mind the same factors as he had applied in the case of Avaiata. There was no challenge by the appellants to this approach. Rather it was the contention for the appellants that the judge had fallen into error in the application of those principles.

The judge said:

“Damages under this head has to be assessed bearing in mind the factors to be taken into account as already stated by me hereabove when dealing with (Avaiata).. The 10% disability is also to be taken into account. I have also taken into consideration other Judges’ decisions as to amount and also what has been said by the Court of Appeal on this head of damages.”

Adopting the approach which we have already set out we have once again reached the clear conclusion that the amount awarded to Aliana under this head was not only inappropriate but manifestly disproportionate to the circumstances of her case. Additionally, when viewed objectively against the background of other cases the award was well outside the range of the established levels of awards for the conditions in Fiji for cases of a similar kind.

It did not escape our attention that the amount awarded by the judge to Aliana was only $25,000.00 less than the amount which he awarded to Avaiata for injuries which were much more severe than those suffered by Aliana.

In our view the injuries suffered by Aliana justified a much lower level of damages for pain and suffering and loss of amenities. We consider that the judge gave insufficient weight to the relatively low level of permanent partial disability, 10%. We also consider that the judge gave insufficient weight to a number of other important factors. In Aliana’s case inspite of her injuries she completed her medical degree course in the minimum time. She then married and had a child and is successfully managing a rural practice, albeit it with some small restriction. The nail in the left femur can be removed at her election and the scar on the left thigh can be removed by plastic surgery, again, at the request of Aliana.

We therefore conclude for the reasons given above that the award made under this head must be reduced to a sum which we consider would be justified in all the circumstances of the case. We fix that sum at $30,000.00.

The award to Avaiata of $89,640.00 for future medical care

The judge awarded Avaiata $89,640.00 for future medical care which was $9,640.00 higher than the figure contended for by his counsel.

It was common ground:

- that Avaiata would need a new prosthesis every four or five years and a re-adjustment on average every two years;

- that those procedures given the current lack of facilities in Fiji would have to be carried out in Auckland; and

- that the cost of each re-adjustment trip would be $2,430.00.

The cost of the prosthesis which was fitted to Avaiata at the time of the trial was 1,800.00 NZ dollars. The evidence showed that a modern prosthesis was however available at the Auckland Limb Centre and that it would cost 6,000.00 to 7,000,00 NZ dollars. The appellants accepted that such a prosthesis would be appropriate for Avaiata.

The judge adopted a multiplier/multiplicand approach which is regularly used in personal injuries cases in Fiji for calculating loss of earnings and similar losses to the one now under consideration. See Mitchell v. Mulholland & Another [1972] 1 QB 65. It is now recognised that it is not the only approach which can be used in Fiji. See Maka v Broadbridge (supra). In the present case the judge had no option but to use this method because no actuarial evidence was placed before him by either side.

At the time of the trial Avaiata was aged 25 years. According to the Pacific Human Development Report 1999 which was not in evidence, but which was referred to by Avaiata’s counsel in his final address, without objection, Avaiata had an expectancy of living until he was aged 70 years.

Avaiata’s counsel contended for an award to cover the future medical expenses for Avaiata’s life expectancy of 45 years. Counsel ultimately sought a rounded-off sum of $80,000.00.

On the other hand the appellant’s counsel contended for a multiplier of 20 years and ultimately for an award of $40,000.00 (although he would now, in this Court, go as high as $50,000.00).

In the event the judge adopted a life expectancy for Avaiata of 60 years. It is not clear whether that was a finding of actual life expectancy or a finding reduced to make an allowance for the vicissitudes of life. Probably it was the latter.

The judge calculated his award of $89,640.00 over a span of 35 years. He used present day costs and multiplied them by the number of times (17) they would be incurred throughout the 35 years:

Re-adjustment (every 2 years) 17 trips at a cost of
$2,430.00 per trip $41,310.00

Less 9 trips at $2,430.00 for replacement 21,870.00
___________

19,440.00

9 prostheses at $6,000.00 per prosthesis 54,000.00

9 trips at a cost of $1,800.00 (accommodation $1,000
plus air fares $800) 16,200.00
___________

$89,640.00
___________

The judge then added:

“This sum if invested would earn the plaintiff sufficient to meet his future care.”

Before us the appellants contended:

- that the multiplier of 35 years was excessive and outside the normal range generally adopted for a claim of this kind

- that in arriving at that multiplier the Judge made insufficient allowance for the contingencies and vicissitudes of life

- that the Judge did not make any discount for the fact that Avaiata would be getting a lump sum and that that sum would be available for investment.

Mr. Udit referred us to Croke v. Wiseman [1982] 1 WLR 71 which adopted and applied the earlier decision in Mitchell v. Mulholland (supra). In Croke Griffiths L.J said at page 80:

“This child was seven at the date of the trial; he therefore, had a life expectancy of 33 years. The judge used a multiplier of 16 to 17 years. The actuarial tables produced by the defendants show that his is the appropriate multiplier to use when making a lump sum award which by using both interest and capital will be exhausted at the end of 33 years. But Professor Holt in giving a probable life expectancy of 40 was, as I understand his evidence, doing so upon the assumption that if the child suffered no untoward accident he would probably have the innate strength to survive to that age. This estimate makes no allowance for the possibility that some untoward chance such as a motor car accident or fire or so forth might terminate his life at an earlier date. I think the multiplier of 16 to 17 years is too high, and this is particularly so when one bears in mind that in the Lim Poh Choo case [1979] UKHL 1; [1980] A.C. 174 the House of Lords, working on an expectation of life of another 36 years, approved a multiplier of 12. It is desirable that on comparable life expectation there should not be too great a disparity between the multipliers used in the different cases, although complete uniformity can never be expected because different circumstances will affect different cases. Bearing these factors in mind I would reduce the multiplier in this case to 14 years.”

Shaw LJ agreed with Griffiths LJ.

Lord Denning MR said at page 78 in a dissenting Judgment:

“As I have said earlier, if loss of future earnings is out, there should be ample provision for the cost of keeping this boy in the future so that he should have the best possible care for the rest of his expected life. This is always done by finding first the “multiplicand” and afterwards the “multiplier. He accepted the evidence of the plaintiff’s doctor that he might live to the age of 40. The judge awarded him a total of 100,000: for which the judge used a “multiplier” of 16 or 17 years’ purchase..... But I am afraid I do not agree with the “multiplier” that he has used. He used a “multiplier” of 16 or 17. I think that is far too high. The “multiplier” in these cases is of much importance. It makes many thousands of pounds’ difference to the award. In this case I think we should follow their example. We should reduce the “multiplier” from 16 or 17 down to 12”.

Mr. Udit emphasised the much lower multipliers discussed in Croke. Such multipliers are of course a “rule of thumb” approach traditionally used in personal injury litigation throughout the Commonwealth. They serve in place of and are based upon the more precise actuarial calculations which are now the norm in many jurisdictions. On the basis of the approach adopted by the English Court of Appeal Mr. Udit submitted that the multiplier adopted by the Judge in this case was well out of line.

Mr. Udit pointed to a number of matters which he submitted the judge ought to have taken into account and which in the event were not given sufficient or any weight.

- 35 years is a long period of time

- the possibility of advances in medical technology resulting in the making of replacement and/or re-adjustments of Avaiata’s prosthesis less necessary or at greater intervals of time

- the possibility of the provision of prosthesis facilities in Fiji making it no longer necessary for Avaiata to go to New Zealand

- the possibility of Avaiata becoming a permanent resident in New Zealand

- and most importantly no recognition of the need for a discount for the fact that Avaiata is to get a lump sum now in relation to expenditure which is spread over many years.

Mr. Udit accordingly submitted that in all the circumstances the multiplier of 35 should be held to be manifestly excessive. He contended that it should have been 20 and he added that that figure would still be generous to Avaiata.

On the lump sum point Mr. Udit contended that the judge had not given any discount for the prospective income which the judge recognised the lump sum would attract. Indeed Mr. Udit submitted (correctly in our view) that there would be a surplus at the end of the appropriate period and that this is contrary to the well established principle that the cost of future care must be on an annuity basis with resort to capital as well as income.

See Lim Poh Choo v. Camden & Islington Area Health Society [1979] UKHL 1; [1980] A.C. 174 (HL).

Mr. Maharaj for Avaiata on the other hand sought to uphold the judge’s award for future medical care. Overall, he contended, it put Avaiata in the same position as he would have been had the wrong not been sustained. He argued that the judge’s selection of a multiplier of 35 was after a discount of 10 years on Avaiata’s life expectancy and that such a discount took into account the relevant contingencies of life. Mr. Maharaj sought to justify the multiplier of 35 by reference to the following matters:

- a prosthesis for Avaiata was a life long requirement

- the judge’s calculation used present day travel costs, which favoured the appellants because of the likelihood that they would rise in the future

- such matters as the falling interest rates in Fiji, the limited range of local investments, the falling value of the Fiji dollar against the New Zealand dollar were possible contingencies which would adversely affect the value of the lump sum awarded to Avaiata.

We have carefully considered the competing arguments.

First we agree with Mr. Udit’s submission that the multiplier of 35 is clearly out of line with the approach set out by the English Court of Appeal in Croke. Although there was no evidence on the point counsel submitted that it was well in excess of the multipliers generally applied in the Fiji Courts. On that approach a much lesser multiplier was required in Avaiata’s case.

Secondly in our view a multiplier of 35 made insufficient allowance for all the relevant contingencies. While we recognise that Avaiata has a need for a prosthesis for the rest of his life we cannot disregard the possibilities raised by the appellants of improved medical technology which will produce longer lasting and better fitting prostheses. While prosthesis facilities are not available in Fiji at the present time the provision of these facilities in the future cannot be discounted.

Moreover the figure of 35, adopted by the judge was not a multiplier such as that applied in the cases to which we were referred. Likewise the same could be said of the multiplicands which he used. While the judge stated that the sum which he was awarding, if invested, would earn Avaiata sufficient to meet his future care, he did not make any allowance for the fact that Avaiata would be receiving the award now and that it would be available for investment. As we have said earlier, the judge used present day costs and simply applied to them the number of times the expenses would be incurred within the span of 35 years.

In our view the Judge was wrong in this approach. This was a case of recurring medical and associated costs. A visit to Auckland, in say, the 5^th year after the trial for a replacement prosthesis; another visit to Auckland, in say, the 8^th year after the trial for a re-adjustment, and so on. In our view each item of future expenditure must be discounted by the earlier and certain receipt of the money. There is a reasonable assumption that Avaiata will be able to invest the lump sum awarded and receive a return on that investment. This being so each future loss (and on the judge’s approach there were 17 of them) ought to have been discounted for the period between the date of the award and the date when the expenditure would have occurred. We recognise that the judge was hampered by a lack of evidence on the point. But inescapably a discount ought to have been made.

The High Court of Australia addressed a similar problem in relation to actuarial calculations in Todorovic v. Waller [1981] HCA 72; [1981] 150 CLR 402. The judges of the High Court delivered separate and comprehensive judgments. Ahead of the delivery of these judgments the Court made a statement which succinctly summarises the result of the case. It appears at page 409 of the report and reads as follows:

“In an action for damages for personal injuries, evidence as to the likely course of inflation, or of possible future changes in rates of wages or of prices, is inadmissible. Where there has been a loss of earning capacity which is likely to lead to financial loss in the future, or where the plaintiff’s injuries will make it necessary to expend in the future money to provide medical or other services, or goods necessary for the plaintiff’s health or comfort, the present value of the future loss ought to be quantified by adopting a discount rate of 3 per cent in all cases, subject, of course, to any relevant statutory provisions. This rate is intended to make the appropriate allowance for inflation, for future changes in rates of wages generally or of prices, and for tax (either actual or notional) upon income from investment of the sum awarded. No further allowance should be made for these matters.”
(The emphasis is ours).

It is to be noted that the High Court of Australia adopted a discount rate of 3% for the items mentioned but the Judgment does not address the wider contingencies whether they be for life or otherwise.

Satisfied as we are, that the judge fell into error, we have done our best by considering various alternative approaches to reach a figure which would be appropriate in the particular circumstances of this case. After careful thought and debate we have reached the conclusion that the upper figure of $50,000.00 which Mr. Udit (an experienced counsel in this field) when pressed, was prepared to concede on the appeal is within the acceptable range and indeed would be a not ungenerous provision under this head.

The principles applicable to the assessment of damages were stated by Gibbs CJ and Wilson J in Todorovic v. Waller (supra) at p.412 in these terms:

”Certain fundamental principles are so well established that it is unnecessary to cite authorities in support of them. In the first place, a plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries. Secondly, damages for one cause of action recovered once and forever, and (in the absence of any statutory exception) must be awarded as a lump sum; the court cannot order a defendant to make periodic payments to the plaintiff. Thirdly, the court has no concern with the manner in which the plaintiff uses the sum awarded to him; the plaintiff is free to do what he likes with it. Fourthly, the burden lies on the plaintiff to prove the injury or loss for which he seeks damages.”

However the assessment of damages is not a precise science. The second respondent accepted the inevitability of this when he decided to leave the judge to calculate the award for future medical care costs unassisted by actuarial evidence. On appeal we have been left in a similar position.

We have found ourselves hampered by the lack of actuarial evidence which the case demanded and by the lack of analysis by counsel of the basis upon which multipliers are calculated. Counsel provided little assistance on the particular elements to be taken into account, including the reduction to be made so as to calculate the present value of future expenses. Both counsel assumed that the damages had been assessed on the basis of multiplier/multiplicand but failed to assist as to how factors such as vicissitudes and reduction from present value were taken into account in the multiplier used in the English cases relied upon.

Be that as it may, however, we are comfortable given the appellant counsel’s concession to substitute $50,000.00 for the High Court Judge’s figure of $89,640.00. In reaching this point we have not overlooked Mr. Maharaj’s submissions. Our view is that justice requires that reduction.

Before parting with the case we are bound to observe that the consideration of Avaiata’s case in the High Court (and in this Court) would have been greatly assisted by actuarial evidence. We note that it has been said in Australia that the plaintiff should make the calculations and submit them to the criticism of the defendant and ultimately the consideration of the court. The court should not be expected to do the necessary calculations. See Watson v. McHale [1970] 1 SASR 301.

Result

The appeal is allowed.

We award:

(a) to Avaiata $60,00.00 for pain and suffering and loss of amenities instead of $95,000.00

(b) to Avaiata $50,000.00 for future medical care instead of $89,640.00

(c) to Aliana $30,000.00 for pain and suffering and loss of amenities instead of $70,000.00.

The appellants have been successful. They are entitled to costs. There will be one set of costs. The respondents are ordered to pay the appellants costs in the sum of $1,000.00 together with disbursements as fixed by the Registrar. The costs and disbursements are to be borne as to 75% by Avaiata and as to 25% by Aliana.

Smellie, JA
Davies, JA
Penlington, JA

Solicitors:

Office of the Solicitor-General, Suva for the Appellants
Messrs Maharaj Chandra & Associates, Suva for the Respondents