Nasese Bus Company Ltd v Chand [2013] FJCA 9; ABU40.2011 (8 February 2013)

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

CIVIL APPEAL NO. ABU 40 OF 2011
(Civil Action HBC 382 of 2006)

BETWEEN:

NASESE BUS COMPANY LIMITED and VIJENDRA NAIR
Appellants

AND:

MUNI CHAND
acting as guardian and next friend of Anju Artika infant.
Respondent

Date of Hearing : 23 May 2012

Coram : Calanchini AP
Chitrasiri JA
Basnayake JA

Counsel : Mr A K Narayan with Mr A K Narayan for the Appellants
Mr V Maharaj with Ms A Maharaj for the Respondents

Date of Judgment : 8 February 2013

JUDGMENT

Calanchini AP

[1]. This is an appeal from a judgment of the High Court delivered on 27 June 2011. In an action commenced by writ the Respondent infant by her next friend claimed damages for personal injuries suffered as a result of what the learned trial judge described as a motor traffic accident. The learned judge gave judgment for the Respondent and awarded her $87,595.00 damages (including interest) and $6000.00 costs.

Background

[2]. The Respondent alleged that on 26 January 2006 at about 3.20pm she was struck by a bus driven by the Second Appellant and owned by the First Appellant at the Suva bus stand. She alleged that the Second Appellant drove his bus negligently and pleaded what may be described as the standard particulars of negligence. Although not strictly necessary, the Respondent also pleaded reliance on the doctrine of "res ipsa loquitur."

[3]. The Respondent claimed that she suffered personal injuries and permanent incapacity as a result of the accident. The Respondent suffered loss and damage in the form of pain and suffering and loss of amenities as a result of the Second Appellant's negligence. There was also a claim that her future employment prospects had been affected. She claimed that the First Appellant was vicariously liable on the basis that the Second Appellant was driving as the servant, employee or agent of the First Appellant in the course of his employment with the First Appellant.

[4]. In the Defence the Appellants admitted that a collision involving the Respondent infant and the bus driven by the Second Appellant and owned by the First Appellant occurred on 26 January 2006 at about 3.20p.m. at the Suva Bus stand. They denied negligence. Although admitting that the Respondent had been injured, the Appellants denied liability for the injuries. The Appellants pleaded contributory negligence on the part of the Respondent.

[5.] In the Statement of Agreed Facts set out in the Minutes of the Pre-Trial Conference, the parties agreed, amongst other things, that:

"On 26 January 2006 at about 3.30pm there was a collision at the Suva Bus stand involving the infant and the bus registration number CZ271 which was driven by the First Defendant.

As a result of the collision the infant who was aged 18 years at the time sustained personal injuries. The infant suffered a crushed injury fracture of left leg with a degloving injury to right thigh."

[6]. In addition, ownership of the bus by the First Appellant, the driving of the bus by the second Appellant and employment were not in dispute.

[7]. For some reason best known to the Appellants, the First Defendant bus driver became the Second Appellant and Second Defendant owner became the First Appellant in the appeal proceedings.

Trial Judgment

[8]. After a careful assessment of the evidence the learned trial Judge concluded that the collision was caused by the negligence of the Second Appellant, the driver of the bus. The learned Judge found that the driver had failed to observe the Respondent and concluded that he had not been keeping a proper lookout. The learned Judge also concluded that given the busy and crowded nature of the bus stand, the driver had not driven the bus with sufficient caution. He rejected the claim that the Respondent had contributed to the collision by her failure to take appropriate care for her own safety.

[9]. In respect of damages, the learned Judge awarded $65,000.00 damages for pain and suffering and loss of amenities, past and future. At the time of the accident the Respondent was 18 and at the time of the trial she was 24 years old. In arriving at the quantum for general damages (non-pecuniary) the learned Judge considered the evidence of Dr Traill and the Respondent's evidence concerning her immediate post accident pain and the pain she continued to experience. He also considered the scarring and an assessed 14% permanent incapacity.

[10]. The learned Judge declined to award the Respondent any amount for future loss of earnings (i.e. from the date of the trial) as there was insufficient evidence to enable the Court to make the necessary calculations.

[11]. Special damages were awarded in the sum of $1145.00 in respect of taxi fares ($500), ambulance charges ($105), crutches ($40.00) and medication ($500.00).

[12]. The learned Judge awarded interest at the rate of 6% on $65,000.00 for the period 26 January 2006 (being the date of the accident) up to 24 June 2011 (being the date of judgment) in the sum of $21,450.00. The total amount awarded was $87,595.00 together with $6000.00 costs.

The appeal

[13]. The Appellants are now seeking to appeal the judgment. They seek an order from this Court that the judgment be set aside and/or revised and/or varied. There are ten grounds of appeal listed in their Notice of Appeal.

Respondent's Notice

[14]. The Respondent filed a Respondent's Notice challenging aspects of the learned Judge's judgment. The Respondent challenges the award of $65,000.00 by way of general damages as inadequate compensation and the failure to award any damages for loss of earnings either "pre-accident" or "post-accident."

Ground 4

[15]. I shall now consider the grounds of appeal that have been more or less particularised. Ground 4 states:

"The learned trial Judge's rejection that the Second Appellant was driving slowly and carefully at the time of the accident is erroneous and failed to take into account the consistent documentary and other evidence available."

[16]. This ground of appeal challenges the learned trial Judge's finding which is set out in paragraph 12 of the Judgment. The learned Judge did not accept the evidence of the bus driver (the Second Appellant) that he was driving the bus slowly and carefully. There are two separate findings in the learned Judges conclusion. His finding that the bus driver was not driving slowly is a finding of a specific fact. His finding that the bus driver was not driving carefully is an inference drawn from one or more findings of specific fact.

[17]. In respect of the finding of the specific fact that the bus driver was not driving the bus slowly, there was evidence on speed from both the driver and the Respondent. Although the evidence given by the Respondent does appear to be a combination of memory and reconstruction, there was sufficient evidence for the learned Judge to conclude that the Respondent had seen the bus approaching towards her shortly before she was struck by it. However, it is open to question whether the Respondent had sufficient time to assess the speed of the bus. The best that she could do was to say that she did not have sufficient time to get out of its way. That might have been due to either speed or proximity. It would be, in my judgment, totally unreasonable to expect the Respondent or any other witness for that matter to give accurate evidence based on memory as to precise speeds or distances more than four years after the event.

[18]. Furthermore, in my judgment, the evidence adduced as to how busy the bus stand usually was at that time of the day and how bus drivers usually drove to their parking bay at the bus stand was of little or no relevance as to what happened on 26 January 2006. It was open to the Judge to accept the Respondent's evidence in preference to the bus driver's evidence. It may be that the learned Judge should have explained the reason for his preference. However, that shortfall does not alter the fact that there was sufficient evidence to support the finding of fact.

[19]. As to the inference drawn by the learned Judge that the bus driver was not driving carefully, I am satisfied that there were findings of fact and evidence (apart from the issue of speed) from which such an inference could be drawn. The bus driver admitted that he did not see the Respondent prior to the collision. He was not even aware that he had driven over her although he admitted feeling a bump. It was only when he was alerted by people yelling that he became aware of the problem.

[20]. There was evidence that it was raining at the time, the music in the bus was playing, possibly loudly and there were students in the bus who were, no doubt, preparing to disembark at the bus stand. It was open to the Judge to conclude that under these circumstances the bus driver was not keeping a proper lookout. It was then open to the learned Judge to conclude that the driver was not driving carefully and in fact was driving carelessly and as a result negligently.

[21]. In the submissions filed on 22 February 2012 the Appellants submitted that the learned Judge failed to consider relevant evidence. The submission in paragraph 5.4 and 5.5 refers to evidence given by one witness as to the speed which drivers of buses generally drive when the bus stand is busy. I have already made reference to that evidence.

[22]. Reference is also made in the submissions, to a site visit by the Judge during the trial. It was entirely a matter for the trial judge as to how much weight, if any, he placed on evidence that may have been adduced from that visit, some four years after the accident.

[23]. Furthermore, in my judgment, it is not a defence to an allegation of negligence in the form of driving too fast under the circumstances to claim that the driver of the bus complied with the applicable speed limit. It may well be that even driving at a speed limit of 8kph is excessive under the circumstances.

[24]. I am satisfied that the learned Judge was entitled to infer that the driver was not driving carefully if he was satisfied on the balance of probabilities that the bus was being driven at an excessive speed under the circumstances and/or the driver was failing to keep a proper lookout. In my judgment there was sufficient evidence for him to find against the driver on both issues.

[25]. In paragraph 5.8 of the submission the Appellants gave an indication of the basis upon which the action was being defended. It was submitted that:

"The trial Judge has erred in failing to draw the correct inferences and has unfairly dismissed the Second Appellants suggestion that the Respondent may have slipped under the bus."

[26]. The learned trial Judge was required to make a decision. He was required to determine whether the Respondent had established negligence on the balance of probabilities in that the Second Appellant had breached a duty of care he owed to the people in the vicinity of where he was planning to park his bus. The mere fact that the driver did not see the Respondent or was even unaware of her presence until the crowd started to yell, does not mean that at some time prior to her being pulled from under the bus she was not standing in the approximate area which she described in her evidence. Nor does the fact that the bus driver did not see her lead to the inference that she must have slipped under the bus. There was no evidence adduced at the trial from any witness who actually saw the incident. The Respondent also denied slipping and there was simply no direct evidence of slipping. The Respondent denied walking into the side of the moving bus.

[27]. Being required to make a decision, the learned Judge was required to determine on the basis of credibility including logical consistency, which version was more probable. Apart from the oral evidence given at the trial, the learned judge considered written statements made by both the Respondent, the driver and two witnesses who assisted in removing the Respondent from under the bus. These statements were made on various dates in 2006 and 2007. There was a statement dated 4 February 2006 and another dated 14 July 2006 both made by the Respondent. There was a statement made by the witness Constable Moce made on 6 October 2006. There was a statement dated 6 October 2006 made by the witness who was referred to as Iosefo. Each statement was brief to say the least. None contained any of the detail that formed the basis of their oral evidence at the trial some four years later. The written statements were of little or no assistance in attempting to determine how much of their oral evidence was based on memory and how much on reconstruction. Although the Respondent's two statements did contain some inconsistencies, that fact does not necessarily assist the Court in determining how she came to be under the bus with severe injuries.

[28]. In my judgment it was open to the learned judge to conclude that the Respondent's version was the more probable.

[29]. The Appellant has not satisfied me that the learned trial Judge was wrong in his findings of fact or in the inference drawn from the facts found or established by the evidence. I would dismiss ground 4.

Ground 6

[30]. The Appellant's next submission was concerned with ground 6 which states:

"The learned Trial Judge misconstrued the evidence of Dr Traill and thereby fell into the error of rejecting the evidence that the Plaintiff was found behind the rear tyre."

[31]. In considering this ground it is necessary to turn first to the report prepared by Dr Traill. The report appeared on page 102 of the Record. It is dated 22 February 2007. It confirms that the Respondent was admitted to the CWM Hospital on 26 January 2006 and was discharged on 16 March 2006. At the time of admission the Respondent was a beautician who had been run over by a bus at the Suva Bus Stand on the same day. Her injuries are described in some detail and then Dr Traill stated that "she had visible tyre marks on her right thigh and left ankle."

[32]. In paragraph 10 of his judgment the learned Judge discusses the evidence given by Dr Traill at the trial and in his report. The learned Judge noted that Dr Traill in his testimony had stated that the injuries were consistent with a person run over by a bus. On the basis of the material on pages 456 and 464 of the Record, this was a finding that was open to the Judge. The learned Judge noted that the question was asked and then answered by Dr Traill. In cross-examination Dr Traill confirmed that in his opinion the injuries were not slip and fall injuries. The remainder of the paragraph is an accurate summary of the Doctor's evidence.

[33]. The essential issue in the action appeared to be not so much whether the Respondent was run over by two tyres but rather whether she had been hit, or even knocked to the ground by the bus which then ran over her right thigh and left ankle or whether somehow she slipped under the bus which then ran over her right thigh and left ankle. The one piece of evidence that was not contradicted was the statement in the report that Dr Traill had observed tyre marks on the right thigh and the left ankle. The finding that there were tyre marks observed on the right thigh and left ankle was a finding that the learned Judge was required to make. The inferences that can be drawn from that finding left open the possibility that the Respondent had either been knocked or hit by the bus or had slipped. It was open to the learned Judge, on a consideration of all the evidence, to conclude that it was more probable on the basis of logical consistency, that the Respondent had been hit or knocked by the bus. As Doctor Traill stated there was bruising on the Respondent's body that was consistent with that conclusion.

[34]. The learned Judge reached a conclusion concerning the position where the Respondent was found by those who first arrived on the scene. However, whether that was a finding that was open to him on the basis of Doctor Traill's evidence is not really the issue. The issue is whether the Respondent was hit or knocked by the bus or whether she slipped. Even if the learned Judge's finding on this point appears to have placed undue reliance on the Doctor's evidence, it does not in my judgment, affect my conclusion that on the whole of the evidence the learned Judge was entitled to conclude that the Respondent was hit or knocked by the bus and that she had not slipped under the bus.

Ground 7

[35]. Turning to ground 7 of the Appellant's grounds of Appeal. This ground states:

"The learned trial Judge failed to provide any or any sufficient reasons for not dealing with and evaluating or not accepting the evidence of the independent Defence witness PC Joeli Moce which was supported by the Plaintiff."

[36]. PC Moce was one of two independent witnesses who gave evidence at the trial. The other was a Mr Iosefo who was the security officer at the bus stand at the time. Their evidence was essentially concerned with the position of the Respondent under the bus when they reached her. Neither had witnessed the accident. The evidence of Iosefo as to the position of the Respondent was at odds with the evidence of PC Moce. PC Moce was not the investigating officer. Mr Iosefo was called to give evidence by the Respondent. PC Moce gave evidence on behalf of the Appellants. Counsel for the Appellants submitted that PC Moce's evidence was more reliable and consistent and should have been accepted in preference to that given by Mr Iosefo. This submission is somewhat surprising when it is recalled that in the submissions on ground 4 of the appeal grounds, the Appellants seek to rely on the testimony of Mr Iosefo. It appears, however, that this ground of appeal is concerned not so much with the trial Judge accepting the evidence of Mr Iosefo over that of PC Moce (see paragraph 7.2 of the submissions) but rather that the learned Judge was required to provide reasons for not accepting the evidence of PC Moce and in not giving reasons he had failed in his judgment to evaluate and deal with the evidence of PC Moce. In support of that proposition the Appellants rely on the decision of the Court of Appeal in Rajendra Nath v Madhur Lata (unreported civil appeal No.11 of 1984 delivered 13 July 1984). The issue before the Court of Appeal in that case was the existence of the duty of courts and administrative tribunals to give reasons for their decisions, especially where the unsuccessful party has a right of appeal. In that case the Court of Appeal allowed an appeal on the basis that a magistrate had not given proper reasons for his decision (recommendation) on a child custody dispute.

[37]. In my judgment the decision of the learned trial Judge complies with the decision of the Court of Appeal in that the reasons for the judgment in favour of the Respondent were given in sufficient detail. The Rajendra Nath decision (supra) is not authority for the proposition that the learned Judge must necessarily state why he preferred the evidence of one witness over that of another witness.

[38]. Nevertheless, unlike when civil juries delivered a verdict on negligence (without explanation) a judge sitting alone is required to give reasons in respect of his conclusion that negligence has been established. Ordinarily this would include some indication that all relevant evidence has been considered. The judge should indicate which evidence is preferred in the case of conflicting versions and why.

[39]. In paragraph 13 of his judgment the learned Judge does refer briefly to some aspects of the evidence given by PC Moce. In paragraph 18 the learned Judge stated that he was inclined to accept the evidence of Mr Iosefo. Although not stated, when the judgment is read as a whole and when the evidence is considered in its totality, it seems that the basis for the learned Judge's preference for the evidence of Mr Iosefo was logical consistency. It also appears that having made a finding to the effect that the driver had not been keeping a proper lookout and had failed to observe the presence of the Respondent, there was evidence of negligence.

[40]. The discrepancy in the evidence given by the two independent witnesses concerned just where the Respondent was lying when she was recovered from under the bus. The Judge also had to consider the uncontradicted evidence from Dr Traill that he had observed tyre marks on both the right thigh and the left ankle of the Respondent.

[41]. Much was made of the discrepancy in the evidence of the two independent witness in the submissions before this Court. The learned Judge has only briefly referred to the issue in his judgment. Where a particular issue has not been satisfactorily dealt with by the court below it becomes a matter at large for this Court in an appeal by way of re-hearing. For my part I am prepared to indicate that given the findings of fact made by the learned Judge reference to which has already been made, on the basis of logical consistency it was open to the learned Judge, and I would be prepared, to accept the evidence of Mr Iosefo. Although the Appellants submitted that Mr Iosefo made an unfavourable impression when giving his evidence and that some of his evidence was inconsistent, it was open to the learned Judge to accept whatever evidence he considered to be credible on the basis that it was logically consistent with other findings of fact. Furthermore, as noted earlier, the written statements that were made in 2006 were extremely brief. It was also open to the learned Judge to form a view as to whose evidence was based more on reconstruction than on memory.

Ground 5

[42]. Ground 5 of the appeal grounds is expressed in convoluted terms. It appears to be challenging the acceptance by the learned Judge of the evidence of the Respondent. The submissions point to inconsistencies in some of the evidence given by the Respondent. In my view it was a matter for the trial judge and him alone to assess credibility and the weight to be attached to the evidence of the Respondent. Since the driver never at any stage saw the Respondent prior to the incident, a substantial part of her evidence stood alone and uncontradicted. The inconsistencies in her signed written statements were more due to the difficulty of recalling details of the trauma than with any attempt to mislead or fabricate. It was open to the learned judge to form a view based on all the evidence. To the extent that at the trial her answers to questions concerning distances and locations were inconsistent, those inconsistencies can be excused to some extent on the basis that the trial was taking place over four years after the incident. All the witnesses gave evidence that was inconsistent and contradictory. This was in part due to fading memory and reconstruction. I see no reason why this Court should reach a different conclusion from that of the learned Judge based on his acceptance of evidence of the Respondent that was relevant, direct and uncontradicted. Speculation is not evidence and in my judgment the Appellants are to a large extent speculating.

Ground 8

[43]. Turning to ground 8. It is claimed that the learned Judge erred in not finding that the Respondent was solely negligent or had contributed to the collision. I take this ground to challenge the conclusion of the learned Judge that the defence of contributing negligence had not been established. It is necessary to comment briefly on this ground of appeal to which reference is made in paragraph 8 of the Appellants' Defence. There is a distinction between pleading negligence and pleading contributory negligence. If the Appellants claimed that the Respondent was negligent (alleging a breach of a duty of care) then such a claim should have been raised in a counterclaim. This was not likely as there appeared to be no damage suffered by the Appellants. Contributory negligence is a defence to a claim in negligence. It is only the defence of contributory negligence that will be considered in this decision.

[44]. Contributory negligence applies only to the conduct of the Respondent. The question to be asked is whether there has been conduct on the part of the Respondent which has contributed to her damage. In other words did the Respondent contribute to the accident in the sense that she did not look out for her own safety. The issue is not concerned with a breach of any duty of care to another person. It is simply an inquiry into whether the Respondent contributed to her injuries by her own disregard for her safety.

[45]. It is on this point that I must part company with the learned judge. In view of the evidence that was accepted by the learned judge, it is, in my judgment, quite clear that the Respondent was not keeping a proper lookout and in not doing so whilst crossing from bay 1 to bay 2 she failed to exercise proper care for her own safety. I am satisfied that had she been keeping a proper lookout she would have observed the approaching bus. It was raining and the bus stand was busy. I would assess her contribution at 30% and would apportion damages accordingly. In my judgment the driver had a better vantage point and was in a position to avoid the accident. He was also in charge of a large vehicle capable of causing severe injury.

Ground 9

[46]. The next ground is ground 9. This ground challenges the award of damages as being unreasonable and excessive. The trial judge awarded $65,000.00 for past and future pain and suffering and past and future loss of amenities.

[47]. The comparable awards submitted by the Appellants included Anderson –v- Salaitoga (unreported civil action No. HBC 353 of 1989 delivered on 4 May 1994). The Court awarded $85,000.00 in respect of injuries that appear to be more serious than those in the present appeal. I have no doubt that if Anderson –v- Salaitoga (supra) were to be decided on the present day value of money and awards of damages, the award would be considerably higher. A 1994 decision cannot be relied upon as a reliable guide for the award of damages to be assessed at trial in 2010. I make similar comments in relation to the decision of Alak Ram –v- Ernesh Patterson (unreported HBC 210 of 1997 delivered 16 March 1999) and Sonam Sangeeta Kumar –v- Vueti and Attorney-General (unreported HBC 204 of 1995L delivered September 1997).

[48]. This Court has over a number of years referred to the need to consider contemporary decisions when comparing awards of damages in respect of similar injuries. In Anita Kumar Singh –v- Rentokil Laboratories Limited (1993) 39 FLR 220 this Court observed at page 226:

"We have been assisted by counsel with a substantial number of cases where the figures for pain and suffering and loss of amenities were in the order of $5000.00 or less. Most of these appear to have been decided in the early 1970s. A more recent (22 February 1985) by Mr Justice Cullinan is of more interest. In a very careful review of the evidence and of the decided cases in Fiji, for what we would regard as a "very bad leg case" he awarded $10,000.00 for pain and suffering and loss of amenities _ _ _.

_ _ _ we have sought to extract information on the range of awards in Fiji for various types of injuries. With rare exceptions they are well below the figures we might think appropriate at this time August 1993 or at the time judgment in this Action was given, October 1991.

We are mindful that in setting the figure it must be one appropriate for Fiji and the conditions which apply here. The level of damages in our neighbouring countries is persuasive but not decisive – to be otherwise, would require a very detailed and prolonged investigation of factors influencing awards in each of these countries."

[49]. In my judgment not only is it necessary to consider recent decisions when comparing awards of damages, it is also appropriate for this Court to review on an on-going basis awards of damages for non-pecuniary loss in the case of personal injuries. In Heil –v- Ranken [2000] EWCA 53; [2000] 2 WLR 1173 at page 1192 the Court of Appeal observed:

"But, in considering whether the level of the awards of damages for non-pecuniary loss is too low, there is no change in the law involved even if we come to the conclusion that a change in the level is required. The court is doing no more than considering the adequacy of the level of current awards by applying existing principles and in so far as they are inadequate, bringing them up to date."

[50]. In the absence of any legislation in Fiji providing guidance for assessing or setting limits on the award of non-pecuniary damages in personal injury actions, the observations of the Court of Appeal, in my judgment, can be regarded as an endorsement of the statement made by Lawton LJ in Cunningham –v- Harrison [1973] QB 942 at page 956:

"_ _ _ if judges do not adjust their awards to changing conditions and rising standards of living, their assessments of damages will have even less contact with reality than they have had in the recent past or at the present time."

[51]. It is sufficient for me to say at this stage, on the basis of what has been said above, that I reject the Appellant's ground of appeal that the award for non-pecuniary damages was excessive or unreasonable.

[52]. Although there is a challenge to the award of special damages, I am prepared to accept that expenses were incurred and in view of the relatively small amounts awarded to cover the period from the date of the accident to the date of the trial, I am not prepared to interfere with the award.

Ground 10

[53]. The last ground is ground 10. In it the Appellants submit that the award and calculation of interest is erroneous. The principles that govern the award of interest are set out in Attorney-General of Fiji –v- Charles Valentine (unreported civil appeal No. ABU 19 of 1998 delivered 28 August 1998). In that decision the Court of Appeal considered that in respect of damages for pain and suffering and loss of amenities, interest should be awarded at 6% from the date of service of the writ to the date of trial. Half that rate should be awarded in respect of special damages from the date of the accident to the date of judgment.

[54]. In the present case the learned trial Judge awarded interest at 6% from the date of the accident to the date of judgment. To that extent the award of interest must be varied to reflect this Court's decision in the Valentine appeal (supra). Interest will be allowed on general damages from the date of service of the writ to the date of trial which in this case should be the date of judgment. Interest will be allowed on special damages at the rate of 3% from the date of the accident to the date of judgment.

Respondent's Notice

[55]. The Respondent filed a Respondent's Notice on 17 August 2011. In his opening submission to this Court on the hearing of the appeal, Counsel for the Appellants indicated that no issue was taken by the Appellants as to whether the Respondent had correctly filed a Notice or whether the Respondent should have proceeded by cross-appeal. It is only necessary for me to indicate that the Appellants acted properly in not taking issue with the Respondent on this point.

[56]. The first issue raised by the Respondent in ground 1 is a challenge to the award of $65,000.00 as general damages for pain and suffering and loss of amenities. The second issue relates to the claim for damages for loss of earnings which are often referred to as a pecuniary loss.

Ground 2 and 3

[57]. I propose first to consider the second issue which is raised in grounds 2 and 3 of the Notice and which stated:

"2 The learned trial Judge erred in law in not allowing the Respondent's claim for economic loss both pre-accident and post accident which there was sufficient evidence adduced by the Respondent of her losses.

3 Further and in the alternative, the learned Judge erred in rejecting the Respondent's submissions to adopt a "robust" approach in assessing Respondent's loss of earning both pre and post accident losses."

[58]. The reference in the above grounds to a pre-accident loss is misleading and for the present purposes will be disregarded.

[59]. The long standing principle which governs a claim for damages for both past and future loss of earnings in a personal injuries action was clearly stated by Lord Goddard in British Transport Commission –v- Gourley [1955] UKHL 4; [1956] AC 185 where he said at page 206:

"In an action for personal injuries the damages are always divided into two main parts. First, there is what is referred to as special damage, which has to be specially pleaded and proved. This consists of out-of-pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. Secondly, there is general damage which the law implies and is not specially pleaded. This includes compensation for pain and suffering and the like and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future."

[60]. The reference to "the future" in Lord Goddard's speech is a reference to the future from the date of trial. In a personal injuries claim special damages includes past loss of earnings whilst general damages includes anticipated loss of earnings. The date of trial is the end date for past loss and the start date for future loss of earnings.

[61]. So now it is necessary to turn to the Respondent's Statement of Claim to examine the pleading and determine what exactly the Respondent claimed in respect of past (i.e. up to the date of trial) loss of earnings and by way of general damages.

[62]. In paragraph 15 of the Statement of Claim a claim for special damages is pleaded and particularised for medical and transport expenses, medical and police reports, medicines and crutches. There is no claim specially pleaded nor particularised in respect of past loss of earnings incurred from the date of the accident "down to the date of trial."

[63]. In paragraph 16, although not strictly necessary as they were implied by law, the Respondent has particularised her claim for general damages which includes a claim for (d) loss of future earnings. This is the only reference in the Statement of Claim to loss of earnings.

[64]. In Perestrello E Companhia Limitada –v- United Paint Co. Ltd [1969] 3 All ER 479 the Court of Appeal at page 486 stated:

"The same principle gives rise to a Plaintiff's undoubted obligation to plead and particularise any item of damage which represents out-of-pocket expenses or loss of earnings, incurred prior to the trial and which is capable of substantially exact calculation. Such damage is commonly referred to as special damage or special damages but is no more than an example of damage which is "special" in the sense that fairness to the defendant requires that it be pleaded."

[65]. In a personal injury claim a plaintiff should provide in his pleadings (with an up to date amendment at the start of the trial) full details of his past loss of earnings. There is also an obligation on the part of a plaintiff to particularise the facts upon which calculations for past loss of earnings have been made.

[66]. In the event that a plaintiff pleads and particularises his claim for loss of earnings, evidence must be adduced at the trial to prove the claim. The burden rests on the plaintiff to prove a claim for past loss of earnings. In the event that the plaintiff does not plead and subsequently particularises a claim for past loss of earnings, that Plaintiff will not be permitted to lead evidence in support of such a claim, save where leave has been given to amend the claim. These principles apply equally in Fiji. See The Headteacher (Qalitu District School) and Others –v- Ilaitia Tuivere (unreported civil appeal No. ABU 24 of 2009 delivered 13 September 2010).

[67]. Furthermore, up to the end of the trial the issue of damages, both special and general, remained in dispute. Since past loss of earnings had neither been pleaded nor particularised, the Respondent was not entitled to adduce evidence and nor was she entitled to be awarded any sum by way of special damages in the form of past loss of earnings. This aspect of the Respondent's Notice is rejected.

[68]. It is now necessary to turn to the claim for general damages for loss of future earnings. In a personal injury case involving loss of future earnings or loss of future earning capacity, a plaintiff is required to adduce evidence of amounts. The evidence that is required from a plaintiff is reflected in the method that is usually used by courts to assess a claim for future loss of earnings. The object of the court's calculation is to arrive at an amount which a plaintiff has been prevented by the injury from earning in the future. The method of calculation is conveniently described in general terms in McGregor on Damages (17th Edition 2003) at paragraph 35-051:

"The amount is calculated by taking the figure of the claimant's present annual earnings less the amount, if any, which he can now earn annually, and multiplying this by a figure which, while based upon the number of years during which the loss of earning power will last, is discounted to allow for the fact that a lump sum is being given now instead of periodical payments over the years. This latter figure has long been called the multiplier, the former figure has come to be referred to as the multiplicand. Further adjustments, however, may or may not have to be made to multiplicand or multiplier on account of a variety of factors, namely, the probability of future increases or decreases in the annual earnings, the so-called contingencies of life, and the incidence of inflation and taxation."

[69]. The approach that should be adopted in Fiji to the calculation of future loss of earnings was discussed at length by the Supreme Court in Attorney-General of Fiji –v- Broadbridge (unreported civil appeal No. CBV 5 of 2003 delivered on 8 April 2005). In paragraph 61 the Supreme Court stated:

"There is no challenge to the courts' ability to approach loss of earning capacity in a manner that dispenses with the conventional multiplicand/multiplier approach. Loss of future earning capacity can be calculated on a broader basis, having regard to the evidence led in the particular case without being constrained by the traditional requirements of the conventional multiplicand/multiplier approach."

[70]. And in paragraphs 90 and 91 the Court concluded:

"It follows from the discussion detailed above that there is no principle, or rule of the common law, that requires any judge, in Fiji, who must assess future economic loss resulting from personal injury, to adopt a multiplicand/multiplier approach, whether for the purpose of calculating the value of the lost chance of future increased earnings, or for the purpose of calculating the present value, in lump sum terms, of those future earnings. In a case of some uncertainty, such as the present, it may be appropriate for the Court to calculate the value of the lost earning capacity upon a different basis, though never forgetting to discount for vicissitudes where appropriate and for the value of a certain lump sum.

We emphasise that nothing we have said should be taken as casting doubt upon the utility of the multiplicand/multiplier as a method by which to assess future economic loss in personal injury cases in this country. When properly applied it operates as a perfectly satisfactory method of carrying out what is always a most difficult task. It is, however, only a method by which the cardinal principal _ _ _ is to be fulfilled. Our point is simply that, as the common law stands, it is only one of a number of methods that can be used to assess such loss."

[71]. The Supreme Court decision in Broadbridge (supra) does offer some comfort to trial judges who are all too often placed in a position where there is scant evidence upon which to fairly assess what amount of compensation will restore a plaintiff to the position that he would have been in had it not been for the harm caused by the negligence of the defendant. There is afforded to judges at first instance some flexibility in performing this task. Alongside that flexibility is the accepted requirement that, given the state of the evidence, the trial judge must do the best he can. In such a case it must always be recalled where the burden of proof lies (see Pratap –v- Attorney-General of Fiji unreported civil appeal No. ABU 14 of 1992 delivered 20 August 1993).

[72]. In this case the learned trial judge declined to make any award for future loss of earnings or loss of earning capacity. The reason for that decision was stated in paragraph 46 of the judgment:

"The plaintiff had ample opportunity to provide sufficient information as to the rates payable by the beauty culture industry. However the plaintiff not only failed to produce any documentary evidence, but also failed to summon any witnesses either from the plaintiff's field of work or from the labour department to prove the past or future earning of the plaintiff. The court should not be asked to assume that the Plaintiff suffered a loss. Nor should the court be asked to assess a figure in the absence of satisfactory evidence. Therefore I am unable to conclude from the available evidence this element of damages."

[73]. It is, as a result of the learned Judge's reasons, necessary to examine the Record and determine whether there was any or sufficient evidence upon which it might have been possible for an amount for future loss of earnings to be awarded.

[74]. The evidence given by the Respondent was that between November 2005 and mid January 2006 she was earning $250.00 per fortnight. In addition she stated that she earned a weekly commission of $100.00 per week. She was employed at a Beauty Salon working as a beauty agent and as a masseuse. Unfortunately the transcript of evidence is confusing. It appears that in mid January 2006 the Respondent went "on a break." It would also appear that when she commenced work in November 2005 it was at the end of the second semester of the course she was undertaking at the Fiji Institute of Technology (FIT). The accident occurred on 26 January 2006 and the Respondent remained in hospital until discharged on 16 March 2006.

[75]. In her evidence the Respondent stated that after she was discharged from hospital she worked for a few weeks but could not carry on because of the pain. There was no evidence as to where she worked, for how long nor for what wages.

[76]. The Respondent stated that she sat for an examination in 2008.

[77]. Under cross examination the Respondent stated that she worked from August 2006 to December 2006 at a Beauty Salon (name not clear from transcript) and then from February to June 2007 at Paris Beauty Salon. She admitted that she did not have any pay slips to confirm what she was being paid. She said she was not given pay slips by either employer. She also said that although she was a member of the Fiji National Provident Fund (FNPF) neither employer made any contribution on her behalf to the fund. She admitted that she did not complain about the failure of her employer to make contributions to the fund. She also admitted that she had no evidence as to what she was paid by either employer.

[78]. At one stage in cross examination the Respondent stated that whilst she was working at Paris Beauty Salon she earned a wage of $100.00 per week plus 40% commission for each job. She agreed she could earn up to between $160 and $180. She stated that after June 2007 she stopped work because the pain in her leg was too severe. However she continued to do private beautician work from home. As at the date of the trial the Respondent stated that she was doing one bridal job a month and earning $80 - $90 per job.

[79]. There was no evidence before the court as to what a beautician in the Respondent's position might have been earning as at the date of trial. There was no evidence as to what was the wage as at the date of trial of any person employed in any occupation that may have been regarded as appropriate for the Respondent. There was some suggestion that the Respondent would be suitable for employment in positions that did not involve long periods of standing.

[80]. However, the evidence given by the Respondent's sister at the trial was not consistent with the evidence given by the Respondent. The Respondent's sister, Ms Kamini Kaushal, stated that as at the date of trial, the Respondent went to work on a daily basis at Holistic in Suva. Ms Kaushal stated that the Respondent's employment was on an hourly basis.

[81]. For reasons which are not clear to this Court, the Respondent led no evidence as to her earnings as at the date of trial from this employment. In fact, the Respondent did not disclose this information when giving her evidence at the trial.

[82]. If the learned trial judge did not have any evidence as to what a person with the Respondent's qualification could have earned as a full time employee as at the date of trial, he could not assess what her future loss could be until the date of retirement at 55 years. In addition if the learned trial judge did not have any evidence as to what the Respondent could earn in suitable alternative employment as at the date of trial, again he could not assess what her future loss would be.

[83]. It was open to the learned Judge to conclude that there was insufficient evidence to enable him to calculate an amount in respect of loss of future earnings or loss of earning capacity.

[84]. It cannot be disputed that the medical evidence supports the conclusion that the Respondent will continue in the long term to experience pain, swelling and stiffness in her left ankle. In his evidence at the trial Dr Traill stated that the Respondent already showed signs of arthritis in the left ankle which he expected to be a progressive problem. However her inability to work full time in employment of any description and whether she will suffer economic or pecuniary loss in the future is a matter for the Respondent to establish on the balance of probabilities. To complicate the matter further the following appeared in a medical report dated 19 July 2010 from the Suva Private Hospital:

"Despite the lingering pain and discomfort on her lower limbs she returned to work as a Beautician in September 2006. In November 2009 she abandoned her job and stayed home looking after her son."

[85]. In spite of the inconsistencies and shortfall in evidence Counsel for the Respondent urged the Court to follow the approach taken by this Court in Attorney-General of Fiji and Kinijoji Katonivere –v- Jainendra Prasad Singh (unreported civil appeal ABU 1 of 1998 delivered 21 May 1999). During the course of its judgment the Court (Tikaram P and Casey JA) said:

"The appellants submitted that there was no evidence to support the assessment made by His Lordship, and we agree that there was none to establish such an ascertainable future loss. Respondent's counsel accepted that he could only advance under this heading the prospect that the Plaintiff's earnings might drop if his disabilities (particularly the weakness of his arm) lead to his being ousted from his family business, or having to take a smaller share of its income. We think the risk of this happening justifies an award of damages, speculative though it must be. However, the formula adopted by His Lordship based on a presumed weekly loss cannot be accepted as an appropriate method of compensating for this risk that at some uncertain time in the future the plaintiff might be faced with an uncertain drop in earnings. The fact that his ability to do the heavier work in the garage is reduced by 50% makes this risk more likely, but it is still only a risk and not an established fact capable of precise mathematical calculation. There can be only a broad approach to this problem, but it must do justice to both parties _ _ _."

[86]. At the outset I am clearly of the view that this approach is consistent with the subsequent observations of the Supreme Court in its decision in Attorney General –v- Broadridge (supra) reference to which has already been made earlier in this decision. The Supreme Court has indicated that a flexible approach should be adopted in accordance with the circumstances of each particular case when assessing loss of earning capacity or loss of future earnings.

[87]. In my judgment there is insufficient evidence to support the assessment submitted by Counsel for the Respondent. There was insufficient evidence to establish an ascertainable future loss. If the evidence given by the Respondent's sister is accepted which evidence the Appellants urged this Court to accept although only in so far as it went to credit, then I would be able to conclude that the Respondent was working on a reduced hourly basis in some form of full time employment as a beautician as at the date of trial.

[88]. The medical evidence, in my judgment, establishes that there is a risk that at some uncertain time in the future the Plaintiff may be faced with an uncertain drop in earnings. The assessed permanent disability together with associated pain makes that risk more likely, but it is still only a risk and not capable of precise calculation.

[89]. At the time of the accident the Respondent was 18 years old (date of birth 29 November 1987) and 24 years old as at the date of the trial. In Attorney-General and Katonivere –v- Singh (supra) the Plaintiff at the time of the accident was 28.5 years old which occurred in 1993 and 34 as at the date of trial. Just as the Court of Appeal did in that case, I think that the risk justifies an award of damages, "speculative though it must be." I accept that there are some forms of employment that can be performed by the Respondent. At the date of trial she was only 24 and there was no suggestion that her life expectancy had been reduced as a result of her injuries. Under the circumstances she can reasonably be expected to be in and out of the workforce for at least 30 years. Although "there can only be a broad approach to this problem" the justice of the case requires some award for future loss and I would assess that amount at $25,000.00.

Ground 1

[90]. The remaining ground in the Respondent's Notice relates to the award of $65,000.00 for pain and suffering and loss of amenities past and future which the Respondent claims is inadequate. The principles to be applied by courts when assessing general damages for pain and suffering and loss of amenities were set out by the Supreme Court in The Permanent Secretary for Health and Another –v- Kumar (unreported civil appeal CBV 6 of 2008 delivered on 3 May 2012 at paragraph 37:

"There are three guiding principles in measuring the quantum of compensation for pain and suffering and loss of amenities. First and foremost, the amount of compensation awarded must be fair and should compensate the victim of the injury in the fullest possible manner, bearing in mind that damages for any cause of action are awarded once and for all, and cannot be varied due to subsequent eventualities, some of which could not even be anticipated at the stage a court makes an award. Hence an award of damages should not only be fair, but also assessed with moderation, even though scientific accuracy is impossible. The second principle is that the sum awarded must to a considerable extent be conventional and consistent. Thirdly, regard must be had to awards made in comparable cases in the jurisdiction in which the award is made. However, it is also open for a court to take into consideration a comparable award made in a foreign jurisdiction, particularly in cases where the type of injury is not very common, provided that the court takes into consideration differences in socio-economic and other relevant conditions that might exist between the two jurisdictions."

[91]. Turning to the Respondent's injuries, in the Statement of Claim her injuries were described as "crushed injury/fracture of left leg with degloving injury to right thigh." In the medical report dated 22 February 2007 (page 102 of the Record) the injuries are more particularly described as (1) closed displaced comminuted intraarticular fracture of left ankle, (2) closed extensive degloving injury right thigh, (3) grade II anterior cruciate ligament injury right knee and (4) multiple abrasions both upper and lower limbs. As noted earlier in this decision, on admission she was observed to have visible tyre marks on her right thigh and left ankle. The Respondent was admitted on the day of the accident (26 January 2006) and discharged on 16 March 2006 being a total of seven weeks hospitalisation.

[92]. Upon admission she received tetanus toxoid injection, analgesics for pain and her left ankle was manipulated in theatre to reduce tension of the overlying skin. She also received 5 units blood transfusion during her hospital stay.

[93]. The report continued that:

"On 15.2.06 she underwent debridement of her right thigh injury, open reduction and internal/external fixation of her left ankle. She received antibiotics post operatively. Post operative X rays showed some intraarticular bone fragments in her left ankle which was removed in theatre on 17.2.06.

On 3.3.06 she underwent skin grafting of her right thigh wound with subsequent regular dressings to it."

[94]. Whilst in hospital the Respondent underwent physiotherapy. The Respondent was reviewed in clinic on six occasions between 30 March 2006 and 12 February 2007 (inclusive).

[95]. The report then stated:

"Her external fixator was removed on 21.6.06. Her right thigh wound had healed with a large scar.

She has good range of motion of the right knee.

She gets swelling and pain of her left ankle especially on prolonged standing. She does not play netball anymore and has cut down on her social life because of her thigh scar and stiff ankle. She currently works at the Paris Hair/Beauty Salon.

Ms Artika has sustained very severe crush injuries to her right thigh and left ankle. Her right thigh now has a residual large scar which is a cosmetic concern to her. She has been booked to see the plastic surgeon who can qualify the percentage impairment of her right thigh injury.

As for her ankle she will have long term pain, swelling and stiffness.

Reference is made to the 5th edition of the American Guide to the Evaluation of Permanent Impairment which assigns a 7% impairment for a grade II cruciate ligament injury of the right knee and a 8% impairment for a displaced intraarticular ankle fracture. The two figures are continued to give 14% whole person impairment."

[96]. There was a second report dated 19 July 2010 by Dr Semesa Matanaicake (page 592 of the Record) who saw the Respondent for the first time on 26 May 2010, presumably at the Suva Private Hospital. The doctor observed that she walked with a limp into the examination room wearing long pants. The doctor examined the lower limbs and reported that:

"The right thigh and leg is deformed with discoloured and irregular skin texture. The scarring measures 25cm and extends from mid-right thigh to upper leg. The knee surrounding defect is almost circumferential measuring 23cm and the surfaces are undulating due to some depressed area.

There is altered sensation over the whole area involved including the normal skin at the back of the knee. She is weather sensitive in both lower limbs and complains of dull-acting pain over the right knee and left ankle accompanied by pins and needles over the scars.

Her left thigh skin used as graft to surface the right thigh wounds is darkened and discoloured.

Functionally she has limited range of movements of the left ankle and an unstable right knee.

Orthopaedic medical assessment awarded her with 20% permanent disability based on the American Medical Association Guide."

[97]. The Respondent told the doctor that she was concerned about her ability to support her child. She wants to get married in the future but is discouraged by the deformities. She also told the doctor that she never wears shorts and that she lacks confidence and has low self-esteem.

[98]. In a further report dated 27 August 2010 Dr G Bartlett a plastic and reconstructive surgeon in New Zealand stated in the third paragraph:

"From my assessment of the photographs sent to me it is apparent that Ms Artika has a very very large area of skin graft extending from the mid right thigh across the patella region and around the knee joint along with a number of other associated scars in the left lower limb associated either with the trauma or with the orthopaedic fixation of her fractures. Obviously the area of most concern is the unsightly skin graft on the distal right thigh and knee area."

[99]. Dr Bartlett states his conclusion in the last paragraph of his report:

"In summary Ms Artika's injury has been extensive and significant with obviously ongoing functional and cosmetic issues. Much as I would like to help her in my opinion from a practical point of view there is no satisfactory plastic surgical procedure or procedures that are going to rehabilitate her to the point that she will no longer wish to cover the affected limbs."

[100]. In his evidence at the trial Dr Traill explained in greater detail the injuries that have been already referred to in this part of the decision. He described the injuries as serious. He also stated that on her arrival at the hospital the Respondent was in a lot of pain. She was fitted with a plastic cast for two weeks post admission to enable the swelling and inflammation to subside. Upon discharge from hospital the Respondent required a wheel chair. She left hospital with an external fixator in the left ankle – pins inserted to the bones which remained for four months. After four months the fixator was removed and it appeared that the ankle had healed sufficiently. Dr Traill stated that after the fixator was removed the Respondent would probably not be able to walk without crutches. He stated that the last time he saw the Respondent was on 28 October 2008 when she attended to have the remaining metal removed from her left ankle. He observed that with these types of injuries there is a 30 – 50% chance of post-traumatic arthritis with joints worn out. He appeared to accept that the X ray showed early signs of arthritis. He confirmed that the Respondent's main problem would be pain from standing for long hours. At one stage during his evidence Dr Traill stated:

"As far as the ankle is concerned she is already starting to show signs of arthritis and we know that arthritis _ _ _ will be progressive as time goes by. She probably will have more pain, more swelling and that is as far as the ankle is concerned."

[101]. Under cross examination Dr Traill accepted that the Respondent was not totally incapacitated. He assessed her incapacity at 14%. Arthritis was apparent from the X ray. The doctor stated that when working full time or for a number of hours the Respondent will experience pain because the ankle joint is not normal.

[102]. In her evidence the Respondent explained that she felt pain and her ankle was sore when she arrived at the hospital. She experienced pain in her thighs. She was given an injection to relieve the pain. She confirmed that she was in hospital for nearly two months and upon discharge was taken home by ambulance. She could not walk at home. There was a portable toilet for use at home and she was assisted by her mother. After the fixator was removed she used crutches to walk. She attended at the hospital several times for check-ups. Dr Traill surgically removed the metal from her ankle on the recommendation of Dr McCaig.

[103]. During the course of cross-examination Counsel for the Appellants put a number of questions to the Respondent concerning the Respondent's consultation with Dr McCaig. Dr McCaig did not give evidence at the trial and so far as I am able to determine, there was no report from Dr McCaig put into evidence. I am not able to determine whether the questions were put on the basis that they went to factual issues in dispute or as to credit.

[104]. Under cross-examination the Respondent stated that the discomfort she experienced was about the same after the removal of the screws as before they were removed. She confirmed that Dr McCaig recommended the removal of the screws because they had been causing pain and were uncomfortable especially when she had been walking for a long distance. She stated the same pain is still present. She said "everything is still the same, its just the poky thing is not there but the pain is same." She also confirmed that she has complained about the pain to Dr McCaig. She stated that she can't work with air-conditioning on and her arthritis makes her leg swell quickly. She also experiences difficulties with her knees from the cold.

[105]. In view of the medical evidence adduced at the trial, the evidence given by the Respondent and the contents of the medical reports I have concluded that the award of $65,000.00 for pain and suffering is not fair compensation. I do not consider that sufficient regard has been given to the future pain and suffering that will be suffered by the Respondent due to progressive arthritis. She continues to complain of pain. There is unchallenged medical evidence that is consistent with the pain that the Respondent claims she is experiencing. The arthritis is progressive and so is the pain. I consider a sum of $90,000.00 to be appropriate in this case.

Conclusion

[106]. In the final analysis, the Appellants have succeeded on grounds 8 and 10. Ground 8 related to liability and effected a substantial variation in quantum. As a result it can be concluded that both parties have to some extent been successful. As a result I propose that each party should pay its own costs.

Chitrasiri JA

[107]. I agree with the above mentioned reasoning and findings of Calanchini PA. I also agree with the orders suggested by His Lordship.

Basnayake JA

[108]. I agree with the reasoning and the conclusions in the judgment of Calanchini AP.

Orders of the Court

1. The appeal and the respondent's notice are allowed in part.

2. The judgment of the court below is varied on account of a finding of 30% contributory negligence on the part of the Respondent.

3. The orders relating to damages awarded to the Respondent made by the Court below are set aside.

4. In their place the following orders are made:

a. The Respondent is awarded damages in the sum of $81,301.50 (being 70% of $116,145.00 comprising $1145.00 for special damages $90,000.00 for pain and suffering and loss of amenities and $25,000.00 for future loss of earnings).

b. Interest is awarded on $801.50 (70% of $1145.00) special damages at the rate of 3% from the date of the accident to the date of judgment.

c. Interest is awarded on $63,000.00 (70% of $90,000.00) general damages for pain and suffering and loss of amenities at the rate of 6% from the date of service of the writ to the date of judgment.

5. The Appellants are ordered to pay the costs of the proceedings in the Court below which the learned Judge fixed at $6000.00.

6. Parties to pay their own costs of the appeal.

Hon. Mr Justice W.D. Calanchini
Acting President

Hon. Mr Justice Chitrasiri
Justice of Appeal

Hon. Mr Justice Basnayake
Justice of Appeal

Calanchini AP

[1]. For the guidance of legal practitioners I consider that it is appropriate to make the following observations in relation to certain procedural matters arising from the appeal. The first observation concerns the manner in which the Respondent was named as Plaintiff in the Writ. The second observation concerns the lack of particulars in grounds 1 – 3 of the grounds of appeal. The third concerns the assertion by the parties to the appeal that they are reserving the right to amend grounds of appeal (ground 11 in the Appellants' Notice of Appeal and following ground 3 in the Respondent's Notice).

(i) Next Friend

[2]. The correct title when an action is commenced by an infant plaintiff is "AB, an infant, by CD his (father and) next friend." (See Supreme Court Practice 1991 Vol.1 at para. 80/2/3). In the present action the Respondent's designation should have appeared as "Anju Artika, an infant, by Muni Chand her (guardian and) next friend". (See also Atkin's Court Forms Second Edition (1997 Issue) Vol. 21 (2) at para. 40 and Vol. 21 (3) Form 2). It is the infant who is the Plaintiff not the next friend. The present proceedings have not been commenced in a manner that could be described as regular. Furthermore paragraph 1 of the Statement of Claim is also incorrect. It appears no objection has been taken by the Appellants.

[3]. Subject to Order 80 Rule 7, generally a next friend is not a party to the action. In Rhodes –v- Switherbank [1889] UKLawRpKQB 48; (1889) 22 Q.B.D. 577 Bowen LJ at page 579 observed:

"The only reason that the next friend of an infant is entitled to bind the infant in matters connected with the cause is that he is the officer of the Court to take all measures for the benefit of the infant in the litigation in which he appears as next friend."

[4]. However, pursuant to Rule 7 of Order 80 the next friend is a party for the purposes of either Order 24 (Discovery) or Order 26 (Interrogations). The rule applies to infants and their next friends. The effect of the Rule is that proceedings commenced by persons under a disability are in the same position as proceedings commenced by a person who is not under a disability so far as discovery, inspection and interrogatories are concerned.

[5]. In the present proceeding the learned Judge referred in his judgment to the fact that the Respondent was 24 years old at the time of the trial. It is not clear whether the Respondent filed a notice to indicate that she was of full age and had adopted the action. This should have been done and this fact should have appeared in all subsequent court documents (See 1991 Supreme Court Practice (supra) at para.80/2/6 and Atkin's Court Forms (supra) Vol. 21 (3) Form 13).

[6]. In view of section 23 of the High Court Act Cap 13, the practices referred to above should be followed in this jurisdiction.

(ii) Drafting grounds of appeal

[7]. In their Notice of Appeal, the Appellants have listed ten grounds of appeal. The first three grounds are vague and lacking in sufficient particulars for this Court to determine whether there is any merit. The requirement to particularise grounds of appeal is clearly set out in Rule 15 of the Court of Appeal Rules (the Rules). Every notice is required to specify the precise form of the order which the appellant proposes to ask the Court of Appeal to make. The purpose of the Rule is, in respect of all appeals, to narrow the issues in the appeal, to shorten the hearing and to reduce costs. This can only be achieved if the Appellant states in his notice of appeal the findings of fact and points of law which will be in issue on appeal. Although the notice should state the precise order which the Court of Appeal will be asked to make, this should not result in lengthy or elaborate notices of appeal. Detailed reasoning should not be included.

[8]. The first three grounds do not comply with either the literal mandate nor the spirit of the Rule. The Court is not able to consider those grounds because they are simply too wide and too vague. Ground nine does not specify which award or why the award of damages is erroneous and excessive. Ground 10 should have stated why the calculation of interest was erroneous. However, grounds 9 and 10 have been considered.

(iii) Amendments

[9]. The amendment of a notice of appeal or of a respondent's notice is covered by Rule 20 of the Court of Appeal Rules. The effect of the Rule is that the notice of appeal and any respondent's notice can be amended without leave up to 14 days before the date on which the appeal is listed to be heard. Thereafter leave to amend is required. The statements that appear in the Appellants' Notice of Appeal and the Respondent's Notice referring to the reservation of a right to file an amended notice are of no consequence to the extent that they are inconsistent with Rule 20. If a party to an appeal feels compelled to make reference to amending a notice, such reference should be in a form that is consistent with Rule 20.

The nature of an appeal

[10]. It is also appropriate to comment briefly on the nature of a civil appeal to the Court of Appeal with particular reference to appeal grounds that challenge findings of fact.

[11]. There is an underlying principle that is applied by this Court in the hearing of an appeal. On any appeal from the decision of a trial judge sitting alone, the presumption is that the decision appealed against is right. (See 37 Halsbury (4th Ed) 535). In Colonial Securities Trust Company Limited –v- Massey and Others [1895] UKLawRpKQB 192; [1896] 1 QB 38 a majority of the Court of Appeal applied the approach taken in Savage –v- Adam W.N. (95) 109 (ii). Lord Esher MR at page 39 stated:

"I have frequently stated this rule; and I think it is well expressed by Lopes L.J. in Savage –v- Adam (supra). The matter is thus stated: "Where a case tried by a judge without a jury comes to the Court of Appeal, the presumption is that the decision of the Court below on the facts was right, and that presumption must be displaced by the appellant. If he satisfactorily makes out that the judge below was wrong, then in as much as the appeal is in the nature of a rehearing, the decision should be reversed: if the case is left in doubt, it is clearly the duty of the Court of Appeal not to disturb the decision of the Court below."

The burden of establishing that the trial judge has erred rests on an appellant, and if the Court of Appeal is not satisfied that the judge was wrong, the appeal will be dismissed.

[12]. The procedure for an appeal to the Court of Appeal is set out in Rule 15 (1) of the Court of Appeal Rules which states that an appeal shall be by way of re-hearing. The words do not mean that the Court of Appeal conducts a hearing "de novo". The parties do not start afresh as they did in the court below nor are the witnesses heard afresh. It means a rehearing of the case on the papers. This Court will consider the material which was before the learned Judge in the court below. The Court will weigh and consider the judgment and then determine whether the judgment was wrong.

[13]. Four of the particularised grounds of appeal challenged findings of fact and two further grounds are premised on findings of fact that were being challenged. This appeal therefore presents an appropriate opportunity to outline the approach that has been developed by appellate courts to grounds of appeal that challenge findings of fact made by a trial judge. On the hearing of any appeal in respect of grounds which raise issues of fact, a distinction has traditionally existed between a finding of fact by the trial judge and an inference drawn by the trial judge from a finding of fact. This distinction is to some extent re-enforced by Rule 22 (2) of the Rules which states:

"The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made _ _ _."

[14]. In Benmax –v- Austin Motor Co. Ltd [1955] A.C. 370 Viscount Simonds at page 373 said:

"This does not mean that an appellate court should lightly defer from the finding of a trial judge on a question of fact, and I would say that it would be difficult for it to do so where the finding turned solely on the credibility of a witness. But I cannot help thinking that some confusion may have arisen from a failure to distinguish between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found _ _ _. An example of this distinction may be seen in any case in which a plaintiff alleges negligence on the part of the defendant. Here it must first be determined what the defendant in fact did and secondly, whether what he did amounted in the circumstances (which must also so far as relevant be found as specific facts) to negligence _ _ _. A judge sitting (alone) would fall short of his duty if he did not first find the facts and then draw from them the inference of fact whether or not the defendant had been negligent."

[15]. It is now generally accepted that an appellate court will be reluctant to reject a finding of specific fact, particularly where the findings are based on the credibility, manner or demeanour of a witness. On the other hand, an appellate court will far more readily consider itself to be in just as good a position as the trial judge to draw its own inferences from findings of specific facts.

[16]. The reason for the distinction is the recognition that the trial judge has an advantage in assessing the evidence to arrive at a finding of fact. The trial judge sees the witnesses give their evidence. He has the advantage of observing and listening. This advantage is not enjoyed by an appellate court that has only the record before it. As a result a finding of a specific fact should be rejected only where it can be shown that the trial judge erred in principle.

[17]. Nevertheless, there are occasions where it will be open to an appellate court to reject a finding of a specific fact. Occasionally, apart from the manner or demeanour of a witness, the logical consistency of the evidence itself will be relevant on an assessment of the evidence. In such a case an appellate court is just as capable of determining whether evidence is logically consistent. Therefore when a finding of fact depends on a matter such as the logical consistency of the evidence rather than the manner of the witness, an appellate court may be more readily willing to reject a finding of specific fact.

[18]. This aspect of assessing findings of specific facts was discussed at some length in Faryna v Chorny [1952] 2 D.L.R. 354, a decision of the British Columbia Court of Appeal. In that decision O'Halloran JA discussed the issue of witness credibility at pages 356 – 357:

"If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility _ _ _. A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. _ _ _ Only thus can a Court satisfactorily appraise the testimony of quick – minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experiences in combining skilful exaggeration with partial suppression of the truth. Again, a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth" is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

_ _ _ The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case."

[19]. In my judgment it is essential for a trial judge not only to assess the demeanour of a particular witness but also to critically assess the evidence in the context of the whole of the evidence adduced at the trial. In respect of the second part of that obligation, the appellate Court is just as capable of assessing the consistency of the evidence of a particular witness in terms of its logical consistency and in terms of its logical place in the totality of the evidence.

[20]. Another aspect of credibility that is of some importance in this case is the question of weight to be attached to the evidence given by witnesses based on their memory of events. In this case the accident occurred on 26 January 2006. Although the writ was issued in August 2006, the trial of the action did not take place until May 2010. Although such delays are commonplace, it is, however, an inescapable fact that the ability of a particular witness to recall accurately what he saw or heard diminishes with time. It is apparent to me that the gaps in memory or recollection are often filled by a process which is sometimes referred to as reconstruction. The poorer the memory and the greater the reconstruction is a factor to be considered in assessing reliability and credibility. No doubt contemporary documentary material admitted into evidence at the trial may assist both the court below and this Court to identify reconstructed evidence, to settle inconsistencies in evidence and to determine what is logically consistent.

There are all matters that were considered by the Court in its deliberations and in reaching its decisions in respect of those grounds of appeal that raised factual challenges.

Hon. Mr Justice W.D. Calanchini
Acting President