Robertson v D Jeevan & Sons [1993] FJHC 105; Hbc0301d.89s (11 November 1993)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 301 OF 1989

Between:

CAROL ANITA ROBERTSON
Plaintiff

- and -

1. D. JEEVAN & SONS
2. INTAZ ALI (f/n Azmat Ali)
Defendants

Mr. F.G. Keil for the Plaintiff
Mr. M. Raza for the First Defendant

ASSESSMENT OF DAMAGES

The Plaintiff's claim against the first defendant (hereafter referred to as D1) is for damages (special and general) interest and costs.

The claim arises out of a motor vehicle accident on the 2nd October, 1986.

No Notice of Intention to Defend having been given by the D1 it was ordered that interlocutory judgment be entered for the Plaintiff with damages to be assessed and costs.

The hearing of Assessment of Damages took place on 30.11.89 by the then Chief Registrar but the parties decided to have it heard de novo.

The hearing was commenced by me on 13th May, 1993 after I succeeded the then Chief Registrar in that post. The last of the written submission was filed on the 8th October, 1993.

I now give my decision.

The Plaintiff sustained injuries in the following circumstances.

She was driving her private motor vehicle registered No. BA071 along Knolly Street, Suva near the junction with Pender Street when the D1's driver (the D2) driving a van owned by the D1 so negligently drove the said van along Knolly Street coming from the opposite direction that it collided with the Plaintiff's vehicle thereby pushing it off the road.

The D2 was on the 7th December, 1987 on his own plea convicted of dangerous driving in the Suva Magistrate's Court and was fined the sum of $50.00.

As a result of the accident the Plaintiff sustained severe injuries, namely, shoulder, superficial cuts and fracture of the left knee cap which required surgery in Fiji and treatment in New Zealand.

Her said vehicle was a complete write off and it was sold to the wreckers for $300.00.

The Medical Report (exhibit I) dated the 8th January, 1990 sets out in detail the injuries suffered by the Plaintiff and her physical condition. The doctor who prepared the report and who also gave evidence said in his report that the approximate incapacity for the abnormalities is 13 per cent. In order to give a clear picture of her condition I give below the contents of the said Report which is as follows:-

"COLONIAL WAR MEMORIAL HOSPITAL

8/1/90

TO WHOM IT MAY CONCERN

re: CAROL A. ROBERTSON

She attended on 3/1/90 for examination as arranged. She was admitted here on 2/10/86 for the care of the injured left knee and fractured patella she sustained on the same day. The account of nature of the injury, its care and treatment, period involved, changes encountered, subsequent measures, therapies, progress of events had been submitted and recorded.

On that day she was walking with a slight limp, tending to avoid full weight on the left leg. She intermittently has pain at this knee, more so during cold and bad weather. The left knee feels insecure with sensation of collapsing on descending stairs, easy fatigue on long walking and similarly at swimming. She feels noises in the knee when she bends it.

At examination the injury and operation wound scars have healed well without distortion. The left thigh is smaller than the right. Its circumference is 41 1/2 cms (right is 43 cms). The lower border of the patella is irregular and sensitive to touch. The area below the wound scar is less sensitive than normal.

The left knee flexion has improved to 120 (Right 135 ) with presence of grating sound. No knew swelling. Progress X-Ray of this patella has shown good union of the fracture with slight shortening (by 3 mm). There is scarring of the articular surface of the femur.

From above examination the positive physical residual abnormal findings are as follows:-

(1) Smaller left thigh.

(2) Irregular patellar surface (outer).

(3) Diminished sensation around the knee wound scars.

(4) Partial loss of knee flexion by 15 degrees (expected to improve).

(5) Structural disorder of the patella and the joint surface of the femur.

(6) Anticipated post-trauma joint sequela of asteoarthritis.

Guided by Fiji Workmen's Compensation Schedule (Section 8), Cap. 94, Ed 1978 - loss of leg below the knee percentage of incapacity is 45%.

The approximate incapacity for these abnormalities are as follows respectively:-

(1) 3% (three) (4) 1% (one)

(2) 2% (two) (5) 3% (three)

(3) 1% (one) (6) 3% (three)

TOTAL = 13% (thirteen)"

There is no dispute that as a result of negligent driving on the part of D1's driver (the D2) that the Plaintiff suffered the injuries referred to hereabove; because the D2 was the servant of the D1 he is vicariously liable for damages suffered by the Plaintiff as a result of the said accident.

The Plaintiff outlined to Court the medical treatment she received at the CWM hospital and in New Zealand. She was discharged from CWM after two weeks with her left leg in plaster. The plaster was removed in December 1986. She said that she had stiff leg and there was no improvement so she decided to go to New Zealand for more treatment by a specialist in Lower Hutt. She returned to Fiji in mid-March 1987. She continued to receive treatment at CWM and attended Polaris Edge in Suva for exercises. She again went to New Zealand in December 1987 to see a specialist in Lower Hutt.

The Plaintiff said that the accident has affected her life; it has affected her children also as she was away from them for so long; it has upset her relationship with her husband. She said it has been an harrowing experience for her; she continues to suffer pain as a result of the accident.

The Plaintiff claims damages under the following heads:-

(a) Special damages.

(b) General damages for pain and suffering and loss of amenities of life

(c) Interests

(d) Costs.

I am satisfied on the evidence before me that the Plaintiff suffered the injuries as stated by her and as more fully set out in the Medical Report (exhibit I) tendered to Court in evidence.

Further, I find that the accident was solely as a result of negligent driving on the part of the D1's driver (servant) for whose actions the D1 is vicariously liable. The conviction of the D2 on his own plea for the offence of dangerous driving is clear proof of his negligence. In these circumstances the D1 is liable in damages for injuries received by the plaintiff in this accident.

I accept the Plaintiff's testimony in regard to her physical condition after the accident. I also accept what is stated in the Medical Report. It appears that the plaintiff still suffers pain and other discomfort and this I accept.

I shall now deal with the claim in the prayer as follows:-

(A) SPECIAL DAMAGES

The Plaintiff's claim for Special Damages are as set out in a Summary filed in Court in accordance with Chief Registrar's Practice Direction No. 1 of 1987. The claim is itemised under items 1 to 5.

Items 1 and 3 are not disputed by the Defendant. Items 2, 4 and 5 are in dispute. Items 2 and 4 deal with Plaintiff's travelling and accommodation ($1350.00) expenses in New Zealand.

Item 5 deals with miscellaneous items including the value of vehicle before the accident.

On items 2 and 5 the Defendant states that there was no Medical requirement either by the CWM Hospital or any other doctor in Fiji that the Plaintiff required treatment overseas. Hence it says that these items should not be considered at all.

The Plaintiff on the other hand says that no charges had been made in New Zealand for the Orthopaedic Specialist, hospital and other therapeutic treatment. The Medical Report of Dr. Etika reveals Orthopaedic Specialist treatment was desirable for injuries such as those suffered by the Plaintiff and that at that time no such specialist treatment was available in Fiji.

The argument put forward by the learned counsel for the Plaintiff is that she should be entitled to seek the best possible and available medical treatment for injuries received in an accident for which the victim is not to blame, provided that said treatment is not unreasonably incurred or unreasonably be charged excessively.

In so far as this case is concerned, I am in complete agreement with the learned counsel for the Plaintiff with his submissions in this regard.

In cases of this nature "medical, hospital, nursing and attendance expenses are recoverable" on the ground that expenses reasonably incurred in alleviating injuries are recoverable, but probably they are recoverable as reasonable expenses likely to be incurred as a non-remote consequence of the defendant's wrong". (PRINCIPLES OF LAW OF DAMAGES - STREET P.55 - 56). In SHEARMAN v. FOLLAND (1950, 2 KB p.43) board and lodging was allowed.

In WINKWORTH v. HUBBARD (1960) 1 Lloyd's Rep 150, a Canadian injured in France was awarded for expenses incurred in travelling to New York accompanied by doctor and nurse and being treated in a hospital there. In SCHNEIDER v EISOVITCH (1960) 2QB p.430) it was held that the expenses were recoverable if the services were reasonably necessary as a consequence of the tortfeasor's act and the expenses were reasonable in amount and expenses would have been incurred had the friends not assisted. In that case the Plaintiff claimed expenses incurred by her brother-in-law and his wife when they flew out to France to assist her back to England and to make arrangements for her husband's body to be brought back to England for burial.

No doubt it is the duty of the injured Plaintiff to act reasonably and do her best to minimize her damage. In WINKWORTH (Supra at p.156) STREATFEILD J said:-

"We do not, in this country, allow people to unload on to tortfeasors, even if they are wrongdoers, unreasonable damage, so I have to measure all these damages, not only the general damage which the plaintiff has suffered but also his special damage, by the yardstick of what is regarded as reasonable."

In the case before me Dr. Etika (PW3) said in evidence in chief that "we at the hospital have physiotherapy department which takes care of this - not specialist physiotherapist here for this. In 1986 this was position but our physiotherapists have gone out for training in this". In cross-examination he said that "in general recommendation is given for overseas treatment if none available. If no recommendation given then it is available in Fiji"; but then in re-examination he said that this was "orthopaedic problem - if someone wishes specialist treatment can choose to do so." The fact remains and I do so find that proper facilities were not available in Fiji for the type of injury suffered by the Plaintiff.

Why should the Plaintiff have to remain content with the mediocre treatment available in Fiji for through no fault of her own she suffered these injuries. To safeguard her health she resorted to treatment overseas and for which she is not claiming any other expense overseas except travelling and accommodation. It is fortunate that her parents were in New Zealand which was a great comfort for her and at the same time it minimized expenses. I see no reason whatsoever as to why the defendant should complain about the New Zealand expense which I consider to be very reasonable indeed in the circumstances of this case except that I disallow her 1987 expenses in her second trip to New Zealand which I consider was not justified for the purposes of assessment of damages. Special damage which is attributable to the wrongful act if averred and proved will be awarded (THE SUSQUEHANNA (1926) A.C.655). The quantum of the damage recoverable must largely depend on how far the Plaintiff can be held to have acted reasonably in incurring the expenses for which she claims.

In Item 5 the plaintiff claims the sum of $2500 being for the total loss of her car less a sum of $300 being the value of the wreck.

There is evidence before me which I accept as to the value of the car before the accident; the estimate being $2800. From this evidence special damages awarded for the loss of the car will be $2800 less $300 namely $2500.

The claim of $450.00 for bracelet in item 5 is disallowed by reducing it to $30 which is what it cost her when she bought it.

The claim for $350.00 for Dr. Etika's services is disallowed on the evidence. The Doctor was very honest and said that Dr. Bakani arranged for appointment and that an account was not sent by him (Dr. Etika).

Furthermore he said that payment for services was "not discussed at the time by Dr. Bakani". Then when Dr. Bakani testified in cross-examination he said "Bill is mine - it is for both of us". The position is far from clear as to whose bill it is; the claim is stated to be Dr. Etika's, but the evidence is to the contrary. I will disallow this claim completely. It is a matter to be sorted out by the Plaintiff with Dr. Bakani who no doubt was of great assistance to her.

I have considered Mr. Raza's argument on the claim for the exercise bike. I consider it to be a reasonable claim in the circumstances of the Plaintiff's condition.

In the outcome for the reasons given hereabove I assess special damages as follows:-

(a) allow items 1 and 3 in full (as not disputed)

(b) allow item 2

(c) disallow item 4 completely amounting to F$1015.60

(d) disallow item 5 partly particularly relating to bracelet which is reduced to $30 and "Dr. Etika's" charges amounting to $350.00.

I therefore award special damages as follows:-

Total of items 1 to 5 $7142.29

Less amounts disallowed as follows:

(i) less item 4 $1015.60

(ii) less for bracelets $ 420.00

from item 5

(iii) less Dr. Etika's fees

from item 5 $ 350.00

_______

Less amount disallowed $1785.60 $1785.60

_______ _______

Total allowed $5356.69

_______

Further the Plaintiff is entitled to interest which she has claimed in the award of special damages. This I assess on the said sum of $5356.69 (five thousand three hundred and fifty-six dollars and sixty-nine cents) rounded off to $5357.00 at 4% p.a. from the date of service of the writ (24.8.89) to date of judgment (assessment decision i.e. 11.11.93 which amounts to $1068.00 (one thousand and sixty-eight dollars).

(B) GENERAL DAMAGES

The Plaintiff's claim for general damages is for pain and suffering for the injuries which she has sustained and loss of amenities of life.

The evidence reveals that the injury was serious; the Plaintiff was in great pain and had to receive medical attention and physiotherapist treatment both in Fiji and New Zealand. Her physical condition and the nature of her disability is fully set out in the Medical Report referred to hereabove.

The Plaintiff is a 48 year old married woman with 3 children aged 13, 14 and 15 years. The children attend school. According to her evidence, which I accept, she has suffered a lot of pain after the accident and it was a harrowing experience for her; she could not have bath properly; her whole life changed with, among other things, affecting her relationship with her husband. She still has a tender spot on the knee; she hears grating sound while bending the knee and at times the pain is bad.

The Plaintiff used to do a lot of decorating and gardening; this is not possible now as the injury causes a lot of inconvenience. She cannot do any dress-making.

She says that anything that requires bending the leg or climbing stairs et cetera makes her feel as if she has "two different legs" but recently she has started business of internal decorating and flower arrangement.

The Plaintiff is entitled to general damages as claimed; perspective as well as past suffering must be allowed for. In HEAPS v PERRITE LTD (1937) 2 AER 60 GREER L.J. said:-

"We have to take into account not the suffering which he had immediately after the accident but the suffering that he will have throughout his life in future."

In this case I accept the doctor's report and what the Plaintiff has said about her physical state at the time of the assessment. According to the doctor her percentage of incapacity for "loss of leg below the knee" is 45% worked out in accordance with Workmen's Compensation Act Schedule and the approximate incapacity for abnormalities is outlined in the Report is 13%.

I should also take into account the loss of enjoyment of the ordinary amenities of life.

To assist the Court in assessing damages under this head Mr. Raza referred me to a local case KAMLA WATI & Anor v PARAS RAM & ORS (F.C.A. CIV APP. 61/80) and Mr. Keil cited certain United Kingdom cases.

In KAMLA where the injury was somewhat similar and affecting the knee i.e. loss of patella in her right knee the award of $5000 in the year 1980 was not disturbed by the Fiji Court of Appeal.

On the 1st September, 1993 I awarded $6000 in the case of the fracture of the right ankle joint (although not the type of injury as in the present case) where a four hole Shuman plate and the medical mallcolus was fixed with a screw (VIREND SINGH v RAM SUNDAR & ANOR. (C.A. 388/91). I must say that somewhat different considerations apply to knee injury as compared to injury to the ankle.

Mr. Keil refers particularly to PAUL v. CLAYTON ANILINE COMPANY LTD (1980) and DAVIES v HOBSON (1981) where general damages of 5000 was awarded in each case. The injury in the former was "fracture of left knee cap. Subsequent discomfort and crepitus " and in the latter "fracture of left patella. Injury to cartilage. Subsequent pain and discomfort. Limited flexion and marked crepitus." In WELLS v GEORGE H KIME & CO (1982 -Boston County Court) a lorry driver had fracture of right patella and was awarded 3500 general damages.

In NARENDRA KUMAR v SAIRUSI DRAWE (High Court C.A. 60/85) for injury to left thigh affecting the knee as a result of firing of shots the award was $7000 in 1990. Here also the injury is not to the knee as in the present case hence here also slightly different considerations will apply.

It has been suggested that all leg fractures have very similar effects and in the case of the type of injury as in this case where there is some continuing disability such as limp, sub-standard knee damages awards are around 3000 (MUNKMAN: DAMAGES FOR PERSONAL INJURIES AND DEATH 8th Ed. at p.230). In SAUNDERS (Hals. Rev. January 1988) the sum of 8000 was awarded for "Fireman, 33. Displacement right knee cap, damaged cartilage, knee permanently weak and vulnerable. Cannot kneel, pain after activity, had to give up fire service." (ibid p.237)

After considering the foregoing facts and in the circumstances of this case and after seeking guidance from the cases on the subject, some of which are referred to hereabove, that for her general damages I have come to the conclusion that I should fix it at $12000.00 (twelve thousand dollars).

The Plaintiff has claimed interest in the pleadings and she is entitled to it. It was held in PICKETT v BRITISH RAIL ENGINEERING LTD (H.L) 1980 A.C. p. 136 AT P. 137:

"That interest on general damages was awarded for the purpose of compensating a plaintiff for being kept out of the capital sum between the date of the service of the Writ and judgment ..."

The interest will be at the rate of 4% per annum from 24/8/89 (date of service) to 11/11/93 (being date of judgment - assessment decision) which amounts to $2040.00 (two thousand and forty dollars) I award this sum as interest.

In the result I assess and award damages as follows:-

(i) Special damages $ 5357.00

(ii) Interest thereon from

24.8.89 to 11.11.93 at

the rate of 4% p.a. $ 1068.00

(iii) General damages $12000.00

(iv) Interest thereon from

24.8.89 to 11.11.93 at

the rate of 4% p.a. $ 2040.00

________

$20465.00

________

Accordingly there will be judgment for the Plaintiff against the Defendant in the sum of $20,465.00 (twenty-thousand four hundred and sixty-five dollars) with costs to the Plaintiff to be taxed if not agreed.

D. Pathik
Acting Puisne Judge

At Suva
11th November, 1993

HBC0301D.89S