Prasad v Chand [1995] FJHC 159; Hba0005j.95b (25 October 1995)

IN THE HIGH COURT OF FIJI
At Labasa
Civil Jurisdiction

CIVIL APPEAL NO. 0005 OF 1995

Between:

SATYA PRASAD
s/o Guru Charan
Appellant/Defendant

- and -

HARI CHAND
s/o Bechan
Respondent/Plaintiff

Mr. A. Parshuram for the Appellant
Mr. A. Kohli for the Respondent

JUDGMENT

On the 5th of August 1990 in the course of an altercation the appellant assaulted the respondent with a fork inflicting head injuries on the respondent which necessitated him being hospitalised as an in-patient for several days. For his actions the appellant was charged with a criminal offence for which he was convicted on his guilty plea and sentenced to a suspended prison term and ordered to pay a fine.

Subsequently the respondent issued civil proceedings in the Labasa Magistrate Court claiming damages for personal injuries sustained by him in the incident. On the 15th of February 1995 after a short but keenly contested trial the learned trial magistrate awarded the respondent "... the sum of $2,500 as general damages and a sum of $342 as special damages ..." together with costs of the action.

The appellant now appeals against the learned trial magistrate's judgment on the following three (3) grounds:

"(1) The Learned Magistrate has erred in law and in fact in holding that the Plaintiff had proved special damages and awarding the same to the Plaintiff;

(2) The Learned Magistrate has erred in law and in fact in finding for the Plaintiff in the absence of any medical evidence as to the extent of the injuries on the Plaintiff. As there was no evidence the Learned Magistrate erred in awarding damages;

(3) The Learned Magistrate has erred in law and in fact in the assessment of damages and/or in not making an allowance, having held that there was at least contribution by the Plaintiff in the assessment of damages."

From the above grounds it is clear that the learned trial magistrate's finding of liability is not challenged and accordingly this appeal is solely concerned with the quantum of damages awarded. Indeed learned counsel for the appellant concedes as much in his written submissions.

Before dealing however with the grounds of appeal it is well to recall the proper approach to be taken by an appellate court in considering an appeal against an award of damages.

In this regard I am content to adopt an oft-cited passage from the judgment of Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd. (1942) A.C. 617 where he said:

"Where, however, the award is that of the judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly slow to reverse the trial judge on a question of the amount of damages ... In effect, the court, before it interferes with an award of damages, should be satisfied that the judge has acted upon a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attached if the appellate court is to interfere, whether on the grounds of excess or insufficiency."

I am also mindful that in respect of the award of 'general damages' the learned trial magistrate has chosen simply to award a global or lump sum figure without breaking it down into its component elements. In this regard Lord Diplock observed in Wright v. British Railway Board (1983) 2 A.C. 773 at 777:

"Non-economic loss ... is not susceptible of measurement in money. Any figure at which the assessor of damages arrives cannot be other than artificial, ... and the figure must be basically a conventional figure derived from experience and from awards in comparable cases."

With the above in mind I turn to consider the grounds of appeal and the submissions of learned counsel for appellant which was helpfully reduced into writing and which conveniently deals with the damages awarded under the subheadings: SPECIAL DAMAGES and GENERAL DAMAGES and which I propose to adopt in this judgment.

Common however to both heads is counsel's complaint that the respondent had failed to discharge the burden of proving his claim in so far as there was a complete failure to call or produce any medical evidence or report of an expert witness to establish both the extent and cause of the respondent's injuries.

In this regard counsel laid stress on a paragraph in the learned trial magistrate's judgment where he states:

"The plaintiff's principal weapon in the case is the conviction against the defendant. There is no medical evidence adduced. There is no proof of special damages either. In the circumstances the court has to concentrate only on the question of general damages."

I am satisfied however that in so far as 'special damages' is concerned the trial magistrate's observation was directed solely at the absence of any documentary or independent evidence to support that given by the respondent at the trial and was not intended to mean, as counsel claims, that there was no evidence at all.

As for the absence of any medical evidence whilst the observation is plainly correct, that cannot and does not mean that the magistrate was thereby disentitled from making any award for general damages. Handicapped he may have been, by the paucity and non-expert nature of the evidence he had to deal with, but completely disabled he was not.

Needless to say the learned trial magistrate in making his award had before him the sworn, cross-examined testimony of the plaintiff himself in both an oral and also in a very 'real' sense arising from the learned trial magistrate's own examination of the respondent's head in the course of his evidence (recorded at top of p.67). There was also tendered in evidence as a documentary exhibit (Ex.1) a certified copy record of the criminal proceedings taken against the appellant as earlier mentioned. This particular complaint is therefore without merit.

SPECIAL DAMAGES

The plaintiff's claim under this head in the Statement of Claim (as amended) reads as follows:

"Special Damages $600 made up of:

(a) Transport costs of $130.00;

(b) Medicine $110.00 and

(c) Loss of earnings $360.00

The oral testimony of the respondent in support was very brief and was to the effect that before being hospitalised he was in paid employment earning $36 nett per week but since then he has lost his job. He was hospitalised "for 3 days at first" and later returned "there for 2-3 weeks" and had undergone 2-3 operations. He had incurred taxi fares in going to and from hospital during that time at a cost of "$3.00 one way".

The learned trial magistrate in his judgment under this head of damages awarded the respondent the sum of $342 as special damages (i.e. just over half the amount claimed) which he broke down as follows: 'loss of earnings' calculated on the basis of 6 weeks (including 3 weeks rest time) at $36 per week: $216; and 'taxi fares' being 21 trips at $6 per trip: $126.

No allowance was made for any medicine(s) purchased because as the magistrate said: "there is no evidence whatsoever."

In seeking to support the award however, learned counsel for the respondent quite properly conceded that the learned trial magistrate erred in awarding 'loss of earnings' for 3 weeks "rest time", and with that I agree bearing in mind the seemingly casual nature of the respondent's employment. The loss of earnings is accordingly reduced by half and confirmed at $108.00.

The evidence as to 'taxi fares' is also quite unsatisfactory insofar as the respondent nowhere states in his evidence that he actually incurred it. Nor, as learned counsel for the appellant has questioned, was it established that a cheaper alternative means of transport was unsuitable or unavailable, or indeed, that the respondent had travelled to hospital every single day that he was being seen as an out-patient. I accept that some travel costs were incurred however and accordingly the 'taxi fares' component is halved and confirmed at $63.00.

The award for special damages is accordingly reduced to $(108 + 63) = $171.

GENERAL DAMAGES

Under this head excluding the evidential question already dealt with, learned counsel for the appellant subjected the respondent's evidence to a close examination and submitted that at most the award should be confined to the '2-3 days' that the respondent was hospitalised immediately after the incident and to the visible injury 'marks' (one on the back and two under the eyes) that the respondent confirms he received as a result of the assault.

With all due regard to the submission there are very many more heads to general damages than actual injury. Furthermore having regard to the discretionary nature of general damages I cannot accept a submission that obliges the assessor to jettison his common-sense in considering the evidence and in assessing the quantum.

As to the former, the learned author of McGregor on Damages (15th edn) lists the following 3 main heads under which non-pecuniary (general) damages are normally awarded by the courts, namely:

(1) Pain and suffering;

(2) Loss of Amenities of Life; and

(3) Loss of Expectation of Law.

As to the latter, there was evidence before the learned trial magistrate that the respondent was 51 years of age at the time of the incident with 'no sickness' or 'blood pressure'. There was evidence that as a result of being hit on the head and back by a fork he fell down and lost consciousness. He experienced pain on the back and a depression on the head which gets painful in cold weather.

He was admitted into hospital for 3 days and 2 days after his discharge, he returned to hospital because of weakness to his leg caused by his head injury. He underwent several operations for his injuries and now has difficulty walking and recalling things.

The appellant in his evidence also corroborated the respondent's evidence in this regard. In particular he admits hitting the respondent: "... on the back with the fork. The blow landed on his head."

Later in cross-examination he says:

"After my attack I saw blood oozing out. It was the result of my attack with the fork... He was crouching when I gave the second blow. It struck on his back landed on the skull. ... He was injured and was in hospital for 8 days. He underwent operation."

I accept the learned trial magistrate in his judgment makes no detailed mention of all the above matters but I cannot accept that he would not have been aware of them in making his award for general damages.

Indeed as learned counsel for the respondent correctly pointed out, in making his award for 'general damages' the learned trial magistrate appears to have dwelt solely on the 'provocation elements' of the evidence and therefore, it may be safely assumed, he had a much larger figure in mind to start with, than the $2,500.00 that was eventually awarded to the respondent.

It is convenient at this stage to deal with the third and final ground of appeal urged on behalf of the appellant which complains that the learned trial magistrate failed to apportion any blame or responsibility for the incident (and therefore the damages) according to the amount of 'provocation' given by the appellant to the respondent both prior to and during the actual incident as was allegedly pleaded in paragraph 2 of the Statement of Defence and which appears to have been accepted by the learned trial magistrate in his judgment.

In this regard I have been referred to the judgment of Williams J. in Angila Wati v. Khatum Nisha (1979) 25 F.L.R. 12 where the plaintiff suffered personal injuries as a result of a cane knife attack and where the learned judge despite finding: "that the defendant had during an altercation received the plaintiff's abusive challenge to come out and fight ..." nevertheless said, at p.13: "I do not think that provocation of that nature can be urged to reduce damages in a case of this kind. The learned judge awarded $2,500 for 'pain and suffering, loss of amenities and cosmetic damage' in that case.

As in Angila's case (ibid) this was an armed attack with a dangerous instrument on an unarmed somewhat inebriated, elderly victim where a second gratuitous blow was delivered to the back of the victim when he was already on the ground defenceless. Such an attack can only be described as grossly disproportionate to any provocation that might have been offered by the respondent and in no sense contributed to his injuries.

I am satisfied that even the most favourable reading of the learned trial magistrate's judgment as urged by counsel for the appellant, could not give rise to a defence of 'contributory negligence'. Much less ought it to have been regarded as capable of reducing the real damages payable to the respondent.

In all the circumstances it has not been clearly demonstrated to this court that the learned trial magistrate's award of 'general damages' was either made upon a wrong principle, or based on a misapprehension of the facts, or a wholly erroneous estimate of the damage suffered.

The award of general damages is accordingly upheld and the appeal in that regard is hereby dismissed with costs to the respondent to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Labasa,
25th October, 1995.

HBA0005J.95B