Ram v Santen [1995] FJHC 60; Hbc0005j.91b (30 March 1995)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

ACTION NOS.0005 and 0006 OF 1991.

Between:

PARAS RAM
s/o Bissessar
Plaintiff

-and -

1. ADRIANUS WILHELMUS ARNOLDUS MARIAVAN SANTEN
the executor and trustee in the Estate of PHILIP LOWTHER HOTCHIN.
2. IVAMERE HOTCHIN
Defendants

Mr. J.Singh for the Plaintiff.
Mr. Raman Singh for the Defendants.

JUDGMENT

There are two actions instituted by the Plaintiff in the High Court at Labasa being Civil Action Nos. 5 and 6 respectively arising out of one single accident. The parties in both the actions are the same except that in Civil Action No.6/91 the Plaintiff is suing in his capacity as the administrator in the Estate of DEO RAJ his son who died in this accident and the second defendant is the first defendant with the said SANTEN as the second defendant.

Both the counsel agreed that I hear the actions together and determine liability and assess damages depending on the outcome of the actions. I proceeded with the hearing accordingly.

ISSUE OF LIABILITY

In Civil Action 5/91 the Plaintiff's claim is for:-

(a) Special damages in the sum of $2673.00 (being made up of transport and medical expenses $100.00, loss of wages $2548.00 and clothes $25.00).

(b) General damages.

(c) Such further or other relief as the Honourable court may deem just including claim under Workmen's Compensation Act.

(d) Costs.

In Civil Action 6/91 the claims are under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27 and Compensation to Relatives Act Cap 29, special damages, general damages, interest and costs.

In respect of both the actions evidence was adduced in Civil Action No. 5/91. Evidence for the Plaintiff was given by PARAS RAM (PW1) himself (the injured Plaintiff), JUGAI KISHORE (PW2) Medical Officer, PARISH CHANDRA (PW3) farmer and MOHAMMED ISMAIL (PW4). The defendants did not adduce any evidence in their defence.

By their Statement of Defence the defendants, while admitting that there was an accident as alleged, the second defendant (D2) IVAMERE HOTCHIN (who is first defendant in No. 6/91) denies that she or any of her servants or agents are guilty of the alleged or any negligence or that the said collision was caused as alleged in the Statement of Claim. The defendants do not also admit the alleged "injuries loss or damage".

I have considered all the evidence adduced in this case and find as fact as hereunder as far as the two actions are concerned.

The Plaintiff was employed by D2 as a labourer and he lived at Seaqaqa, Labasa. On 8 June 1988 the Plaintiff whilst in the course of his employment was travelling in D2's motor vehicle Regd. No. BG486 at Seaqaqa on Labasa - Nabouwalu Road. The said vehicle was being driven by D2's husband Philip Lowther Hotchin with her consent. The first defendant (D1) is the executor and trustee in the estate of the deceased P.L. Hotchin.

The learned counsel for the Plaintiff has very clearly set out in his written submission (p.2 & 3) all the evidence that has been adduced in this case which I adopt and it is as follows:

"The Plaintiff testified that on 8th June 1988 he was travelling in the van BG 486 driven by PHILIP HOTCHIN. They had gone to Muanidevo to bring pineapples. On their return journey at Seaqaqa after climbing a hill, he saw a truck parked about three chains away on the left side of the road. He also saw a van coming from the opposite side. He added that the driver PHILIP HOTCHIN began to overtake and then seeing the oncoming vehicle pulled to left and hit rear of truck loaded with logs. He also spoke of high speed at which Hotchin drove the van. The day was clear and road was sealed.

Two more witnesses were called by the Plaintiff to prove negligence of the driver. They were PARISH CHAND and MOHAMMED JAMAL.

Parish Chand was the driver of the vehicle travelling in the opposite direction. He says that he had seen the landcruiser driven by Philip Hotchin coming from the opposite direction. He says before he had reached the parked truck he had seen the landcruiser. He also mentioned the high speed of the landcruiser and that he pulled to his left to evade collision with landcruiser. This was presumably when Mr Hotchin had begun his overtaking manoeuvre. He heard sound of collision. He stopped and came to assist. He saw truck rolling forward and landcruiser roll to the right side of the road. He added that they broke rear glass of landcruiser and pulled out two people from underneath pineapples. They were covered with blood.

Mohammed Jamal was the driver of the truck. He testified that he had parked his truck BE 115 about three chains from a bend after his truck developed problem. He was checking on the truck when he heard a sound like brakes and then collision. He spoke of damage to his truck - ruptured rear right tyre, handbrake cable snapping and king bolt breaking. He spoke of his truck being pushed forward. It was a 9 tons truck with about 8 to 9 tons of logs on it.

He assisted Parish Chand in dragging over two passengers from underneath pineapples from a landcruiser. the landcruiser was rolling forward. He tried to stop it by putting a stone in front of it but it went over the stone and went into the drain on the right side of road.

Parish Chand and Mohammed Jamal are totally independent witnesses with no axe to grind. No suggestions of bias have been made in cross-examinations either".

I accept the Plaintiff's counsel's submissions in regard to the manner of driving on the part of PHILIP HOTCHIN in preference to that of defendant's submissions.

It is abundantly clear from the evidence and I find as fact that as soon as HOTCHIN got to the top of the climb on the road he saw a truck some three chains away parked on its correct side with a portion of it occupying that half of the road. Whilst intending to overtake the parked truck he saw a vehicle coming from the opposite direction so he decided to take evasive action by coming back to his side but in the process he collided in the rear of the parked truck. I find as fact and beyond reasonable doubt that his manner of driving was dangerous in the circumstances; knowing that his view of the road ahead was obstructed because of the climb on the road before reaching the top of the "hill", he should have exercised that degree of care which a reasonable and prudent driver would exercise in the circumstances. Had he been driving with due care and attention and at a reasonable speed he should have been able to pull up in good time so as to avoid the accident. In my view no blame attaches to the driver of the parked truck for the manner in which he parked it. I find that it was properly parked. The fault lay entirely with Philip Hotchin for the dangerous manner in which he drove his vehicle.

I accept the testimony of the Plaintiff and his witnesses as to the manner of driving on the part HOTCHIN. I hold that the Plaintiff has established that the said HOTCHIN was negligent and, as the second defendant was the owner of the said vehicle involved in the accident, the second defendant and the executors of the deceased driver the first defendant are liable in damages to the plaintiff. I find as fact that the plaintiff suffered the personal injuries claimed by him and that such injuries were caused entirely by the said HOTCHIN'S (the Deceased's) negligence.

I further find as fact that the Plaintiff's 13 year old son DEO RAJ who was a passenger in the said vehicle also died instantly in the said accident and his death was due solely to the negligent manner in which the said HOTCHIN drove the said vehicle.

INJURIES AND PRESENT DAY DISABILITIES

The Plaintiff has suffered the injuries as stated in the Report from Labasa Hospital dated 20 August 1990 (exhibit 3) which reads as follows:-

"This patient was admitted to us on 8/6/88 after a motor vehicle accident.

The following injuries were noted: -

1. Semi - conscious.

2. Fracture (L) temporal bone.

3. 1" long transverse cut just below the left lower eye lid.

4. Bruising of upper and lower eyelids of both eyes.

5. Y-shaped lacerated wound on the left zygomatic arch.

He was taken straight to the operating theatre for exploratory burr hole where all the necessary operative procedures were performed.

He gained consciousness after that and was well until 4/7/88 when he was discharged.

He was continuously seen at clinic; when last reviewed on 9/8/90 this patient was in good health apart from the complete blindness of the left eye which was the result of the injury.

He is entitled for 40% permanent disability".

The Plaintiff's claim is for injuries received by him as already stated hereabove."

I am satisfied on the evidence before me that the Plaintiff suffered the injuries as outlined above in the said Medical Report. Further as already stated I am satisfied that the Plaintiff's said son DEO RAJ also died instantly in the said accident as a result of negligent driving on the part of the said HOTCHIN, now deceased.

Further, I have found that the accident was solely the result of negligent driving on the part of the said PHILIP LOWTHER HOTCHIN for whose negligence the second defendant (the owner of the vehicle involved in the accident) is vicariously liable. The defendants are liable in damages for injuries received by the plaintiff in this action and also for damages for the death of the said DEO RAJ.

I shall now deal with the damages claims in Action No. 5/91 in the same order as in the prayer and as for claims in Action No. 6/91 I shall do a separate judgment and assess damages.

(a) SPECIAL DAMAGES

The Plaintiff claims $100 for transport and medical expenses.

The Plaintiff was hospitalized from 8 June 1988 to 4 July 1988 i.e. 27 days. After discharge he said that he visited hospital and was seen by doctor twice and twice he did not meet him. He claims $25.00 for his trousers and shorts which were damaged and which were not returned to him.

Although in cases of this nature "medical, hospital, nursing and attendance expenses are recoverable" as reasonable expenses likely to be incurred as a non-remote consequences of the defendant's wrong, the claim has to be proved. Evidence is very scanty in this regard. Apart from the bare statement from the Plaintiff that he went to see the doctor, there is no evidence to show how the sum of $100 is made up. In a similar situation where a claim was made for $65 for medical and transport expenses KERMODE J in KHUSWANT SINGH s/o Ram Singh and JAMES KNOWLES & ROYAL TRANSPORT COMPANY C.A. No. 92/76 while disallowing the claim said:

"While I appreciate that a person does not usually obtain receipts for small payments the defendants are in no position to challenge such a claim unless some evidence is led to establish the claim. Mr. Kapadia must have been advised of the items which make up this sum. If so, no evidence was led to inform the Court. The defendants could have sought particulars but their failure to do so does not absolve the plaintiff of this obligation to substantiate his claim.

As I have stated apart from a bare statement that he claimed the sum of $65, the plaintiff merely stated he went to hospital once or twice a month and that return journey by taxi was more than $3. How many trips he made by taxi is not known, nor did he state who paid for the taxi. No evidence was led regarding medical expenses and no receipts were produced.

I do not consider that the Court should be called on to assume that the plaintiff (or someone on his behalf) must have incurred expenses for travelling and medical treatment. Nor should the Court have to assess a figure in the absence of satisfactory proof of special damages. In considering general damages the inconvenience to the plaintiff of having to visit the hospital to receive medical treatment is part of the overall picture and will be taken into account.

I hold that the plaintiff has not established his claim to the sum of $65 general damages."

Similarly, in MAHENDRA NAIDU s/o Adiappa and RAVINDRA PATEL s/o Motibhai Patel C.A. No. 105/79 (West Div), WILLIAMS J. said:

"No receipt or evidence has been tendered to show that hospital fees amounted to $50.00 and I do not accept that figure. I am unable to guess what it would be and I do not allow it. As LORD GODDARD and the F.C.A. have pointed out claimants are expected to call evidence supporting their claims and not simply to say this is what I have paid or suffered in losses then expect to be awarded those sums".

Also in TACIRUA TRANSPORT COMPANY LIMITED and VIREN CHAND s/o Ragho Prasad Civ. App. No. 33/94 F.C.A. 2/3/95) the claim for a similar claim was disallowed, but because counsel consented at the appeal hearing the sum of $100 was "regarded as sufficient to meet the medical and transport expenses", this lesser sum was awarded.

For these reasons I disallow the sum of $100 but allow the claim of $25 for the clothes.

The Plaintiff is also under the head of special damages claiming the sum of $2548.00 being loss of wages for one year for the period 8 June 1988 to 8 June 1989.

Mr. Raman Singh submits that the loss of earnings suffered by the Plaintiff as proposed is excessive. He says that the expenses that would have necessarily been expended in attending to work should be deducted.

Mr. J. Singh sets out in his written submissions inter alia as follows details regarding the Plaintiff's condition after the accident and how the claim for $2548.00 was arrived at:

The Plaintiff Paras Ram testified that he had worked on IVAMERE HOTCHIN that is on second Defendant's farm for close to five years. His wages were $7.00 per day. There is no doubt about this and even the record book of wages paid kept by the second Defendant (Exhibit 6) bears this out. The Plaintiff says he was paid $49.00 per week and for one year it comes to $2548.00.

LOSS OF WAGES

The Plaintiff further testified that due to his head injuries he is unable to work in the heat and that he can now only work in the early morning and late in the afternoon after 4.00 p.m.

He said that he tried looking for a job but was not employed due to injury and this is not surprising as he would not be able to work during the normal working hours.

In the present action, calculation of balance of loss of earnings is not fraught with sort of difficulties one encounters in a lot of personal injury claim. The Plaintiff's weekly wages were $49.00 per week that is an annual wages of $2548.00.

He says that before accident he lived on Hotchin's farm. He had been given 2 acres of land at Matasawalevu by his father. This was rice land and since he lived on Hotchin farm, he employed others to grow rice. He spent annually about $300.00 to produce 2 tons of paddy valued at $1000.00. However, now he does not have to spend this $300.00 as he and his family live on this land and grow rice themselves.

Hence, he saves $300.00 annually and this has to be deducted. The Plaintiff's annual loss of earnings therefore would be in the region of $2200.00 - that is his annual wages on Hotchin farm less $300.00 saved.

Hence, his pre-trial loss of earnings would be about $2200.00 per annum. For convenience of calculation his pre-trial loss of earnings may be calculated to 8th June 1994 so his pre-trial loss of earnings would be:

1st year from 8/6/88 to 8/6/89 $2548.00

From 8/6/89 to 8/6/94 -

5 years at $2200.00 per annum 11,000.00."

The question that immediately comes to mind is whether the plaintiff is actually entitled to this sum of $2548 for the first year.

He was hospitalized for 27 days and the medical report says that he was "in good health apart from the complete blindness of the left eye" when last reviewed on 9 August 1990. (underlining mine)

Apart from what the plaintiff has said about him not being able to work the normal hours because of headaches and dizziness there is also the evidence of the doctor (PW2) who said that "he could have problem in heat; He might feel dizziness, occasional headache". There is nothing before me to say why he did not work at all after the accident allowing for the fact that his former employer (D2) did not re-employ him.

There is no evidence to show that he was not capable of working for one whole year for which his claim of $2548.00 is by way of special damages and also for the period 1989 to 8.6.94 being date of hearing of this action. He has testified though that he cannot work in the heat but is able to work early morning and late afternoon.

The Plaintiff says that he cannot find work, but prior to working for D2 he worked at home on his own farm. He says that he stays home and has not worked for 4 years after the accident. I do not accept that he was unable to work at all from the time of his discharge until the trial of the action for which period he is claiming the wages which he was paid prior to the accident. He has not established to my satisfaction that that was the situation.

In view of what I have stated hereabove I am not at all convinced that he is entitled to his claims for $2548.00 for loss of wages for one year under special damages. However, in the absence of medical report stating his inability to work at all for the period stated, I am unable to award what he is claiming except that he should be paid (a) for the period he was hospitalized at the rate of $7 per day (the wages he was getting) for 27 days amounting to $229 and (b) for a period of 4 months after his discharge; I allow his claim to the extent of one-third (being for 4 months of the year)of the sum of $2548 claimed, that is $850 in round figures for I am satisfied the plaintiff could not have been gainfully employed for that period because of his discomfort from the eye operation and other injuries.

I therefore award the said sums of $25.00, $229 and $850 making a total of $1104 as special damages.

(b) GENERAL DAMAGES

The Plaintiff's claim for general damages is for pain and suffering from the injuries that he has sustained, loss of amenities of life, prospective loss of earnings and other material benefits.

To assess damages under this head, one has to take into account the Medical Report referred to above.

LOSS OF PROSPECTIVE EARNINGS

The defendant did not re-employ the Plaintiff after his discharge. There is no evidence that D2 was obliged to re-employ him nor is there any evidence that because of any disability, apart from loss of an eye arising out of the injuries, he was not able to get employment elsewhere. Also there is no medical evidence that he suffers permanently with some form of set back as a result of the injuries except what he has himself stated about headaches and dizziness and also what the doctor (PW2) has said in this regard. However, there is the Medical Report that there is "40% permanent disability" from the loss of eye.

Hence in this case apart from the said 40% disability, I do not see any probable continuing total loss of $2548 per annum of earnings which the plaintiff would have received but for the accident. Before the accident he was self-employed and now after the accident he is back on his farm with 40% incapacity due to the accident. He cannot be deprived of an award for loss of future earnings.

However it is worth noting, quoting from MUNKMAN'S DAMAGES FOR PERSONAL INJURIES AND DEATH 8th Ed. at p.207 under "General Notes" on "Eyes" that:

"The loss of one eye, or of vision in one eye, is an injury to which the victim can adjust himself fairly quickly, and unless he is engaged in work requiring fine vision and delicate handling there is usually no continuing loss of earning capacity in an established occupation, ..."

The Plaintiff is asking for loss of earnings for his period of unemployment, and in this case it is 8.6.88 (date of accident) to 8.6.94 (date of hearing). But I have already as stated above awarded compensation for the 27 days while he was in hospital and a further 4 months thereafter. So the period of unemployment for the purposes of assessing prospective loss of earnings will commence from 8 November 1988.

For the future, bearing in mind some of the decided cases including the ones referred to by Mr. J. Singh I will adopt a multiplier of 15. It is stated in HALSBURY 4th Ed. Vol. 12 at para. 1156 that:-

"for a plaintiff in his thirties having a normal expectation of working life a multiplier of 14 or 15 has often been taken"

In ELLISON v UNION STEAMSHIP CO. OF NEW ZEALAND LTD [1939] NZGazLawRp 15; 1939 NZLR 223 AT 225) O'REGAN J said that:

"If the injured man has not resumed work and there is no prospect of re-employment at a reduced wage, then the medical evidence of the extent of his loss is the only available guide to the Court"

As stated above there is a permanent partial incapacity of 40% (as provided for under the Workmens Compensation Act. Therefore according to s8(1) of the Act the compensation payable shall be based "on such percentage of two hundred and sixty weeks earnings as is specified therein as being the percentage of the loss of earning capacity caused by that injury;" In this case it would come to 40% of 260 x 49 = $5096 under the Act. The claim here is not under it.

The Plaintiff's actual loss in salary (as stated by Mr. J. Singh himself now that he is unemployed) is $2200. For the loss of earning capacity due to injury I would assess it at $600 per year. So for the period 8.11.88 to 8.6.94 (date of trial) i.e. 5 years 7 months it comes to $3350. That leaves the balance period of 9 years 5 months from the multiplier of 15. Therefore the loss of earnings calculated on this balance period at $600 per year amounts to $5650.

I therefore award the sum of $9000 (made up of $3350 and $5650) for prospective loss of earnings.

PAIN AND SUFFERING

The plaintiff is entitled to damages under this head. He was hospitalized for 27 days. As stated in KEMP & KEMP (Vol. 1 p.2007 2-010)

"...the court must take into account, in making its assessment in the case of any particular plaintiff, the pain which he actually suffered and will suffer and the suffering which he has undergone and will undergo. Pain and suffering are not measurable by any absolute standard and it is not easy, if indeed possible other than in the most general way, to compare the degree of pain and suffering experienced by different people, however, the individual circumstances of particular plaintiffs clearly have a significant effect upon the assessment of damages".

In this case the Plaintiff did go through certain amount of "pain and suffering" and he still suffers from headaches and dizziness because of injuries to his head. I have no doubt on the Plaintiff's evidence and that of the doctor that this discomfort is there for him to suffer but for how long it cannot be said. Although the Plaintiff was discharged after 27 days, his recuperation period of say four months could be taken into account under this head.

LOSS OF AMENITIES OF LIFE

The Plaintiff is also entitled to have loss of amenities of life considered under this head.

As stated in KEMP & KEMP, THE QUANTUM OF DAMAGES (Vol I loose leaf Edition p.1009, 1-008):

"There is a head of damage which is sometimes called the loss of amenities; the man made blind by the accident will no longer be able to see the familiar things he has seen all his life; the man who has had both legs removed and will never again go upon his walking excursions - things of that kind - loss of amenities." (Per BIRKETT L.J. in MANLEY v RUGBY PORTLAND CEMENT CO. LTD (1951) C.A. No. 286.

"This head embraces everything which reduces the plaintiff's enjoyment of life considered apart from any material or pecuniary loss which may be attendant upon the loss of amenity. What matters is the fact of deprivation of an amenity or amenities, not whether the injured person is aware of such deprivation ...."

The Plaintiff before the accident, resulting in the loss of an eye, played soccer and swam across river which he cannot do now. Because of partial loss of sight he bumps into people in the market and has difficulty in crossing the road. He is permanently and partially incapacitated to the extent of 40%. At the time of the accident he was 37 years of age and was in normal health. He is no longer able to engage fully in activities in which he previously engaged himself in; he still suffers from headaches and dizziness.

Upon a consideration of the foregoing facts and in the circumstances of this case I award the sum of $4000 as general damages for pain and suffering and loss of amenities of life.

DAMAGES FOR LOSS OF EYE

The Plaintiff is seeking an award of $18000 under this head. Mr. J. Singh has referred the Court to a number of Australian cases but I do not derive much assistance from them for the purposes of this case.

No Fiji cases were cited by counsel but in the case of JAMUNA PRASAD s/o Girdhar and RAGWA NAND MAHARAJ s/o Asha Maharaj (Civ. A. No. 28/89) FATIAKI J made an award of $8000 (for loss of an eye) and in doing so he commented:

"Needless to say the loss of an eye and disfigurement are permanent physical scars that the plaintiff will carry for the remainder of his life. Equally there are 'emotional scars' that he must also bear such as the inevitable disorientation, frustration and often unwelcome curiosity generated by his injuries."

Quoting from MUNKMAN (supra) p. 207 to 208 some of the English awards have been as follows:

"(b) Loss of one eye or the sight of one eye

The standard in 1988 is around 15,000. Higher awards include other injuries.

(i) Cronin 1987 CLY 1167

Age 15, sex not stated. Loss of eye. 20,000. Court of Appeal considered high but did not reduce.

(iii) Barnes 1986 Hals Abr 732

Machine operator lost eye due to metal splinter, artificial eye, some discomfort. 16,000.

(vi) Cole. 1987 CLY 1189

Girl, 14. Blow to right eye caused cataract, removal left it blind except with contact lens which was uncomfortable. 10,000."

With reference to KEMP & KEMP, THE QUANTUM OF DAMAGE Vol. 2 under D2-10) in POSTLE v BERGRAVE (BLACKHEATH) LIMITED (1982) TUCKER Q.C. (sitting as Deputy High Court Judge at Birmingham) said:

".......in my view, the appropriate award now without any complications, and assuming perfect sight in the other eye, would be 11,000. In my view that keeps awards for injuries of this type up to date and keeps them in proper comparison and perspective with awards for other kinds of injury".

Also in VICKERMAN v PARKER (1982) KEMP (supra) D2-244, it is stated "Per curiam the current conventional award for loss of an eye was 10,000, but it would be wrong to award damages of this amount in view of the plaintiff's age (60 years).

Before the accident the plaintiff was able to play soccer and swim across river etc which he cannot do now. There is a tendency to bump into people in the market; he has difficulty in crossing the road and needs assistance of other people to do so. Apart from all these set-backs the Plaintiff is saddled with dizziness and headaches as a consequence of injuries suffered through the accident.

In all the circumstances of this case as stated hereabove a reasonable amount of compensation for loss of eye would be $8000.

Since there is no claim for interest in the claim for damages in the pleadings no order will be made. Recently in a judgment delivered on 22 March 1995 in VIREND CHAND f/n Ragho Prasad (supra), the Fiji Court of Appeal when dealing with the power of the Court to award interest "rather than the rate at which interest should be paid". This is what the Court said:

"Section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27 provides:

"3. In any proceedings tried in the (High) Court for the recovery of any debt or damages the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages ..."

This provision must, however, be regarded as subject to the general provision that a claim for interest, as for any other relief, must first be pleaded. This was a matter considered by this Court in Usha Kiran v Attorney-General of Fiji F.C.A. No. 25 of 1989; delivered on 23 March 1990. In that case the Court noted the English rule under which it is mandatory to plead specifically any claim for interest. The Court observed that there was no comparable rule in Fiji but, following the reasoning in the English Supreme Court Practice ("White Book" - 1991 edition para. 18/8/10), considered that interest, if sought, should be specifically pleaded. That judgment was followed and applied in Attorney-General of Fiji v Waisale Naicegulevu F.C.A. No. 22 of 1989 delivered on 18 May 1990. We see no reason for departing from what is now the established practice of this Court.

In the present case, not only was there no claim for interest in the Statement of Claim, but the topic of interest was apparently not raised at the hearing and is not referred to at all in the written submissions made to the Judge on behalf of either party. In these circumstances there was no power for the Judge to include the provisions for interest in his assessment of damages."

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

(a) Special damages $1104

(b) General damages (loss of

prospective earnings $9000

pain and suffering $4000) 13000

(c) Damages for loss of an eye 8000

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$22104

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Accordingly there will be judgment for the plaintiff against the defendants in the sum of $22104 with costs to the Plaintiff to be taxed if not agreed.

D. Pathik
Judge

At Labasa
30 March 1995

HBC0005J.91B