Prakash v Parmar [1999] FJHC 126; Hbc0350j.96s (19 November 1999)

Fiji Islands - Prakash v Parmar - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 350 OF 1996

p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> BETWEEN:

RAJESH PRAKASH

s/o Bhaganti Prakash

Plaintiff

AND:

1. KAMLESH RAMESH PARMAR

s/o Ramesh Parmar

2. D. GOKAL AND COMPANY LIMITED

Defendants

ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Mr. R.I. Kapadia for the Plaintiff

N/A of the Defendants

(Assessment of damages)

On 24 July 1996 a Writ of Summons in action was issued by the plaintiff against the defendants ants claiming damages for personal injuries sustained by him in a traffic accident on 22 February 1994 at Queen's Road near Labau. The plaintiff was a passenger in a motor vehicle Registered No. CK 568 owned by the second defendant and driven by the first defendant as its servant and agent.

On 5 September 1997 Interory Judgment was entered against the defendants in default of defence with damages to be asbe assessed.

The hearing of assessment of ds took place on 13 May 1999. The defendants did not appear although served with a notice ofce of hearing.

As order. Kapadia filed written submission at the close of the hearing.

About the Plaintiff

The plaintiff is a technician employed by Ve 6 cinemas and was in regular employment. At the time of t of the accident he was 32 years of age. He kept good health.

The accidepan>

The accident took place in the early hours of the morning of 22 February 1994 at about 1.30 a.m. when the driver fell off to sleep momentarily. As a result, the vehicle went off the road and collided with a high voltage electric post causing a complete blackout in and around Navua. One person died in the accident and two others including the plaintiff were badly injured.

The ies

After the accident the plaintiff was taken to Navua Health Centre in a passing vehicle and was later transferred to the CWM Hospital, Suva in an ambulance.

When the plaintiff was admitted to the Hospital it was discovered that he had a fracture of the left ankle. The fracture was reduced conservatively with a plaster cast.

Dr. A.W. Khan of the Bayly Clinic prepared a Report dated 19 Marc7 on the plaintiff's medical condition. He also testified iied in this case on the hearing of assessment of damages. The Report in so far as it is material reads as follows:-

Present Problem List:

1. &nbbsp;&&nsp;;&nsp; Wsp; Walks with a limp.

2.&">2. nbsp;&nbsp & nbsp; Pa n inlefe left ankl ankle

3. &nbp; &nbsp &nbsp Occasional hee.>

Present Medication:

Indomethacin for pain relief.

Job Recreatioan>:

* &nnbsp;; &bsp; Still is in employment as t as a technician; he finds it difficult to climb ladders which iimportant part of his work.

* &nbbsp; &nsp; &nbap; W a anve soccer and and lawn tennis player - not able to do the same now.

Examination:

* &nWsp; wlks anthbvioos lims limp.

&

ass=Mmal style="text-indt-indent: ent: -36.0-36.0pt; mpt; marginargin-left-left: 72.0pt; margin-top: 1; margin-bottom: 1"> * &&nsp;;&nspp;&nssp; Left left leg is shortened by approximately 2cm

*  p;&nssp; Anklnt appears ears swollewollen/deformed on both the medical and lateral aspect.

&nbsp * &nTsp; iere li atatiin of n of all facets of movements of the ankle joint.

lang=EN-AU style="font-family: Times New Roman">Radiography:

X Rays show healed fractures of the distal shaft of the fibula and medical malleous. Joint space shows arthritic changes.

Opinion:

Clinical and radiological pictures suggest that this patient has developed painful arthritis of his right ankle which has resulted in a limp. Further surgery to "freeze the joint" is suggested, but this will lead to a permanent loss of function of this ankle joint.

I assess his permanent incapacity as twenty (er cent.

The doctor has further stated that the `patient's condition has somewhat deteriorated' since his last Report and he further says that `his ankle swelling has increased due to chronic arthritis and a repeat x-ray of his ankle shows reduced joint space suggestion of active arthritis'.

The Claim

lang=EN-AU style="font-famt-family: Times New Roman"> The plaintiff claims damages under the following heads:n>

1. &&nsp;;&nspp; Gsne General eral Damages for pain and suffering and loss of amenities and enjoyment of life.

&an"> nbsp;

2. & Sleciaageamin t in the fore form of out-of-pocket expenses.

;

3. &nnbsp; Past Ecc loss.span>

4. & F tureomionloss loss.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The law

Assessing damages for non-pecuniary loss is fraught with difficulties. This problem has been stat EARL OF HALSBURY LCC in THE MEDIANA (1970) AC at 116 thus:

"You very often cannot even lay down any principle upon whic can give damages..... Take the most familiar and ordinary nary cases: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident..... But nevertheless the law recognises that as a topic upon which damages may be given".

The injured person is entitled to compensation and the Cours its best and this process is described by MEGAW

LJ in FUHRI v JONES (1979 C.A. unreported) in the manner following:

"It will be appreciated, of course, though it is not always fullerstood by persons who are not directly concerned with the the law, that the law cannot attempt to attribute any particular figure of damages to any particular physical injury, serious or trivial. There is no way in which it can be said that such-and-such an injury is worth so much in terms of money. Indeed, in most cases for most injuries, anybody would say `I would rather have avoided this injury than have any amount of money whatever in compensation.' But the court has to do the best it can by way of what are really conventional figures in relation to injuries, the court assessing, of course, on the individual facts of the case, what is sometimes called the tariff, making adjustments for particular facts of the particular case." (emphasis added)

In any assessment in a personal injury case and in particular large sums are likely to be awarded it is important to beao bear in mind the following passage from the judgment of LORD DENNING M.R. in LIM POH CHOO v CAMDEN AND ISLINGTON AREA HEALTH AUTHORITY [1979 1 Q.B. C.A. 196 at 215] which was a case of severe brain injuries:

"In considering damages in personal injury cases, it is often said the defendants are wrongdoers. So make them pay up in full. They do not deserve any consideration. That is a tendentious way of putting the case. The accident, like this one, may have been due to a pardonable error such as may befall any one of us. I stress this so as to remove the misapprehension - so often repeated - that the plaintiff is entitled to be fully compensated for all the loss and detriment she has suffered. That is not the law. She is only entitled to what is, in all the circumstances, a fair compensation - fair both to her and to the defendants. The defendants are not wrongdoers. They are simply the people who have to foot the bill. They are, as the lawyers say, only vicariously liable. In this case it is in the long run the taxpayers who have to pay. It is worth recording the wise words of Parke B. over a century ago:

ass=MsoN=MsoNormal style="margin-left: 72.0pt; margin-right: 36.0pt; margin-top: 1; margin-bottom: 1"> "Scarcely any sum could nsate a labouring man for tfor the loss of a limb, yet you don't in such a case give him enough to maintain him for life... you are not to consider the value of his existence as if you were bargaining with an annuity office... I therefore advise you to take a reasonable view of the case and give what you consider a fair compensation": see Armsworth v. South-Eastern Railway Co. (1847) 11 Jurist 758, 760, quoted in Rowley v. London and North Western Railway Co. [1852] EngR 1037; (1873) L.R. 8 Ex. 221, 230".

The awards should be kept in line with those granted in othees decided by the Courts for the sake of fairness and unifouniformity and that is how I propose to consider award of damages in this case. In Australia the authority on whether other judgments may be referred by way of comparison to the case at hand is Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118. There the Court said (at 124-125):

"It is the relationship of the award to thery in its consequences as established in the evidence in thin the case in question which is to be proportionate.... Whether it is so or not is a matter of judgment in the sound exercise of the sense of proportion. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases.... The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between the situations may be supposed to be seen.... The judgment of a court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing from what we were invited by Planet's counsel to act upon in this case. The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand."

Heads of damages

ass=MsoNormaNormal style="margin-top: 1; margin-bottom: 1"> I am satisfiedhe evidence before me that the plaintiff has suffered the abovementioned injuries and is atis at present under certain disabilities as a consequence of the said accident. The evidence in regard to the accident and the injuries had not been challenged by the defendants as they did not file a Defence and failed to appear on the date of the hearing of assessment of damages.

(i) &nGsp; alneral ermagea for for pain and suffering and loss of amenities and enjoyment of life

The Plaintiff is entitled to damages for pain and suffering. As stated in KEMP & KEMP (Vol. 1 p. 2-007-2-010):

"...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".

For the plaintiff in his condition prospective as well as past suffemust be allowed for, as in s in HEAPS v PERRITE LTD (1937) 2 All E.R. 60 GREER L.J. said:

"We have also to take into accountonly the suffering which he had immediately after the accident but the suffering that he wihe will have throughout his life in future."

"In actions for personal injuries, the court is constantly required to form an estimate of chances and risks which cannot be determined with anything like precision; for example, the possibility that the injury will improve, or deteriorate, or the possibility of improved earnings if the accident had not occurred: see FAIR v. LONDON AND NORTH WESTERN PLY CO (869) 21 LT 326". (MUNKMAN: Damages for Personal Injuries and Death 8th Ed. at p.10).

As for loss of amenities, damages under this head will compensate the Plaintiff for his of enjoyment resulting from from the accident, namely, when he can no longer do the things he was accustomed to doing. "Damages within this category are included loss of any of the five senses, loss of sex drive, damage to the Plaintiff's marriage prospects, loss of enjoyment of hobbies, employment and, indeed loss of any facet of life. The court will take into account how long the Plaintiff will be deprived of these amenities; if it is for the rest of his life the amount of damages will be awarded in proportion to the plaintiff's age and life expectancy. However, age is not necessarily the determinative factor ..." (Book on Medical Negligence by M. KHAN and MICHELLE ROBSON, 1997 p.204-205).

The question under this head is wh fair compensation in this case having regard to the general level of roughly comparable awle awards.

The way the accident took place ted in the plaintiff receiving the injuries. Consequently he went through a lot of pain andn and suffering and is still suffering from these injuries and as Mr. Kapadia has submitted these injuries have left him with permanent disabling pain which will affect the quality of his life and interfere with his enjoyment of life. The assessed disability in this case is 20%.

The plaintiff has b technician for 19 years at Village 6 cinemas and the Old Regal Theatre. In his job he is r is required to climb ladders and stairs. His job entails installing, wiring and repairing electrical equipment. As is evident he is finding it difficult to do his job as he used to before the accident. It is not easy to find an alternative job. His ankle is still giving him trouble.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Loss of ear

I have considered awards made in somewhat similar types of injuries. Mr. Kapadia referred the Court to Scott J's Judgment in Dinesh Kumar v John Elder C.A. 560/95(S) where an award was made in the sum of $45,000 for pain and suffering and amenities of life. There the injuries were, inter alia, fracture of left tibia and fibula and the resultant disability was assessed at 15%. The nature of injuries on DINESH were very similar to the one in the present case and Mr. Kapadia submits that a similar amount be awarded in this case.

Other cases which I have borne in mind and referred to and dealt with by Scott J are: Rothmall Mall Ltd v Edward Narayaarayan (FCA Rep. 1997/77), Anitra Kumar Singh v Rentokil Ltd (39 FLR 220; FCA Reps. 93/213) and Attorney-General v Paul Praveen Sharma (FCA Reps. 94/351). I have also been guided by the principles stated in the two Court of Appeal cases wherein judgment was delivered on 13 August 1999. These cases are: Marika Lawanisavi, Isei Ravisivi and Pesamino Kapieni (Civ. App. No. 49/98S) and Marika Lawanisavi, Isei Ravisivi and Pradeep Raj f/n Shiu Raj (Civ. App. No. 50/98S). The following observation in the judgment of the Court of Appeal on page 3 in Pesamino Kapieni (supra) is pertinent and worth noting in any assessment of damages:

However in Chan Wai Tong v. Li Ping - sum [1985] HKLR 176, an appeal from Hong Kong, the Priuncil sounded a warning at g at p.186 against paying regard to awards in other jurisdictions in fixing damages unless similar social and economic conditions exist. We think those comments very relevant to the assessment of damages for personal injury in Fiji, which should generally be done on the basis of local experience. The following comments by their Lordships at p.181 also bear repetition:

"Their Lordships consider that reference to guidelines is proper and useful and is to be encouraged. It tends to produce consistency in awards, and it assists practitioners to negotiate settlements of the many claims which are settled either in the early stages of proceedings before going to trial, or which never reach the courts at all. But the use of guidelines cannot do away with the need to compare the facts of the particular case under consideration with the facts of reported cases in which damages have been awarded by the courts. If attention is concentrated entirely on the description of the categories of injuries contained in the guidelines, without regard to the facts of actual decided cases, there is a risk that the description may be treated as if it had been contained in a statute, and may divert attention from proper comparisons."

Bearing in mind the aboveciples and authorities, in my assessment the sum of $45,000 is a reasonable award tord to make. I therefore award the said sum as general damages for pain and suffering and loss of amenities.

All this disability has resulted in economic loss for thintiff and as Mr. Kapadia submits it has adversely affectedected his competitive earning capacity in the open labour market.

The plainreached Form 5 in education. As for his qualification he did a wireman's electrical course urse and received a certificate. He has 19 years' experience as a technician and is employed at Village 6 Cinema. The type of work that he did and is now required to do involves climbing of ladders and stairs while installing wiring and repairing electrical equipment. This he now finds difficult to do. He is handicapped in his job as a technician because of pain in the ankle.

Although the plaintiff earns $105 per week his pf work is slow and runs the risk of losing his job.

Mr. Kapadia submits that if the plaintiff was completely fit he would have berning $180.00 or more per wper week net with his qualification and many years of experience.

In assessing compensation one has to bearind the purpose of a compensatory system of damages which iich is to restore the plaintiff to the same position as he or she would have been if the relevant tortious act was not committed (Lord Scarman in Lim Poh Choo v Camden and Islington Area Health Authority [1979] UKHL 1; (1980) A.C. 174 at 192.

On future economic loss (loss of prospective earnings), I am substantially in agreement wr. Kapadia in his approach.oach. His economic loss is $75 per week being made up of the difference between future earning of $180 and present earning of $105 per week. A multiplier of 15, I think, is appropriate in this case for a man born on 15.12.62 and being 32 years of age at the time of the accident.

Therefore the sum which I would award under this head is $58,000.00 (being mp of $75 x 52 weeks = $3900$3900 x 15 years = $58,500).

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Special Damages

The plaintiff claims special damages as follows accordo his evidence (as stated in the Schedule of Special damageamages filed):

MEDICAL EXPENSES

p class=MsoNormal stal style="text-indent: -216.0pt; margin-left: 252.0pt; margin-top: 1; margin-bottom: 1"> &an"> nbsp;

X-Rays &nnsp;&&nsp;;&nspp;&nssp;&nsp;  p;&nssp;  p; &nbp; &nbp; ;&nbssbsp;n&nbssp;&nnbsp;;&sp;; &nbssp;nbbp;&nbsp &nbs;&nbs; &nbp; &nsp;&&bsp; nbsp;&nbsp &nnbsp; &n50.00

assp>ass=Mmal Mmal style="margin-left: 3; marop: 1gin-bottobottom: 1"m: 1">

Used herbal medicine (5 bottles

at $15.00 each  p;&nssp;  p; &nbp; &nbp; ;&nbpp; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;& &nbbsp; &nbp; &nbp; &nbsbbsp;&&nbssp &nbsp  p;75.pclas =MsoNormal rmal style="margin-left: 36.0pt; margin-top: 1; margin-bott-bottom: 1om: 1">

Massaging of lefle $10.00

per massage x 8 times ; &nnsp;&&nsp;;&nbp; &nbp; &nnbp;& &nnbsp; &nbp; &nbp; &nnbp;& &nbssp;&;;&nbsspnbssp;&n0.0&n0.00

1">

Medicatioeep Heat, Ankle bandage,

painkillers etc (using to date)  p; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;& &nbbsp; &nbp; &nbp; &nbssp; &&nsp;;25sp;250.00 &nbs>

Medical Report from CWM hospital &nbssp;&nnbsp; &bsp; &nbbp;&nnbp;&&nsp; &nbp; & 5sp;

Medical Examination and reports from Private Doctor  p;&nssp;  p; &nbp; &nbp; ;&nbpp; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;& &nbbsp; &nbp; &nbp; &nbsbbsp;&110.pa

>

&nbs>

$ 580.50 & p; &bsp; $580.50

TRANSPORT

Taxi Fare from home to Hospital

and return $10.00 x 15 trips &nnsp;&&nsp;;&nspp;&nssp;&nsp;  p;&nssp;  p; &nbp; &nbp; 00

Trang to work for about

1 month by taxi &nbssp; &nsp; &nbbp;&nnbsp; &nbbsp; &nbp; &nbp; &nbssp; &&nsp;;&nsp; &nbp; &nnbp;&&nbp;; &nbssp;&n &nbbsp;&nsp; &nbssp; 100.00

1"> &nb">

OTHER EXPENSES

Telephone Bills to call taxis &nbbsp;&  &nbbsp;&nbs; &nbs;  p; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;&&nbssp;&nnbsp;nbsp;; 17.pan> Police Reports &nbbsp; &nsp; &nbbp;&nnbp;& &nbbsp; &nbp; &nbp; &nbssp; &&nsp;;&nsp; &nbp; &nnbp;&&nbp;; &nnbsp; &nbp; &nbp; &nbss;&nbnnbsp;; &nbsp 22.5p>

1"> &nb.50&nnbsp;; &nsp; &nbsp &nbsp &n39p;

n lang=EN-AU style="font-family: Times New Roman">

$870.00

Despite the absence of receipts for mosthe items of expenditure, the claims I find are reasonable able amounting to $699.80 (after disallowing Medical Report $5.50, taxi fare reduced to $125.00, telephone bill $17.50 and Police Reports $22.00).

Interest

The pleadings contain a claim for intered this the plaintiff is entitled to under section 33 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act which provides as follows:

"In any proceedings tried in the High Court for the recovery of any debt or damages the court mayit thinks fit, order that 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 for the whole or any part of the period between the date when the cause of action arose and the date of the judgment....."

I would award interest on general damages (on pain and suffering and lossmenities) at the rate of 6%of 6% per annum on $45,000.00 from 22 February 1994 (date of accident) to 19.11.99 (date of judgment on assessment) which calculated accordingly comes to $15,525.00.

Summary of awards

The Summary of awards and costs is as follospan>

1. General damages &nbbsp;&&nsp;;&nsp; &nsp; &nnbp;& &nnbsp; &nbp; &nbp; &nnbp;& &nnbsp; &nbp; &nbp; &n&&sp;pp;  ssp;&nnbsp;nbsp; nbsp; &nbssp;&nnbp; p;&nbbsp;bbsp; &nbp; &nsp;&nsp; nbsp;&bsp; nbsp045,000.00<0.00

&nbs; &nbsp &nbs; lpan=EN-AU style="yle="font-family: Times New Roman">2. Loss of earnings & p; &nnbsp; & p;  &&bsp; &nbpp &nsp; &bsp;&bsp; &nnbs;& p;&nsp; &nsp; &&nbp;p;&nnbsp;;&nbssp;&nnb;&nnbsp;;&nbssp; &nbssp; &nbs; &nbp;&nbp; &nsp;&&bsp; nbsp;&nbsp&nbsp &nbs; &nbssp;&nnbp; &nsp; &nbnp;&&;&nb8,500.00span>

 p;;&sbssp;&nnbsp; 3. S 3. Special cial damagdamages&nbes &nbssp; &nbssp; &nbp; &nbs; &nn&sp;;p;bssbsp; &nbs; nbsp; &nbss; &nbbp;&nbp;  p;&nssp;  p; &nbp; &nbp; ;&nbpp;&nbssp;&;nbsp;;&nbsp &;&nbnbsp;; &nbss; &nbp; 699.50

t on general damages &nbbsp;& p;&nbbsp;& p; &nbp; &nss; &bbsp  &&nbs;&nbs; &nbsp &nbssp; &&nsp;;&nsp; &nbp; &nnbp;&&nbp;; &nnbsp; &nbp; &nbp; &nbss;&nbbsp; &nsp; 15,525.00

&nn"> &bsp; &nbbsp;&nbs; &nbp;  p; 5. Costs

$ 119,724.50

There will ther be judgment for the plaintiff against the defendants in the sum of $119,724.50 together wier with costs (inclusive of disbursements) in the sum of $1500.00 making total sum of $121,224.50.

D. Pathik

Judge

At Suva

19 November 1999

Hbc0350j.96s