Kumar v Laisike [1999] FJHC 170; HBC216.1996 (29 November 1999)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL CASE NO: HBC 216 OF 1996

BETWEEN:

PRAVINA KUMAR
f/n Nitya Nand
Plaintiff

AND:

SALISE MOINEOI LAISIKE
1st Defendant

HAUGA MATEVUDA
2nd Defendant

Counsel: Mr. R. Singh for Plaintiff
: Defendants in Person

Hearing: 9th November 1999
Judgment: 29th November 1999

JUDGMENT

On 14th May 1996, the Plaintiff filed writ of summons against the Defendants claiming damages for injuries sustained in a motor vehicle accident on 16th June 1993. The Plaintiff had been a passenger in vehicle Registration No. BO 624 when it was involved in an accident with motor vehicle Registration No. AD 633 driven by the 1st Defendant, an employee of the 2nd Defendant. It was alleged that the 1st Defendant drove negligently and that the 2nd Defendant was vicariously liable.

No Acknowledgement of Service or Notice of Intention to Defend was ever filed by the Defendants and Judgment in Default was entered on 17th April l997.

The matter was listed for assessment of damages. The Defendants made no appearances in response to Notices of Hearing served on them under Order 37 Rule 1(2) of the High Court Rules 1988.

The matter was set for hearing on 9th November 1999. The Plaintiff called two witnesses, Dr Jai Narayan, a doctor employed in the Eye Department of the CWM Hospital, and the Plaintiff Pravina Kumar. Dr Jai Narayan gave evidence that according to his records, the Plaintiff was brought into hospital on 16th June 1993 with multiple injuries caused by a motor vehicle accident. He said that the Plaintiff had stitches to her forehead and left upper lid. She was then referred to the eye department where she was found to have a small corneal abrasion in her left eye. A few pieces of glass were removed from her eye. She was treated with ointment and antibiotics. According to the record, by 17th June 1993, the Plaintiff was comfortable and had an eye-pad. She was discharged on 18th June. Dr Jai Narayan then saw her on 1st March 1999. He found that all injuries had healed, that the Plaintiff had normal vision in both eyes with a small scar on the upper lid of her left eye. Her observed no other abnormality.

At the time of the injuries, the Doctor said she would have suffered some pain, but that the pain would have subsided as the injuries healed. In response to questions by the Court, Dr Narayan said that the injury to the cornea would have healed within 3 to 4 days. The injury to the eye-lid would have healed within two weeks.

Pravina Kumar gave evidence that she was a passenger in a vehicle travelling along Princess Road on 16th June 1993 which was driven by her husband. As a result of the accident with the vehicle driven by the 1st Defendant, she was injured. She was bleeding and her jewellery was damaged. She was taken to the Army Hospital in Tamavua where she was put on a drip. She was then taken to the CWM Hospital. She could not open her eyes. Pieces of glass were inside her eyes. She was taken for an eye x-ray. On the same day, and a day later, some pieces of glass were taken out of her eye. Her left eye lid, chin and upper lip were stitched. Photograph Exhibit P.4 which was taken on 17th June 1993 shows a number of stitches on the Plaintiff’s face. The scars on her chin and lip were faintly visible in court when she gave evidence.

The Plaintiff said she suffered a great deal of pain at the time of the accident. She said she still had an itch in her left eye, and that a large piece of glass had come out of her eye some two years after the accident.

She said she visited the hospital on twelve occasions which cost her $12.00 per trip in taxi fares. Her medicine costs totalled $108.00 and her 6 visits to a private doctor cost a total of $105.00. Her dress was ruined at a cost of $85.00 and her bag valued at $75.00 was damaged. She also lost jewellery valued at $690.00. She lost her purse valued at $28.00 which contained $72.00.

On loss of earnings the Plaintiff said she had been employed by the National Union of Factory Workers earning $64.77 per week (net). She missed work for 5 weeks totalling loss of wages at $323.85.

She said she still suffered pain in her eye as a result of the accident. She said she had no receipts for her medical expenses.

In his submissions Mr R. Singh submitted similar cases in England had attracted general damages of £6,500 (pounds sterling) and that in Subarmani Tangavellu and Fiji Sugar Corporation Ltd and Abdul Samad HC Action No. 114 of 1991 the High Court had awarded $37,500.00 for pain and suffering and for loss of amenities of life to a man who had suffered serious eye injuries.

The sum asked for by the Plaintiff is $10,000 in general damages and a total of $1,774.85 for special damages as listed in the schedule dated 24th October 1997.

Pain and Suffering and Loss of Amenities

In Marika Lawanisavi and Isei Ravisivi -v- Pesamino Kapieni Civil Appeal No. ABU0049/98S the Fiji Court of Appeal said that the best way to approach awards for general damages was to consider comparable awards in Fiji.

In this case I accept the evidence of Dr Narayan that the Plaintiff suffered pain and discomfort for up to two weeks while her injuries were healing. I accept his evidence that her vision is now normal and I note that her scars are now barely visible. The Plaintiff herself says that she suffers occasional discomfort in her eye.

Counsel has not directed me to any comparable cases in Fiji. The case of Subarmani -v- Tangavellu (opp.cit) is not comparable because the injuries to the eye left permanent damage affecting sight.

Counsel suggests $10,000. Taking into account the pain and suffering suffered after the accident, the extent of medical treatment including the discomfort to the eye and the stitching of the wounds, leaving permanent scars, I agree that $10,000 is an appropriate sum under this head.

Loss of Earnings

The Plaintiff gave evidence that she lost five weeks wages as a result of her injuries and I accept that. She is entitled to loss of earnings at $64.77 (net) per week for five weeks totalling $323.85.

Special Damages

Special damages are claimed at $12.00 per trip to the hospital by taxi on twelve occasions totalling $288.00 and $108.00 for the cost of medicine. She claims $105.00 in private doctor’s expenses and medicine. It is not clear why the Plaintiff was visiting a private doctor when she was a hospital patient and I disallow this claim. She claims an additional $33.00 for private medicine costs and I also disallow this.

I do allow her claim for damaged dress at $85.00, handbag at $75.00, lost jewellery at $690, and lost money at $72.00. I cannot accept the value of the purse at $28.00 and I disallow this.

The total under special damages is therefore $1,318.00.

Interest

Counsel made no submissions on interest. However the Plaintiff is entitled to interest which I set at 5% from the date of writ to the date of judgment which computes to 3 years and 6 months. This totals to a total of $2,037.32 on general and special damages.

In summary damages are assessed as follows:

1 Pain suffering & Loss of Amenities	$10,000.00
2 Loss of Earnings	323.85
3 Special Damages	1,318.00
4 Interest on 1,2 and 3 for 3 years 6 months at 5%	2,037.32
TOTAL	$13,679.17

Nazhat Shameem
JUDGE

At Suva
26th November 1999