Although the trial of this action proceeded on the basis that both liability and quantum of damages were in issue on the very last
day and after the evidence had all been heard Mr. Kapadia advised me that the Defendant’s liability was no longer being denied.
A bundle of 8 Plaintiff’s exhibits and a further 7 Plaintiff’s exhibits were tendered by consent. The first exhibit, a medical report
prepared by Dr. Jude O’Haeri was admitted by consent on the basis not that the hearsay material which it contained was true but merely
that it represented what Dr. O’Haeri had been told by the Plaintiff. There were 6 pages of Defence exhibits, the first 3 pages consisting
of a medical report prepared at the request of the Defendant by Dr. Henry Aghanwa.
At the conclusion of the hearing both Counsel handed up and spo written submissions for which I am grateful.
It is not disputed that the Plaintiff was knocked completely unconscious by the accident. She suffered adeeply lacerated and brokenroken
nose, multiple bruising to her face, head and body and a 10cm long and deep laceration to her right elbow (see exhibit 4). It appears
that she remained unconscious for at least 15 hours. She was detained as an in patient for 9 days before being released to go home.
At the time of her release the prognosis was that she would suffer permanent facial scarring and post concussion headaches.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> An account of what the Plaintiff says happened to her after her release is contained in Dr. O’Haeri’s report. The Plaintiff’s evidence
to me was broadly consistent with that account. In brief the Plaintiff’s case is that as a result of her injuries she has ever since
suffered from the principal symptoms of what has been called by some “post concussional syndrome”. The details of these symptoms
are set out on pages 2 to 5 of Exhibit 1 and include headaches, irritability, cognitive changes, dizziness, depression leading to
suicidal thoughts, changes in sleep patterns, loss of appetite, weight, energy, concentration, self confidence, self esteem and social
withdrawal. She also complained of persistent pains in her hand, body and legs and an aversion to sexual consortium.
As a result of suffering in this way the Plaintiff says that she has been unable to keep up her career as a schoolteacher. She claims
loss of earnings. She also claims for the loss of her motor car and personal effects and for the cost of medicines prescribed to
her.
The Defendant acknowlethat the Plaintiff was injured and that she suffered but Mr. Kapadia’s submission was that that the Plaintiff
had very much exaggerated her condition, that she was not as badly damaged as she claimed and that in particular there was no justification
for her claim no longer to be employable.
Apart from the Plaintiff, 5 other witness were called on her behalf.
The first witness was Dr. O’Haeri, the then Consultant Psychiatric and Medical intendent at St. Giles Hosp Hospital who produced and
attested to the truth of his Report (Exhibit 1). In his opinion the Plaintiff suffered and continues to suffer “severe emotional
harm” as a result of the accident. On the basis of the internationally recognised Global Assessment of Social Functioning (GAF) scale
he estimated that she has “an overall psychosocial disability of 40%, involving the crucially important areas of sexual relationship,
motherhood, marriage, professional career and economic earning power”. At the time of the accident she was aged 39.
Dr. O’Haeri was extensively cross-examined, the main thrust of Mr. Kapadia’s questions being that hisssment of the state of the the
Plaintiff’s health was based not on objective data but on what the Plaintiff herself told him. Dr. O’Haeri conceded that his evaluation
was dependent on information provided by the Plaintiff but he rejected the conclusion that it was therefore flawed. He pointed out
that he was a highly qualified and very experienced consultant pyschiatrist holding two fellowships and that he was well used to
evaluating patients and spotting any tendency to exaggerate. He told me that his conclusions were based on more than 16 hours of
consultations with the Plaintiff, that he did not simply accept everything that she told him and that the World Health Organisation
method of assessment which he used was the accepted method of evaluation in these cases. He did however admit that he did not know
whether the Plaintiff was 100% fit either physically of mentally before the accident occurred.
The next witness was a student at the USP, Nilesh Kumar, who was a passenger in the Plaintiff’s motor car on the day of the accident.
He told me that the Plaintiff was very much changed by the accident. Whereas before the accident she was “ very sociable” and “smart
looking” she has now “aged a lot, lost a lot of weight and seems to be forgetful”.
The Plaintiff’s third witness was a police officer who produced a sketcn of the accident site.
The fourth witness was Dr. Viliame Taoi of the Surgical Unit at Lautoka Hospital. He produced exhibit 4 already referred to but he
had not himself examined the Plaintiff. He did however confirm that upon her release from Lautoka Hospital she was referred to the
CWM Hospital for a psychiatric assessment since she was showing some signs of mental disturbance.
The fifth witness was Kandar Swami Naicker who was laintiff’s vice principal at Korovuto Secondary School from from 1985 to 1989,
that is, 5 years before the accident. It does not seem that he knew the Plaintiff very well as he did not know what had happened
to her after 1989 although he did know that she had been injured in an accident. He told me that since the last time he saw her she
had undergone a complete change to her looks and her figure, a change, I took him to be saying, for the worse.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The Plaintiff herself was the next witness. After telling me how the crash took place she me that her car which she she had bought
about 10 years before the accident for $5,000 was a complete write off, the wreck being sold for $150. She told me that she lost
$800 in cash which she had been carrying with her in the car, her bangles and other jewellery worth about $1,500, her clothes worth
$60, her camera worth $165 and 2 videotapes.
The Plaintiff told me that altogether she spent almost a month rious hospitals. She visited St. Giles at least 16 times paes paying
$50 for each visit. The medicine prescribed by Dr. O”Haeri cost her about $2,000. Each packet cost over $200 and she consumed more
than 20 packets. She tried to return to teaching but had to use crutches and could only manage to last for 3 days before being forced
to give up her career forever. She told me that she suffers from dizziness and headaches, pains in the hips, nose and hand and has
breathing problems. She is constantly depressed, has a bad temper and sleeps poorly. She is unable to cook or do any other housework
and sleeps separately from her de facto husband with whom she does not have sexual relations. She showed me some photographs of herself
taken before the accident. Both show an attractive and happy smiling woman, a marked contrast indeed to the sad creature who gave
her evidence to me.
I also looked at her scars. Although I t that they worry her they are certainly not among the more unsightly which I have had to l
to look at in court before in this type of case.
The Plaintiff’ss-examination chiefly focussed on her present condition. Mr. Kapadia’s case, as has been seen seen, is that the Plaintiff
is exaggerating. He put it to her that she was not nearly as unwell as she claimed to be and that she had shown a marked improvement
under Dr. O’Haeri’s care. She rejected these suggestions. Mr. Kapadia also investigated at considerable length the Plaintiff’s business
activities.
The Plaintiff told me that she had met her de facto husband in December 1993. They began to live together in January 1994. In the
same month they together set up a carpet business in Nadi. Her husband had been working for Wire Industries but he resigned the position
in order to run the shop. They ran the business together although she continued teaching. In May 1994 they moved the shop’s location
to the centre of Nadi and widened the range of products sold. She told me “we are paying $880 rent”. She admitted that the business
licence was held in her name until 4 August 2000, when she changed it to Gopal’s name “because he has been running it all these years”.
The Plaintiff claimed that she had made almost no contribution to running the business since her accident. She told me she only went
to the shop 2 of 3 times a month at most. This was because of her dizziness, her pain, her weakness, her irritable temperament and
her unkempt appearance which put customers off. She went further: she claimed that in fact the shop had frequently been forced to
close because of her ill health. At those times she needed her husband at home to look after her. Although she sometimes goes into
the shop she does almost nothing there except on the few occasions when she feels a little better. She conceded that since seeing
Dr. O’Haeri she had become a little more active but nevertheless she maintained that she usually lies on a mattress at the back of
the shop whenever she goes there. She certainly never supervises the salesgirl and is certainly not the dominant partner either in
the marriage or in the business.
During her cross-examination the Plaintiff revealed that prior to her accident her hobby was travelling. She had in fact travelled
to Australia no less than 23 times. Mr. Kapadia investigated this matter further. It emerged that the Plaintiff has travelled to
Australia 3 times since the accident and at least once to the USA. She told me that she had a 10 year multiple visit visa to the
USA. She told me that her sister filled in the application form for her. In the section of the form dealing with her medical condition
her sister described her as being free of any mental problems. The Plaintiff nevertheless signed the form.
The first Defence wi was Dr. Henry Aghanwa who, after Dr. O’Haeri’s departure from Fiji took over at St. Giles.iles. Dr. Aghanwa is
also a very experienced psychiatrist and is the only holder of a fellowship in the discipline in Fiji.
Dr. Aghanwa told me that he examined the Plaintiff at the request of efendant in December 1999. He produced a copy of his reporteport.
His principal conclusion is that as a result of the injuries she received the Plaintiff:
“Developed post traumatic stress disorder and moderate depressive episode … in addition she suffered a remarkable deterioration in
her psychosocial ability … she will require further psychiatric intervention”.
Dr. Aghanwa gave her a GAF score of only 31 to 40% whi based on:
“(1) major impairmnnt iesdom anic and occupational functioning arising from current mental illness; and
 an>
(2) inabili y toaiustnte iersopersonal relationships and to maintain self-care due to persistently low mood”.
It will called that Dr. O’Haeri’s GAF score after improvements were noted following his treatment oent of her was 60% and Dr. Aghanwa
agreed that GAF scores may go up and down with the passage of time and treatment. Only repeated measurements will reliably indicate
permanent and irreversible disability.
The last witness was Satish Prasad, a private investigator. Prasad told me that in 1996 he was instructed to prepare a report. He
went to Nadi and met the Plaintiff. First he went to the Plaintiff’s house but she was not there. He was directed to the shop. He
went to the shop and found her there serving customers. On 3 subsequent days he kept both the shop and the Plaintiff under surveillance:
“I saw her there. She was busy, standing behind the counter. She was quite happy, laughing and talking to customers”. Although Gopal
was also there “from the way she was acting and instructing the salesgirl it seemed as though she was owning the business”. “She
looked like a normal person to me on each occasion”. He did admit however that he is not a doctor.
In his address to me Mr.dia stressed the extent to which the psychiatric evaluations of the Plaintiff’s condition dion depended on
what the psychiatrists had been told by her. He referred to an Australian case (James Bayram v. Territory Insurance Office Board
[1990] NTSV 100 in which the evidence, including psychiatric evidence, called on behalf of a Plaintiff who claimed to have almost identical symptoms
to those claimed by the present Plaintiff was rejected as lacking credibility. He invited me to reject this Plaintiff’s evidence
also. He submitted that the only conclusion to be drawn from the private investigator’s testimony taken together with the Plaintiff’s
admission that she was continuing to travel overseas and that she had either lied or told the truth about her medical condition when
applying for her USA visa was that the Plaintiff’s claim was exaggerated to such a degree as to be false. He was prepared to concede
that was entitled to an award in the region of $20,000 for pain and suffering caused by her physical injuries in the accident but
he invited me to find that she had left the teaching profession of her own free will and not as a result of her injuries, and that
she left in order to concentrate on the Nadi business which she was running with her husband. In these circumstances there should
be no award for loss of earnings either past or future.
Mr. Mishra, not surprisingly, invited me to see things very differently. Asbe seen from his written submissions he suggested, citing
King Kylie Jane Anderson v. Iowane Salaitoga FCA ABU 26/94 and a recent Lautoka High Court case Elsworth v. Yanuca Island HBC 157/1997L
that there should be total award for pain and suffering of $114,000 although quite however the sum was calculated is not absolutely
clear. As to loss of past earnings he suggested an annual nett loss of $7,600. As to future earnings he suggested that in due course
the Plaintiff would have risen from assistant teacher to head of department at a yearly net loss of $10,000. On the basis of a multiplier
of 11 further loss of wages was calculated to amount to $110,000.
The special damages were not particularised in the Statement of Claim which pleaded that they would be provided upon discovery. This
is against the rules of pleading and furthermore neither upon discovery nor at the singularly useless pretrial conference were they
forthcoming. They were in fact listed out for the first time on page 5 of the Plaintiff’s written submission and amount in total
to $14,421.
Having heard the witnesses and seen the other evidence I am satisfied that this is an example of a Plaintiff with a good case who
has spoiled it by inflating it. I do not however agree that it has been exaggerated to the extent suggested by Mr. Kapadia whose
submission would involve rejecting the evidence of his own expert witness.
I accept the evidence of both psychiatrists that the Plaintiff has suffered from severe onal harm as a result of thof the accident
and that she suffers from quite a severe level of psychosocial distress and disability. From what I was told I believe that she would
respond to further treatment but neither of the doctors predicted whether she would ever again become her old self.
I am however inclined to doubt that the Plaintiff is quite as useless in the business she shares with her husband as she made out.
I did not always find her to be a wholly direct and convincing witness but that is perhaps not surprising given her mental condition.
I accept that she and Gopal intended to marry and have children but that the accident prevented those things from happening. I am
quite sure that when she reflects on the events of the past 6 years she becomes deeply depressed, not least at the inordinate length
of time which it took to bring this matter to trial. But I accept Dr. O’Haeri’s evidence that she made considerable progress under
his treatment and that that progress could be maintained. I also accept that finality in this litigation will be of considerable
benefit to her.
I was troubled by the evidence of the private investigator and also by the representation made about herself whe applied for and obtainedained
her visa. I very much doubt whether she would have been able to obtain such a visa if she had presented, in Dr. Aghanwa’s words as
“markedly strange with suicidal ruminations and the inability to carry out occupational activities”.
On the important maof her teaching career the evidence was somewhat less firm than I would have liked but in m in my opinion had the
accident not happened she would in all probability have married Gopal, and carried on teaching until the children arrived. I think
then she would have left teaching and joined her husband in the running of the business whenever she had time to spare. I do not
think it likely that she would have married, had children and taken a degree at University (something she did not get around to doing
for 15 years, choosing instead to travel extensively overseas) and gone on to become a head of department. I think she has certainly
lost wages as a result of this accident but I put that loss at 5 years and no more.
The obvious physical infirmities which the Plaintiff suffered were painut not especially grave and certainly not at all on the same
same scale as those suffered by Kylie Jane Anderson. It is the Plaintiff’s post traumatic or post concussional mental condition which
is the predominant cause for concern. Unfortunately there is little by way of precedent in Fiji to guide me. I find that the Plaintiff’s
life has been very much spoiled by what happened to her and I think that she should have $60,000 damages under this head.
There remains special damages and interest. The latter was not pleaded and therefore ncoverable (see Usha Kiran vran v. A-G FCA Reps
90/17). I have already referred to some unsatisfactory aspects of the former. I do however allow the following:
Clothes &nbbsp; ;&nnbsp; &nsp; &nsp;&nsp; &nbbs;&nnbsp;;&nsp; &nsp; &nnbp;& &nnbsp;& p;&spp;&nbbsp;bbsp;& p;&nbbsp;
&nbpp $ 60p cl
n lanGB stfont- 12.0Crutcbsp; &nbs; &nbp; &nsp; &bspp  &nbbsp &nbs; &nbbsp; &nbbsp; &nbp; &nbp; &nbbp;&nnbsp; &nbbsp;
&nbp; &nbp; &nbssp; &&nsp;;&nsp; &nbp; p;&nb 40<
assclass=MsoNormal style="text-align: justify;in-le6.0ptgin-top: 1; margin-bottom: 1"> Cat">Car towr towing&ning &bsp; nbsp; &nnbp;& &nnbsp; &nbp; &nbp; &nnbp;& &nnbsp; &nbp; &nbp; &nnbp;&& p;&nbbsp;&&nbs& p;&nbbsp;
$ 340n>
Jewellamp; Cash nbsp; p; ; &nbbp; &nbp; &nbs; p; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;& &nbbsp; $1p; $1,500
C nnbsp  nbsp;&nbs;&nbs; & &nbssp; &nsp;   ;&nbssp; ;&nbssp;bssp;&nnbsp;; nbsp; ;&nbssp;&nbp; &nsp; ;nbsp; &nbss;&nbs; 
&nbp; &nnbsp; p;&nsp; &nsp; & 6p> <1"> Medicines &nbbsp;& p; nbbs;   &nbs; &nbbp;&nnbp;& &nbbsp; &nbp; &nbp; &nbsbsp;;&nbssbs&nnbsp;&nbs; p; &nnsp;&&nsp;
&nsp;&nbs; &bsp; nbsp0 $3,sp0
Tra">Transpornsport Expt Expenses &nbp;;&bsp; nbsp; &nnbsp;&nbs; &nbp; &nbssp; ;&nspp; &nbp; &nbp; ;&nbpp; &nnsp;& $sp; $
250
n lang=EN-GB style="font-size: 12.0pt">Loss of Car &nssp &bsp;&bsp; nbsp;nbsp; &nbbsp;  &nbssp; &nbssp; &nbp; &nbs;
&nbbp;&nnbp;& &nbbsp; &nbp; &nbp; &nbsssp;&nnbsppa
>
Total & p; &nsp; &nsp; ;&nbpp; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;& &nbbsp; &nbp; &nbp; p;&nbbsp;&&;&nbbs&nbbsp;& p;
&nnsp;&&nsp;&nbp; &nsp;&nsp; &bsp;;nbsp;  &nbs;&nbs; $5,850p class=MsoNoMsoNormal style="text-align: justify; n-topmargitom: 1"> &nt"> I do not allow the airfares at all and believe that the value of the lost car was considerably overstated.
In summary therefore I award:
(i) &&nsp;;&nspp; Psin & sup; suffering and loss of amenities: &nbssp; &nbssp; &nbp; $60,000
(iii) p;&nbbsp; Ssp; Sp Dama Damanbsp; &nnbs; &nbs; &nbs; &nbssp; &&nsp;;&nsp; &nbp; &nnbp;&&nbp;p;&nnbsp;;&nbss&nbssp;&nnbsp;
&nbss; &nbs; &nbs; &nsp;&&bsp; nbspp &nbs; $ 5,850
nbsp;  &nbs; &nbpp;&nssp &nbs; &nbssp; &nbssp; &nbp; &nbs; &nbbp;&nnbp;& &nbbsp; &nbp; &nbp; &nbssp; &&nsp;;&nsp;
;&np;;&nbssp;&nnbspp;nbssp;nbsp; p;&nsbsp;; TOTsp;  ;nbsp;&nbpp; $ 103,0
span>span>
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