Sami v O'Brian [2002] FJHC 316; HBC0349.1997L (3 October 2002)

	Home \| Databases \| WorldLII \| Search \| Feedback High Court of Fiji

Date of Hearing: 22 February 2001
Written Submissions: 12 October 2001
Date of Judgment: 3 October 2002

On 15 October 1994 the 1st Defendant driving a Subaru BV174, which was owned by the 2nd Defendant collided with a Mercedes Benz BS260 owned by Suntours Ltd, which was driven by the Plaintiff. The collision occurred at Nabou on the Queens Road. The Plaintiff was driving 4 passengers from the Warwick Hotel to Nadi Airport at the time. He claimed the accident was caused by the 1st Defendant’s dangerous driving.

A writ was issued on 14 October 1997 alleging negligence and claiming damages for injuries the Plaintiff received as a result of the 1st Defendant’s driving. The case against the 2nd Defendant is pleaded on the basis that the 1st Defendant drove as the 2nd Defendant’s servant or agent. An acknowledgment and defence was filed by the insurance company, then the 3rd Defendant. On 3 April 1998 the claim against the 3rd Defendant was ordered to be struck out. No notices of intention to defend or defences were filed by either the 1st or 2nd Defendants and so interlocutory judgment on liability was entered by default against them both on 28 February 1998.

The case appears to have slipped out of the list thereafter. It was re-listed for assessment of damages on 22 February 2001. The 2nd Defendant had been represented by counsel on other occasions, but neither he nor his counsel attended for the assessment, the date for which had been fixed in his counsel’s presence. Finally a written submission was filed for the Plaintiff on 12 October 2001.

The Plaintiff gave sworn evidence correcting his date of birth to 19 October 1932. On one of the medical reports his year of birth had been given incorrectly as 1945. He is now therefore almost 70 but was almost 62 on the day of the accident. He said the other vehicle came from the Nadi side towards Suva zigzagging at speed. The Plaintiff parked his car on the left hand side of the road whereupon his vehicle was hit. The 1st Defendant was later charged and convicted for dangerous driving. He was fined $30, in default 30 days imprisonment.

The Plaintiff lost consciousness and regained it only 3 days later. He suffered various injuries. Mr. McCaig the Consultant Orthopaedic Surgeon at the Lautoka Hospital wrote his first report on the Plaintiff on 20 March 1995. The Plaintiff entered hospital with:

He had his wounds tendered to, some stitched. His fractures were manipulated and put into plaster of paris cast. He was released from hospital after 4 days.

When Mr. McCaig reviewed him in March 1995 the Plaintiff walked with a limp, and used one crutch whilst walking outdoors. He was only taking paracetamol when he felt discomfort. He was not able to return to his work as a driver.

His right foot remained painful. It swelled when he walked. He had a markedly restricted sub-talar (heel) joint movement. The fracture had healed by then, but he had secondary osteoarthritis in the sub-talar joint. Mr. McCaig concluded:

“The time off work taken by Govind Sami is warranted. His injury is such that if he were a labourer or construction worker he will never return to work.

I am hopeful that Govind Sami may return to work as a driver but this may take up to a year.

The degree of permanent disability should only be estimated when the healing process has plateau-ed, this may take up to two years from the time of injury.

When the Plaintiff was reviewed on 22 April 1996 Mr. McCaig recorded that the Plaintiff was still suffering pain and swelling of the right heel. He could not drive his car, stand for long periods, or walk even short distances. The radiography showed that the calcaneum intra-articular fracture had healed. However the heel was flat, thickened, and painful on compression. He still had reduced sub-talar joint movement. Mr. McCaig, felt then that the Plaintiff had a permanent disability. He wrote:

“He has severe limitation of motion with pain as a direct result of an intra-articular calcaneal fracture. He will never return to prior activities.”

He assessed his disability at 18% with reference to the Department of Labour and Industry Disability Schedules Chapter 5223 of the Minnesota Physical Impairment Manual.

On 20 February 2001 the Plaintiff was assessed again at Lautoka by Dr. Joeli Mareko, Consultant Orthopaedic Surgeon. He confirmed the continuance of all of the disabilities and discomforts as noted by Mr. McCaig. He also noted that presently there was continuing pain in the right sub-talar joint. The Plaintiff exhibited signs of osteoarthritis at both right and left joints of the foot. Any exertion would exacerbate the osteoarthritis. Sitting down cross legged was very uncomfortable, an added inconvenience in the Fiji context which often demands this method of sitting at social gatherings. He has to use a chair to have a shower. Dressing by himself was difficult. Carrying weights or squatting was out of the question. Dr. Mareko considered a disability of 20% appropriate. He concluded:

“We may have to give him something strong to deal with pain. He is otherwise quite fit.

In addition to these more serious injuries, the Plaintiff gave evidence of losing 2 teeth, receiving stitches to the top of his head (for the lacerations) and of suffering “a lot of pain at night still”. After the accident he was in and out of plaster over a period of 12 months, back and forth for dressings, and on and off in severe pain specially during cold weather. For 12 months he used crutches. Now he uses a walking stick. Before the accident he used to walk into Nadi Town. This he can no longer do. He is sometimes unsteady on his feet. It is very hard for him to climb stairs. He used to amuse himself doing “fishing, crabbing, and prawning”, and some planting. He cannot do such things now.

Similarly, he has had to give up being on the Committee of the Temple, which was 10 minutes walk away. He can no longer drive, for his legs sometimes go numb.

At the time of the accident he was paid at the rate of $3.00 per hour, paid $240.00 gross fortnightly. He is the youngest of a family of 10 children. Though 2 have died the others range in age between 75 and 80+. Apart from having reading glasses, he is, as Dr. Mareko concluded, quite fit.

In the accident he lost his glasses [valued at $120.00], a watch [$50.00] and a pair of shoes [$20.00]. All of these items of special damages are properly claimable, and I allow them.

The fixing of satisfactory compensation for personal injuries is not an exact science as is well known. It has been said:

“....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 standards 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 an effect upon the assessment of damages.”

“We have also to take into account not only the suffering which he had immediately after the accident but the suffering that he will have throughout his life in future: the constant necessity of having assistance in the various things that he has to do for his own purposes, apart from earning money.”

In Attorney-General of Fiji & Anor. v Paul Praveen Sharma (unreported) Court of Appeal Civil App. No. 41 of 1993; 12 August 1994 ; at p8 it was said:

“The third ground of appeal concerns the level of the general damages awarded in relation to the circumstances of the case and the previous decisions of the courts in Fiji. There is no doubt that in fixing the quantum of general damages a trial judge, having calculated the amounts which appear to be appropriate under the various heads of such damages, must then consider whether the total of those amounts is itself appropriate in all the circumstances of the case. In coming to a conclusion on that matter he should have regard to the need for consistency in the level of general damages awarded in similar cases. However, such similarity must include matters such as the pre-injury earning capacity or prospects of the injured person, not merely the nature of the injury. There may also be disparity in the degree of pain and suffering and the extent of the loss of the amenities of life. Disparity in such matters justifies disparity in the quantum of general damages.”

In Rajesh Prakash v Kamlesh Ramesh Parmar & Anor. (unreported) Suva High Court Civil Action No. 350 of 1996; 19 November 1999 Pathik J. awarded a cinema technician aged 32 at the time of the road accident, $45,000.00 for pain and suffering and loss of amenities. He had suffered a fractured left ankle and was left with an obvious limp, a shortened left leg, painful arthritis and swelling, occasional head aches, difficulty in climbing ladders and in doing his job, inability to play his usual sports, and had been assessed at 20% disability. $45,000.00 was awarded by Scott J. in Dinesh Kumar v John Elder (unreported) C.A. 560/95S for injuries to left tibia and fibula where disability had been assessed at 15%. The injuries were similar to those in Rajesh Prakash .

In Marika Lawanisavi & Anor. v Pesamino Kapieni Court of Appeal Civil Action No. ABU0049/98S; 13 August 1999, the Court of Appeal reduced a 47 year old supervisor’s award of general damages from $40,000.00 to $25,000.00. It was considered he would be able to return to work after his injury, a wedge compression fracture of the 12th thoracic vertebra, had healed fully. No treatment other than hospital and home bed rest was required. He had been in a lot of pain and discomfort for that period, a number of weeks. He had initial feeding and toilet difficulties, and residual effects on his sex life, gardening, and his back.

In Ajay Kumar v Fletcher Construction (Fiji) Ltd (unreported) Suva High Court Civil Action No. 316 of 1997S; 19 November 1999, a carpenter was injured when a sub-contractor’s scaffolding collapsed, and he fell 27 feet. He suffered fractures of the left elbow and right wrist, leaving him with osteoarthritis, restricted movement of wrist, and difficulty in lifting heavy objects. He still suffered pain at times, and was assessed a disability of 10% by one doctor and 15% by another. The injuries resulted in a reduced sex life and inability to play sports. Pathik J. awarded $40,000.00 for pain and suffering and loss of amenities.

On the other hand in Nacanieli Moce v Neori Racule and Anor. [1995] 41 Fiji L.R. 187 $10,000.00 was awarded to a 43 year old carpenter for similar injuries and residual incapacities, the doctor having assessed incapacity at 31%.

In the present case before me I find it significant that the injuries had a deleterious effect on the Plaintiff’s mobility, his ability to drive a car or to return to work. The last two are now out of the question. Continuing pain, osteoarthritis, and inability to pursue leisure pursuits are similar features as in the cited cases. I award the Plaintiff $40,000.00 for pain and suffering, past and future, and for loss of amenities.

As I have said, the Plaintiff was 62 at the date of the accident. The doctors
report that apart from his injuries, he was a fit person. I conclude from his attitude to life and work, as shown during the course of his evidence, and from his general level of health and fitness, he was likely to have continued to work for his employer for some years beyond the age of 65. His annual income after tax was $5,980.00. Bearing in mind the uncertainties of life, I consider it proper to allow a multiplier of 4, and therefore award damages for loss of prospective earnings of $23,920.00.

I award costs against the 1st and 2nd Defendants of $2,500.00 in total, inclusive of disbursements.

1	General Damages for pain and suffering and loss of amenities of life (past and future)	$40,000.00
2	Loss of Prospective Earnings	23,920.00
3	Special Damages	190.00
4	Costs	2,500.00
	Total Award	$66,610.00

There will be judgment for the Plaintiff against the 1st and 2nd Defendants in the total sum of $66,610.00 inclusive of costs.

Solicitors for the Plaintiff: Messrs Pillai, Naidu & Associates, Nadi
Solicitors for the Defendants: Nil

High Court of Fiji

Sami v O'Brian [2002] FJHC 316; HBC0349.1997L (3 October 2002)