Kotoiwasawasa v Govind [2003] FJHC 270; HBC0192j.2000s (13 February 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 192 OF 2000

Between:

ALIANA KOTOIWASAWASA
AVAIATA KETENILAGI
Plaintiffs

And:

VIMAL GOVIND
s/o Parma Govindji

ATTORNEY-GENERAL OF FIJI
Defendants

Mr. V. Maharaj for the Plaintiffs
Mr. J. Udit for the Defendants

JUDGMENT

In this action the plaintiffs Aliana Kotoiwasawasa (hereafter referred to as ‘P1’and Avaiata Ketenilagi (hereafter referred to as ‘P2’) both formerly medical students but now Medical Officers are claiming damages as a consequence of severe personal injuries received by them in a motor vehicle accident on Nabouwalu Road in Vaunua Levu on 22 May 1996 when the motor vehicle Registration No. CT158 in which they were passengers went out of control, got pulled to its left, veered off the road and tumbled down a cliff, consequently the said vehicle was damaged and the plaintiffs received severe bodily injuries.

Background

On 22 May 1996 both plaintiffs were passengers in the said Motor Vehicle being driven by Dr. Vimal Govind (the ‘D1’). At the material time the plaintiffs were students at the Fiji School of Medicine (the ‘FSM’) pursuing a degree course towards ‘M.B.B.S.’

At the time of the accident the plaintiffs were returning to Nabouwalu Hospital from Lekutu Secondary School in Bua in Vanualevu when the accident happened as already stated hereabove.

The action was commenced against D1 as he was the driver of the vehicle and an employee of the Ministry of Health, with the Attorney-General as the second defendant (the‘D2’).

Admission of liability

On 4 May 2001, liability was admitted by the Attorney-General (D2) and judgment was entered accordingly against him with damages to be assessed.

The issue before the Court is merely assessment of damages in respect of both the plaintiffs.

The plaintiffs are separately claiming General Damages, Special Damages, Interest and Costs arising out of the accident and consequential injuries that they both separately suffered.

Both P1 and P2 gave evidence and apart from Medical Reports tendered by consent, Dr. Joeli Mareko was called to testify on their behalf. The defendants did not call any witnesses as the medical evidence was tendered by consent. The first plaintiff’s (P1’s) claim is merely restricted to pain, suffering and loss of amenities and for P2 for general damages, special damages future care and economic loss.

For the sake of convenience, and bearing in mind the order in which evidence was adduced on behalf of the plaintiffs, I shall deal with P2’s evidence first before P1. Both counsel have done the same in their submissions.

Consideration of the issues

(i) As for Avaiata Ketenilagi (P2)

• (a) About the Second Plaintiff Avaiata Ketenilagi (P2)
  

He was born on 14 October 1975 and at the time of the accident was about 21 years of age and at date of the hearing of assessment of damages he was 25 years old. He was a medical student at FSM but subsequently graduated with a degree in Bachelor of Medicine and Bachelor of Surgery (M.B.B.S.).

As a result of the accident the P2 stated that he remained unconscious until he was conveyed to Labasa Hospital. On gaining consciousness he felt severe pain in his left leg and was bleeding severely. From Labasa Hospital after the doctors put a plaster over his injuries to his leg he was transferred to Lautoka Hospital for further treatment.

At Lautoka Hospital where he was for approximately five weeks he was under a lot of medication, antibiotics, pain killers and some sleeping tablets to relieve pain.

Avaiata’s – (P2’s) injuries and medical history

According to the Medical Reports, P2 on examination had infected open fracture of left tibula and fibula. He was treated with antibiotics and analgesics blood transfusion. He had multiple operation as follows:

24.5.96 - Wound debridgement

25.5.96 - Below knee amputation at the level of the fractures

27.5.96 - change of dressing/wound debridgement
31.5.96 - change of dressing/wound debridgement

• 4.6.96 - change of dressing/wound debridgement

21.6.96 - split skin graft for stump

The plaintiff thereafter underwent physiotherapy and in January 1997 he was fitted with his first below the knee prosthesis at the Auckland Limb Centre, New Zealand. Before amputation doctors advised him that he could not be saved and that he could have infection and that his life would be shortened.

The plaintiff now has an artificial leg and that will be with him for the rest of his life. Over a period of time the stump becomes loose and it shrinks. Consequently, walking becomes difficult and he develops stump abscess or sores. To alleviate these conditions his prosthesis would require adjustments regularly.

The plaintiff said that in his condition he cannot enjoy amenities of life. He is a bachelor and says that he is ‘not successful with girls in terms of marriage because of the embarrassment of going out with the guy with an artificial limb’. He said that he does not go to discos; he walks with a gait now; when he has shower he takes his artificial leg off and uses crutches to balance himself; he is unable to swim anymore; when he plays cricket he uses a runner to make runs for him; he cannot squat or take part in Fijian ceremonies. He can only drive automatic cars.

The plaintiff says that he feels a lot of discomfort at work when he has to attend to patients personally; he cannot stand for long hours in theatre because it gives him pain in the injured leg.

The plaintiff testified that his ambition to become a General Medical Practitioner after serving his bond for 6 years in Government has been shattered and that he is left with no option but to go into specialized field of radiology.

In his condition the plaintiff is unable to serve in rural areas as required by Government.

No doubt P2 comes from a family of ‘high achievers’ as Mr. Maharaj put it. Two of his younger brothers are currently in medical school Because of the injuries he has suffered he will not be able to go into private practice in future and to earn a higher income.

Consideration of claim for general damages for second plaintiff

(a) Pain and suffering

The plaintiff claims ‘general damages’ to which he is entitled. The ‘general damage’ is that kind of damage which the law presumes as flowing from the wrong which the plaintiff complains of and hence they are not expressly stated in the pleadings.

Under a claim for ‘general damages’, are included pain and suffering, cost of future nursing and the attendance and medical expenses, loss of amenities and loss of future earnings. It is a convenient list but not conclusive.

It is quite clear from the evidence before the Court the amount of pain and suffering that the plaintiff (P2) has been through as a result of the injuries sustained by him. In assessing damages the present and future pain and suffering and loss of amenities of life will have to be considered.

Assessing damages for non-pecuniary loss is fraught with difficulties. This problem has been stated by Earl of Halsbury LC in The Mediana (1900) AC at 116 thus:

“You very often cannot even lay down any principle upon which you can give damages..... Take the most familiar and ordinary 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 Court does 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 fully understood by persons who are not directly concerned with 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 when large sums are likely to be awarded it is important to bear in mind the following passage from the judgment of Lord Denning M.R. in Lim Poh Choo (infra) 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:

“Scarcely any sum could compensate a labouring man for 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”: (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”.

I have already stated in some detail the plaintiffs (P2’s) condition. He is entitled to damages for pain and suffering. As stated in Kemp & Kemp (Vol 1 p200, 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 had 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”.

Prospective as well as past suffering must be allowed for in Heaps v Perriete Ltd (1937) 2 All ER 60 Greer L.J. said:

“We have to take into account not the suffering which he had immediately after the accident but the suffering that he 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 Rly Co (869) 21 LT 326”. (MUNKMAN: Damages for Personal Injuries and Death 8^th Ed. at p.10).

In making awards which are fair and reasonable the Court has to fall back on previous amounts so that the figure arrived at are in proportion to the awards in other cases, of those who have suffered injuries of comparable severity (Briston J Lim Poh Choo v Camden and Islington Area Health Authority (1979) Q.B. 196 at 201 C.A.).

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) as follows and this I bear in mind:

“It is the relationship of the award to the injury in its consequences as established in the evidence in 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.”

Again on the question of the appropriate level of damages that ought to be paid Singleton L.J. in Waldon v Inar Office (1996) W.L.R. 51 at 55 said:

“A Judge in assessing damages draws upon his own experience. Where does he get that experience? From knowledge of other Judge’s decision as to amount; from knowledge of what is said in this Court and in the House of Lords; and from his ordinary experience in life.”

Bearing in mind the authorities and the principles relating to assessment of damages in personal injury cases, I have considered the case before me on the basis that the plaintiff (P2) has suffered enormous pain and suffering and loss of amenities of life and will continue to do so for the rest of his life.

Here is a case of a young man who in the prime of his life in the early stages of his medical course had the misfortune to be involved in this tragic accident resulting in his one leg being amputated below the knee leaving a stump. He was fitted with his first below the knee prosthesis in January 1997 at the Auckland Limb Centre. Prosthesis service is not available in Fiji and for this the plaintiff had attended the Limb Centre three times; the first was in November 1997, the second on 30 November 1998 and the third in September 2001.

There is undisputed evidence that the plaintiff will require replacement of prosthesis every four to five years. He will be required to visit the Limb Centre on an average every two years for re-adjustment to his prosthesis. It is understood that the life of any prosthesis is between 4 to 5 years when the old one would need to be replaced with the new one. It appears from the submission of counsel for the plaintiff from the Report of Doctor J. Tudravu dated 31 July 2002 that the plaintiff was admitted to Lautoka Hospital for eight days on 22 July 2002 for abscess of left below knee amputation stump. All this is indicative of the fact that the plaintiff continues to suffer pain and suffering despite his prosthesis and much discomfort. This state of affairs is likely to continue for the rest of his life irrespective of the kind of prosthesis fitted to his amputated leg.

In assessing damages for pain and suffering and loss of amenities of life I have been greatly assisted by both counsel by their reference to decided cases particularly on appeal by the Court of Appeal. Mr. Udit’s ‘Table’ in his written submission at page 12 shows the quantum of damages paid to plaintiffs in respect of pain and suffering and I must commend him for his industry in preparing such a useful summary of cases.

Some of the cases which have been considered by me are:

(a) Madhukar Nath Sharma v Vijendra Prasad C.A. 40/88,

Civ. App. 73/91 – Amputation of leg etc – I as Acting Chief Registrar assessed damages at about $100,000.00.

(b) F.S.C. & Anor v Subramani & Anor – 47/93

(loss of both eye sight – 75%) - $37,500.00

(c) Iowane Salailtoga v Kylie Jane Anderson Civil Appeal 26/94 (severe head injury) - $85,000.00

(d) Attorney-General of Fiji and Doctor Herbert Elliot v Paul Praveen Sharma FCA Civil Appeal 41/93 (Loss of 1 leg) - $50,000.00

(e) A.G. v Tevita Tabua Waqabaca

Civil Appeal 18/98 (FCA) – cerebral palsy – loss of all bodily function - $85,000.00

(e) Flour Mills of Fiji Ltd v Jai Raj

ABU0056.1999 (loss of right arm etc) - $85,000.00

Bearing in mind the principles involved in assessing damages as stated in the authorities cited hereabove and seeking some guidance from the abovementioned decided cases, I assess the general damages for pain and suffering in the circumstances of this case at $95,000.00 (ninety five thousand dollars).

(b) Special damages

Future care

I have already stated hereabove about ‘below the knee prosthesis’. It is conceded by the defendant that since the plaintiff’s leg below the knee is amputated, ‘the necessity for prosthesis will be a life long requirement.’

I shall deal with this aspect in two parts. The first is the alleged total sum of $13,000 advanced by the plaintiff’s father for his treatment in New Zealand together with interest thereon. In the second part is the estimated cost of future care and cost of purchasing artificial limb.

As for the ‘first’, I agree with Mr. Udit that the evidence is very sketchy particularly when a claim by way of special damages is made. The plaintiff made three trips to New Zealand. For the first trip, on the plaintiff’s own admission in cross-examination, the sum of $5000.00 being the first withdrawal from FNPF, his father was re-imbursed when the insurance company met the expenses. As for the second trip it is alleged that $8000.00 advanced by his father was spent in this trip. This is also a special damages claim and it is necessary that it be proved that this sum was spent on the trip.

It is admitted that $1275.60 was the cost of prosthesis and air ticket cost $875.00 making a total of $2146.60. As for accommodation the defendant concedes that the plaintiff would have used some money for accommodation and travelling in Auckland. Mr. Udit suggests a figure of $1000.00 and therefore he says that the figure for the second trip should not exceed $3146.60.

However, on the facts, I would allow $1200.00 for accommodation and travelling, making total sum under this part $3346.00. I allow interest thereon at the rate of 6% for September 2001 to date of this judgment.

As for second part, that is cost of future care, which is allowable, I shall consider same bearing in mind the following statements of Lord Scarman in Lim Poh Choo v Camden and Islington Area Health Authority [1979] UKHL 1; (1979) 2 All E.R. 910 at 922:

“The true principle, as counsel for the respondent conceded, is that the estimate of damages under this head must proceed on the basis that resort will be had to capital as well as income to meet the expenditure; in other words, the cost of care, having been assessed, must be met by an award calculated on an annuity basis.”

The above extract is explained by the Fiji Court of Appeal in Usha Kiran v The Attorney-General of Fiji (Civil Appeal No. 25 of 1989) thus:

“If the annual sum of $1200 is the average annual cost of care for a 15 year period then in our view the sum of $18,000 invested should realise at least the sum of $1200 annually from income alone without recourse to the use of the capital sum of $18,000. We do not consider the learned Judge acted on a wrong principle or erred on the facts...”

It is revealed in evidence that the life of any prosthesis is between 4 to 5 years. Hence the plaintiff will need to travel to New Zealand every two years for as long as he lives to have re-adjustments done to his existing prosthesis. Mr. Maharaj submits that assuming he lives to 70 years, ‘being average life expectancy of males in Fiji’ (vide Pacific Human Development Report 1999) he will need to travel to New Zealand over the next 45 years of his life for about 22 times.

Mr. Maharaj says that the sum of $2430.00 for a stay of 8 days for re-adjustment done to the existing prosthesis has been agreed upon. Hence if the plaintiff goes 22 times the total cost will be $2430 x 22 which comes to $53,460.00.

But for replacement of his prosthesis he will be required to go to New Zealand every 4 to 5 years and will have to stay there for about 7 to 8 weeks. The plaintiff wants to have modern prosthesis fitted at a cost of $6000.00 to $7000.00. Counsel submits that for modern prosthesis at an average cost of $6500.00 an estimated sum of $26,000.00 for prosthesis alone will be required leaving aside additional accommodation costs and inflation.

Mr. Maharaj submits that $80,000.00 would be a reasonable figure to cover cost of readjustment, replacement of prosthesis, travelling accommodation, inflation and any unexpected contingencies.

The learned counsel for the defendant disagrees with the amount being claimed although he admits that a sum for future care ought to be allowed in the sum of $45,576.00 (rounded off) made up of items referred to in his written submissions at pages 19-21 suffice it to say that he agrees to air fare of $801.00, accommodation $725.00. Furthermore he says that an ordinary prosthesis would cost about $1800.00 whereas a modern prosthesis would cost in the vicinity of $6,000.00 to $7000.00. Counsel agrees to provide a modern prosthesis but then he wants the general damages to be proportionately reduced. He says it will cost plaintiff $2300.00 for each trip and if a multiplier of 20 years is used he would be making 6 trips the first one being in September 2004 making a total of $13800.00 with the first replacement would be in 2006. He suggests $24.000.00 would be a reasonable award for prosthesis.

As a global figure Mr. Udit suggest a figure of $40,000.00 for future medical care.

It is clear that future care will be needed and the learned counsel for the defendant concedes that. The question is one of quantum of compensation. The quantification of the sum to be awarded depends on what are the services required to satisfy the plaintiff’s needs resulting from the defendant’s wrong? And what is the value of those services? Enough details as stated hereabove have been given by both counsel on both these questions.

I agree entirely that future care is a must along the lines outlined hereabove and on which there is general agreement.

Bearing in mind the submissions made by both counsel I assess damages under this head as hereunder. I would take the life expectancy in this case at 60 years of age. He is 25 years old at present and so over the next 35 years of his life he would have to go about 17 times for ‘readjustment’ at a cost of $2430.00 for each trip which comes to $41,310.00. But within this period every four to five years he would have to go for replacement of prosthesis which means that cost of nine trips will have to be deducted which come to $21870.00. So from $41,310.00 the sum of $21870.00 is deducted leaving the balance sum of $19,440 for adjustment of prosthesis. Taking the cost of replacement of prosthesis on nine occasions over a period of 35 years at $6,000 per trip will come to $54,000.00. I would allow $16,200.00 for air fare and accommodation ($1000.00 for accommodation and $800.00 for air fare) for these nine occasions. I would therefore assess damages in the sum of $89,640.00 (being made up of the said sums of $19440.00, $54,000.00 and $16,200.00). This sum if invested would earn the plaintiff sufficient to meet his future care.

Economic Loss

The plaintiff is also claiming ‘future economic loss’. Although he says he is being paid a proper salary by the government but after six years of serving the Government his life long ambition was to be a General Medical Practitioner, but because of his injuries resulting in amputation of one leg his dreams have been shattered. He was compelled to specialize in ‘Radiology’. There is likelihood of diminution in his earning capacity in future and he ought to be compensated. The sum he is asking is some moderate sum as a ‘buffer’ by way of compensation for lost opportunity under this head.

In support of his submission Mr. Maharaj asks that the Court approach the matter as was done in Permal v Abdul Kalma (Lautoka SC 578/81) by Cullinan J and followed by Scott J in Osea Vakalabure v Waisea Nakorovou Lutu and Attorney-General (HBA0002.1995) when his Lordship awarded the sum of $10,000.00 under this head. He submitted that a similar approach was adopted by the Fiji Court of appeal in Marika Lawanisavi Isei Ravisivi v Pradeep Raj (Civil Appeal No. 50/98S), where the sum of $15,000.00 was awarded.

Mr. Maharaj submits that there is that element of ‘risk’ that he may suffer diminution of his earning capacity in future and ought to be compensated. He says given that the plaintiff is a professional person, his diminution in earning capacity is likely to be relatively higher than the plaintiffs in the two cases he referred to above.

Mr. Udit opposes the claim under this head. He refers to the evidence in this case to the effect that he is not likely to suffer any loss of in his earnings as a private practitioner if he leaves Government. He also refers to decided cases under this head and the principles enunciated in them and submits that no award should be made.

I find that under this head there are authorities which allow for future economic loss. Each case has to be decided on its own facts. On the facts of this case there is no doubt that in the plaintiff’s position with just one leg it would be difficult to properly perform his duties as a medical practitioner in private practice. In this case although there is this disability it has no immediate effect upon the plaintiff’s earning, in the sense that he is still able to earn his pre-accident wages and to perform his pre-accident medical work, yet he is at a disadvantage compared with his colleagues in the labour market.

On this aspect of the case interesting observations were made by Somervell L.J. in Deakin v Sankey (1951 C.A. No. 21 4.4.51) which is as follows and which I adopt:

“The plaintiff suffered a permanent injury to his hand and there is evidence that there is a loss of function which might, if he were thrown on the labour market, militate against his getting work. He might want to get other work or better paid work, which he could have accepted if he had all his fingers and a fully competent hand ... the chances of life are such that I think with a man of fifty-four one must in awarding damages give some sum, not a token sum, in respect of such loss of capacity of earning power as is found here which could mean a financial loss if for any reason he was thrown on the ordinary labour market.”

It is common knowledge that hardly any doctor remains in Government service all his life as most of them look for greener pastures elsewhere. It cannot be said that the plaintiff is or was going to remain in Government service all his life and be confined to the field of ‘Radiology’.

Mr. Udit has referred to the case of Moeliker v A. Reyrolled & Co. Ltd [1977] 1 All E.R. 9 C.A. where the law in respect of the loss of future earning is well stated and I have borne it in mind in considering the issue before me. I think I ought to refer to certain passages from that case which I consider to be pertinent.

In that case Brown L.J. at p17 said:

“It was suggested in the course of the argument that whenever a plaintiff establishes a claim under this head the damages must be considerable, and that it can never be right to award only a few hundred pounds damages. I do not agree. Each case must, of course, depend on its own facts, but if the court decides that the risks of the plaintiff losing his present job, or of his being unable to get another job or an equally good job, or both, are only slight, a low award is right. This court reduced an award of £1,250 to £250 in Clarke v Rotax Aircraft Equipment Ltd. and upheld an award of £500 in Roberts –v- Heavy Transport (EEC) Ltd.”

And at p.19 Stephenson L.J. said:

“In assessing damages under this head the judge has to engage in a double speculation to measure, first, the plaintiff’s chances of losing his job, and then his chances, if he loses it, of getting other employment. It is rather like the serious risk of slight injury or the slight risk of serious injury which the prudent employer has reasonably to foresee and to measure so as to decide what precautions are reasonably necessary to meet them. He has to turn his assessment of the two risks into appropriate action ‘on the ground’ (or the floor); but the judge has to turn his into a suitable number of pounds sterling ‘plucked from the air.’ The extent of each risk varies with the circumstance of every case. If (as will be rare) both are negligible or fanciful ( I avoid ‘speculative’ because this head of damages can really be nothing else), no award should be made: Browne –v- James Broadley Ltd, an unreported decision of Crichton J at Manchester. If one or both are real or substantial, but neither is serious, the award should not be a token or derisory award, but should generally be in hundreds of pounds: Roberts –v- Heavy Transport (EEC) Ltd, a decision of this court referred to by Browne LJ. The risk of a plaintiff’s falling out of his present job may be serious or slight and so may be the risk of his losing much or little if he does fall out of it, because he may be expected to have little or much difficulty in getting equally or less well paid work. If both risks are serious, the compensation should generally be in thousands of pounds.”

In the outcome, on the facts of this case bearing in mind the authorities I make an award for future economic loss in the sum of $25,000.00 (twenty-five thousand dollars).

(ii) Considering the case of the First Plaintiff (P1) Aliana Kotoiwasawasa

(a) About the First Plaintiff

The circumstances leading to the injuries suffered by the First Plaintiff are as already set out hereabove in relation to the second plaintiff.

The injuries

The said Aliana (P1) suffered serious injuries in the accident. Dr. Joeli Mareko who attended her prepared a Report on 14 November 2001 lists her injuries as follows:-

1. Fracture of left femur
2. Fracture of left Zygoma
3. Lacerations forehead and chin
4. Fracture left thumb metacarpal
   

He says that femoral fracture was stabilished with intramedullary K-rod on 24-6-96 which she still has.

On a review of her injuries the following were noted:

She complained of pain at her fracture site,

Disfiguring scars on lateral side of the thigh.

Pains in her left hip,

Range of motion diminished in the left hip, and

Thigh wasting in the left lower limb. He awarded her disability of 10%.

Pain and suffering

The Plaintiff (P1) went through pain and suffering. She had pain in her left thigh, eye and forehead after the accident; she had blurred vision and felt pain as well from broken glasses; she was given pain relievers after she was conveyed to Labasa Hospital from Nabouwalu Hospital. At Lautoka Hospital where she was for 4 weeks she was in ‘plaster of Paris’ to her left arm and had to be washed in bed; also passed toilet and urine in bed with the assistance of nurses. In the 4^th week she was in wheel chair and during all the period she was there she was given pain killers and antibiotics to relieve pain. Then upon discharge from Hospital she was put on crutches and posted to Natewa Health Centre to resume her duties. She was on crutches for 4 months and during this time she had lot of difficulties in carrying out her duties. She continued to have pain and discomfort. She showed to Court ‘scar’ in her thigh and forehead that she was left with in the aftermath of this accident. She intends to have the ‘rod’ removed soon.

In the course of her duties, having to go up and down the hill visiting 13 villages she continues to suffer a lot of pain which becomes unbearable at times.

She is unable to play volleyball which is her favourite sport; she is unable to do yoga or aerobics as she is unable to stretch her legs. She also complains of absent-mindedness and memory lapses; she has wasting of muscle on her left lower limb; her range of motion has diminished on her left hip. She says that she gets exhausted fairly easily especially when she works for long hours.

Last but not the least she encounters sexual problems as she experiences pain in her left thigh during sexual intercourse.

Quantum of damages for pain and suffering

The above is the sum total of the injuries suffered by P1 with pain and suffering and loss of amenities of life. Damages under this head has to be assessed bearing in mind the factors to be taken into account as already stated by me hereabove when dealing with P2. The 10% disability is also to be taken into account. I have also taken into consideration other Judges’ decisions as to amount and also what has been said by the Court of Appeal on this head of damages.

I therefore assess damages in the sum of $70,000.00 (seventy thousand dollars) for ‘general damages’.

Interest on general damages

I refer to my discussion hereabove when dealing with payment of interest on general damages. On the authorities referred to by me she is entitled to interest from the date of issue of writ, namely 21 May 1999 to date of judgment i.e. 13.2.03 at the rate of 6% per annum.

The interest comes to $16,014.00 (Sixteen thousand and fourteen dollars).

Special damages

The sum of $400.00 has been agreed as special damages. However for the removal of the K-rod from her leg in due course will involve expense in air fare and incidental expenses-associated with the proposed surgery. She is asking for $250.00 to cover this future expense which is agreed. I award this sum making the total special damages the sum of $650.00.

The plaintiff is also entitled to interest on the said sum of $400.00 at the rate of 6% p.a. from date of writ i.e. 21.5.99 to date of judgment (13.2.03).

Summary of damages assessed and interest

In summary the award of damages and interest is as follows:

For Aliana Kotoiwasawasa (First Plaintiff)

(A) General damages

• (i) Pain and suffering and

Loss of amenities of life $70,000.00 $70,000.00

(ii) Interest of 6% p.a. from

date of filing of writ

i.e. 21.5.99 to date of

judgment (13.2.03) $16,014.00 $16,014.00

(B) Special damages

Special damages (agreed) $ 400.00

Interest on $400.00 at 6% p.a.

from 25.5.99 to 13.2.03. $ 90.00

Future medical cost (agreed) $ 250.00

_________

$ 740.00 $ 740.00
_________

Total Payable $86,754.00
_________

For Avaiata Ketenilagi (Second Plaintiff)

(A) General damages

• (i) Pain and suffering and

loss of amenities of life $95,000.00

(ii) Interest thereon at the rate

of 6% p.a. from the date of

filing of writ i.e. 21.5.1999

to date of judgment

(23.203) $21,366.00

_________

$116,366.00 $116,366.00

(B) Special Damages

(i) Past expense (1998) $ 3,346.00

(ii) Interest thereon at rate of

6% p.a. from September

2001 to 13.2.03 $ 738.00

_________

4,084.00 $ 4,084.00

Future Medical care $89,640.00 $89,640.00

(No interest)

Future Economic Loss $25,000.00 $ 25.000.00

_________

$235.090.00

Less interim payment $ 10,000.00

__________

Total payable $225,090.00

__________

Order

There will therefore be judgment for the first plaintiff in the said abovementioned sum of $86,754.00 (eighty six thousand and seven hundred and fifty four dollars) and for the second plaintiff in the said abovementioned sum of $225,090.00 (Two hundred twenty-five thousand and ninety dollars) against the second defendant with costs to be taxed if not agreed.

D. Pathik
Judge

At Suva
13 February 2003