Moli v Bingwor [2003] FJHC 279; HBC0335.1998 (4 April 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0335 OF 1998

Between:

JONA MOLI
as administrator of the Estate of
MERESEINI NAKALEVU of Tubalevu Village, Tailevu
Plaintiff

and

DR. FRANCIS BINGWOR
THE SUPERINTENDENT OF THE
CWM HOSPITAL, SUVA
THE ATTORNEY-GENERAL OF FIJI
Defendants

Mr. Eroni Veretawatini for the Plaintiff
Mr. J. Udit for the Defendants

JUDGMENT

This is a case of alleged ‘medical negligence’ on the part of Dr. Francis Bingwor (the first Defendant – D1). Dr. Bingwor was the first doctor who attended the plaintiff Jona Moli’s daughter Mereseini Nakalevu (the deceased) of Tubalevu Village, Tailevu. The deceased died on 5^th January 1998 and Jona Moli continued these proceedings by issuing a writ of summons against the defendants on 2^nd July 1998 as administrator of the estate of the deceased.

The deceased was attended to by D1 on 1^st January 1998 at the Nausori Health Centre (NHC). The Superintendent of the CWM Hospital (D2) is sued as an employer of D1, and The Attorney-General of Fiji (D3) is sued as the legal representative pursuant to section 12 of the Crown Proceedings Act Cap.24.

Evidence for the plaintiff was given by the deceased’s father Jona Moli, Dr. Asaeli Matairavula and Inisa Likulagakali (the mother of the deceased). For the State the witnesses were Dr. Rocini Afolabi and Dr. Francis Asenaca Bingwor.

Evidence adduced in the case

It is on evidence that the decision on the issues before the Court will be based. The law will be applied to the facts as I find them.

To get a clear picture of the circumstances which led to the deceased’s death it is important that I state the salient parts of the evidence at the risk of being lengthy that has been adduced by both parties.

Plaintiff’s evidence

The plaintiff’s evidence has been stated quite fully by his counsel in his written submission and I can do no better than repeat them hereunder:

“The Plaintiff gave evidence that he was the father of Meresaini Nakalevu (hereinafter called “Meresaini”], the deceased and that he obtained Letters of Administration from the High Court of Fiji at Suva on the 5^th day of January 1998. He said that Meresaini was 11 years old and was a class 5 student at Waciwaci District School in Lau. During the school holidays Meresaini used to come and stay with the Plaintiff and her other family members at the family home in Tubalevu, Tailevu. On the 1^st day of January 1998 after lunch Meresaini started experiencing pain in her Abdomen and the Plaintiff brought her to the Nausori Health Centre between 4.00 to 4.30pm. At the health Centre Meresaini was attended to by a staff Nurse who took her temperature and gave her Panadol and Oral Re-hydration Salt (ORS). After about 10 minutes a lady Doctor by the name of Francis Bingwor attended to her. The Plaintiff informed Dr. Bingwor of the symptoms, which his young and fragile daughter was going through. In particular he informed Dr. Bingwor that Meresaini was vomiting and had severe internal Stomach pains. According to the Plaintiff, Dr. Bingwor just slightly pressed upon Meresaini’s Stomach and then gave further Panadol and ORS which was to be taken by Meresaini at intervals of every ten minutes. The little girl was kept in a cubicle for less than half an hour. Upon enquiries from the Plaintiff the Dr. Bingwor advised him that at the material time there was in force an epidemic of Dengue Fever and that Meresaini had the same symptoms and was probably having the same ailment.

According to the Plaintiff he requested Dr. Bingwor to keep Meresaini at the hospital, but she told him to take her home and bring her back if the situation worsened. Dr. Bingwor assured the Plaintiff that there was an epidemic in force in Fiji and that Meresaini may be a victim of the said epidemic. The Plaintiff advised this Court that he lived about 20 kilometers away from the Nausori Health Centre. The bus only travels twice during the day, one in the morning and one in the afternoon. The Plaintiff told the Court that when Meresaini took the prescription there was a slight change in her symptoms. She had stopped vomiting and her Abdominal pains had receded a lit bit. When the Plaintiff and Meresaini reached home he kept her on the prescription prescribed by Dr. Bingwor.

At home although Meresaini might have been experiencing pain she did not show this and the Plaintiff thought that she had gradually improved in her condition but this was not to be so as the child’s pain surfaced again with vomiting and he had to bring Meresaini to the Nausori Health Centre again on the 4^th day of January 1998. The Plaintiff first of all took Meresaini to Namara Health Centre from where he got a report and was adviced to take the girl to the Nausori Health Centre. He reached Nausori Health Centre at about 9.00 to 9.30am and was attended to by Dr. Manmohan Lal. The Plaintiff explained the history of the illness and also told Dr. Lal that he had earlier on brought Meresaini to the Health Centre on the 1^st day of January 1998 but she was sent away with prescriptions of Panadol and ORS.

He informed the Court that Dr. Lal also witnessed his daughter vomiting. Dr. Lal prescribed Panadol and ORS and put her on an Intravenous and sponge bath. All these were done at the Nausori Health Centre at intervals of every 10 minutes. The Plaintiff assisted the Nurse to do these things. The Plaintiff and his daughter were at the Health Centre from 9am until 4pm when Meresaini was whisked away to the Colonial War Memorial Hospital in Suva in an ambulance. The Plaintiff and a Nurse accompanied the child from the Nausori Health Centre. During the period when the child was in observation at the Health Centre she was attended to by Dr. Lal on some four occasions. There was no improvement in the child’s health, and her condition only deteriorated.

The Plaintiff reached the CWM Hospital at about 4.30pm and Meresaini was admitted at the Children’s Ward. Blood samples and X-rays were taken. The Plaintiff asked the Doctors at the CWM Hospital about the problem his daughter was facing, but the Doctors advised him that they did not know it at that time but they were working on the assumption that the child had Dengue Fever. She was in the Children’s Ward for about 2 hours when she was eventually removed to the Intensive Care Unit at about 6.00pm.

A Urinal Plastic was attached to Meresaini’s Urinal System. The Plaintiff was with his daughter throughout the night and he could see her. He told the Court that at about 3am he saw that Meresaini was having difficulty in breathing and that there were no Doctors or Nurses around to look after her. He saw that some Nurses were taking a nap nearby and he out of frustration awoke a Nurse who saw the critical condition in which Meresaini was and called a Doctor. A Doctor arrived some twenty minutes later and started pumping Meresaini’s Chest and Stomach. Still there was no change in the condition of the child.

After exactly twenty minutes the aforesaid Doctor informed the Plaintiff that Meresaini had died.

The Doctor who conducted the Post Mortem on the poor child informed the Plaintiff that she had died of Ruptured Appendicitis.

Dr. Asaeli Matairavula’s evidence

Dr. Asaeli Matairavula, a Specialist General Surgeon with high qualifications and over 21 years of experience in surgery testified as follows as stated by Mr. E. Veretawatini in his written submissions:

“He told the Court that he had perused the Hospital Folder of Meresaini. He said that if he had been the treating Doctor for Meresaini, he would have certainly, carefully and thoroughly examined the child’s Abdomen, established the diagnosis and then rushed her for possible treatment. He informed this Court that 90% chances of establishing a diagnosis of Appendicitis is done with the hands.

He said pain usually starts from the central Abdomen and after 6 to 12 hours it shifts to the right side of the Abdomen. The symptoms vary in patients. He said that vomiting, fever and pain would be the initial stages of Appendicitis. He informed that the difference that the symptoms between a patient with Appendicitis and a Dengue Fever can be determined through a feel with the hands.

He told the Court without any reservations that Doctors should always suspect that there is a possibility of Appendicitis with people having the symptoms which Meresaini had. He said Appendix is on the right hand side of the Navel. He further informed that in the beginning the pain is on the right side and when it is ruptured it is all over the body.

He advised that the Doctors may not have felt for the difference. He said that he would have kept Meresaini under observation to see the progress of the symptoms at every 15 minutes or half and hour intervals. In his opinion the child should have been near to a Health Centre or Hospital. He said that he would not have given Panadol and ORS. As a Doctor he would have first of all established the diagnosis and then proceeded to treat the patient. He said that he would have never sent the girl home with Panadol and ORS.

He told the Court that Panadol is not given for life threatening diseases. He confirmed that Panadol and ORS could reduce the pain for a little bit. In his considered opinion Meresaini should have been referred to the CWM Hospital for observation and diagnosis and thereafter treatment of the Appendicitis in the very first place, which could have saved the unfortunate girl’s life.

He said that when she came to the Health Centre on the 1^st day of January 1998 the Appendicitis was not ruptured. According to him she should have been on the operating table on the very first day. When she came back to the Health Centre on the second occasion it had already ruptured. He said Pus, which was in the Abdomen and the Intestines, which were strangled, confirms that the Appendicitis had ruptured.

He said that the Appendicitis was left to be there for too long which proved fatal to the little girl. This could have been avoided if an emergency Surgery could have been performed on her on the first occasion when she was brought to the Health Centre. He said with confidence that Surgery can still be done even after an Appendicitis ruptures. Doctors normally give the patient a 50-50 chance for survival. He told the Court that if someone had given a thorough check of the child’s Abdomen it would have been possible for an emergency Surgery.

He informed that a good Surgeon will never say quits even if supine takes place just before the operation. According to him Urine and Blood samples were taken but there is no record of the same being sent to the Laboratory for analysis. There is no record of the Blood tests shown in the hospital folder. He told that he has worked for more than twenty years in all the major hospitals in Fiji as a Chief Surgeon. He further said that he has operated with people suffering from Appendicitis and those from Ruptured Appendicitis by the thousands. He said that an Anaesthetic must decode whether a patient could withstand on operation. There was no report from any Anaesthetic in the hospital folder of Meresaini.

Evidence of Inisa Likulagakali

The deceased’s mother Inisa Likulagakali testified that her daughter who was the eldest in the family helped the family in household work, cooking, washing and looking after other children. She also helped on the farm. During school holidays she was always home.

According to the deceased’s birth certificate which was tendered in evidence she was born on 19 August 1987 which makes her ten and a half years old when she died on 5 January 1998.

Post-mortem Report

A post mortem on the body of the deceased was carried out by Dr. Raghwa Sharma on 6 January 1998 which states as follows:

Findings:

GIT: Diffuse peritonitis with yellowish purulent exudate. Interbowel, mesenteric and diaphragmatic adhesions are present with subphrenic abscesses.

Appendix: greyish black, gangrenous with perforation present at the distal segment.

Anatomic

Diagnosis: Perforated, gangrenous appendicitis with diffuse peritonitis and subphrenic abscesses.

Hospital Patient Folder

The learned counsel for the plaintiff submitted that the Hospital Folder which was tendered to Court shows the Consultant Doctor Tikoduadua as in charge of the deceased also the name of Medical Officer Dr. Hermi. They have neither been called as witnesses nor their statements tendered in evidence. The Folder also reveals that Dr. Hermi was contacted by Dr. Manmoham Lal who told him of the possibility of the deceased having appendicitis. He had also written in his Report that he suspected the deceased had appendicitis.

When the deceased was taken to CWM Hospital at about 5 .00 pm she was in a bad condition. She was transferred to the Intensive Care Unit but was not referred for a surgical opinion. There is no evidence in the folder of the results of any tests like stool-tests, blood tests or urine test.

The learned counsel for the plaintiff submitted that no tests were carried out to make a diagnosis. Had diagnosis been done the rupture of the appendix could have been prevented and when the rupture takes place the infested contents of the appendix spill into the abdomen causing serious infection of the abdomen called peritonitis.

Evidence adduced for defendant

Dr. Rocini Afolabi was an expert witness for the State. He testified, inter alia, as follows (as stated in Mr. Veretawatini’s written submission):

“............ that a patient might have vague Abdominal pains if he/she was suffering from Appendicitis in the early stages, but it would be difficult to differentiate the point of the pain. He said it would be difficult to diagnose the problem with just fever and vomiting. He said Appendicitis echoes a great mimic and is usually in the right lower Abdomen. He contended that Viral Gastroenteritis would also mimic the sounds of appendicitis. He said that there would be more difficulty in diagnosing Apendicitis if there was an outbreak of other diseases.

He further told the Court that the treatment of Appendicitis is Surgery and the age of the patient and immunity from the patients are factors to be taken into account when considering a Surgery for a patient suffering from Appendicitis.

He said that it was reasonable for Doctor Bingwor to diagnose Gastroenteritis on the 1^st day of January 1998. He said according to the hospital report there was no tenderness on Meresaini’s Abdomen. He, like Doctor Matairavula conceded that the hands play a very important part in the diagnosis of Appendicitis in a patient. He said questions should be asked from the patient on the symptoms and that Doctors should be very careful.

He confirmed that the rate of progression of Appendicitis in a child is very high and that if you do not do anything it may rupture. He further told the Court that the physical symptoms of Appendicitis will be that the patient would generally look very sick with fever. He confirmed that it usually does not cause Blood to come out in the Stool. He said Intravenous Drips, Antibiotics and painkillers are usually given to patient for revival. He said that stability before Surgery is critically important. In the end he confirmed what Doctor Matairavula said that even after Appendicitis ruptures it is possible to do Surgery on a patient and that the prescription of Panadol and ORS can cause a little relief to a patient with Appendicitis.

The witness told the Court that apart from his home country Nigeria he has had little experience in cases of ‘Appendicitis’ or ‘ruptured Appendicitis’. Finally, he said that if diagnosis could have been made earlier, surgery could have been done and Mereseini could have been alive today.

Evidence of Dr. F. Bingwor

The first Defendant Dr. Francis Asenaca Bingwor testified as to what she did when the deceased was examined by her.

She said that she had been in practice for nine years. At that time on 1^st January 1998 there was an epidemic of ‘dengue fever’ prevailing in Fiji. Some forty-three patients were seen by her on that day and that she was unable to record minor details of the patients.

This patient was referred to her by the nurse who took temperature after she complained of vomiting and abdominal pains. The doctor did not find any swelling of the abdomen and that her ‘dehydration’ was normal. The patient was given ORS and ‘paracetamol’ was prescribed.

The doctor’s conclusion was that the patient tolerated ORS, her symptoms were normal, she had no tenderness or swelling and she did not appear to be very sick to her. The Doctor diagnosed that the patient was suffering from ‘Gastroenteritis Infection’ which is an inflammation of the Gastric system.

When asked by the Court she was quite frank that there was no way that she could have diagnosed Appendicitis on 1^st January 1998. She said that it is not easy to elicit abdominal pains in children. It took the doctor sometime to say that her findings of the diagnosis were not conclusive. She admitted that there should have been further tests conducted to conclude the analysis. She said that she ruled out the diagnosis of appendicitis. She admitted that hands and fingers do play a part in the diagnosis of appendicitis.

Evidence of other doctors

The State also tendered in evidence the Statement of the doctors who had been the treating Doctors of Meresaini whilst she was at the Nausori Health Centre and CWM Hospital. The Doctors are Kamlesh Kumar, P.K. Mitra, H.M. Calixto and Manmoham Lal. Their statements, which have been accepted in evidence in respect of the material particulars are as hereunder:

Evidence of Dr. Manmoham Lal

Doctor Manmoham Lal of NHC said in his statement that he was concerned about Mereseini’s condition and had telephoned the Paediatrician at the CWM Hospital. He clearly said in his statement that he had queried the possibility of a ruptured appendicitis. He had sent a detailed note to CWM Hospital which in fact questioned the possibility of Mereseini suffering from a ruptured appendicitis. He said that he had to wait for an Ambulance at NHC which had taken another patient to CWM Hospital.

Evidence of Dr. H.M. Calixto

The doctor said that the deceased was referred to CWM Hospital between 3.30 pm to 4.00 pm and was admitted at about 5.40 pm. The doctor did not see her immediately the patient arrived as she was attending to another sick child despite the fact that Dr. Lal had already discussed the case with her. This doctor did not see her until 6.00 pm knowing very well that she was in a very bad state and was fighting for her life. She admitted that she was not able to make a definite diagnosis.

Evidence of Dr. Kamlesh Kumar

He said that when he saw the patient at about 9.00 pm on 4 January 1998 she was in ‘septic shock’ and was not fit for surgery and that if an operation was done at the material time she would have certainly died. He said that he hoped to stabilize the patient first and then consider if surgery was necessary or possible. He said that even if ‘I had been able to diagnose appendicitis when I examined Mereseini I would not have been able to recommend a different treatment to that he recommended.’ He said that ‘I regard Mereseini’s treatment as correct at the time and I do not know what more could have been done to save her, it was simply too late by the time we received her’.

Evidence of Dr. P.K. Mitra

The doctor said that at no stage he carried out a physical examination of the deceased. But from what Dr. Kumar told him she was in a high degree of septic shock and far too ill for an operation and he confirmed the course of treatment proposed by Dr. Kumar.

He said that subsequently he studied the post mortem results and it was obvious from that that the appendix had ruptured approximately 3 days before her death sometime on 2^nd January.

The doctor concluded that in his opinion surgery simply was not an option when Dr. Kumar examined her in the evening of 4^th January. The poisoning had spread too far and it is almost certain that she would have died under the anaesthetic. He said that in his opinion she was simply referred to them too late in the day.

Consideration of the issues

The Law

Helpful written submissions with authorities have been filed by both counsel and I have given these due consideration.

This is a case of alleged ‘medical negligence’ on the part of the defendants. It is important that I set out the law on the subject of ‘medical negligence’.

Duty of care

As stated by Andrew Fulton Phillips in his book Medical Negligence Law at page 13; ‘very generally a doctor owes a legally recognised obligation – a duty – to the patient, to take reasonable care. The existence of this duty of care is rarely a matter of dispute in medical cases’.

The author further states at pages 14-15 that “generally speaking, the duty of care owed by a doctor arises by virtue of the legal concepts of ‘holding out’ – if the medical practitioner allows or encourages the patient to believe that he is a doctor, then the duty of care is applied which measures that person against the standard of the reasonable doctor in that situation”.

As far as the hospital doctors are concerned, which is the case here, they will usually owe a duty to those admitted to hospital for treatment by them. The claimant will only recover damages for damage caused by the breach of duty of care. Not being able to diagnose properly is such a breach which could lead to a hospital being liable to pay damages.

Further on duty of care, in the House of Lords case of Airedale NHS Trust v Bland [1992] UKHL 5; (1993) A.C. 789 at 818 it is stated that:

“A doctor owes a duty of care towards his patient and in the case of a patient unable to give instructions or consent to treatment, a duty to treat him in the patient’s best interests; see In re F [1990] 2 AC 1. The general duty of a doctor is to act in accordance with a responsible and competent body of relevant professional opinion based upon the principles laid down in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582: (“the Bolam Test”).

This was a case in which it was incumbent on the doctor or doctors who attended to the patient (the deceased) to take reasonable care for the well-being of the patient in the medical context which includes the giving of advice, making a diagnosis, referring the patient to a specialist or other doctors and giving or prescribing any treatment.

Standard of care

As far as the standard of care in medical negligence cases is concerned, the locus classicus of the test is as established in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 where it is stated:

“The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.

A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art....... Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view”.

In this case I have the evidence of Dr. Francis Bingwor (D1), the statement of other doctors as well and the expert evidence of Dr. Matairavula. All the evidence has to be analysed in the light of the law pertaining to the test applicable for medical negligence. The test has been aptly put by Phillips (ibid pages 16-17) thus and I accept it for the purposes of this case:

“The test for medical negligence is essentially objective, and does not therefore take formal account of a doctor’s experience, level of qualifications, the resources available within that doctor’s practice or hospital, or even how many hours may have been worked prior to the incident. It therefore concentrates upon the relationship between the doctor and patient and generally excludes other considerations. Unsurprisingly, the test is retrospective, but although deterrence of negligent conduct is one aim claimed for the law, there is no formal mechanism for improving the standard of care as a result of any lessons learned in litigation. Nor does it consider a doctor’s record or the standards to which she or he may have practised in the past: where negligence is alleged, it is only the incident(s) in question which is (are) examined. Indeed, the most blatant cases of negligence, being indefensible, are likely to be settled out of court”. (emphasis added)

The same test would apply to other staff such as nurses and midwives.

The following passage from Bolitho v City and Hackney Health Authority [1997] UKHL 46; [1997] 3 W.L.R. 1151 (H.) is pertinent and it casts a duty on the Judge to consider and decide on the whole of the evidence:

“It is enough for a defendant to call a number of doctors to say what he had done or not done was in accord with accepted clinical practice. It is necessary for the judge to consider that evidence and decide whether that clinical practice puts the patient unnecessarily at risk.”

Causation

In a case of alleged medical negligence, the question of ‘causation’ has to be decided, namely, would the resultant death have been prevented if Dr. Bingwor or other doctors at the CWM Hospital treated the patient as they should have done or as was expected of them. In other words it has to be established that the negligence or fault actually caused the death of the deceased.

In addition to establishing that the doctor or doctors were negligent and that death resulted, the plaintiff must prove that the defendants’ act or omission was the actual cause of the death. [McWilliams v Sir William Arrol & Co. Ltd [1961] UKHL 8; [1962] S.C.(H.L.) 70 Wardlaw v Bonnigton Castings Ltd [1956] S.C.(H.L.) 26]. The standard of proof required in establishing causation is the civil standard of balance of probabilities.

The decision on the issue of causation will depend on two factors. The first is whether the death, as in this case, would have occurred ‘but for’ the negligence (known as the “but for” test). The second is whether the cause in question was the real or effective cause of the death say in this case.

In considering the issues before me I direct myself as to the law by reference to the following speech of Lord Scarman in Maynard v West Midlands Regional Health Authority [1984] 1 W.L.R. 634, 639:

“....... I have to say that a judge’s ‘preference’ for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. If this was the real reason for the judge’s finding, he erred in law even though elsewhere in his judgment he stated the law correctly. For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate speciality, if he be a specialist) is necessary.” (emphasis added)

The issues

The defendants do not dispute that hospital authorities owe a duty of care to the patients that they attend to.

The issue in this case is whether the treatment and care given to the deceased was in accordance with the reasonable and accepted care that would have been given by a competent ordinary medical practitioner. The question of “causation” also arises.

It is the defendants’ contention that the deceased died because of the failure of the plaintiff (as the parent of the deceased) to bring the deceased to the hospital earlier than he did despite having been expressly told to do so by Dr. Bingwor if the condition of the deceased deteriorated.

Findings of fact

I have given careful consideration to all the evidence adduced in this case and have also considered the written statements of the various doctors to which reference was made by defence counsel. Due consideration has also been given by me to the very helpful written submissions from both counsel.

From the detailed evidence which I have set out hereabove I have made certain findings of fact.

On 1^st January 1998 Mereseini Nakalevu a girl student aged about 10½ years was brought to Nausori Health Centre (NHC) by her father the plaintiff complaining of abdominal pain and vomiting. The deceased is from a village in Tailevu where medical facilities are not available close by.

Most of what the plaintiff has said in his evidence as outlined hereabove is not in dispute. It is not doubted that it was D1 who first saw the deceased after she was seen by the staff nurse at NHC. D1 said that she did not find any abdominal tenderness or any abdominal swelling. The doctor gave her Oral Rehydration Solution (ORS) and paracetamol; her condition improved slightly in the half hour that she was there initially. D1 diagnosed that she was suffering from ‘Viral Gastroenteritis’.

It is accepted that when the deceased was sent home after half an hour, the plaintiff was told to bring her back if her condition deteriorated. She was brought back on Sunday 4^th January 1998 in a very sick condition and had to be evacuated to CWM Hospital. She was treated there by Dr. Calixto who noted that ‘bloody diarrhoea’ is a typical symptom of Shigellosis but not appendicitis. The Surgical Registrar Dr. Kamlesh Kumar was also of the view that ‘bloody diarrhoea’ led away from a diagnosis of appendicitis and towards a non-surgical treatment. He further indicated that even if appendicitis was diagnosed, the deceased was far too ill to undergo surgery at that time with any prospect of success. It is interesting to note that while the doctors were unable to diagnose what the child was suffering from and were talking of ‘Shigellosis’ and ‘viral gastroenteritis’ the patient died as a result of the rupture of the appendicitis according to the Post Mortem Report. Despite Dr. Lal’s intimation to the doctor at CWMH that he suspected appendicitis on 4 January no attention was paid to this diagnosis. This clearly indicates how far off the beam the doctors at CWMH were in their own diagnosis if there was any (diagnosis).

What was the treatment given?

As is clearly evident from the evidence before the Court that no proper diagnosis was done. Dr. Matairavula did not mince his words when he said that if he had been the treating Doctor for Mereseini he would have certainly carefully and thoroughly examined the child’s abdomen, established the diagnosis and then rushed her for possible treatment. He further told the Court that 90% chances of establishing a diagnosis of Appendicitis is done with the hands. He further said that doctors should always suspect that there is a possibility of Appendicitis with people having the symptoms which Mereseini had. Even the State expert witness Dr. Afolabi said that the prescribing of ‘panadol’ and ‘ORS’ can cause little relief to a patient with Appendicitis.

It is clear that no proper examination as that expected of a doctor was done by Dr. Bingwor. She took the symptoms too lightly. No tests were done on the patient such as blood test, scanning and x-ray etc. One would have thought that a more thorough examination would have been done when her colleague Dr. Lal suspected appendicitis when the patient was brought back on 4 January. Why would Dr. Bingwor not be able to detect same on 1 January? What makes things worse is that with this information on hand, the doctors referred to hereabove, paid no heed to it and prescribe some form of treatment. At CWMH they just waited for the patient’s condition to improve before touching her. This waiting led to the child’s death.

What did the doctors do on 4 January? There is no evidence of any tests having been carried out on the patient. I have already stated hereabove what other doctors said and did. They just waited for her condition to improve without giving any treatment when she eventually died at 5 am on 5 January 1998. The learned counsel for the defendants talks about ‘all tests, x-rays and examinations by doctor and the surgeon were carried out’ but no such evidence has been produced and what the results were of these alleged tests.

The question is, did Dr. Bingwor or any of the other doctors get to the root of the problem and did they do a proper and correct diagnosis? The answer is in the negative. They just hovered around the patient in the periphery but were not able to detect the root cause. Was the problem so complex that no doctor could do anything to save the child who came first to a Divisional Hospital and was taken by ambulance to the Major CWM Hospital with a simple abdominal pain and vomiting? When one looks at the evidence of the expert Dr. Matairavula in his re-examination, one wonders why this has happened if it was not sheer carelessness and negligence. He said that the Consultant Surgeon should be the last person to see a patient for a proper diagnosis and possible surgery. He told the Court on a question raised from the Bench that for experienced hands it will be very easy to pick up on Appendicitis, but with Doctors with little experience, it will be very difficult. He again stressed that much depends upon the feelings. He said that Appendicitis Operations are the most common and simplest in Fiji. He said that a Doctor should be able to diagnose Appendicitis if the pain is there. In the end he said that he has never come across any doctors with experiences of more than ten years ever failing to diagnose Appendicitis.

Contributory Negligence

The learned counsel for the defendants pleaded in the Statement of Defence and submitted that there was contributory negligence on the part of the parents of the child for not bringing her back to Nausori Health Centre any earlier than it was done despite the fact that Dr. Bingwor told the plaintiff to do so if her condition deteriorates.

On the law of contributory negligence counsel referred the court to the following passage from Zaibun Nisha v Basant & Others Civil Action No. 401/93 (1997) where I said:

“In order to establish the defence of contributory negligence, the defendant must prove, first, that the plaintiff failed to take “ordinary care for himself” or, in other words, such care as a reasonable man would take for his own safety, and secondly, that his failure to take care was contributory cause of the accident (Lewis v Denyl) [1939] 1 KB 540). It is in this sense that a plaintiff’s negligence (not a defendant’s) is correctly described as “contributory negligence”. He has been “negligent as regards himself” (Swan v North British Australian Co (1863) 2H & C 175).

The test of contributory negligence is as stated by Lord Parmoor in Grayson v Ellerman Lines Ltd (1920) AC 466 at 477:

“I do not think that the question of contributory negligence depends upon any breach of duty as between the plaintiff and a negligent defendant; it depends entirely on the question whether the plaintiff could reasonably have avoided the consequences of the defendant’s negligence”.

Counsel submits that not having brought her back earlier than 4 January, the plaintiff should bear at least 80% of the blame for the child’s death.

On the facts and circumstances of this case as outlined hereabove, this is a startling proposition. I find that there is no merit whatever in this defence of contributory negligence.

In this case if Dr. Bingwor and other doctors could not even diagnose appendicitis how is this plaintiff who is a simple villager from Tailevu know what the child’s condition was? Dr. Bingwor is the one who sends the child back home without proper diagnosis and when on hindsight Post Mortem reveals rupture of the appendix and that it probably ruptured on 2 January, at least 80% of the blame is now lumbered on this villager. What a preposterous proposition!

Dr. Bingwor was completely negligent in the first place and I find support for this in Dr. Matairavula’s evidence. This doctor’s testimony was clear, to the point emphasizing what a doctor is required to do in a situation such as the one that was presented to Dr. Bingwor. Dr. Bingwor failed dismally in her duty towards her patient. Everyone knows that panadol is meant to give only a temporary relief. The doctor did not find what caused abdominal pain and vomiting which it was her bounden duty to do. None of the other doctors mentioned in this case and who had some hand in this were ever able to establish what the deceased was suffering from or what caused severe abdominal pain and vomiting. A sorry state of affairs indeed.

Conclusion

To sum up, upon a careful analysis of the evidence in this case one can come to no other conclusion than that this was a clear cut case of negligence on the part of the First Defendant Dr. Francis Bingwor. She was the first doctor who attended to the deceased on 1 January 1998. Dr. Lal was more responsible and performed his duty quite well when the deceased was brought to NHC on 4 January by indicating to a doctor at CWM Hospital that the patient was suspected of suffering from appendicitis. Yet the doctors at CWMH did not give any proper treatment. The doctors at CWMH whose names have been mentioned could also be tarred with the same brush as Dr. Bingwor but the degree of blame attaching to them is much less than the first defendant.

It is the relationship of doctor and patient which gives rise to a duty of care and is created when the doctor accepted the patient for treatment or presented herself at the Nausori Health Centre for treatment.

It was the D1’s duty to exercise reasonable skill and care and as Denning L.J said in directing the jury in Hatcher v Black (The Times, July 2, 1954):

“You must not, therefore, find him negligent simply because something happens to go wrong; ....... You should only find him guilty of negligence when he falls short of the standard of a reasonably skilful medical man ....”

Because expert witnesses were called in this case by both sides and because of the nature of evidence which they gave I have borne the following principle in mind from the judgment of Lord Clyde in Hunter v Hanley [1955] ScotCS CSIH_2; (1955 S.C. 200, 204-205) in considering this case.

“But where the conduct of a doctor, or indeed of any professional man, is concerned, the circumstances are not so precise and clear cut as in the normal case [of negligence]. In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care....”

Also it is actually “the Bolam test” which sets the standard of care required of medical practitioners.

This doctor had about ten years’ experience and it cannot be said that she was inexperienced in diagnosing a patient’s disease. In Djemal v Bexley Health Authority [1995] 6 Med. L.R. 269 it was held:

“that the standard of care required in diagnosing the condition of a patient presenting in a hospital accident and emergency department was that of a reasonably competent senior houseman acting as a casualty officer, without any reference to the length of his experience. A doctor with four months’ experience in that post was found negligent in failing to elicit a proper history from a patient suffering epiglottitis. As a result, he wrongly diagnosed a viral throat infection and discharged patient. The patient’s condition deteriorated and he suffered brain damage”. (Jackson & Powell on Professional Negligence 4^th Ed. p.617-8, 6-38)

In this case in considering whether there was negligence on the part of the first defendant I have considered the expert evidence of Doctors Matairavula and Afolabi along with all the other evidence. In addition to that in the light of the authorities as stated by Lord Browne-Wilkinson in Bolitho v City and Hackney Health Authority [1997] UKHL 46; [1997] 3 W.L.R. 1151 at 1161 (H.L.)

‘in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence ..... In my judgment that is because, in some cases, it cannot be demonstrated to the judge’s satisfaction that the body of opinion relied upon is reasonable or responsible ......’

On the evidence, for these reasons I find that the First Defendant Dr. Francis Bingwor was negligent in the performance of her duty as a doctor towards the deceased Mereseini Nakalevu who was her patient at the Nausori Health Centre. As a result of not being able to properly diagnose the deceased’s illness death eventually resulted in the circumstances already stated in great detail hereabove. Consequently, due to this negligence liability has been established against the First Defendant with the other two defendants being vicariously liable to pay damages as claimed by the plaintiff.

I therefore enter judgment against the defendants and will now proceed to assess damages.

Damages

The plaintiff claims against the defendants special and general damages under the various heads as follows: Pain and suffering, loss of amenities and enjoyment of life, loss of expectation of life, loss of consortium, exemplary damages, Compensation to Relatives, Bereavement, expectation of pecuniary benefit, loss of earnings, shock for loss of the deceased, special damages, interests and costs.

I have before me for my consideration the written submissions on assessment of damages herein.

It is clear that the plaintiff is suing the defendants in his capacity as the administrator of the deceased’s estate for the benefit of the estate and also for the benefit of himself and the beneficiaries of the estate. Hence the claim is under the Law Reform (Miscellaneous Provisions) (Death & Interest) Act Cap. 27 and Compensation to Relatives Act Cap. 29.

(i) General damages

Pain and suffering

In this case the plaintiff is entitled to claim for pain and suffering under the head of general damages. Had the death been instantaneous like in an accident or within a very short time there would not have been any such entitlement. But here the deceased came to Nausori Health Centre on 2 January and died on 5 January which was not such a short a time to debar the plaintiff from claiming under this head.

The facts in the case of The Medical Superintendent and Attorney-General of Fiji and Abdul Hafeez Ismail (Civil Appeal No. 50.2000S FCA) were somewhat similar, the case being one of medical negligence as well and liability was established, and the patient died within 3 days of admission to hospital; an award of $2500.00 was made by Court of Appeal on appeal to it. While doing so the Court said:

‘We fix the amount at $2500, but stress that as in all cases this assessment relates to the particular circumstances of the case. Awards such as these are not capable of mathematical analysis, and are not to be made by applying some hourly or daily rate following a comparison with other cases. It is the particular end result which is important.’

The situation in the case before me is not dissimilar to the one in Ismail (supra). I therefore make a similar award of $2500.00.

(ii) Special damages
Funeral expenses

On the claim for ‘funeral expenses’ I have dealt with this aspect in my judgments in Rupeni Navunisaravi v Pradeep Kumar and Raja Ram (40 FLR 58 at 65-66, 1994) and in Bibi Nanson d/o Mohammed Hussein v Ramesh Chand & Dateline Truckers Limited (C.A. No. 40/96 – judgment 31.10.02).

For ease of reference, I repeat hereunder what I said in those cases and I still hold the same views as I stated there.

Although there is no definition of ‘funeral expenses’ in Cap. 29 it provides in s.11 that “damages may be awarded in respect of the funeral expenses of the deceased person if such expenses have been incurred by the parties for whose benefit the action is brought”.

It would appear therefore that the test of reasonableness would apply.

Some indication of what the word “funeral” is usually taken to comprehend has been stated by Mayo J. in Public Trustee v Bednarezyk (1959) SASR 178 at 180 (quoting from book by Luntz on Assessment of Damages 3^rd Ed. p.439) as follows:-

“The word ‘funeral’ is usually taken to comprehend the disposal of human remain including accompanying rites and ceremonies, that is to say, the procedure of, and appertaining to burial or cremation, in the course of which the body is prepared for burial and conveyed by cortege to the necropolis. Such initial stages as acquisition of burial plot, public notice, obtaining a certificate of death, permission to cremate or bury, will form part of the procedure and the cost will be funeral expenses”.

According to custom there are certain expenses, such as in this case, for the “reguregu” that one cannot avoid and it certainly is part of the expenses relating to the funeral of the deceased. In the Fiji context, bearing in mind the traditional Fijian ceremony associated with the funeral I will allow a reasonable sum under this head. In Kesi Ganikeli Liva v Mahendra Pal Chaudhary (Supreme Court C.A. 391/79) the then Chief Registrar (now Scott J) awarded the sum of $1500 for funeral expenses; and in Shiu Shankar s/o Madhwan & Anor (Sup. Ct. Ltk. Ca.A. 31/74) Dyke J stated that “religious rites following the death of a Hindu person are reasonable and the claim under this head is allowed”.

I have noted Mr. Udit’s comments on this item opposing the claim for $3000.00 and he suggests $1500.00. No doubt $1500.00 has been awarded in the past like in the two abovementioned cases. It is about ten years ago that that award was made. We are all familiar with the customs of the various races in Fiji and in the context of funerals there are certain expectations and obligations which have to be fulfilled. It is only right that reasonable expenses ought to be allowed without requiring the plaintiff to produce receipts and proof of each item of expenditure as is required for the purposes of proving special damages.

In this case on the facts of this case for the reasons I have given the sum of $3000.00 is reasonable for funeral expenses and I award this sum.

(iii) Other special damages

I allow the plaintiff’s claim for other special damages being $100.00 in taxi fares, $20 for food and $30.00 for medicine a total of $150.00 as these sums were rightfully incurred.

Damages under Law Reform
(Miscellaneous Provisions)(Death and Interest) Act Cap.27

For a claim under Cap. 27 different considerations apply as for Compensation to Relatives Act Cap. 29.

In considering damages under this head, the following extract from the judgment of Lord Morris in Yorkshire Electricity Board v Naylor (1967) 2 All E.R. at 6 is apt:

“Though it is said that his death was instantaneous, the appellants have not sought to dispute that a valid cause of action vested in him. By reason of the provisions of the Law Reform (Miscellaneous Provisions) Act, 1934, that cause of action survived for the benefit of his estate. The judge had to decide what sum of damages should reasonably be awarded in respect of the deceased’s cause of action. He lost what is usually called his expectation of life. The loss was something personal to himself. No one knows what life would in fact have held for him had he lived. No one will ever know. No one could ever know the changes. The chances and vicissitudes of life are in the future. He will not know them. No surmise can with any measure of confidence be made whether by his untimely death he was denied happiness or was spared unhappiness. The task of “equating incommensurables” is one that can never be satisfactorily achieved.”

The award under this head is solely in regard to loss of expectation of life and is limited to a moderate sum in Fiji. In Subamma v Chandar (C.A. 373/79), Fero Tabakisuva v Sant Kumar & Eroni Tokailagi (C.A. 465/80) and Daya Ram v Peni Cara & Others (Civ. App. 59/82 FCA) the sum of $1250 was awarded.

The Act provides that every such action shall be for the benefit of the wife, husband, parent and child of the person whose death has been so caused (section 4). The word “parent” has been defined under the Act to include father and mother. Here the action has been commenced by the Plaintiff as Administrator of the Estate and on behalf of himself as the father.

In Hari Pratap v Attorney General of Fiji (Civil Appeal No. 14/92 F.C.A.) the Court of Appeal set the conventional sum for loss of expectations of life at $2500. This sum was upheld on 18.10.01 by the Court of Appeal in The Medical Superintendent & Attorney General of Fiji and Abdul Hafeez Ismail (Civil Appeal No. 50/2000S). There the Court went to say at p4 of the judgment that applying the principle established in Davies v Powell Duffryn Associated Collieries Ltd [1942] A.C. 601, this was the benefit accruing to the dependants of the deceased and must therefore be deducted from the Cap. 29 award.

Therefore in line with awards by the Courts, I award the sum of $2500.00 under this head for loss of expectation of life AND as stated by Court of Appeal this sum will have to be deducted from Cap. 29 award.

Compensation to Relatives Act, Cap. 29

Although counsel for the defendant says that no claim is payable under the Act, I hold that it is a rightful claim.

The right of action under the Compensation to Relatives Act (Cap. 29) confers on the near relative a right which is an independent right and not a continuation of the cause of action vested in the deceased.

An action is maintainable as provided for under section 3 of the Act which reads as follows:-

“Where the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person or persons or body of persons, incorporated or unincorporated, who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured, and although the death was caused under such circumstances as to amount in law to a crime.”

Under s4 of the Act (Cap. 29) the Plaintiff is entitled to the claim as a dependant for himself (as father).

The action is based upon financial loss or loss of support and nothing else, it gives no solatium for mental distress (Blake v Midland Rly Co [1852] EngR 10; (1852) 18 Q.B. 93).

Nothing can be given by way of solatium for the injured feelings of the relatives and all that can be dealt with or assessed is pecuniary loss. It has been held by the Supreme Court in Mc Carthy v Palmer (1957) NZLR 442 (as stated in the headnote) that:

“A Claim under the Deaths by Accident Compensation Act 1952, on behalf of the widow and children as the result of the death of the husband and father, for damages in respect of the loss of the society, care, guidance and affection of the husband and father respectively discloses no cause of action under the statute, since damages are recoverable thereunder by members of the family only to the extent of the loss of presumed advantage by the persons for whose benefit the action is brought.”

Loss of support is an essential element of the cause of action. A total dependence is not necessary, and partial dependence, even if it is of a slight and uncertain kind, will be sufficient to sustain an action.

It is not necessary for the Plaintiff to prove that he had a right to support by the deceased: what he must establish is, ‘a reasonable expectation of pecuniary benefit, as of right or otherwise, from the continuance of the life’ (Franklin v South Eastern Rly Co [1858] EngR 669; (1858) 3 H&N 211).

Under the Act (Cap. 29) I have to decide the amount of dependency of the parent in the case of the deceased and then a suitable multiple has to be determined.

The case before me is one concerning an 11 year old child in the village attending school away from home in an outlying Island and coming home in school holidays. She helped in household work and assisted in farm work in holidays. The evidence is that apart from her parents she has two younger sisters and a brother. No doubt when she grew up and started earning money she would naturally help her parents and look after her younger sisters and brother for a while. At certain age she would have married and her support of parents would diminish.

I have submissions from both counsel under this head. Mr. Veretawatini refers to Ismail’s case (supra) and claims $50,000. He forgets that the facts are different there and that is not a case involving an infant. On the facts Mr. Udit says that no award should be made under this head, but if an award is made it should be minimal.

In Barnett v Cohen & Others [1921] 2 KB 461, the deceased was four years of age. There McCardie J. said at 469 that:

“the plaintiff’s claim to damages must rest in substance upon his anticipation of the future services and help or the pecuniary aid in the future of the son, who at four years of age is now dead.”

He further said that nothing can be given by way of solatium for the injured feelings of the relatives and all that can be dealt with or assessed is pecuniary loss. Claims for emotional loss, loss of friendship and companionship and loss of pride in deceased’s accomplishments cannot be taken into account nor allowable in assessing damages. It has been so held by the Supreme Court in McCarthy v Palmer (1957) NZLR 442 where in the headnote it is stated:

“A claim under the Deaths by Accidents Compensation Act 1952, on behalf of the widow and children as the result of the death of the husband and father, for damages in respect of the loss of the society, care, guidance and affection of the husband and father respectively, discloses no cause of action under the statute, since damages are recoverable thereunder by members of the family only to the extent of the loss of presumed advantage by the persons for whose benefit the action is brought.”

It has been the practice of the Courts to grant a very minimal sum as damages where deceaseds are infants of tender age and are not in any employment.

The case of Buckland v Guilford Gas Light and Coke Co [1949] 1 KB 410 involved the deceased, a girl aged 13. She was a bright intelligent girl competent to look after a younger child aged eight. There Morris J in awarding the sum of £200 taking the Law Reform into account) observed:

“She assisted her parents in the home and it was anticipated that her gifts would later have enabled her to contribute financially as well as by services to the household. The extent to which she could and would have done so must be considered with due regard to all the chances and changes that might have affected her and also her parents.”

In Ellis v Ocean Steamship Co Ltd (1958) 1 Lloyd’s Rep. 471 in the case of the deceased aged 17 years when killed, the sum of ₤108 was awarded on a multiplier of 3.

In Wahen v Vernon (1970) RTR 471 the sum of ₤500 was awarded in the case of the deceased who was 17½ years of age at the date of his death and who earned ₤6.50 per week as an apprentice.

In an unauthenticated award referred to in Kemp & Kemp Vol 3 M6 – 076 in Spitalali v Washbourne (1975) Richards J awarded the sum of ₤800 in the case of the deceased aged 14. In the report to that case (supra) it is stated thus about the deceased:-

“Came from Sicilian family consisting of his parents, who were now both aged 49, himself and three sisters (one of whom had now married). Happy and healthy boy. Had done well at school and likely that, when he completed his education, he would have achieved standard which would have enabled him to obtain job of considerably higher status than that done by his father, who was a machine cleaner. If he had lived and once he had done to work, he could well have contributed towards cost of family visits to Sicily. Would probably have supported parents if they fell on bad times due to failure to obtain work or ill health, as was the custom in Sicilian families.”

In the case of a youth aged 18 years unmarried and unemployed Dyke J. awarded $1250.00 (Gauri Shankar v Modern Land Development Co Ltd (High Court [Western Division] C.A. 335/83).

In Gammell v Wilson (1981) 1 All ER 578 at 588, Lord Edmund Davies states that assessment of damages for the lost years “is at best speculative, usually pure guesswork, and where there is any basis for making a calculation such a basis is usually unreal”.

In the case of an infant as in this case it becomes difficult to make an assessment; one can only rely on prospective loss. Here the deceased did assist her father on the farm and would have continued to assist him had she lived.

The case that is very close to this case is that of Krishna Tandraiya v Dharam Singh (Civil Appeal 17/78 FCA) where a 10 year old boy died in an accident and no order was made under Cap 29 and the plaintiff appealed. An award of $1500 was made. There is a very useful discussion of that subject in the judgment of Henry J A in Tandraiya (supra).

Further on this aspect of claim under Cap.29 I refer to my judgment in Paras Ram v Ivamere Hotchin & Anor Labasa C.A. 6/91 (1995) where I discussed extensively the principles involved in considering an award.

In the present action, doing the best I can bearing in mind the principles to be applied in cases of this nature I am satisfied that the plaintiff had a reasonable expectation of pecuniary benefit. There is paucity of cases to fall back on in assessing damages in the case of minors and as McCardie J said in Barnett v Cohen (supra) “the whole matter is beset with doubts, contingencies, and uncertainties; however, I consider that I ought to assess and make an award which in my considered view would be reasonable in the circumstances of this case.”

On the facts and circumstances of this case I award the sum of $26,000.00 under this head.

Exemplary damages

I have given anxious consideration to the claim for exemplary damages. If one is granted it may sound as being for punishment and not for compensation. If an award is made then it is my view that it is appropriate that it should not be regarded as punishment but rather a form of compensation for loss of the child in the circumstances of the case due to negligence. The damages awarded and to which the plaintiff is entitled to in a fatal accident case are nominal for the reason particularly because a very young child is involved. In my view in medical negligence cases an award of exemplary damages should be awarded in an appropriate case.

Lord Devlin’s statement in Rookes v Barnard [1964] UKHL 1; [1964] A.C. 1129 in stating various considerations to be borne in mind whenever exemplary damages are in issue, gave as one of them that exemplary damages cannot be recovered by a plaintiff unless he is the victim of the punishable behaviour.

In Rookes case the House of Lords held that except in a few exceptional cases it is no longer permissible to award exemplary damages against a defendant, however outrageous his conduct (McGregor on Damages 16^th Ed. para 432). McGregor goes on to say that:

‘in addition to these two exclusions from the exemplary net it is clear that awards of exemplary damages will not be available in negligence, however gross, or public nuisance (A.B. v South West Water Services 1993 Q.B. 507 C.A.) and certainly not for breach of contract where the writ of exemplary damages has never been allowed to run.’ (emphasis added)

Much as one is inclined towards making an award of exemplary damages in this case, the authorities do not allow me to do so.

Hence there will not be any award under this head.

Interest

The learned counsel for the plaintiff claims interest. He has not pleaded it and hence it cannot be awarded [Attorney-General v Waisele Naicegulevu (Civil Appeal No. 22/89, F.C.A); Tacirua Transport Company Limited v Virend Chand (Civil Appeal No. 33/94), and Alusio Diano v Attorney-General C.A. No. 515/96).

Costs

This case could easily have been settled out of court looking at all the facts and circumstances of the case. The hearing was lengthy and the whole of the evidence had to be recorded and witnesses were called to testify.

In this case I would make a special order other than an order for indemnity costs. The learned counsel for the defendant is claiming $5000.00 which I allow. On question of costs I will conclude with the following statement of Gates J in his recent very comprehensive and helpful Ruling on Costs in Frank R Eggers Junior v Blue Shield (Pacific) Insurance Ltd (C.A. 94 of 97L – 11 March 2003):

“On balance, I believe a special order other than an indemnity costs award, will suffice here to compensate the plaintiff. For him, being an individual not a corporation, proceedings of this nature “necessarily involve inconvenience and frequently involve anxiety and distress. These are not taken into account when assessing costs on the normal basis”. Petrograde Inc v Texaco Ltd [2001] 4 All ER 853 at p 856 per Lord Woolf M.R.

Order

The following is a summary of orders and awards that I have made:

(a) General damages $

(pain and suffering) 2500.00

(b) Special damages

(funeral and other expenses) 3150.00

(c) Damages under Law Reform

(Misc. Provisions) (Death & Interest)

Act Cap. 27 2500.00

This sum is to be deducted from

Cap. 29 award

(d) Damages under Compensation to

Relatives Act Cap. 29 26,000

($26,000.00 less $2500.00) 23500.00

(e) Exemplary damages claimed is

nil as no entitlement NIL

(f) Interest – not pleaded NIL

(g) Costs 5000.00

________

34150.00

________

The total award therefore with costs is $34,150.00

There will therefore be judgment for the plaintiff in the sum of $34,150.00 against the defendants.

D. Pathik
Judge

At Suva
4 April 2003