Sahay v Reddy [2004] FJHC 513; HBC0189.2003L (8 December 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0189 OF 2003L

BETWEEN:

SAMUEL SHALENDRA SAHAY
f/n Shiu Sahay
Plaintiff

AND:

MANJU REDDY
1st Defendant

AND:

RAJEN MURTI REDDY
f/n Ram Murti Reddy
2nd Defendant

Counsel:
Mr. R. Chaudhary for the plaintiff
No Appearance for the defendants

Hearing: 8 November 2004
Judgment: 8 December 2004

JUDGMENT

Judgment having been entered against the defendants on the 25^th June 2003, the matter comes before the court for assessment of damages.

Background

The plaintiff was born on the 27^th November 1966 and on the 25^th August 2002, he was driving motor vehicle registered number CB 107 when motor vehicle registered number CY 749 being driven by the 2^nd defendant and being owned by the 1^st defendant came into collision with the plaintiff’s vehicle.

As a result of the accident and the injuries sustained by the plaintiff, he was unconscious and was admitted to the Lautoka Hospital.

The accident occurred at about 6.45pm and the plaintiff did not regain consciousness until after midnight. The plaintiff remained in hospital for a total of 16 days.

At the time of the accident, the plaintiff was a self-employed motor mechanic.

The Injuries

The plaintiff suffered:

1. Abrasion over the abdomen and legs.

2. Fractured right femur - a comminuted fracture

2. Multiple laceration over the abdomen.

3. Fractured right ulna.

4. Contusion to the right elbow.

These injuries were treated by:

1. Wound cleansing and dressing.

2. Internal fixation of the femoral fracture with a K-rod.

3. External fixation of the right forearm.

4. Active Physiotherapy.
5. Pain relieving medication.
   

The plaintiff was treated at Lautoka Hospital by Dr. Viliame Taoi who again examined the plaintiff on the morning of the 9^th November 2004. At that time, the doctor evidenced that the plaintiff had pain in his right leg and that leg was in fact 2cm shorter and that there was an angulation of the right femur, which was affecting his right hip and back. This required him to compensate by putting weight on his good leg.

The doctor gave evidence that the pain in the leg, elbows and hip would be permanent or if not, then for indeed for a long time and that these injuries would most certainly affect his performance at work. The doctor by reference to X-ray reports also gave evidence that the right femur was broken into 3 pieces in the upper third. He also said that the scars to the right arm above the elbow are permanent. These scars were evidenced by the court and are indeed significant.

The plaintiff walks with the aid of a crutch.

Economic Loss

The plaintiff was at the time of the accident as a self employed motor mechanic, carrying out work at his home and visiting clients’ premises or vehicle break downs from time to time. In his evidence he said that he was at that time earning $150.00 net per week. This was in part confirmed by evidence of one of his clients that he in fact was paying him $100.00 per week for the maintenance of his 5 vans prior to the accident.

As a result of the accident, he was unable to work for a period of 14 months during which time, he received no income and was supported by his church, clients and friends. He says that after 14 months he commenced doing small jobs and that he is still doing light work but only with the assistance given by vehicle owners as he is unable to carry out the vehicle repairs in the manner that he was prior to the accident.

He says he suffers continually from pain.

Other clients gave evidence to the court as to the vehicles maintained by the plaintiff prior to the accident and of his inability to carryout all maintenance work now as a result of the injuries he has sustained and the disabilities that he has suffered as a result of those injuries.

Damages

The pain and suffering as experienced by the plaintiff is indeed significant. His appearance in court display a significant presence of pain at this time. The report of Dr. Taoi confirms the presence of pain and the fact that such is to be expected both now and in the future.

The prognosis for the plaintiff is not good so far as his disabilities and pain are concerned.

Taking into consideration the decision of the Fiji Court of Appeal and the Fiji Supreme Court in Peter Douglas Elsworth v Yanuca Island Limited – Civil Appeal No. CBV0008 of 2002S and doing the best I can, I think it is appropriate to allow a total of $25,000.00 by way of a general damages for pain and suffering. I divide this amount as to $15,000.00 for the past and $10,000.00 for the future.

The past amount by way of general damages will by virtue of Attorney General of Fiji v Charles Valentine – Civil Appeal No. ABU0019 of 1998S attract interest at the rate of 6% from the date of issue of the writ to the date of judgment.

It is indeed very difficult to determine the future loss of earning capacity of the plaintiff. He says that he is now earning about $40.00 to $50.00 per week, which is a loss of at least $100.00 per week net. There is nothing to suggest that his loss will diminution in the future. On behalf of the plaintiff, the sum of Twenty Five Thousand ($25,000.00) is claimed and doing the best I can, I think this amount is reasonable.

The defendant incurred costs for transport for treatment and for medicines in the past and this amount to be allowed as claimed together with the interest at the rate of 3% from the date of accident to the date of judgment in accordance with Attorney General of Fiji v Charles Valentine.

The plaintiff claims a loss of income for 14 months at the rate of $150.00 per week and this amount will attract interest again in accordance with Attorney General of Fiji v Charles Valentine at the rate of 3% from the date of accident to the date of judgment.

Conclusion

Pain and Suffering – past - $15,000.00

Interest @ 6% from 4/6/03 to 8/12/04 - $ 1,350.00

Pain and Suffering – future - $ 10,000.00

Loss of Earning Capacity - $25,000.00

Special Damages

Transport - $ 110.00

Medicines - $ 30.00

Lost of Income for 14 months at $150/week - $ 8,400.00

Interest on special damages @ 3% from

25/8/02 to 8/12/04 - $ 342.00

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TOTAL = $60,232.00

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Orders

1. Judgment for the plaintiff in the sum of Sixty Thousand, Two Hundred and Thirty Two Dollars ($60,232.00).
   
2. Defendants to pay the plaintiff’s costs assessed in the sum of One Thousand Five Hundred Dollars ($1,500.00).
   

JOHN CONNORS

JUDGE

At Lautoka

8 December 2004