Chandra v Prasad [2005] FJHC 505; HBC0192.1998L (2 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL APPEAL NO. HBC0192 OF 1998L

BETWEEN:

RAMESH CHANDRA
f/n Raj Gir
Plaintiff

AND:

ISHWAR PRASAD
f/n Rameshwar Prasad
Defendant

Counsel: Ms. P. Watkins for the plaintiff
Mr. G.P. Shankar for the defendant

Date of Hearing: 15 August 2005
Date of Judgment: 2 September 2005

JUDGMENT

The plaintiff brings his action by Writ of Summons filed on the 22^nd May 1998 for damages sustained when he was assaulted by the defendant on the 29^th May 1995.

By consent the plaintiff prior to the commencement of the trial amended the statement of claim to plead the defendant’s conviction on the 1^st March 1999 at the Tavua Magistrate Court for the offence of act with intent to cause grievous harm. This conviction related to the incident, the subject of these proceedings.

The plaintiff gave evidence of having been attacked on the 29^th May 1995 whilst putting up barrier to stop illegal access to his property. He was assaulted by the defendant. He said that the defendant entered onto his property and attacked him with a knife. He said he had previously been threatened and there were apparently other proceedings between the parties with respect to the access across the plaintiff’s land, which proceedings were resolved in favour of the plaintiff.

The assault upon the plaintiff by the defendant resulted in him being struck with the knife to his left hand and slicing that hand down from the little finger. The resulting scuffle involved the plaintiff and defendant ending up on the ground and the plaintiff suffered further knife wounds to his thigh.

The plaintiff was hospitalized at Lautoka Hospital and as a result of medical advice had a subsequent operation on his little finger to create some flexion. The medical advice tendered was that the finger had to be amputated or else have further surgery to facilitate some flexion. Following the incident, the left little finger was permanently erect. Following the subsequent operation, the finger has some flexion however to maintain this flexion, the plaintiff says he is required to exercise the finger twice a day and use tensioning devices. He was hospitalized from the 19^th June to 24^th June at Lautoka Hospital and had his arm, wrist and hand immobilized for a period of 2 weeks.

He says that as a result of the injury to his finger his inability to grab things with his left hand due to the little finger being not bending properly. He further says that he is unable to lift heavy objects and his occupation as a school teacher, he was somewhat embarrassed when he initially returned to work in his disabled state. There is pain from time to time.

The medical prognosis would appear to be that the existing limited flexion in the finger is permanent.

Further evidence was given on behalf of the plaintiff by Nirbhay Chandra who was present with the plaintiff at the time the assault took place. He intervened as a result of which, he also sustained injuries not the subject of these proceedings.

The defendant did not call any evidence either with respect to liability or damages.

In view of the provisions of section 17 of the Civil Evidence Act and the tender to the court of the earlier court proceedings recording the conviction of the defendant for the offence of act with intent to cause grievous harm as a result of the incident the subject of the proceedings, the shifting of the legal burden to the defendant has not been discharged and accordingly, I find for the plaintiff with respect to liability.

The plaintiff’s disabilities are as described above. The special damages are admitted as pleaded in the sum of $212.00. The counsel for the plaintiff submits in reliance of Nazrul Nisha v Eastern Apparels Company Limited – Civil Action No. 209 of 1997 that the appropriate quantum of general damages is $15,000.00 and that this should be apportioned as to 60% of the past and 40% of the future.

Counsel for the Defendant makes no submission with respect to quantum and in the circumstances, I consider that an award of $15,000.00 for the injuries sustained and the residual scarring and disability is appropriate.

The plaintiff claims interest in accordance with the principles of Jefford v Gee as applied in this country by Attorney General of Fiji v Charles Valentine – Civil Appeal No. ABU 0019 of 1998. An interest rate of 6% would appear appropriate.

Schedule of Damages

General Damages:

Past .. .. .. .. .. .. .. $ 9,000.00

Interest on past general damages from .. .. .. $ 5,400.00

29/5/95 to date @ 6%

Future .. .. .. .. .. .. .. .. $ 6,000.00

Special Damages .. .. .. .. .. .. $ 212.00

Interest on Special Damages @ 3% .. .. .. .. $ 63.60

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TOTAL .. .. .. .. .. .. $20,675.60

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Orders of the Court

1. Verdict and judgment for the Plaintiff in the sum of Twenty Thousand, Six Hundred Seventy-Five Dollars and Sixty Cents ($20,675.60).
   
2. Defendant to pay the plaintiff’s costs assessed in the sum of One Thousand and Five Hundred Dollars ($1,500.00).
   

John Connors

JUDGE

At Lautoka

2 September 2005