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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
ACTION NO. HBC0134 OF 1995
BETWEEN:
SATISH CHAND
PLAINTIFF
AND:
PADARATH BROS. & SONS. LTD.
1ST DEFENDANT
AND:
SALENDRA NAIR
2ND DEFENDANT
AND:
NEW INDIA ASSURANCE COMPANY LTD
3RD DEFENDANT
Counsel for the Plaintiff: Pillay Naidu & Associates
City Agents: S.B. Patel & Co.
Counsel for the Defendant: Messrs. Sherani & Co.
City Agents: Young & Associates
Dates of Hearing: 14 June, 27 June, 14 July 2005
Dates of Submissions: 4 August, 18 August, 25 August 2005
Date of Judgment: 29 September 2005
JUDGMENT OF FINNIGAN J.
This action for personal injury by motor accident was commenced on 12 May 1995. The Plaintiff who still suffers serious consequences from his injuries had a good recall of events. The defendants called no evidence.
On 14 March 1993 a vehicle driven by the 2nd defendant collided with one driven by the plaintiff. It was an agreed fact that as a consequence the 2nd defendant was charged with dangerous driving and upon his plea of guilty was convicted. It was also agreed that the vehicle he was driving belonged to the 1st defendant. It was not agreed that the 2nd defendant at the time was the agent of the 1st defendant and in the course of his employment.
About the accident itself evidence was given by the plaintiff and a passenger who had been sitting beside him. They gave no evidence that associated the 1st and 3rd defendants with this accident. The 2nd defendant did not appear or give evidence. There is only the admission that the 2nd defendant’s vehicle was owned by the 1st defendant and the admission that the 2nd defendant was convicted as a result of this accident. There is no evidence at all that the 2nd defendant was driving as an agent of the 1st defendant whether in the course of his employment or otherwise. There is no evidence of any connection between this accident and the 3rd defendant. I cannot give judgment against either the 1st defendant or the 3rd defendant. Whether the 3rd defendant is liable to indemnify the 2nd defendant is outside the scope of this proceeding. I accept in full the submissions of Counsel for the defendants about liability.
The Facts - Liability
It is not necessary to recite the facts at length. I am satisfied by the evidence of the two above witnesses that the 2nd defendant drove the 1st defendants’ vehicle and overtook another vehicle and collided with the plaintiff’s vehicle which was coming towards him. His plea of guilty to a dangerous driving charge only confirms what the facts themselves reveal. He drove negligently and caused the plaintiff’s injuries. I give judgment in liability for the plaintiff against the 2nd defendant.
Quantum of Damages
Evidence about this aspect was given by the Plaintiff himself, his wife and Dr. Joeli Mareko a Consultant Orthopaedic Surgeon. Dr. Mareko’s evidence is best summarised by his own report (Exhibit P1):
“MEDICAL REPORT
RE: SATISH CHAND f/n Bhola Nath
History:
Involved in a motor-vehicle accident on 14.3.93. He was a driver of a van which collided with a on coming truck.
Injury:
He sustained injuries as follows:-
Treatment:
He was given emergency blood transfusion, intravenous antibiotics, analgesis and femoral fracture was initially fixed with screws and plate. He was put in a unilateral hip spica cast and discharged on 30.4.93.
He was seen at Lautoka Hospital on 11/4/01 and he was found to have the following disabilities –
He is awarded a disability of 25% for his injuries.”
Dr. Mareko’s evidence is that the term “Positive Galleazzi sign” means a shortening of the limb. The Plaintiff and his wife gave evidence of the effects of these injuries on him. I cannot be more concise than counsel for the Plaintiff in his submission which I now wet out.
The Plaintiff was 33 years old at the time of the accident, therefore a relatively young man at that time. He has not been able to enjoy the best years of his life. He was trapped inside his vehicle at the time of the accident. His right leg was broken and blood was gushing from his injured leg. Initially the Plaintiff remained conscious despite experiencing extreme pain. When he was finally freed from his vehicle and taken to the hospital, he was told that his thigh bone was broken in 3 places at one place a piece of his thigh bone was sticking out his skin. His knee was also severely damaged and iron rod and screws had to be fixed into it.
His shin bone was also broken and had to be put in a cement case. He lost a lot of blood which had to be replaced at the hospital.
He was initially taken from the site of the accident to the Nadi Hospital and then moved to Lautoka Hospital. During his trip to the Lautoka Hospital he fainted due to the extreme pain.
He was at the Lautoka Hospital for 3 months after which he was discharged though he continued to go to Lautoka Hospital fortnightly for several months. Thereafter he went to Sigatoka Hospital for check ups and continues to do so.
While he was at Lautoka Hospital, the Plaintiff was given a blood transfusion. The lower part of his right limb was put in a cast. He was operated on and iron rods and screws were fitted into his right leg.
When the Plaintiff left Lautoka Hospital and went home, he found that he could not walk properly and had to use a walking stick for one and half years. His right leg had shortened by 3 – 4 inches and the range of movement in his right knee had been severely reduced.
He also experienced a lot of pain in his leg particularly in the spot where the stitches had been replaced. The pain has never completely gone away though it is sometimes more severe than at other times. It is particularly more painful in the cold. The Plaintiff continues to take painkillers such as panadol and endocil for pain.
Since his release from the Hospital, the Plaintiff has found that he cannot do a lot of things that he used to be able to do before
the accident. Before the accident the Plaintiff could drive a taxi, swim, exercise, play soccer, walk and run. He has been unable
to do these things since the accident. As a result of this his lifestyle has also changed. Due to the lack of exercise he has probably
become a diabetic and has heart disease. He has to take metroform and downhill medication daily.
He has been taking medication for diabetes for 8 years now and for heart disease for 5 years.
When the Plaintiff first came home from hospital, he had to be helped to shower, dress, go to the toilet and even eat.
The Plaintiff has a wife and two sons. At the time of the accident one of his sons was 8 years old and the other 5½. The Plaintiff and his wife have told the court that since the Plaintiff’s accident they have had difficulty with consortium due to the Plaintiff’s injuries and the pain he is suffering, they have had sexual relations with each other less frequently.
The Plaintiff has told the Court that he had to rely on others to provide for his wife and children and has had to take loans in order to send his children to school. This has resulted in a loss of self-esteem and depression and the Plaintiff is now more irritable person than before.
The Plaintiff’s injuries have also reduced his ability to participate in his community. Prior to the accident he used to be part of his village’s cultural group – the Ramayan Mandali which is an important part of rural Indian life. He also used to attend funerals and weddings. He used to play soccer for his village team. Inability to be effectively a part of his community has affected his standing in his community and also his self-esteem.
Before the accident, the Plaintiff used to drive a taxi for a living, used to share farm and drive a tractor during the crushing season. He also used to grow vegetables and kept chickens and goats.
Quantum of Damages
Counsel for the Defendants submitted that the Plaintiff did not properly prove any loss of earnings or any others of the special damages that he claimed. That is a reasonable submission. The long passage of time has doubtless reduced the Plaintiff’s ability to produce receipts etc. so his evidence was little more than a repetition of his claims without proof. I cannot award him special damages but can take account of what he did say in evidence and will make allowance for these expenses in the award of damages. It is not his fault that his claim was so long delayed.
It was Defence Counsels’ submission that “$25,000 for pain and suffering should suffice”. He said no more.
Plaintiff’s Counsel made the following submission and provided full copies of four of the judgments upon which he relies.
In Anitra Kumar Singh v Rentokil Laboratories Limited
(Unreported Fiji Court of Appeal, Civil Appeal No. 0073.1991), the Fiji Court of Appeal made an award in the sum of $60,000.00 for
pain and suffering and loss of amenities of life to a 39 year old who suffered multiple fractures including a broken jaw.
In Alak Ram v Earnest Patterson High Court of Fiji, Civil Action No. 210 of 1997 Scott J awarded $45,000.00 for pain and suffering and loss of amenities of life where the Plaintiff had suffered several fractures in both his legs.
In RajeshKumar v Kamlesh Ramesh Parmar & Anor (unreported Suva High Court Action No. 350 of 1996), Pathik J awarded a man aged 32 years old a sum of $45,000.00 under his category.
In Govind Sami v Karl Francis O’Brian & Seru Serevi HBC0349 of 1997L (Judgment delivered on 31st March 2000) awarded a 62 year old man $45,000.00 for similar but much less sever injuries.
In Subarmani Reddy v A.K. Naicker & Sons Ltd & Ors Action No. HBC0298.1994L (Judgment delivered on 31st March, 2000), Justice Gates awarded the Plaintiff who at the time of the judgment was 70 years $65,000.00 under the head.
Byrne J seems to have raised the bar by awarding $70,000.00 under the head of general damages for dissimilar but less serious injuries in Serenia Naqiri v Eremasi Tuikubulau & Anor Action No. HBC0384 of 2001 Lautoka High Court.
In Jone Maka & AG v Edward Michael Broadbridge (unreported Fiji Court of Appeal No. ABU0063 of 2001 Suva), the Court of Appeal deemed an award of pain, suffering and loss of amenities of life in the sum of $60,000.00 to be appropriate. The Respondent had suffered closed fracture of right ulna (forearm bone), fracture of right him joint and minor injuries to the face.
In AG & Vimal Govind v Alian K & Ariata K (unreported, Fiji Court of Appeal Civil Appeal No. ABU0004 of 2003S), the Court of Appeal deemed an award for pain and suffering and loss of amenities of $60,000.00 for the 2nd Respondent to be appropriate where the 2nd Respondent had suffered open fracture of the left tibia and fibula. He was rendered unconscious and regained consciousness on the way to the Hospital and was inpatient for 5 weeks.
In the present case, it is respectfully submitted the award $65,000.00 under this head would be appropriate. The injuries suffered by the Plaintiff were similar to those suffered by the 2nd Respondent in AG & Vimal Govind (supra) but more severe.
Loss of Prospective Earnings
In KEMP and KEMP: Quantum and Damages Vol 1: Law and Practice p127, it is stated:
“..... the correct principle on which damages under this head are to be assessed, namely, that so far as the injury results in pecuniary loss, the Plaintiff should receive full compensation for that loss...........”
On p 133, it is stated that:
“ a typical example of this category is a man who has been earning a steady wage which is unlikely to have changed greatly for the rest of his working life and who has been rendered un capable of ever – working again in such a case the existing net annual loss of earnings is a firm basis for calculation of his future loss, for it is manifest that this is the annual loss which he will suffer for what would have been the rest of his working life.”
The Plaintiff had been earning a steady wage before the accident and due to his injuries rendered in capable of ever working again. The Plaintiff was earning $45.00 per week which translates into an annual income of $2,340.00. This used to be the standard wage of taxi at the time of the accident. In all probability, he would have continued to work until the mandatory retirement age of 55, so he would have worked for at least another at least another 21 years. If we apply the multiplier of 21 to his annual income.
$2,340.00 x 21 = $49,140.00
Therefore it is submitted that under this head the Plaintiff should be awarded $49,140.00.
Interest
An interest rate of 6% per annum is acceptable for general damages Alak Ram v Ernest Patterson (supra).
The Plaintiff suffered the accident on 14th March 1993. It has been 12½ years since the accident therefore interest on general damages is to be calculated as follows:
$65,000.00 x 6% x 12½ = $48,750.00
Summary
General Damages
Pain & Suffering and Loss of Amenities of Life $65,000.00
Interest on $65,000.00 $48,750.00
Loss of Prospective Earnings $49,140.00
I accept these submissions. They seem a reasonable assessment. To those heads of damages I add a rounded figure of $1,000.00 to represent the clothes, watch, purse and shoes which he lost and his medical and transportation expenses. The total award therefore is $163,890.00. This award is against the second defendant only.
I award costs to the Plaintiff which I assess summarily at $1,000.00.
D.D. Finnigan
JUDGE
At Lautoka
29 September 2005
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