Prasad v Sharma [2005] FJHC 598; HBC0223.1997 (11 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0223 OF 1997

BETWEEN:

RAVINESH PRASAD
PLAINTIFF

AND:

NIRMALA SHARMA
1ST DEFENDANT

AMITESH KUMAR SHARMA
2ND DEFENDANT

Mr Chaudhary for the Plaintiff
No appearance for the Defendants

Date of Hearing: 4 August 2005
Date of Judgment: 11 August 2005

JUDGMENT OF FINNIGAN J

This is a claim for damages for personal injuries after a motor accident.

Both the Defendants have migrated to America. The 1^st Defendant, the owner of the vehicle is mother of the 2^nd Defendant who was the driver. The husband and older son of this family remain in Lautoka.

At the hearing Mr H A Shah appeared as Counsel for the Defendant. The Defendants had not presented themselves for the trial as he had requested and they had given him no instructions. He sought and was granted leave to withdraw. On the application of Mr Chaudhary I made an order striking out the statement of defence.

The Plaintiff gave evidence and Dr. Viliame Taoi the Chief Medical Officer and Acting Surgical Consultant at Lautoka Hospital. From the evidence of the Plaintiff I am satisfied that on 2 April 1997 he was riding his bicycle across the junction of Vomo Street and Leonidas Street in Lautoka. At that time the 2^nd Defendant, who although only a probationary driver was alone in his mother’s car made a right turn without giving any indication and collided with the Plaintiff and his bicycle. I am satisfied that subsequently on 4 June 1997 the 2^nd Defendant was convicted in the Magistrates Court of careless driving and was fined $30.00 in default 30 days imprisonment.

From the evidence of the Plaintiff and the doctor I am satisfied that the Plaintiff suffered considerable injury which has reduced his ability to work since the time of the accident until now and has left him with some disfigurement. In particular he has an obviously broken nose with a scar on the bridge which is still deviated and the deviation is causing complete blockage of his right nostril. Only his left is available for breathing. All of his teeth were sore and still give him pain and he lost one of his front teeth which has been replaced by a false tooth and plate. He has constantly recurring headaches which when they occur at night are sufficiently severe to prevent him sleeping.

It will be possible to effect some repair to the deviated nasal septum if and when the Plaintiff is fortunate enough to be attended by an Ear, Nose and Throat Surgeon. Dr. Taoi said an E.N.T Specialist visits Lautoka from overseas about every 3 or 4 years. That is a matter of significance which I take into account.

For objective assessment of damages I set out here the second of two medical reports prepared by Dr Taoi, this one dated 29 July 2005.

This man was involved in an MVA on 02/04/97. He was a Pedestrian who was hit by a vehicle. He sustained multiple injuries.

The patient was unconscious on impact.

Injuries:

1. 2 x 2cm abrasion on forehead
2. Haematoma right orbit
3. Haematoma right upper lip
4. 3 x 2 laceration on right upper eyelid, nasal ridge and chin
5. Compound fracture of nose
6. Fractures x 1 upper incisor tooth.
   

Treatment:

1. Head injury observation
2. Wound cleansing and suturing.
   

Clinical Review:

The patient complains of the following symptoms.

1. Deformed nose, nasal deviation
2. Blocked left nostril
3. Recurrent nasal swelling
4. Recurrent nasal ache over the scar
5. Recurrent headache.
6. Facial scarring.
   

Decision:

I have no doubt that both 1^st and 2^nd Defendants as driver and owner are liable to the Plaintiff for his injuries. To help me assess quantum of damages Mr Chaudhary has referred to several judgments, particularly MF Shaiban –v- Sabeto Valley Investments Ltd & Ali HBC0329 of 2001L, judgment December 2004. That case has some notable similarities with the present case and I accept it as guidance. Plaintiff in that case was awarded in general damages $31,572.00 and costs of $1,500.00. Mr Chaudhary pointed out that the present case has an added future, the disability, pain and suffering that arise from the blocked nostril. This blockage leads to inflammation which causes swelling and this occurs frequently. With the swelling comes not only discomfort but headache as well.

In Pratap –v- Leone Vuetivavalagi & Others HBC0053 of 1990L this Court awarded, again in similar circumstances $33,435.50 in general damages plus costs. In Tuberi –v- Gopal & Gopal HBC0273 of 2000L, judgment 2 February 2001. This Court assessed damages for similar but lesser injuries (including costs) at $12,004.00.

In a judgment delivered on 29 May 1998 Prasad –v- Inland Tours of Fiji Co Ltd & Anor. HBC0295 of 1997L, this court assessed damages for a Plaintiff 4 years younger at the time of the accident but with similar and perhaps more serious injuries at $45,235.00 including special damages plus costs of $1,250.00.

Decision:

I have considered the evidence and the authorities put before me. I accept as reasonable the submissions of Mr Chaudhary. In respect of lost earning capacity I accept that the Plaintiff was earning about $90.00 per week at the time of the accident. He was then 17. He had to leave school at age 14 when his family could no longer afford it and had got himself a job which he had been doing for 3 years. He had been packing clothes for a clothing manufacturer. After the accident that employer kept it him on because of his good work record but because of his reduced ability to attend work and to perform he was transferred to the Stores Department where he remained until the firm closed down about September 2001. In that post accident period his income had been reduced to $30.00 or $40.00 per week. I accept that the envelopes recording his pay amounts have been inadvertently destroyed. He has started a new job four weeks ago which normally pays $60.00 per week but he misses one or two days each week because of the pain in his head. His capacity to earn is at present greatly diminished. Following Naidu –v- Bechni & Anor. Civil Appeal No. 43 of 1994 a judgment of the Court of Appeal I accept that the question for me is whether his capacity to earn has been adversely affected and if so what is reasonable compensation for that loss. There is no justification for limiting consideration only to the employment he had at the time of the accident. I accept Mr Chaudhary’s submission that his average loss is to be taken to be $50.00 per week and that I should use a multiplier of 18. The calculation ($50 x 52 x 18 ) is $46,800.00.

In respect of general damages for the Plaintiff pain, suffering and loss of amenities of life I assess quantum at $40,000.00 of which $15,000.00 should be allocated to the time up till trial and $25,000.00 for the future. I shall assess interest on $15,000.00 at 6% from the date of the writ until the date of judgment.

The awards are as follows:

General Damages (past) : $15,000.00

General Damages (future) : $25,000.00

Interest on $15,000.00 at 6% from

July 1997 until August 2005 : $ 7,200.00

Lost of earning capacity : $46,800.00

In addition the Plaintiff pleaded and at the hearing proved to my satisfaction several individual items of loss including his bicycle his umbrella and his spectacles. I assess special damages at the amounts claimed and proved, $925.00.

I fix costs for the Plaintiff at $1,500.00.

D.D. Finnigan
JUDGE

At Lautoka
11 August 2005