Chand v Prasad [2005] FJHC 621; HBC0159.1998 (22 July 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0159 OF 1998

BETWEEN:

NIRBHAY CHAND
PLAINTIFF

AND:

ANAND PRASAD
DEFENDANT

Mr H A Shah for the Plaintiff
No Appearance for the Defendant

Date of Hearing: 21 June 2005
Date of Judgment: 22 July 2005

JUDGMENT OF FINNIGAN J

This is a claim for personal injuries suffered in an assault. The Plaintiff pleads that on 29 May 1995 the Defendant without lawful excuse or just cause assaulted him with a cane knife thereby causing a 6 cm cut on his wrist and a 7 to 8 cm cut to a tendon and other cuts, as a result of which he has been unable to continue fully with his occupation as a fisherman.

The Defendant filed a statement of defence through his solicitor and not only denies the allegations but pleads the Plaintiff was the aggressor against the Defendant and that he was acting in self defence.

Apart from filing documents in the pre-trial stage the Defendant has not appeared in Court and was not present when the matter was set down for hearing nor at the trial. The matter proceeded by way of Formal Proof. The Plaintiff alone gave evidence and he produced a medical report from the Medical Superintendent at Lautoka Hospital. That document reads in part as follows;

“History

This gentleman was admitted to this hospital on 29/05/95 following an assault with a knife. Examination showed an incised wound on dorsum of distal left forearm on ulna side. Also there was a 7- 8cm wound on the vertex of his scalp.

X-rays of his forearm showed a fracture of the distal ulnar, skull to be normal and an intra-articular fracture of the distal radius.

Treatment

Wound was explored and debrided the same day. At surgery the following tendons were found to have been severed. Extensor carpi ulnaris, Extensor Indicus, Extensor carpi radialis brevis and Extensor digiti Minimi. These were repaired and the fractures internally reduced and fixed”.

I have no idea what some of that means.

The Plaintiff gave evidence that the Defendant was convicted in relation to these injuries of doing an act with intent to cause grievous bodily harm. On 1 March 1999 he was sentenced to imprisonment for 11 months and this sentence was reduced on appeal to 9 months. He commenced serving his sentence on 28 February 2005.

The Plaintiff gave evidence that he is left handed and that the arm injured is his working arm. As a fisherman he formerly earned $200.00 per week. For 4 years after the injuries he did not work. He says he cannot do heavy work now because that causes pain in his left arm. He fishes now only for small fish and that produces a reduced income, the amount of which he did not state. He is married with 4 children.

Damages

The Plaintiff claims general and punitive damages for the assault and battery and general damages for pain and suffering. He seeks further damages for loss of income. Counsel cited no authority and left the assessment to the Court.

There is very little to go on. The medical report and the Plaintiff’s evidence seem to add up to a cut on the head and a stab to the left arm which cut four tendons and caused two small fractures. The result for the Plaintiff is that heavy work causes pain in his left arm which is his working arm. His income has reduced.

This is a case for a lump sum in damages which will assuage the assault, compensate the pain and suffering and make up for some of the claimed lost income. The head wound has had no consequences and there appears no physical permanent injury in the left arm, only internal pain. For the assault and the physical injures it caused and the consequential pain and suffering I assess damages at $10,000.00. The former income of $200.00 per week is not necessarily for 52 weeks per year and I do not know how much he now earns or has lost. Doing the best I can, I assess his former actual income for calculation purposes as $8,000.00 per year (40 weeks) and his lost income as $1,00.00 per year. Projecting that for 10 years produces a total of $10,000.00.

Interest has not been sought and in the circumstances seems unlikely to be paid. I make no award. I fix costs in the Plaintiff’s favour. The Defendant took no steps to aggravate Plaintiff’s costs. I assess them at $500.00.

D.D. Finnigan
JUDGE

At Lautoka
22 July 2005