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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC0359 OF 2003L
BETWEEN:
AVINESH CHAND
f/n Bal Ram
Plaintiff
AND:
THE MINISTRY OF FISHERIES AND FORESTS
1st Defendant
AND:
JOSEFA CEINATURAGA
2nd Defendant
AND:
ATTORNEY GENERAL OF FIJI
3rd Defendant
Counsel for the Plaintiff: Mr. R. Chaudhary
Counsel for the Defendants: Ms. A. Ali
Date of Hearing: 13 April 2005
Date of Judgment: 29 April 2005
JUDGMENT
The Claim
This matter comes before the court for assessment of damages only.
The plaintiff was on the 27th February 2002, a passenger in a motor vehicle into which a motor vehicle owned by the 1st defendant and driven by the 2nd defendant, collided. The plaintiff suffered serious injuries to his face and head as a result of the impact of the vehicle.
Background
The plaintiff was born on the 7th April 1975 and was 26 years of age at the date of accident and 30 years of age at the date of trial. He was educated up to Form 4 and is an electrician by profession and training.
He was on the 1st January 2005 married. He stays with his mother and father in their house. His father is a carpenter and a cane farmer.
On leaving school, the defendant worked for 2 years doing house wiring with an electrical company in Nadi and then changed the employers for a further 1 ½ years and then again changed for a further 6 months to Steven’s Electric, Lautoka. Following which, he moved to Suva to Modern Electric where he was doing house wiring and fixing of washing machines and repairs to electrical appliances. That point in time he was just below the foreman and had others working below him and was being paid $170 to $190 per week. About 3 months and before the 2000 to the time the plaintiff left the employment and set up his own business operating from his home. He did so he says as it was costing too much to live in Suva. When commencing his own business, he was doing private jobs including house wiring and repairs of electrical appliances. He says he was then earning $120 to $150 per week. That is significantly less than he was earning from his paid employment in Suva.
His income was then given as to half to his father and money to facilitate the purchase of items for his business. He didn’t at that time conduct any bank account. He had no business documents evidencing the monies he received.
For 2 years and 4 months following the accident, the plaintiff did not work but has now commenced work fitting radios and checking automotive wiring and he is earning $70 per week. He is still staying with his mother and father but he is unable to continue to assist on his father’s cane farm.
On the 27th February 2002, the plaintiff says he remembers the vehicle approaching but on impact he was rendered unconscious and regained consciousness some 2 days later in Nadi Hospital. He said he was in severe pain and was given tablets. He was sent to Lautoka Hospital for an X-ray and for examination in the dental section of that hospital and was subsequently referred to the CWM Hospital at Suva where he was admitted for 2 or 3 days. During this time, he was unable to eat and was fed fruit juice. He remained with family in Suva for sometime for follow-up treatment and says that he was only able to eat soft food for 3 months and went for review every 2 weeks.
The special damages incurred by the plaintiff are admitted by the defendant. The plaintiff says that he still has headaches and is required to take tablets and takes neurophen and spent $8.00 per week on those tablets. He says he has severe pain in the left side of his face and he is unable to fully open his mouth nor to chew hard food. He has and described in court a scar in the vicinity of his right eye, left cheek and the center of his forehead. He says his left eye gives him pain at times and that he did on one occasion use eyedrops.
Medical Evidence
Dr. Tomanu of Nadi Hospital, Sub-divisional Medical Superintendent, gave evidence of the plaintiff’s admission to that hospital but had not personally examined the plaintiff.
Dr. Atul Ingle, a consultant plastic surgeon at CWM Hospital, had recently reviewed the plaintiff and perused the hospital records including a report prepared by Dr. K.S. Uluitoga, who treated the plaintiff on his admission in CWM Hospital Suva. With the aid of a diagram, Dr. Ingle was able to describe in court the fractures that the plaintiff had suffered to the left side of his face. These injuries are described in Exhibit P-3, being the report of Dr. Ingle as: -
“....a depressed fracture of the left zygoma, associated separation of the zygomatico-frontal suture, and fracture of left maxillary buttress.
There was associated infra-orbital nerve compression, ocular movements and mandibular opening were minimally involved.”
The effect of the infra-orbital nerve compression was described by Dr. Ingle as creating hyperaesthesia over the left side of the cheek. This was further described as being extra sensitivity of the left cheek area resulting in a high level of pain when the area is touched.
Dr. Ingle further gave evidence that the plaintiff required analgesia for his headaches and for the increase sensation in his face. He said the hyperaesthesia was likely to be permanent and that it together with the headaches will create difficulty in carrying out his prior employment of wiring houses and the like and that the symptoms he now complains of, that is the headaches, the hyperaesthesia and the pain when eating are symptomatic of the injuries he sustained.
When asked by counsel for the defendant if the pain would ever go away he replied he did not think so. The headaches may decrease a little but otherwise there would be no improvement in the future.
Damages
There is a paucity of any real evidence to support the claim for economic loss.
The plaintiff’s father gave evidence, which most relevantly, was that he was receiving $80 to $90 per week from the plaintiff prior the accident. This accords with the plaintiff saying that he was giving half of his earnings to his father each week. Also in support of the plaintiff’s evidence as to his earnings at the time of the accident is the fact that he gives evidence of having given up a more highly paid position in Suva to then commence his own business working from home where he stated he was earning significantly less money per week. I accept the plaintiff’s evidence as to his earnings at the date of the accident.
The defendant called no evidence in the matter.
Counsel for the Defendant submits that in reliance of Appal Swamy Naidu v Bechni & Anr. – Civil Appeal No. 43 of 1974 where at page 6 Henry JA in considering future economic loss said:
“The real question is whether his capacity to earn has been adversely affected, and, if so, what is reasonable compensation for such loss. There is no justification of limiting this head of damage to loss of his present employment resulting from his disability.“
That the plaintiff is entitled to a loss of earning capacity for the future and highlights that he is now only 30 years of age and could be expected to work until he is 65 as an electrician and on the farm. I accept this submission.
As to the general damages, I have been referred to the decision of Finnigan J. in Pranish Prakash Chand v Ganpati Bala & Anor. – Civil Action No. 112 of 2004L where an amount of $50,000.00 was awarded by way of general damages for injuries or perhaps no more severe than those described by the plaintiff further referred to Dinesh Kumar v John Elder – HBC0560 of 1995S where again the sum of $45,000.00 was awarded by Scott J. by way of general damages for injuries therein described as perhaps being no more serious than those experienced by the plaintiff in this matter.
In awarding general damages, I take account of the residual scars that the plaintiff has and the pain and suffering to date together with the pain and suffering that he will experience based upon the medical evidence in the future.
Interest is awarded in accordance with the principles as expressed in Attorney General of Fiji v Charles Valentine – Civil Appeal No. ABU0019 of 1998 which in itself relied upon the decision of Court of Appeal of England in Jefford v Gee [1970] EWCA Civ 8; [1970] 2 Q.B. 130.
Schedule of Damages
General Damages
(i) Past .. .. .. .. .. .. $25,000.00
(ii) Future .. .. .. .. .. .. $25,000.00
(iii) Interest on Past from 27/02/02
to 29/04/05 @ 6% .. .. .. .. $ 4,950.00
Loss of earnings from 27/02/02 to August 2004
(163 weeks) @ $150.00 per week .. .. .. .. $24,450.00
Loss of Earning Capacity .. .. .. .. .. $ 3,000.00
Special Damages .. .. .. .. .. $ 132.00
................................................................................................
Total = $82,532.00
=========================================================
Orders
JOHN CONNORS
JUDGE
At Lautoka
29 April 2005
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