Goundar v Chand [2006] FJHC 120; HBC040.1999 (6 February 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC040 OF 1999
14/2006

BETWEEN:

SUBARMANI GOUNDAR
f/n Ram Sami Goundar
PLAINTIFF

AND:

PRATAP CHAND and AYAZ DEAN
DEFENDANTS

Mr R. Gordon & Mrs D Gordon for the Plaintiff
No appearance for the Defendants

Date of Hearing: 06 February 2006
Date of Judgment: 06 February 2006

ORAL JUDGMENT OF FINNIGAN J

This has been the hearing of what became formal proof of the Plaintiff's claim which arose as a cause of action on 9 September 1995 and has been delayed by one reason or another until now.

One of the reasons for the delay has been the inactivity of the Defendants though I do see on the file that in March 2001 they filed a Statement of Defence. But not withstanding they have been represented by more than one Solicitor and have taken no other steps in the matter. Their last lawyer, A K Narayan, was given leave to withdraw from the case. I am satisfied that Orders were made for substituted service on them of notice of today's hearing and I am advised by Mrs D Gordon that they have been in touch with his firm but it was never expected that they would formally defend the claim.

I have heard the evidence of the Plaintiff and on that evidence alone together with the exhibits which he has supplied, I am satisfied that he was the driver of a motor vehicle on 9 September 1995. A Ford Cortina AK794 and that he saw coming towards him another vehicle which crossed to his side of the road he brought his vehicle to a stop and while his vehicle was stationary the other vehicle drove into the right front side of it pushing back the chassis so that the brake pedals became entangled with the plaintiff's legs and one of them was broken in more than one place. I am satisfied that the vehicle that collided with his vehicle was owned by Pratap Chand who is the first Defendant and that it was driven by Ayaz Dean who was the second Defendant. I am satisfied of that by exhibits P1 and by exhibit P2 and by exhibit P3. In exhibit P3 there are some minor discrepancies of date but this do not detract from proof of the fact that Ayaz Dean was charged with careless driving, was fined $50.00 and that his conviction is a matter I can take into account. I am satisfied that the Plaintiff has made out his case against both Defendants in liability. I come now to the claim for damages.

First, the claim in Special Damages but for one reason or another perhaps lapse of time and the fact that he was not aware he needed to keep receipts. He has no receipts and he is not claiming Special Damages for the sums he had to spend. Mr Gordon does not pursue.

The Plaintiff has claimed and has proved loss of income from 28 October 1995 until 31 September 1996 at the rate of $80.00 per week. I am satisfied that he was unable to work for that period of time and that his income and his FNPF contributions for that period were nil. I accept Counsel's calculation of a loss of $3,200.00 and I award that amount. On that amount the Plaintiff is entitled to interest which I fix at 6% per annum simple from the date of issue of the Writ until today's date and I accept Counsel's calculation that this is 5,126 years. The interest calculation on that basis therefore is $984.19.

I turn now to General Damages. Mr Gordon relies upon a Judgment of this Court. Alvin Nilesh Chand -v- Rajendra Prasad Limited Civil Action HBC384/2003 Judgment 14 April 2005. This is a matter in which a Plaintiff lost one third of his ring finger in an accident and I assessed his disability at 8% and awarded him $15,000.00 and $10,000.00 for loss of future earning capacity. Mr Gordon relies also on the authority which I applied in that case and claims on the basis of a 20% disability as established by Doctor Joeli Mareko, to my satisfaction. He seeks the sum of $30,000.00, and on the basis of the Plaintiff's evidence that his income was somewhere between $30.00 per week at the time of the accident and $112.50 per week in October 2000. Mr Gordon submits that his loss of earning capacity for the future can be assessed at $20,000.00.

In the light of similar cases I have decided during the last nine or ten months I find these figures fully acceptable and I shall award them. Mr Gordon quite rightly seeks interest of 6% per annum for a period which he assesses at 1,831 days. He has made the assessment from the date of issue of the Writ until today's date at $1,179.03 and without calculating it for myself I accept that.

The $20,000.00 which I award for loss of earning capacity is of cause for future loss and carries no interest. The $30,000.00 which I award for pain and suffering should be divided into two parts past and future. It is on the portion of that which I assess for past pain and suffering that interest will be added at 6% per annum.

For past pain and suffering i.e. for eleven years compared with his future earning I assess the sum of $15,000.00 and for future pain and suffering I assess $15,000.00. Interest will be awarded on the $15,000.00 for past pain and suffering which will be at 6% per annum simple from the date of issue of the Writ until today's date which by my calculation is $4,613.40. Interest is awarded on past pain and suffering damages for at $4,613.42.

Conclusion:

To summarize I have found against both Defendants in liability jointly and severally.

In special damages I award $3,200.00 for loss of income from 28 October 1995 till 30 September 1996 plus interest of $984.19.

In general damages I award $20,000.00 for loss of future earning capacity.

For pain and suffering (past) I award $15,000.00 together with interest thereon at 6% until today's date which is $4,613.42.

For pain and suffering (future) I award the sum of $15,000.00.

Costs are in the Plaintiff's favour and I assess this on today's hearing at $500.00 against both Defendants jointly and severally.

D.D. FINNIGAN
JUDGE

At Lautoka
06 February 2006