IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 088 of 2008

BETWEEN:

SEKAIA NAVARA LASARUSA 
of Nadovi, Nadi. Unemployed.
Plaintiff

AND:

SADA PADAIYACHI 
father’s name Wardappa Padaiyachi of Korovuto, Nadi
1st Defendant

AND:

SUNIL CHAND 
father’s name Prem Chand of Korovuto, Nadi, Driver.
2nd Defendant

AND:

IMLESH KRISHNA 
father’s name Bal Krishna of Clay Street, Nadi Town, Nadi.
3rd Defendant

Before	: Master Anare Tuilevuka
Solicitors:Gordon & Chaudhary Lawyers for the Plaintiff
Pillay Naidu & Associates for the Defendants

Date of Ruling:::11th March 2011

RULING
(Assessment of Damages)

Background

[1].	On 30th April 2005, Sekaia Navara Lasarusa finished work and caught a ride home in a car (registration number BU802). BU802 was being driven on that occasion by Sunil Chand, the second defendant. The owner of that car was Sada Padaiyachi, the first defendant.

[2].	At some point along the way home near Western Wreckers in Nadi, Sunil Chand lost control of BU802. The result was that BU802 crashed head-on with another vehicle, registration number AC133. AC133 was being driven by Nazim Hussain, the fourth defendant. AC133 was owned by Imlesh Krishna, the third defendant.

[3].	Lasarusa said the two drivers had been playing chicken as they drove along the road on the day in question. They both lost control of their vehicles. The impact resulted in the death of a lady passenger who was travelling in the same car as Lasarusa. Lasarusa and another passenger received injuries. 

[4].	Both drivers were convicted at Nadi Magistrates Court. A copy of the Nadi Magistrates Court conviction was tendered and marked “Ex 2”. This record confirms the conviction of Sunil Chand on 27th May 2005 on a charge of Dangerous Driving Occasioning Death contrary to s. 97(1) and 114 of the Land Transport Act (No. 35) of 1998.

[5].	Mr. Chand was later to be fined the sum of $1,500 and disqualified from driving for twelve months. 

[6].	A civil claim in HBC 50 of 2007 was lodged by one Mukesh Chandra against the same defendant arising out of the same accident. Chandra was travelling in the same car as Lasarusa. In that case, Datt awarded Chandra a total of $233,395-00 (see below).

[7].	Lasarusa is also seeking damages for personal injuries he received as a result of a motor vehicle accident. 

Evidence

[8].	Evidence of the injuries sustained and associated pain suffered by Lasarusa were confirmed by Dr. Joeli Mareko (Consultant Orthopedic Surgeon at the Lautoka Hospital) and Dr. Emosi Taaloga (Orthopedic Surgeon and head of Surgical Department at CWMH).

[9].	Dr. Mareko referred to his Medical Report dated 6th February 2007 (“Ex 4”). Dr. Taaloga referred to his Medical Report dated 21st April 2010 (“Ex 5”). From these reports and from the oral evidence of both doctors and also of Lasarusa, the following picture emerges.

[10].	Lasarusa was brought into Lautoka Hospital on 30th April 2005. He had lost all consciousness. His jaws were wide open. He also had broken mandible bones. He also had a broken nose. He lost three teeth. The injuries were very serious. Lasarusa was most fortunate to have survived the accident. 

[11].	Lasarusa was admitted on the same day, 30th April 2005. He remained in hospital for some three months and was discharged on 28th July 2005. The length his admission shows the seriousness of the injuries he suffered and the difficult recovery process.

[12].	Whilst Lasarusa was admitted at the hospital, some reconstructive surgery was performed on him. He had suffered a fracture of the mandible bones. The dental people put prosthesis on Lasarusa’s mandible and did some wiring around that location. In other words, a metal plate was put in to hold his jaws together. 

[13].	Doctor Mareko said that the injuries suffered by Lasarusa around the mandible area (i.e. jaws) is consistent with what Lasarusa said in Court about his difficulty in chewing. 

[14].	Some ligament repair procedure was also carried out on Lasarusa on the day he was admitted. And, because Lasarusa had an open fracture, wound debridement was done to clean it up.

[15].	Lasarusa also suffered head injuries. He also suffered a fracture of the right clavicle and collar bone. 

[16].	Lasarusa sustained injuries to the left and right legs. For the right leg, a steel rod was put in that leg. The left leg was actually in cast for some eight months in total. 

[17].	When discharged from hospital, Lasarusa was still on plaster. The plaster was to be removed 5 months after he was discharged from hospital.

[18].	He suffered a deformity on the right lower limb and on the right knee. He also suffered deformity on the left leg. According to Dr. Mareko, the length of time that the left leg was in cast was the cause of the deformity in Lasarusa’s left leg. 

[19].	Lasarusa’s right leg is actually shorter than the left leg by three inches. This causes Lasarusa much difficulty in maintaining balance when he walks. Lasarusa would need special shoes with a raised sole on the right pair in order to regain some balance. The shoes cost around $100-00 and may last up to a year. People wear such shoes for balance and proper gait. 

[20].	There are scars on the right leg. The left leg is permanently stretched out and cannot bend. This is because it is stiff at the knee. Lasarusa was in a lot of pain at the hospital and was given a lot of pain relief. Pain is likely to continue for life. Manual work is out of the question for Lasarusa. He also injured his right hand. 

[21].	There was a sinus on Lasarusa’s left knee after the cast was removed. Dr. Taaloga treated Lasarusa in Suva for the sinus on Lasarusa’s left knee. This was well after Lasarusa had been discharged from Lautoka Hospital. 

[22].	The Medical Report he wrote dated 21st April 2010 reads as 
follows:

“Mr. Navara was seen at CWM Hospital on 25.1.07 with the following problems:

1	Sinus left knee
2	Ankylosis of the left knee
3	Malunion of right tibia

He had multiple injuries in an MVA in 2005. He was admitted on 22.2.07 and exploration of the sinus done in the OR the next day. In the theatre three nylon sutures were removed from the sinus and the tract debrided.

Mr Navasa second admission was on 27.11.07 for correction of the malunited fracture right leg. The leg was in approximately 80 per cent [sic] of flexion. Osteotomies of the tibia and fibula were done including shortening to avoid compromising the neurovascular structures. Due to the prolonged deformity the soft tissues have to be lengthened due to contractures that have developed over time. An intra-medullary locking rod was used for stabilization of the osteotomy.

Mr Navara was reviewed regularly in our clinic and was returned to OT on 5.6.09 for removal of the proximal static locking bolt. This was done to dynamize the osteotomized tibia and hasten fracture healing.

On 24.02.10 he had surgery to his left knee for painful lumps over the patella. More nylon sutures were removed and osteomy of bony spurs was also done.
Mr Navara continues to mobilize with the aid of crutches with great difficulty and was last reviewed at the clinic on 2.03.10.

……………………………
Sgd Dr. E.D. Talonga
Consultant Orthopedic Surgeon
CWM Hospital

[23].	The word “sinus” is used in this context to denote an opening or a cavity on the skin leading into the body. Dr. Talonga explained that the cause of the sinus on Lasarusa’s left knee was some dead bone that was still in his knee.

[24].	Dr. Talonga said Lasarusa has developed and is suffering from ankylosis of the left knee. That means that the left knee is permanently stiff. In Lasarusa’s case, ankylosis has resulted out of the fracture of the right leg which then caused a malunion of right tibia and fibula as these bones healed.

[25].	Hence – whilst the right and left legs has somewhat “healed” – the deformities are permanent and which he has to now live with for the rest of his life.

[26].	Lasarusa’s injuries were sustained in 2005. He was operated upon in 2007. He had suffered the deformities for some time before the operation. His muscles and tendons were in a shortened position. If he tried to stretch his right leg, it would strain his neurovascular and blood vessels. He has steel rods in right leg. He presented in Suva for operation with painful lumps on knee cap.

[27].	Lasarusa needs to have proper evaluation to assess incapacity. The condition of the left knee is restrictive on Lasarusa’s movement. He cannot sit in a car except sideways in the back seat. In the bus, he must sit in such a position so that the left leg is stretched out into the aisle.

[28].	Lasarusa is still receiving on-going treatment at the CWMH. After discharge from Lautoka Hospital, his leg was in crooked shape.

[29].	A photograph of Lasarusa’s right leg was produced in Court. 

[30].	Lasarusa said that during the 3 months he spent in Lautoka Hospital, he was given tablets and daily injections to control the pain. Both legs and collar bone were in pain. He was fed milk and cookies. Lasarusa was taken to the theatre three times during the time he was hospitalised. 

[31].	Up to now, he still cannot chew properly. When he chews his jaws click. He then has to put his teeth together so he can chew. He feels pain in his jaw when he eats. He cannot walk without crutches. He looses his balance quite early and often falls. This is because the left leg is permanently stiff in the knee whilst the right leg is three inches shorter. He bandages his right hand because of the blister he gets from using crutches. He takes Bluefem tablets and spend $10 per week to control pain. He has an eye problem. Whenever rain is imminent, his eyes would turn white two to three days before rain comes. He uses eye drops and spends $9.00 between two to three weeks on eye drops. The eye drops were produced in Court. At the hospital, blood was oozing out of his legs. He says his legs got infected. And pus would ooze out of his legs. The last time pus oozed out of his legs was in 2007.

[32].	In March 2010, he went in for surgery at the CWMH. Conclusive surgery was done at the CWMH and pieces of bone was coming out of his left knee. He has an open card at the CWMH. From Lautoka Hospital, he was released on wheelchair. He stayed on wheelchair for 18 months with no work.

[33].	Lasarusa decided to go to CWMH to have his leg straightened in 2007. He wears knee caps. The knee caps last 3 – 4 months and then cost him $14.90 each. At present, he lives with his mother and father. His mother does not work. His father works for the Schooner. He rents a flat in Nawaka.

[34].	He is not legally married. But he has a baby girl with his de-facto wife, Mereula. After the accident, Mereula left him. He cannot support the child. The child, Arieta, now lives with Mereula’s mother in Draiba village in Sigatoka. He sees her every now and again.

[35].	Right now, Lasarusa is single. The last job he did was as a chef at Malamala. He was coming up as chef but has not worked since after the accident. He has tried to look for a job but gets turned down because of his disability. With his disability, he cannot work in the kitchen.

[36].	The damages he seeks are from past pain, future pain and loss of amenities and loss of earning capacity. He says he does not look the same. He is also after interest and costs of this action. 

[37].	Lasarusa was born on 13th March 1975. He attended Lautoka Ahmadiya Primary School from classes 1 to 6 between 1982 to 1987. After class 6, he attended Lautoka Special School (“LSS) for 4 years where he did some training in mechanical work, spray painting and also learnt how to fix engines.

[38].	He said that the reason he went to LSS was because he was slow in reading and writing.

[39].	When Lasarusa finished from LSS in 1991, he was awarded some certificates. However, these certificates all perished in a flood that hit Nadi in 1991.

[40].	After finishing school, Lasarusa worked for some time as a labourer at Four Brothers Construction Company. There, he learnt carpentry, block laying and plastering and was amongst the Company’s pool of hired labourers that built the Nadi Muslin School.

[41].	In 1993, he finished work from Four Brothers. He stayed at home for two years. During those two years, he sold barbecue to earn a living. He then worked at Jai Narain’s Garage opposite McDonald’s in Nadi where he was paid $70-00 to $80-00 per week.

[42].	After sometime at Narain’s garage, Lasarusa left to work at Yacht Oceanic Schooner where his father was the Chef. At the Schooner, Lasarusa became the kitchen hand. He worked at the Schooner until the Motor Vehicle Accident on 30th April 2005.

[43].	At the Schooner, Lasarusa worked in a particular yacht called the Whales Tail for two and a half years. Then he worked in the Tropic Seas Yacht where he did morning breakfast for guests. The move from Whales Tail to Tropic Seas was a promotion for him. He also worked at Malamala Island where he cooked and was paid $70 - $80 per week.

[44].	At the time of the accident, Lasarusa’s pay had jumped from $70-00 - $80-00 per week to $140-$150 per week. He said he would get between $30 - $40 per day. All his pay slips were lost in the January 2009 flood. I am prepared to accept only $80-00 as his weekly take home pay.

[45].	At the time of the flood, Lasarusa was living in Korociri in a tin house with his parents and his brothers. He said the flood waters had risen to about halfway up the windows and the family lost all their clothes and other personal items in the flood. Lasarusa also lost his crutches. 

[46].	Lolohea Jokaveti Lasarusa is the mother of Sekaia Navara. Navara lives with Lolohea and husband. Husband works for Schooner Company. Lolohea looks after Sekaia. She washes his clothes, cook, He can’t do much at home. She rents at Nawaka. In 1999 – they were in Navakai when the floods washed away most of their personal belongings. All papers and documents washed away. 

Assessment of Damages

[47].	In Narayan v Narayan [2009] FJHC 193; HBC 22.2003L (8 September 2009), Inoke J reviewed various authorities in Fiji as follows:

[15] I discussed some of the case authorities for awards for pain and suffering and loss of amenities in Prakash v Khan [2009] FJHC 160; HBC068.2002 (5 August 2009) which I list below:

[38] In Maka v Broadbridge [2003] FJCA 31; ABU0063.2001S (30 May 2003) the trial Judge awarded $75,000 and the Court of Appeal reduced it to $60,000. The plaintiff’s injury in that case was fracture of the forearm bone and a fracture of the hip joint sustained in a car accident in April 1991. The plaintiff was in severe pain according to the evidence. The injuries were exacerbated by the failure of doctors to properly diagnose the extent of the plaintiff’s injuries. At the time of the trial he had shortening of the right leg, a significant loss of function of the right leg and wasting of his buttocks. The hip replacement caused him some restriction in movement so that he found it difficult to get into awkward places during the course of his work. The highest of such awards around that time for similar cases was $85,000.

[39] In Singh v Rentokil Laboratories Ltd [1993] FJCA 26; Abu0073u.91s (20 August 1993), the award the Court of Appeal gave an award of $60,000 for injuries which included a more severe pelvis injury and other injuries suffered in a car accident in July 1988. The trial Judge’s award of $25,000 for pain and suffering a loss of amenities was too low.

[40] In Dre v Ministry of Health [2009] FJHC 129; HBC020.2007 (24 June 2009), I summarized some of the awards as follows:

(a) Kotoiwasawasa & Another v Govind & the Attorney General [Civil Action 192/2000], $95,000 was awarded for pain and suffering where the plaintiff suffered an injury to her leg in a motor vehicle accident in 1996 which resulted in amputation of her leg below the knee.

(b) Sharma v Prasad [HBU 40/88, Civ Appeal 73/91] – amputation of leg - $100,000.

(c) FSC & Anor v Subramani & Anor [HBU47/93] – loss of both eye sight- 75 % - $37,500.

(d) Salaitoga v Anderson [Civ Appeal 26/94] – severe head injury - $85,000.

(e) AG & Dr Elliot v Sharma [Civ Appeal 41/93] – loss of leg - $50,000.

(f) AG v Waqabaca [Civ Appeal 18/98] – cerebral palsy – loss of all bodily function - $85,000.

(g) Flour Mills of Fiji Ltd v Raj [2001] FJCA 35 – loss of right arm - $85,000. In this case the Plaintiff's right arm required amputation above the elbow and he has been left with severe limitation of movement in his left hand and arm, his disability being assessed by a medical witness at 100% loss of working capacity. The trial Judge's assessment of $85,000 for pain and suffering was upheld by the Fiji Court of Appeal.

In Dre (supra) I awarded $70,000.00 for pain and suffering and loss of amenities of life for the amputation of the plaintiff's dominant arm below the elbow as a result of medical negligence.

[16] In Prakash (supra) I awarded $30,000. The Plaintiff's injuries were not severe. He suffered a fractured pelvis and superficial abrasion over his right shoulder. The treatment was bed rest, analgesics and physiotherapy. He was in hospital for two days. He attended 4 follow ups after discharge. The doctor's final report of 10 July 2006 was that the Plaintiff still felt pain and discomfort over the left inguinal area when lifting heavy objects and in cold weather. He enjoyed normal activity and daily living. His gait is normal. He has free movement of back, hip joints, knees and ankle joints and normal sensory and motor function in his lower limbs. His right shoulder is without pain and the Plaintiff has full range of motion. The fracture of his pelvis was well united. He was assessed to have 0% permanent disability.

[17] I think the type of injury and prognosis in this case is in the middle of the high range. The awards in these cases were around $60,000 over ten years ago, the highest being $85,000. I think a fair and reasonable award today would be $80,000 and I award damages under this head in that amount.

[48].	For 'general damages', awards are usually made for pain  and suffering, cost of future nursing and the attendance and medical expenses, loss of amenities and loss of future earnings. 

[49].	Lasarusa suffered pain. Case law authorities are abound as to the difficulty in assessing pain and suffering (see Kemp & Kemp (Vol 1 p200, 2-010)). I need not repeat them here. I will just say this – that in assessing pain and suffering, I must consider pain which Lasarusa actually suffered and will suffer throughout his life (see Heaps v Perriete Ltd (1937) 2 All ER 60 as per Greer L.J.) To be fair and reasonable, it is well accepted that the court must fall back on previous awards in cases where similar injuries have occurred.

[50].	For pain and suffering, after reviewing the authorities, and considering that the plaintiff in this case was in hospital for a total of some three months, and that he will likely have to suffer on-going pain for the rest of his life, I award $40,000 for past pain and suffering and $35,000 for future pain and suffering. On this amount, I award 6% interest from date of accident to judgment.

[51].	For loss of earning capacity, it appears from the evidence that Lasarusa is unable to find suitable employment because of the condition of his legs. I consider his take home pay as $100 per week. He will be 36 years of age in two days time (on 13th March 2011). I use a multiplier of 19 as I consider he would have been employed up to the age of 55 years. So his loss of earnings I calculate as $80 x 52 x 19 = $79,040.

[52].	For future care, in Narayan v Narayan (see above) Inoke J awarded as follows:

[19] The Plaintiff said he was cared for by his wife after the accident. This care is likely to continue into the future. This is care over and above that which a wife would give to an otherwise healthy husband and I believe she should be compensated. 

As I have said elsewhere, the time for gratuitous care by relatives is long gone. It was nearly 8 years ago that the accident happened. I arrive at the appropriate value of compensation by taking $40 a week as the appropriate cost of care over those 8 years which computes to $40 x 52 x 8 = $16,640. I make no allowance for future care because over time this need may dissipate.

[53].	Lasarusa is totally dependent on his mother. I would fix the amount for care at $20 per week. It is now 7 years since the accident happened. I arrive at a global figure for this as follows:

$20 x 52 x 26 years (19 years multiplier plus 7 years that have lapsed) = $27,040.

[54].	For special damages, Lasarusa has spent money on knee caps, tablets and eye drops. Knee caps cost $14.90 each and last 3-4 months. So he would need 3 pairs per year. $14.90 x 3 x 15 = $670.50.

[55].	Lasarusa spends $10 per week on Bluefem tablets to control pain. $10 x 52 x 19 = $9,880.

[56].	He uses eye drops and spends $9.00 between two to three weeks on eye drops. I will accept that figure as his monthly expenses on eyedrops. $9 x 12 x 19 = $2,052.

AWARD

Pain & Suffering
6% interest from date of accident to date of judgement (i.e. from 30th April 2005 to 11th April 2011)	$75,000 
(i.e. $4,500 x 6 = $27,000 – but rounded off to $26,500)	
Loss of Earnings	$79,040	
Care (including future care)	$27,040	
Special Damages		
•	Knee Caps	$670.50	
•	Bluefem tablets	$9,880	
•	Eye drops	$2,052	
TOTAL SPECIAL DAMAGES	$12,602.50	
3% interest on special damages 	(i.e. $378.075 x 6 = $2268.45 – but rounded off to $2265.00)	
T O T A L	$222,447.50	
Plus costs 	$1,500-00	

[57].	I enter judgment against the defendants jointly and severally in the above sum plus costs as stated.

………………………………..
Anare Tuilevuka
Master
At Lautoka 
11th March 2011.