Ali v Radruita [2011] FJHC 302; HBC403.2009 (26 May 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO. HBC 403 OF 2009

BETWEEN:

MOHEEZ NOSHEEN ALI
Plaintiff

AND:

KAVAIA SAVOU RADRUITA
Aka KAVAIA S RADRUITA
Defendant

Mr R K Naidu for the Plaintiff
Mr A Vulaono for the Defendant

DECISION

This is an application by the Defendant brought by Summons dated 2 March 2011 seeking leave to appeal an order made on 17 February 2011 by Master Tuilevuka. The Master ordered that the Defendant should pay $10,000 as interim damages to the Plaintiff within 28 days together with costs that were fixed at $350.00. In addition the Defendant also sought ancillary orders consequential to the leave application.

The application was supported by an affidavit sworn by Ronlyn Ratiram on 2 March 2011. The Plaintiff opposed the application and filed an affidavit in answer sworn on 23 March 2011.

The application came on for hearing before me as an application in Chambers on 2 May 2011. Counsel presented helpful submissions during the course of the hearing.

The application was made pursuant to Order 59 Rule 11 which states:

"An application for leave to appeal an interlocutory order or judgment shall be made by summons with a supporting affidavit filed and served within 14 days of the delivery of the order or judgment."

I was informed from the Bar Table that the summons had been filed and served within time and as a result there was no issue arising as to jurisdiction. Pursuant to Order 59 Rule 8 (2) the application for leave is to be heard by a single judge of the High Court and is to be decided upon the papers filed. It is in effect a summary proceeding decided on affidavit.

The Master had before him a summons for interim payment filed on 28 May 2010 by the Plaintiff. The Plaintiff sought an order for interim payment of $10,000.00 as damages arising out of a motor vehicle accident. Liability had been admitted by the Defendant.

The application before the Master was made pursuant to Order 29 Rule 10 of the High Court Rules.

In his Ruling the Master indicated that he would not be making an interim award in respect of loss of wages which were an element of special damages and more properly a claim which should be considered at the assessment hearing. The Master restricted himself to the issue of general damages for pain and suffering and loss of amenities (enjoyment of life).

At the time of the accident the Plaintiff was aged 22 years and was married with a young family.

The motor vehicle accident occurred on 27 June 2009 on the Kings Road at the location that is referred to as "8 miles". The Plaintiff was travelling towards Nausori when the Defendant's vehicle, which was travelling in the opposite direction, collided with the Plaintiff's vehicle.

The Plaintiff suffered facial abrasions as well as a closed segmental fracture of his right femur and right tibia/fibula. A medical report dated 24 August 2009 signed by Dr McCaig stated that the Plaintiff underwent surgery (interlocking rodding) of his fractures on 8 July having been admitted at CWM Hospital on 27 June 2009. He was discharged on 10 August 2009.

The medical report also stated that after the operation the Plaintiff was undergoing physiotherapy to regain his muscle strength and mobility.

The Master considered the material in the affidavits relating to the Plaintiff's claim for pain and suffering and also for loss of enjoyment of life. The Master also considered the Defendant's assertion that the Plaintiff was not making any serious attempt at rehabilitation. The Master noted that the Plaintiff disputed this assertion.

The Master also considered a medical report dated 13 May 2010 from the Suva Private Hospital that had been obtained by the Defendant. Dr Taloga examined the Plaintiff on 13 may 2010 and stated, so far as is relevant to the claim for an interim payment of damages:

"_ _ _

Mr Ali had suffered facial lacerations, a closed segmental fracture of the right femur and a closed fracture of the right tibia and fibula.

The fractures were stabilised with h intramedullary rods. He was discharged from the hospital on 10/8/2009.

Mr Ali tells me he cannot walk due to weakness of his legs. He was bought into the examination room in a wheelchair.

He was able to stand with crutches and transfer himself to the examination couch. He has an APO on the right leg. The right knee has a fixed-flexion deformity of 30o. He cannot actively dorsiflex his ankle. Internal rotation of the right hip was severely restricted in internal rotation.

X-ray of the femur, tibia and fibula fractures taken today showed bony union. There is heterotopic ossification around the right hip.

At this stage Mr Ali is still recovering from his injuries and has not reached maximum medical improvement. He is quite obese and needs to seriously look at ways to lose weight.

A closely monitored rehabilitation programme needs to be instituted as Mr Ali does not seem to be making any serious attempt at rehabilitation.

_ _ _ "

The reference in the report to rehabilitation is perhaps a matter for more thorough consideration at the assessment hearing.

The Master concluded that the Plaintiff's injuries together with the resulting pain and suffering, his hospitalization and his loss of enjoyment of life would entitle him to a substantial award of damages. He considered that an interim payment of damages for the period from 27 June 2009 to the date of his decision being 17 February 2011 in the sum of $10,000.00 was appropriate. He made an order accordingly and awarded costs to the Plaintiff in the sum of $350.00.

It is well settled that only in exceptional circumstances will leave be granted to appeal an interlocutory order. Leave will not normally be granted unless some injustice would be caused. In Niemann –v- Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431 Murphy J at page 441 noted:

"Even if the order is seen to be clearly wrong, this is not alone sufficient. It must be shown, in addition, to effect a substantial injustice by its operation."

The Courts have also traditionally drawn a distinction between interlocutory orders that relate to practice and procedure and orders that affect a party's substantive rights. This distinction was discussed by Jordan CJ in In re the Will of F.B. Gilbert (deceased) [1946] NSWStRp 24; (1946) 46 S.R. NSW 318 at page 323:

"_ _ _ an appeal from an exercise of a so-called discretion which is determinative of legal rights stands in a somewhat different position. In this class of case, too, a Court of Appeal submits itself to self-imposed restraints, but restraints which, though strict are somewhat less stringent than those adopted in matters of practice or procedures_ _ _. With the trial Judge's (or for that matter, a Master's) finding of fact, a Court of Appeal will not interfere unless it comes to a clear conclusion that he was clearly wrong, e.g. where he has adopted a wrong principle, or has clearly overlooked something or accepted evidence inconsistent with itself or with indisputable facts: _ _ _

This is applicable, too, to the inferences drawn by the trial Judge from the facts found by him, and, in particular, to the exercise by him of a judicial discretion in assessing damages. Where these are at large, it is impossible that any two men would arrive at precisely the same figure. Hence, it has been laid down that, although the members of a Court of Appeal might themselves have been disposed to award somewhat more or somewhat less, it is not proper for them to embark upon a re-assessment of the damages in order to arrive for themselves at a compromise upon which they can all agree, unless they are satisfied that the trial judge has acted upon a wrong principle, or has neglected to take into account something relevant, or that the amount awarded is so much out of all reasonable proportion to the facts proved in evidence that the award should not be allowed to stand

_ _ _. But in a proper case a Court of Appeal will not hesitate to review the determination of a trial Judge upon quantum of damages, if it is satisfied that this is necessary in the interests of justice."

Similar considerations are, in my opinion, applicable where a Plaintiff is seeking leave to appeal an assessment of damages by the Master by way of an interim award of general damages.

The Master's jurisdiction in this matter is derived under Order 59 Rule 2 which states:

"The Master shall have and exercise all the powers, authority and jurisdiction which may be exercised by a judge in relation to the following causes and matters:

(a) - (c) _ _ _;

(d) assessment of damages where liability has been

determined

(e) - (f) _ _ _"

There is no material before me to indicate that the Defendant takes issue with the Master's jurisdiction nor the Master's application of the rules set out in Order 29 which govern the formal requirements in applications such as the present. Leave is sought to appeal the quantum of the interim award on the grounds stated in the affidavit in support. The Defendant challenges the Master's award on the grounds that (a) he erred in determining that the Plaintiff was in severe pain and as a result would be entitled to substantial damages, (b) he erred in determining that the final award could be much more than $10,000.00 sought by the Plaintiff and (c) the award was excessive and unreasonable.

The exceptional circumstances that the Defendant is required to establish in the present application are that the Master has acted upon a wrong principle, or has neglected to take into account something relevant, or has taken into account something irrelevant or that the amount awarded is so much out of all reasonable proportion to the facts proved in evidence. In my judgment the Defendant must also establish that it is necessary in the interests of justice for the Master's award to be reviewed.

The first ground upon which the Defendant challenges the Master's award is in relation to a finding of fact. The Master found that the Plaintiff suffered severe pain. Implicit in that finding is that the Plaintiff has suffered severe pain from the date of the accident through to his lengthy period of hospitalization up to the date of the hearing. The finding was based on the material in the Plaintiff's affidavit and the medical reports. It was a finding that was open to the Master on the evidence before him. There are no special circumstances raised by the Defendant on this ground.

The second and third grounds of challenge relate to the Master's assessment of the amount to be awarded as an interim payment. This to a large extent depended upon the Master's assessment of what might be a reasonable amount to compensate the Plaintiff for pain and suffering and loss of enjoyment of life. The underlying principles to be applied by courts in Fiji when assessing damages for personal injuries were set out in the decision of the Court of Appeal on The Permanent Secretary for Health and Another –v- Arvind Kumar (unreported Civil Appeal No. 84 of 2006 delivered 20 June 2008).

From the Court of Appeal's judgment it is worth quoting the following extract:

"This Court agrees that there should be consistency in the level of general damages awarded in similar cases but we add this rider, that if there has been an error in the approach of the courts to the award of general damages for pain and suffering then it must say so. There should not be consistency merely for consistency's sake. Of course, to some extent, the so-called socio-economic conditions of Fiji must be relevant but in out judgment they should not be an over-riding factor in the assessment of damages under this head. The task of the Court must be to arrive at a proper figure in current Fiji Dollars which will properly compensate a person who has suffered pain and loss of enjoyment of life.
_ _ _

We also agree that the Court should refer to other awards "as not more than broad guidelines to ensure that (the judge) is on the right track."

Applying the guidelines set out by the Court of Appeal in Arvind Kumar (supra) and with reference to recent decisions of this Court in Naidu –v- Formscaff (Fiji) Ltd (unreported Action No.341 of 2008 delivered 30 June 2010) and Aklesh Narayan –v- Vicky Narayan and Krit Pillay (unreported Lautoka action No. 22 of 2003 delivered 8 September 2009) it is apparent that the interim award of $10,000.00 is not out of all reasonable proportion to the facts established by the material that was available to the Master.

It is apparent that this interlocutory order is an order which has affected the substantive rights of the parties. As such in order to obtain leave to appeal the Defendant must show special circumstances. For the reasons stated above I have concluded that there are no special circumstances established by the Defendant that would enable me to grant special leave to the Defendant.

The application is dismissed and the Defendant is ordered to pay the Plaintiff's costs of the application which are fixed in the sum of $450.00.

W D Calanchini
JUDGE

26 May 2011
At Suva