Rokonavasu v Kumar [2011] FJHC 317; HBC293.2008 (2 June 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 293 of 2008

BETWEEN:

ULAIASI ROKONAVASU,
of Korolevu, Sigatoka, Fisherman
PLAINTIFF

AND:

GILENDRA KUMAR
(f/n Hari Sewak) of Main Street, Ba Town
BA in Fiji
DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSELS : Diven Prasad Lawyers for the Plaintiff

Date of Hearing: 26th May 2011
Date of Ruling: 2nd June 2011

RULING

1. INTRODUCTION
   

1. The Plaintiff has obtained the judgment against the Defendant. The Plaintiff has sought general damages for pain and suffering, loss of amenities of life, loss of future earnings and cost for domestic care under common law and special damages for medical and transport expenses, medical and police report charges and expenses for medicine.
   
2. The Claim for Special Damages is for $5,092.50 and for General Damages a sum of $200,000 is claimed for pain and suffering and loss of amenities of life, and another $18,200 for cost of nursing and domestic care and cost of replacements of wheel chairs another sum of $ 2500 and cost of renovation to the house for $50,000 is also pleaded.
   

2. EVIDENCE AND ANALYSIS
   

3. Plaintiff gave evidence and he was 80 years of age when the alleged motor accident happened. He was one of the passengers on a mini-van that collided with a heavy vehicle head on, on 26th April, 2006.
   
4. Due to this motor accident a one person was killed and Plaintiff suffered injuries to his legs, to his right arm and to his head. As a result the Plaintiff's both legs were amputated above the knee. No artificial limbs were fixed to the patient due to the nature of the amputation as both amputations were preformed soon after the accident and they were above the knee. There was a difficulty in fixing artificial limbs to soft tissues. Thus the Plaintiff's only method of movement was restricted to wheel chair. According to the Plaintiff's evidence for the fracture in his arm steel reinforcements were permanently inserted and the head injury was treated with some stitches. Plaintiff was admitted in the Colonial War Memorial Hospital, in Suva for one month and then transferred to Tamavua Hospital for further treatment and observations. He had remained in that hospital for more than three months, where he underwent some physiotherapy treatment. The plaintiff did not state who paid for his medical bills, but stated that since he served in the Army that they would have paid for his treatments. Plaintiff also state that he only once visited Sigatoka hospital for treatment, but failed to give descriptions of methods of transportations used.
   
5. According to the Plaintiff first he was gifted a wheel chair by the Indian community and the second wheel chair his grand son paid for it and state that the present wheel chair that he is using needs a replacement.
   
6. The Plaintiff also states that he needs a special care as his both legs are amputated and confined to a wheel chair. At the moment his grand son is looking after him. Considering the nature of the injury and his age a dedicated person for his care is needed.
   
   7. The Plaintiff also stated that since he has to use the wheel chair for his movements around the house and garden around the house some changes to the house was needed as house is on a higher elevation compare to the surrounding garden and further stated that even the walls of the toilet was widened for him to accommodate entry to it in the wheel chair. Plaintiff still complains of pains in his legs and right hand where some steel nuts were inserted. He also complains of pains in his chest and in his head. He stated that in the night and in severe weather conditions that the pain becomes much severe.
      

100. ASSESSMENT OF GENERAL DAMAGES
     

8. The Medical Report of 29th June 2007, states that the Plaintiff has suffered following injuries and treatments:
   

1. Bilateral fractures to femur involving knee joints. Bilateral above knee amputations were done on 10.05.2006 and discharged on 31st May, 2006;
   
2. Monteggis fracture forearm, internal fixation was done on 5.7.2006
   

9. The Medical Report of the Plaintiff dated 2nd June, 2008 gives details of the injuries that were healed and treated and also gives total impairment 61%whole person impairment with reference to 5th Edition of the American Guide to the Evaluation of Permanent Impairment .
   
10. The Plaintiff was 80 years old when the accident occurred and his earning capacity at that time was not produced as evidence. He was a fisherman and there were no evidence to show that he was engaged in the business of fishing at that time. No income was also proved either by oral or documentary evidence.
    

No evidence was adduced on transport cost or for medical expenses. He only said that his grandson gives him $80 per month and that is not sufficient. He did not detailed even his expenses. So no oral evidence or document evidence is produced in regards to special damages.

11. Plaintiff did not give evidence regarding pain and suffering due to injury other than the pains that has presently have. Considering the circumstances of the case and the age of the Plaintiff the Pain and suffering and loss of Amenities to life is assessed at $50, 000.00. The cost of domestic care is assessed as $18,200. 00 as pleaded on the basis that minimum sum per day $10 for 5 years. The cost of replacement of a wheel chair is $600.The plaintiff has failed to prove the costs to renovation of the house and medical and transport expenses.
    
12. The total damages is assessed at $68,800.00 and the Plaintiff is also entitled for the cost of this action assessed summary at $1,000.00
    
13. The Plaintiff is also entitled for an interest of 6% from the date of service of writ to final settlement of the amount $68,800.00.
    

Dated at Suva this 2nd day of June, 2011

.................................................
Mr. Deepthi Amaratunga
Acting Master of the High Court
Suva