Kiran v Kumar [2011] FJHC 665; Action 073.2009 (24 October 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. 073 of 2009

BETWEEN:

INDAR KIRAN aka INDRA KIRAN father’s name Chandar Sen of Korotogo, Sigatoka, Domestic Duties.
PLAINTIFF

AND:

ANIL KUMAR father’s name not known to the Plaintiff of Nasoso, Nadi, Driver.
1st DEFENDANT

AND:

MICHAEL’S TAXIS & TOURS LIMITED a limited liability company registered under the provisions of the Companies Act Cap 247 and having its registered office at Sharma Street, Narewa Road, Nadi.
2nd DEFENDANT

Before: aster Anare Tuilevuka
Counsel:Mr. R. Singh & Ms. A. Swamy for the Plaintiff
N/A for the Defendants

Date of Ruling: 24 October 2011

RULING
(Assessment of Damages)

INTRODUCTION

[1]. On 16 May 2006, Indra Kiran[1] was badly injured as a result of an accident involving a motor vehicle in which was a front seat passenger. The accident happened at Koronubu in Ba along the Queens Road. Kiran sues Anil Kumar, the driver of the vehicle and Michael’s Taxis & Tours Limited, the owner of the vehicle. Kiran’s statement of claim was filed at the Lautoka High Court on 15 May 2009. On 29 June 2010, default judgment was entered against the defendants for failing to file a statement of defence with special and general damages to be assessed with costs. This is my assessment of damages and costs.

THE ACCIDENT

[2]. The vehicle concerned was DQ723. As stated, Kiran was on the front passenger seat. Kumar lost control of DQ723 as he drove it on a high speed along the Queens Road at Koronubu in Ba. This caused the vehicle to veer off the road. The resulting collision caused severe injuries to Kiran. From the scene of the accident, she was rushed to Ba Hospital and then to Lautoka Hospital that same day where she was admitted from 16 to 19 May 2006.

THE CLAIM

[3]. Kiran argues that - as owner of DQ723 - Michael’s[2] is vicariously liable for the consequences of Kumar’s[3] negligent driving. She seeks special damages in the sum of $1,314.50 (one thousand three hundred and fourteen dollars and fifty cents); general damages for pain and suffering and loss of amenities of life; interest and costs. Kumar was convicted at the Ba Magistrates Court on a Careless Driving charge. At the assessment of damages hearing, Kiran and Doctor Joeli Mareko gave evidence. Mr. Justice Inoke in Prakash v Khan [2009] FJHC 160; HBC068.2002 (5 August 2009) resonated the rebuttable presumption in law that a driver of a motor vehicle is prima facie driving as an agent of the owner of the motor vehicle[4].

INJURIES SUFFERED

[4]. A medical report by Dr. Joeli Mareko, Consultant Orthopaedic Surgeon at Lautoka Hospital some four months[5] after the accident records the following observations:

The above patient was involved in an accident on 16/05/06 and sustained injuries to the left forearm.

He had been bleeding open wounds with pieces of bone poking out.

Investigation

Radiological x-rays: complete fracture with Grade II C wounds.

The hands cold and cyanosed.

She is still being reviewed in the clinic.

[5]. Kiran’s account is consistent with Dr. Mareko’s evidence. She lost consciousness at the site of the accident and regained it later at Ba Hospital only to see her left arm all covered in blood with pieces of bone protruding through the skin. She could not move her left arm and was in a state of shock and distress.

[6]. Doctor Mareko, speaking from Kiran’s medical folder, said Kiran had a “crushed and de-gloving injury”. Kiran’s left hand was all clammy and there was no blood flow to it. The left arm muscles were torn and bones were sticking out through the skin. Kiran was resuscitated at Lautoka Hospital. She was given large volumes of blood and fluids to compensate for that which she had lost. The doctors got her blood level to normal and took her into surgery. The left arm had to be amputated quickly because the skin tissue was dead and the arm was severely injured. Frankly, the arm could not be saved and any slight delay on amputation would could trigger a host of other complications. The surgery took 45 minute to complete. After surgery, Kiran was prescribed some antibiotics and painkillers. Doctor Mareko gave Kiran a 70% disability assessment. He said Kiran would have a reduced earning capacity and would suffer depression and phantom pain in the long term. Doctor Mareko said that Kiran would have endured a lot of pain because she was given a lot of pain killers. He assessed Kiran’s level of pain at a 5[6].

[7]. Kiran said that the pain relieving tablets and an injection that were administered to her while waiting for surgery were hardly effective against the intense pain which persisted. From Ba Hospital, she was rushed to Lautoka Hospital where an anaesthetic was administered to her immediately upon arrival. She revived sometime later to find that the amputation of her left arm had been successfully carried out. But she still felt some pain after that emergency procedure. Whilst being admitted at Lautoka Hospital, Kiran was constantly in a state of shock and distress. This happened as she contemplated and mulled over the post-amputation challenges that she would have to endure in the life ahead of her. She was after all left-handed and had just lost her left-arm. The thought of having to improvise for the rest of her life terrified her – and she cried a lot.

[8]. Life - post-amputation - has not been smooth sailing for Kiran. Her husband is spending less and less time with her – if at all. It is difficult for her to put on a sari, let alone, maintain a composure in one with just one arm to keep the drape in place. A major part of her enjoyment of life and self worth is lost as a result of her inability to wear a sari to important family and religious functions in the rural community where she lives. She continues to feel left out and humiliated as a result. As a Fijian woman in a rural farming community, dressing up for family and religious functions was one of the few perks of life that she and her peers looked forward to. That is now no more for Kiran.

[9]. Kiran’s sense of self-worth is tied to her ability to perform the simple everyday-tasks associated with her role as a wife and mother. Her self-worth is irretrievably lost and diminished because her amputated left arm has rendered it almost impossible for her to carry out simple tasks such as cooking, cutting up vegetables and meat, stirring the pot, doing the dishes and the laundry. She sometimes washes the dishes using her feet. Even taking a shower - or going to the toilet, is now a cumbersome methodical process for Kiran.

SPECIAL DAMAGES

[10]. Special damages are monetary losses actually suffered up to the date of judgment and must be specifically pleaded and strictly proven. In this case, Kiran claims $1,314.50 in special damages made up as follows:

(a)	Copy of Police Report	$ 22.50
(b)	LTA Search	$ 7.00
(c)	16 trips to Lautoka Hospital for checkups and clinic @$80.00 per taxi fare per trip	$1,280.00

[11]. I am prepared to make an award on (a) and (b) above as it is common knowledge that these fees are indeed charged by the authorities concerned. As for (c), while I am prepared to accept that Kiran did make 16 trips to Lautoka Hospital for checkups and clinics, I am not prepared, in the absence of specific documentary evidence, to find that these trips were in fact made by taxi. I am prepared to allow $20-00 per occasion for the fares and for meals/refreshments on each trip (i.e. $22.50 + $7.00 + $320 = $349.50 for special damages).

GENERAL DAMAGES

[12]. In assessing general damages, the courts are usually guided by previous awards in cases where the injuries suffered are of equal or comparable severity. Furthermore, it is widely acknowledged that, as a matter of principle, any assessment should aim giving a once and forever lump sum award which puts the injured plaintiff, as nearly as possible, in the same position as if he had not sustained the injuries[7]. The burden lies on the plaintiff to prove the injury or loss for which he seeks damages.

Pain and Suffering and Loss of Amenities of Life

[13]. Pain and suffering and loss of amenities of life are often assessed together. The latter is often also referred to as loss of enjoyment of life. In paragraphs 4 to 9 above, I have set out evidence of the pain and suffering that Kiran endured and how the amputation of her left arm has deprived her of the ability to participate in normal activities and thus to enjoy life to the full[8].

[14]. Loraini Dre v Ministry of Health [2009] FJHC 129; HBC 020.2007 (24 June 2009) is a case of comparable severity. In that case, a 66 year old village woman had to have her right arm amputated below the elbow due the onslaught of ischemic gangrene which was triggered by the negligent intravenous administration of a relatively high dosage of antibiotics by the doctor who was attending to the plaintiff’s complaint of a right ear infection. In the above case, Mr. Justice Inoke reviewed the relevant authorities

[49] In Suruj Narayan (supra), the plaintiff suffered a wound to his ankle in the workplace in 2003. He was treated at the Labasa Hospital without due care which resulted in his leg being amputated because of infection. Like here, the plaintiff suffered severe pain before amputation but less post-op. Justice Byrne awarded $70,000 for pain and suffering and loss of amenities of life in a judgment delivered in 2008.

[50] In Kotoiwasawasa & Another v Govind & the Attorney General [Civil Action 192/2000], 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. Justice Pathik awarded $95,000 for pain and suffering in a judgment delivered in 2003. His Lordship has conveniently summarised the awards that His Lordship had made over the years, for which I am grateful, and re-list them here for convenience:

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

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

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

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

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

f. Flour Mills of Fiji Ltd v Raj [2001] FJCA 35 – loss of right arm - $85,000.

[51] In Flour Mills of Fiji Ltd v Raj (supra) 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.

[52] Taking into account the above cases and the trial evidence I accept that the sum claimed by the Plaintiff is a reasonable amount and I therefore award the Plaintiff the sum of $70,000.00 for her pain and suffering and loss of amenities of life.

[15]. Mr. Singh urges this court to award $100,000-00 (one hundred thousand dollars) for her pain and suffering and loss of amenities. He attempts to justify the higher figure he seeks by emphasizing that the plaintiff in Loraini Dre was 62 years of age whereas Kiran in this case is only 40 years of age and will suffer more due to her age and thus her enjoyment to life has been and will be severely diminished for the remainder of her life. This argument has some merit. And so, using Loraini Dre as the benchmark, and considering the evidence on pain and suffering and loss of enjoyment of life in this case[9], I award $80,000-00 (eighty thousand dollars) for pain and suffering and loss of amenities of life.

Future Care

[16]. In Loraini Dre, a claim was also mounted for future care at the rate of $50 per week that the plaintiff would receive from her daughter. In considering this aspect of the claim, Inoke J took into account evidence that the plaintiff was unable to cook. Her daughter is now having to cook for her post amputation. I take heed of the following observations which in my view, is good sense:

... That the days when family members care for each other for free are long gone. Times have changed. The Plaintiff's daughter is entitled to live her own life and if she has been put in a situation where she has to care for her mother as well, especially in a village environment where no alternative care is available, she should be paid for it. I think $30 a week is reasonable. I therefore award the sum of: $30 x 52 x 7 = $10,920. Again no interest is payable on this amount as the Plaintiff receives it in advance."

[17]. Mr. Singh submits that $50 per week should be allowed for Kiran. He also urges this court to consider a multiplier of 15[10]. I do not see any reason to depart from $30 per week as awarded for weekly care by Inoke J. As for the multiplier, courts hardly use a multiplier over 16. I use 10 in this case. Accordingly, I calculate an award for future care as follows:

$30 x 52 x 10

=

$15,600

CONCLUSION

[18]. In conclusion, the total award(s) I make, jointly and severally against the defendants, is/are as follows:

Special Damages	=	$ 349.50
General Damages (Pain & Suffering & Loss of Amenities of Life)	=	$80,000.00
Future Care	=	$15, 600.00
Costs	=	$ 1,500.00
TOTAL		$97,449.50

[19]. In addition to the above, I award 7% interest from 15 May 2009 to 24 October 2011 plus post judgement interest at 4%. These are to apply only to special and general damages but not to future care as per Inoke J's reasoning in Loraini Dre (see paragraph 21 above).

Anare Tuilevuka
Master

At Lautoka
24 October 2011.

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^[1] the plaintiff.
^[2] the second defendant.
^[3] the first defendant.
^[4] (see also the following cases which were cited by Inoke J: Chandra v Narain [1997] FJCA 42; Abu0051u.96s (14 November 1997), citing Manawatu County v Rowe [1956] NZLR 78 approved by the Privy Council in Rambarran v. Gurrucharran, [1970] 1 WLR 556, 560).
^[5] dated 28 September 2006.
^[6] (on a scale of 1 to 5 with 5 being the highest level of pain).

^[7] as per Gibbs CJ and Wilson J in Todorovic v. Waller [1981] HCA 72; [1981] 150 CLR 402 at p.412.

^[8] as Windeyer J observed in Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491, 506: loss of amenities is the name given to the non-economic consequences of the destruction or diminution, permanent or temporary, of a faculty, which deprives the injured person of the ability to participate in normal activities and thus to enjoy life to the full and to take full advantage of the opportunities it might offer.



^[9] see especially paragraphs 11 and 12 above.
^[10] c.f. in Loraini Dre, Inoke J used the multiplier of 7 as the plaintiff was 63 years of age. Kiran in the present action is 40 years of age.