Brzoska v Hide-A-Away Beach Resort Ltd [2011] FJHC 722; HBC347.2005L (10 November 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 347 of 2005L

BETWEEN:

CHERYL L BRZOSKA
Plaintiff

AND:

HIDE-A-WAY BEACH RESORT LIMITED
Defendant

JUDGMENT AFTER TRIAL

Judgment of: Inoke J.

Counsel Appearing: Mr V Mishra (Plaintiff)
Mr T Tuitoga (Defendant)

Solicitors: Mishra Prakash (Plaintiff)
Munro Leys (Defendant)

Dates of Hearing: 18, 19 April, 4 and 5 July 2011; written submissions filed on 9, 12, 19 and 21 September 2011.

Date of Judgment: 10 November 2011

INTRODUCTION

[1] Mrs Brzoska was injured whilst staying at the defendant’s resort on 15 December 2002. She sued the defendant on 5 December 2005 for damages for alleged breach of duty by the defendant as occupier under s 4 of the Occupiers’ Liability Act and common law negligence.

[2] This is the Court’s judgment after a four day trial over several months.

CASE HISTORY

[3] The Writ of Summons and Statement of Claim was filed on 5 December 2005. The Defence was filed on 25 January 2006. The Summons for directions was issued on 16 February 2006 and the order by consent was given on 15 March 2006. The action then lay dormant until 15 December 2008 when the Registry issued notice under O 25 r 9 of the High Court Rules 1988 for the plaintiff to show cause why the action should not be struck out for want of prosecution. The reasons for the delays were apparently the involvement of overseas solicitors and lack of instructions from those solicitors and the plaintiff to the local solicitors. The action remained alive and the defendant filed a summons for security for costs on 30 June 2009. That summons was first called on 10 July 2009 and directions were given for the filing of affidavits and the hearing set down for 1 September 2009. On 1 September 2009 I heard both counsels and on 4 September 2009 I dismissed the application for security for costs. My judgement is reported in Brzoska v Hideaway Resort Ltd [2009] FJHC 191; HBC347.2005 (4 September 2009). I indicated in my judgement that I was prepared to give priority to this case being heard. On 9 April 2010, the plaintiff’s solicitors filed another Summons for directions. Directions were given by the Master on 27 April 2010. No less than six further court appearances followed without resolution of the Summons for directions. On 23 December 2010, Wickramasinghe J set this matter down for hearing on 18 and 19 April 2011. On 28 March 2011, the defendant’s solicitors filed a summons to vacate those hearing days and a further summons on 14 April 2011 for stay of the action pending examination of the plaintiff by a doctor appointed by the defendant. Attempts by the parties’ solicitors to resolve the medical examination failed but I was not prepared to vacate the hearing dates because of the long delay in having this action heard and there was no likelihood of the action being tried this year because all the available dates for the Court have been taken up. The hearing eventually started on 18 April 2011 and continued on 19 April 2011 and on 4 and 5 July 2011. I gave directions for the filing of written submissions which were extended to 9 September 2011 with judgment to be delivered on notice. This is my judgement.

THE STATEMENT OF CLAIM

[4] The Statement of Claim pleads liability for breach by the defendant of its duty of care owed under s 4 of the Occupiers’ Liability Act and, or, alternatively, duty of care owed under the common law. The plaintiff was injured when she was struck on the head by a portable basketball apparatus which was blown over by a gust of wind.

[5] The particulars of negligence were: (1) creating or continuing a situation of danger; (2) failing to take steps to avoid injury; (3) failing to render the premises safe for use; failing to secure the portable basketball apparatus adequately or at all; (4) failing to place the said apparatus at an appropriate and safe distance from the spa pool; (5) failing to remove the said apparatus to storage when not in use.

[6] The plaintiff alleges that she suffered injury to her head, neck, back and spine including closed head injury, a large contusion and bruises on her head, swelling and muscle spasms, post concussion syndrome with cervical and thoracic strain, muscle pain and soreness, significant decreased range of motion of neck, persistent severe post traumatic headaches, double vision, loss of mobility and impairment of balance , memory loss and cognitive impairment, inability to concentrate, loss of sleep, impairment of speech, compression problems, aggravation of cervical degenerative disc disease, chronic pain syndrome, intermittent numbness of hands, and impaired mentation when problem solving.

[7] She claims special damages, general damages for her injuries and loss of earnings and earning capacity.

THE DEFENCE

[8] The defendant simply denies negligence but admits that the plaintiff suffered some injuries on 15 December 2002 but not to the extent alleged by her.

THE ADMITTED FACTS

[9] The agreed facts were that the defendant was at all material times a limited liability company duly incorporated in Fiji and capable of being sued; it is the owner and operator of the resort; and on 15 December 2002, the plaintiff sustained some injuries.

[10] The defendant admits in its defence that it was the occupier of the resort at all material times and that the plaintiff was present at the resort on the day she sustained her injuries.

THE AGREED BUNDLE OF DOCUMENTS

[11] The parties filed an agreed bundle of common documents which were tendered and marked individually during the hearing. The defendant also had its own documents which were similarly tendered as a bundle subject to the right to challenge each document with appropriate weight to be given by the Judge as he saw fit.

[12] Three medical reports were tendered late during the trial and objected to by the plaintiff’s counsel in respect of which I ruled against him and accepted the reports into evidence.

THE EVIDENCE AT THE HEARING

[13] At the beginning of the trial on 18 April 2011, counsel for the defendant applied to have the trial stayed on the grounds that the new medical examination report of the plaintiff by the defendant’s doctor had not come to hand even though the examination had taken place. It was opposed. I refused to delay the hearing because of the full court schedule for hearings and directed that it begin subject to recalling of witnesses if the need arose.

The evidence for the plaintiff

[14] The plaintiff’s husband gave evidence first. He is an engineer specialising in road design. They were married in March 1997 and had been married for five and a half years when the accident happened. His wife was a licensed Level A Pharmacy Technician in Seattle, King County Pharmacy earning US$30,000 pa. They had spent US$1,500 each for airfares plus hotel expenses to come to the trial. They had come a week ago to spend a vacation then attend to this case. Their expenses so far were about US$6,000. They came to Fiji for vacation because his parents and brothers had been here before and enjoyed Fiji. His wife went on line and booked the Hide-a-way. They stayed there for two weeks. On the day of the incident he was playing volleyball with the activities director and others and his wife was sitting in the Jacuzzi jetted spa edge. His wife was 49 and he was 45 at the time. His back was towards her. There was a gust of wind from a storm with rain. The activities director went towards the Jacuzzi area and he turned around and saw his wife holding her head and a basket ball apparatus lying on top of her. The apparatus was on the deck of the pool. People rushed towards her to find out what happened. They had used the apparatus in the morning to play basket ball. His wife was dazed. She said she was hit by the apparatus. She had a big swollen lump on the top of her head. They helped her to the room. She was shaken. She tried to lie down and sleep. She vomited a couple of times. The incident happened between 2 and 3 pm. The owner of the resort came over to their room and brought a neck brace collar and spoke to his wife. His wife told him that she was hit on the head and felt “compressed”. She tossed and turned in her sleep. On the next morning, his wife wanted to see a doctor. The owner arranged a doctor and they went in a taxi. They had asked her about seeing a doctor the day before but it was late so they didn’t go. Her condition had not improved after seeing the doctor. They stayed for another night after seeing the doctor before they returned to America. She was miserable on the flight back. He immediately made an appointment for his wife to see a doctor when they got back home. He had to go back to work so he did not go to the doctor with his wife on that occasion. She saw a physio 2 or 3 times a week for 3 months and had acupuncture treatment. She was in much agony and was unbearable. She was on edge all the time and complained of memory loss. She took several different drugs for migraine; some didn’t help and some did not agree with her. She saw one doctor after another. Her condition was affecting their married life and he seriously thought about divorcing her. Eventually, she had neck surgery because she was not getting any better. The surgery saved their marriage. She only has a problem once in a while not like 24/7 before. She had a steel plate inserted in her neck, some discs removed, two discs had collapsed. She has limited movement in her neck after the operation. His wife was a go-getter, tenacious, confident and decision maker before the incident. Now she is tentative and needed more input from him. She has short term memory loss now not like before. For two weeks after they got back to America, she was always tired, stayed in bed most of the time and was “totally wiped out”. She never went back to what she was like before. But she has improved in that she is not in pain all the time, and still takes medication every day. They have medical insurance but it does not cover everything so he still has to pay out of his pocket. He pays for pain medication and the chiropractor expenses of between $1,000 and $1,500 per annum and continues to now. His wife enjoyed gardening, hiking, walking and sledding but since the incident she cannot do sledding and cannot do much hiking and gardening. She walks the dog and drives but only for short distances, one to two hours. She has not gone back to work because of her neck injury. She had to give up studies for a management degree and forego a scholarship.

[15] The plaintiff’s husband also produced their tax returns to show how their joint property rental business had declined because of what they allege to be reduced management input from the plaintiff but I think the evidence failed to establish the necessary proximity and causal link so I will not go into the details.

[16] He also gave evidence of loss of his sick leave but he is not a claimant in these proceedings so it will not be taken into account. His wife wanted to be a pharmacist but could not achieve her aim because of her injuries. She lost out on a $100,000 a year job.

[17] He remembers the basket ball apparatus as being made of plastic. It was black in colour, which he demonstrated to be about five feet nine inches tall, with two wheels on which the apparatus could be leaned back on to and wheeled away.

[18] In cross examination, he said he and the plaintiff had lived together from 1990. They rented a house from his parents in Seattle. She was a pharmacy technician. She resigned and went back to community college and completed a “AA” Degree in 1997. She was never employed again after resigning. She had a workplace lifting accident and hurt her back or neck but she was successfully treated after a month of physiotherapy. He did not see the basket ball apparatus fall on his wife. But he saw one of the workers move the apparatus. He was shown pictures of a similar apparatus but he said it was not in accordance with his recollection which was that parts of it was made of plastic but the stem was made of metal; and much shorter than six feet. When he approached his wife, she was holding her head; not her neck. She did not complain about her neck. The owner of the hotel brought a neck brace which she wore for the next few days. He did not see any blood on her head or a scratch on her forehead. His wife was in shock and dazed.

[19] They flew out two days later and on the doctors’ recommendation his wife underwent massage and physiotherapy but that did not help. His wife had a thyroid problem and had been taking medicine for it since 1990. But his wife had no symptoms of fatigue, loss of appetite, weight or hair before 2002.

[20] Counsel for the defendant sought to elicit evidence of his wife’s previous marriage and pre-existing medical ailments which I am not inclined to accept because, as I will elaborate on later in this judgment, the medical evidence falls short of showing that the plaintiff had a pre-existing mental condition.

[21] The husband said his wife had a scholarship in 1997 after her two year course but she did not take it because they had moved to Yakima. He believed that the scholarship was for two or three years for a pharmacy degree. She did not do any study courses in 1997; she just managed their properties.

[22] The husband also gave oral evidence and provided tax returns on the income from their properties and special damages claimed by his wife.

[23] The plaintiff gave evidence next. She described herself as a rental property manager. She said she was vacationing in December 2002 with her husband at the resort. It was a balmy day, cloudy with some wind. She was sitting in the Jacuzzi with her head just above the ground level, talking and enjoying the scenery when the basketball backboard apparatus fell on her head. It struck her on the left side of her temple. She did not see the apparatus hit her but she remembers being hit so violently that her head and spine hit the concrete bench. She was dazed and was in immediate pain. Her head and body hurt really badly. Two employees came to her aid. The first was the activities director. He said “I’m so sorry. I was told to take this apparatus away but I didn’t”. He got some ice and put it on her head. The activities director and the supervisor helped her out of the pool. Someone brought a wheel chair. She was shaking. She felt so cold. She was taken to the lobby. The owner, Mrs Wade, called and introduced herself with a nurse. She looked at her head and shoulders and neck and gave her some Tylenol. She told her workers to wheel the plaintiff back to her room. Mrs Wade ordered a neck brace and gave her to wear around her neck.

[24] Mrs Brzoska said she was so cold that she had a warm shower. She then vomited about half an hour after being hit on the head. The lump on the left side of her temple was the size of an egg; it was very prominent. She had abrasions on her left temple and bruising. She tried to go to sleep but could not because she was feeling nauseous and cold. It was a long night. She called Mrs Wade and told her that she needed to see a doctor and was told that it was late and the doctor was four hours drive away. On the next day Mrs Wade hired a taxi to take her to Dr Dasi who examined her. The doctor told her that she had swelling in her brain and wanted to give her an injection in her neck and medication but she felt uncomfortable about the injection so she refused it. She was prescribed diazepam and anti-inflammatory medication. She took the medication which put her to sleep. The doctor advised her to see her doctor in America as soon as she got back home.

[25] She saw her family physician when she got back to America. He examined her and scheduled some tests which were done. She was examined on 27 May 2000. An MRI scan was also done because she was experiencing some problems. It showed no difference with a 1990 scan. She was also examined on 27 December 2002 with findings that there was prominent spondylosis at C4-5 and C5-6 with degenerative disc disease and no evidence of any definite fracture or subluxation of her cervical spine and no acute compression fractures of her thoracic spine. Mrs Brzoska was also examined on 27 March 2003 by the same radiologist with similar findings. She was suffering hand numbness and imbalance which she did not have before. She was in a great deal of pain and her head hurt continuously. She was given muscle relaxants, pain killers and anti-inflammatory drugs. She also attended physiotherapy sessions on doctor’s advice but it did not help. She had difficulty grabbing things by both hands and often dropped things which had to be cleaned up. She also had difficulty with her marriage. She yelled at her husband out of frustration and pain but he was very supportive of her. She was a very independent person but because she lost it through her illness she took it out on her husband.

[26] She had an epidural injection but that did not help so she elected to have surgery which involved the removal of the damaged disc and insertion of a titanium plate. Since the four and a half hours operation and three days in hospital she has had some improvement, about 50%, but she still has pain depending on the day and her mobility is limited.

[27] On the morning of the hearing on 4 July 2011, counsel for the plaintiff objected to the tendering into evidence of three medical reports, two for the defendant and one for the plaintiff. One of them was the report of the defendant’s doctor that examined the plaintiff earlier this year. The objection was on the basis that the reports were produced very late in the proceedings and, secondly, because the defendant was not going to call the doctor that examined the plaintiff. I took a short adjournment to consider the reports after which I allowed them into evidence subject to the plaintiff being allowed to call the defendant’s doctor, who apparently, was not going to be now called by the defendant. My reasons were that the documents in this case had all been tendered on the basis that their authenticity were not in issue and their contents were subject to the provisions on hear say evidence under the Civil Evidence Act 2002. The plaintiff had intended to call medical evidence (the doctor who provided the latest report for the plaintiff) according to her counsel but had decided not to do so to save costs and because the indications were that the defendant would be calling medical evidence. Now that the defendant was not calling its doctor, counsel for the plaintiff submitted that his client would be prejudiced if the reports were allowed into evidence as he would not be able to cross examine the doctors. I did not think they were good reasons to reject the reports. A party is free to run his case as he sees fit. If his strategy is dependent on the other side’s he runs the risk of being surprised but that cannot be the fault of the other side.

[28] Mrs Brzoska confirmed that she had been examined by the defendant’s doctor, an orthopaedic surgeon, on 14 April 2011. It took ten to fifteen minutes. He asked questions of her and she told him of the history of her complaints. She was accompanied by her husband.

[29] The parties’ counsels agreed special damages for medication and other expenses at US$12,500.

[30] In cross examination, Mrs Brzoska said she was hit by the apparatus on the left side of her head which jammed her head on to the concrete. She was clearly troubled and upset when cross examined on the details of the incident. But her evidence was consistent with what she had said in her examination in chief and I have no doubt that she was struck by the apparatus as she had described it.
[31] Counsel for the defendant attempted to lead evidence that removal of the plaintiff’s ovaries in an earlier operation had led to her current medical condition. It was objected to by counsel for the plaintiff. I allowed the objection. There was no factual basis to support it in the medical reports. Counsel also asked for amendment of his client’s defence which I also rejected for the same reason.

[32] Mrs Brzoska was also cross examined on the surveillance reports on her which she again was visibly uncomfortable with the line of questioning that her injuries and medical condition were not as bad as he made them out to be.

The evidence for the defendant

[33] The defendant called no witnesses. It simply put the plaintiff to proof which was exactly the nature of its defence.

[34] However, counsel for the defendant took exception to the manner in which Mrs Brzoska gave her evidence. He had observed that the witness had used a question and answer form. She should not have been assisted. He submitted that I should disregard her evidence entirely.

[35] Her counsel informed me that it was a transcript of her husband’s evidence to help her with her memory.

[36] I informed counsel that I would rule on the matter in this judgment. I am not persuaded that I should disregard Mrs Brzoska’s entire evidence despite the lack of propriety in the manner in which she gave her evidence. I have made my own observations of her and I find that some parts of her evidence are credible whilst others not and I will refer to these in the next part of this judgment. I do not think that this was a case where the witness was “coached”: see The Polish Alliance of Canada v Polish Association of Toronto Limited [2011] ONSC 1851 (Can LII) and R v Momodou [2005] EWCA Crim 177 (02 February 2005). I accept plaintiff counsel’s explanation that the statement was given to the plaintiff for familiarisation. In any event, I did not notice Mrs Brzoska giving her evidence by reading from a document.

ANALYSIS OF THE EVIDENCE AND FINDINGS OF FACT

[37] I find the plaintiff’s husband a credible and objective witness. His evidence corroborates his wife’s evidence that she was struck on the left side of her head by the basketball apparatus which had been blown over by a gust of wind. I also accept his evidence that his wife was traumatised, in pain, nauseous and unable to sleep immediately following the incident and on the flight back to America. I also accept his evidence on the discomfort and trauma suffered by his wife after the incident and before she underwent neck surgery. I also accept his description of the apparatus because as an engineer he would be familiar with such technical details.

[38] Independently of his evidence, I think they both made a conscious decision for his wife not to pursue a career in pharmacy but to manage their properties instead.

[39] However, I do not accept his evidence that his wife’s medical condition was a cause of the decline in their property business. I am not convinced that the evidence of both of them supported it because there were unknowns and variables such as financial and market conditions which were not discounted as possible causes of the decline.

[40] As for Mrs Brzoska I have no doubts that she suffered the trauma and the pain she described immediately after the incident and in the years that followed after wards. I accept the thrust of the three latest medical reports that Mrs Brzoska had a pre-existing medical condition which was aggravated by the incident at the resort and which required her to undergo surgery to her neck to alleviate her pain. The surgery only partially alleviated the pain. I also accept the surveillance evidence of her to the effect that her usual routine of gardening and walking her dogs does not appear to be hindered by physical limitations, she is able to continue her daily activities without noticeable limitations and she did not exhibit any speech or memory problems. But I accept that she nevertheless has limited neck movement now and she still suffers pain after having observed her in the witness box. I also accept that she had suffered some psychological trauma from the incident but it is minor compared to her physical trauma.

[41] In summary, I find that the defendant had not taken any steps to secure, remove or otherwise make safe the basketball apparatus. The windy conditions at the time required the defendant to do something. The weight of the medical evidence was that the plaintiff had a pre-existing medical condition which was exacerbated by being hit on the head by the apparatus and which necessitated neck surgery. I also accept her evidence that the surgery only gave her partial (50%) relief from pain. She had suffered physical trauma and pain which will continue into the future and to a lesser extent psychological trauma. However, I am not convinced that she failed to progress in her career as a pharmacist or that her and her husband’s property business declined as a result of her injuries and medical condition.

LIABILITY

[42] The defendant admits that it was the occupier of the resort at all material times. It also admits that the plaintiff was present at its resort and does not deny that she was a welcomed visitor there. It therefore cannot be seriously argued that the defendant did not owe a duty of care to the plaintiff either as an occupier under s 4 of the Occupier’s Liability Act or under the common law.

[43] Section 4 of the Act defines the duty of care as follows:

4.- (1) An occupier of premises owes the same duty, the common duty of care, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

(3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that, for example, in proper cases-

(a) an occupier must be prepared for children to be less careful than adults; and

(b) an occupier may expect that a person in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.

[44] This is not a case where the duty was extended, restricted, modified or excluded by agreement or otherwise.

[45] The only serious argument is whether such a duty was breached. In either common law or under the Act, the test is the same: s 3(2) of the Act and BW Holdings Ltd v Vuli [2010] FJCA 16; ABU0089.2008 (26 February 2010).

[46] Subsections 4 and 5 of s 4 of the Act set out how to determine whether a breach had occurred:

(4) In determining whether the occupier of premises has discharged the common duty of care to the visitor, regard is to be had to all the circumstances, so that, for example-

(a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated, without more, as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and

(b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated, without more, as answerable for the damage if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps, if any, as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.

(5) The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor, and in this respect, the question whether a risk was so accepted shall be decided on the same principles as in other cases in which one person owes a duty of care to another.

[47] The provisions of s 3 of the Act are also relevant:

(1) The provisions of sections 4 and 5, shall have effect, in place of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them.

(2) The provisions of sections 4 and 5 shall regulate the nature of the duty imposed by law in consequence of a person's occupation or control of premises and of any invitation or permission he gives, or is to be treated as giving, to another to enter or use the premises, but they shall not alter the rules of the common law as to the persons on whom a duty is so imposed or to whom it is owed; and accordingly for the purpose of those provisions the persons who are to be treated as an occupier and as his visitors are the same as the persons who would at common law be treated as an occupier and as his invitees or licensees.

(3) The provisions of sections 4 and 5 in relation to an occupier of premises and his visitors shall also apply in like manner and to the like extent as the principles applicable at common law to an occupier of premises and his invitees or licensees would apply, to regulate-

(a) the obligation of a person occupying or having control over any fixed or movable structure, including any vessel, vehicle or aircraft; and

(b) the obligations of a person occupying or having control over any premises or structure in respect of damage to property including the property of persons who are not themselves his visitors.

[48] In this case there was no evidence of the plaintiff being warned of the possible danger if the apparatus fell. It was a windy day. There was no evidence that the apparatus was weighted down properly or at all to prevent it from falling over in the wind. The activities manager admitted that he had neglected to put it away for safe storage as was required of him. I accept the evidence of Mr Brzoska that the apparatus had wheels which would enable it to be wheeled away quite easily. For the foregoing reasons, I find that the defendant had not taken such care as in all the circumstances of the case was reasonable to see that the plaintiff was reasonably safe in using it’s premises as a resort. The defendant had therefore breached its duty of care under the Act, which breach caused the plaintiff’s injuries.

[49] I wish to also add that a properly constructed basketball apparatus would not just fall over by itself and I think it is worth remembering the following passage from John Flemming’s text, The Law of Torts, 9th edn, at page 353:

Res ipsa loquitur

In some circumstances, the mere fact that an accident has occurred raises an inference of negligence against the defendant. A plaintiff is never obliged to prove his case by direct evidence. Circumstantial evidence is just as probative, if from proof of certain facts other facts may reasonably be inferred. Res ipsa loquitur is no more than a convenient label to describe situations where, notwithstanding the plaintiff’s inability to establish the exact cause of the accident, the fact of the accident by itself is sufficient, in the absence of an explanation, to justify the conclusion that most probably the defendant was negligent and that his negligence caused the injury. The maxim contains nothing exceptional; it is based on common sense, since it is a matter of ordinary observation and experience in life that sometimes a thing tells its own story.

[50] I also refer to the Court of Appeal decision in Ali v Ali [2009] FJCA 41; ABU0029.2006 (3 December 2009) in which Byrne AP referred to the above passage and gave observations of his own:

[4] Contrary to the view apparently held by the Learned Trial Judge the maxim does not have to be pleaded before a claimant may rely on it – Bennett v. Chemical Construction Ltd [1971]1.W.L.R 1571. ...

[5] So much importance does the learned author of the LAW OF TORTS, John G. Fleming attach to the maxim in the 9th edition of his book (1998) that he devotes 11 pages to it. At page 353 the learned author says that it is impossible to catalogue res ipsa loquitur cases: "every accident is in some respects singular and proof of facts by facts incapable of reduction to a formula. Nevertheless before the maxim can apply two conditions must be satisfied by a plaintiff:

i) the occurrence must bespeak negligence and that negligence be the defendants;

ii) it must also be such as to raise two inferences: (i) that the accident was caused by a breach by somebody of a duty of care to the plaintiff, (ii) that the defendant was that somebody – Mahon v. Osborne [1939] 2.K.B 14 at 21.

[6] A few examples of how the maxim has been applied are then given by the author at pp 353-354 where he says that experience suggests that a stone is not imbedded in a bun – Chaproniere v. Mason [1905] 21 T.L.R 633, A Crane does not collapse – Swan v. Salisbury Construction [1966]1 W.L.R 204 (PC) or a bale from a passing lorry – Bellizia v. Meares [1971] VicRp 78; [1971] V.R. 641. The latter case provides some guidance to the way in which, in my view the Learned Judge should have applied the maxim in the present case.

[7] In that case the plaintiff suffered personal injuries when a bale of wool fell from a truck then being driven by the defendant and struck the plaintiff who was then upon or near the adjacent footpath. The trial judge failed to direct the jury that the doctrine of res ipsa loquitur was applicable in the circumstances. The jury returned a verdict for the defendant. On appeal the Full Court of Victoria held:

(1) in the absence of evidence explanatory of the fall of the bale from the truck, it was open to the jury to infer that the fall was due to some negligent act or omission of the defendant, and, in the circumstances, it called for a clear direction to the jury to that effect.

(2) In the absence of such a direction there was no sufficient presentation to the jury of the plaintiff's case and there was a real danger of exposing him to a verdict that might not otherwise have been found, and a new trial should be ordered.

[51] I have referred to those passages because, not only do they clearly support a finding of negligence by the defendant, they are also relevant to the way the plaintiff was put to proof by the defendant and the question of costs.

QUANTUM

[52] The claim for special damages was agreed at US$12,500. For the avoidance of doubt, I fix the exchange rate as the official rate published by the Reserve Bank of Fiji as at the date of payment.

[53] The next head of damages is general damages for pain and suffering and loss of amenities of life for the plaintiff's injuries. The issue here is whether I should treat her as if she did not have a pre-existing condition, that is to say, that she was a normal healthy plaintiff who was struck on the head and she suffered physical and psychological trauma and injuries and which necessitated surgery to her neck; that the surgery only gave partial pain relief (50%) and that she is likely to suffer enduring pain for the rest of her life – she was 49 years old at the time of the accident.

[54] I believe I should because under the "eggshell skull" principle a defendant does not choose his plaintiffs; he takes them as he finds them: Smith v Leech Brain & Co [1962] 2 QB 405. Her pre-existing condition is no bar to recovery. It is reasonably foreseeable that if the apparatus was not weighted down or removed under those windy conditions it was likely to hit someone and cause injury. There was no intervening act which one could say was the cause of the plaintiff's injuries: Robinson v Post Office [1974] 2 All E R 737.

[55] The medical evidence was that the Fiji injury precipitated her neck problem. I quote from the second of the medical reports dated 31 May 2011 by the defendant's consultant physician:

It is important to note that various specialist opinions consistently remark that the injury precipitated the worsening of her neck problem and need for surgery although her persisting symptoms may have secondary to a pain syndrome initiated by her recurrent neck problems and exacerbated by her accident in Fiji.

In my opinion, Ms Brzoska had advanced cervical spondylosis prior to visiting Fiji and that her injury caused neck strain with a mild post-concussion syndrome. The neck pain symptoms persisted and eventually led to surgery. Her current condition has improved following surgery to the point that she can, based on surveillance, undertake most normal activities. I believe that persisting symptoms are likely to result from her underlying spondylosis with associated neck strain on the background of pre-existing significant psychological dysfunction rather than solely the consequence of a blow to the back of the head in Fiji from the basketball ring.

[56] The report of the orthopaedic physician who performed the plaintiff's neck operation is more to the point. He wrote in his report of 1 July 2011 that:

It is my opinion that if it were not for this injury she would not have sought care with me and considered surgery. It was this injury itself that exacerbated her pre-existing condition and led to increased symptoms requiring care by me.

[57] There are no comparable decisions on the quantum to be awarded for pain and suffering and loss of amenities for such injuries as in this case. Many case authorities were cited by both counsels with awards ranging from below $10,000 to over $200,000 for the most serious injuries. Counsel for the defendant submitted that the award here should be $30,000. Counsel for the plaintiff submitted $80,000.

[58] I think for the injuries outlined above and the likelihood of continuing pain for a considerable number of years, which I take to be over 10 years based on the life expectancy of a female in Fiji, an award of FJ$50,000 is fair and reasonable under this head.

[59] As for the claims for loss of earnings and earning capacity, for the reasons I have given earlier on in this judgment, they are refused. I am not convinced that there was a causal link between the plaintiff's injuries and medical condition and her not pursuing her pharmacy and other studies and the losses associated with the management of her properties.

[60] The plaintiff claims interest on the special and general damages which I award under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act at 6% pa from the date of the Writ to the date of this judgment which is a period of approximately 6 years, which computes as follows:

• (a) Interest on Special Damages: 6% x US$12,500 x 6yrs = US$4,500.
  
• (b) Interest on General Damages: 6% x FJ$50,000 x 6yrs = FJ$18,000.
  

COSTS

[61] The plaintiff is entitled to her costs. The trial took twice as long as it should have largely due, in my opinion, to the defendant's unreasonable refusal to concede liability, for the reasons I have given earlier. In the circumstances I think it should pay costs for the four day trial at the high end which I summarily set at $6,000.

ORDERS

[62] I therefore make the following orders:

• (a) The defendant shall pay to the plaintiff the following sums:
  
  1. Special Damages of US$12,500 and interest thereon of US$4,500.
     
  2. General Damages of FJ$50,000 and interest thereon of FJ$18,000.
     
• (b) The defendant shall pay the plaintiff's costs of this action of $6,000 within 21 days.
  

Sosefo Inoke
Judge