Namino v M. Jamal Investments Ltd [2011] FJHC 73; HBC257.2007 (17 February 2011)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 257 OF 2007

BETWEEN:

SEVANAIA VULACADRA NAMINO
Plaintiff

AND:

M. JAMAL INVESTMENTS LIMITED
Defendant

Counsel: Diven Prasad Lawyers for the Plaintiff.
Babu Singh & Associates for the Defendant.

Date of Judgment: 17th February, 2011

JUDGMENT

By writ of summons the plaintiff Sevania Namino commenced this action against the defendant, seeking damages for injuries he sustained on 2.12.2005, as a result of being struck on his left leg by a tractor while engaged in measuring timber at the Nabukelevu forest in Serua, where the defendant was logging.

The defendant did not appear either in person or by legal representation. The defendant's previous lawyers withdrew in 2010. The defendant did not appear in court despite Notice of Adjourned Hearing have been sent to the defendant.

The plaintiff is a civil servant employed by the Ministry of Forestry. The defendant is a limited liability company, engaged in logging business. The plaintiff at all material times was working as a charge hand for the Ministry of Forestry assigned to the defendant's job site at Nabukelvu Forest, Serua.

The plaintiff's claims arise out of an accident said to be occurred during the course of his employment.

The facts of this case are set out in the Statement of Claim which includes particulars of negligence, particulars of injuries and disabilities resulting from the injuries. The plaintiff has supplemented what he has stated in the statement of claim with his oral testimony in Courts on the hearing of the case.

The evidence given by the plaintiff can be summarised as follows:

On 2nd December 2005, the plaintiff was assigned to measure the logs cut by the defendant and, while he was taking records from trees cut, a tractor hit his left leg and he was injured. The tractor did not give any warning sound. There was another person with the plaintiff who helped him to measure logs and when the plaintiff was injured that person helped the plaintiff. The plaintiff was taken to the Navua Hospital and thereafter he was transferred to the CWM Hospital in Suva.

As a result of the plaintiff's injury, his movements are restricted and he wears an ankle guard. The plaintiff further stated that when he walks his ankle gets swollen. At present he works in the office and does mostly paper works.

The plaintiff is claiming general damages for pain and suffering, loss of amenities of life, loss of future earnings and costs for domestic care under common law.

In support of the plaintiff's case, another witness named Tadeo Rowaqe gave evidence. According to the witness, he worked with the plaintiff on the day of incident. The plaintiff was standing couple of meters away from the witness when the lever of the tractor hit the plaintiff's left leg. The witness also confirmed the fact that the tractor did not have any warning lights or sounds and also the area, where the tractor was working was not fenced.

The witness further states, that after the accident the plaintiff was in a great pain and his leg was swollen. The witness accompanied the plaintiff to the hospital.

In the trial, the plaintiff tendered two medical reports.

According to the Medical Report dated 04.01.2006 issued by the Navua Hospital the plaintiff had visited Navua Health Centre on 2.12.2005 with complains of left leg swelling and difficulty in mobilizing. The particulars of injuries were;

1. Complete fracture of tibia and fibula of left leg.
2. Dislocation of left ankle joint.
   

The court is required to assess damages as claimed. On the evidence before me I find that the accident was solely the result of negligent moving of the loader of the tractor on the part of the 1st defendant. I find that the injuries suffered by the plaintiff are as stated above and elaborated upon in his evidence in court. On the injuries, he stated that the tractor hit his left leg and as a result he suffered injury.

He further stated that he has to wear an ankle guard and his ankle gets swollen when he walks.

Assessment of Damages

On the evidence before me I am satisfied that the plaintiff received the injuries due to the negligence of the defendant and the actual injuries received by him as a result of the accident are as stated in the report prepared by Dr Sitiveni Trail and as testified by the plaintiff himself.

I further find that the defendant is liable to pay damages arising out of this accident.

I shall now deal with the various items in the claim.

Special damages

The plaintiff is claiming $ 130.00 as special damages. But he failed to produce any substantial evidence to that effect. Also, there is no other evidence to support the claim. These bare statements are not sufficient when a person is claiming special damages. The court shall not be called on to assume that the plaintiff suffered such a loss. Nor should the court be asked to assess a figure in the absence of satisfactory proof of special damages.

In British Transport Commission v. Gourley [1955] UKHL 4; [1956] A.C 185 Lord Goddard said:
"Special damage has to be specially pleaded and proved. This consist of out of pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation."

Here no doubt, damage for total loss is recoverable but the evidence before me is inadequate to find for the plaintiff as special damage.

But in Brunsden v. Humphrey [1884] UKLawRpKQB 158; (1884) 14 Q.B.D 141 it is stated in the head note that:

'damage to goods and injury to the person, although they have been occasioned by one and the same wrongful act, are infringements of different rights, and give rise to distinct causes of action, and therefore the recovery in an action of compensation for the damage to the goods is no bar to an action subsequently commenced for the injury to the person."

Therefore, in the light of the above case, the plaintiff is entitled to bring a separate action to prove special damage.

I therefore, disallow the claim for special damages in this action.

Loss of future earnings

In the present case, the plaintiff although find difficult to attend field work, has not lost his employment since he has been assigned office work by his employer and continue to draw the same salary and therefore, the issue of loss of future income does not arise.

General Damages

General damages are those damages which the law will presume to be a direct, natural or probable consequence of the breach of contract or of duty of care in tort.

The plaintiff's claim for general damages is for pain and suffering from the injuries, loss of amenities of life, loss of future earnings and costs for domestic care under common law.

To assess damages under this head one has to take into account the Medical Report herein.

The relevant parts of the medical report dated 22.09.2006, issued by Dr Sitiveni Trail from the CWM Hospital tendered to court and are as follows:

• On 2.12.05 the plaintiff presented to Navua Health Centre with a painful left ankle after a log had struck him at work. He was put in a back slab and referred to our clinic on 30.01.2006.
  
• On 30.01.2006, X rays revealed he had a healed displaced Weber C fracture of the left ankle. He declined any surgery to his fracture hence he was treated non operatively (physiotherpay and anelgesics for pain).
  
• He was reviewed in clinic on 2 occasions(9.3.2006,8.6.2006).
  
• He has resumed light duties, which involves a supervisory role. He has minimal pain but significant swelling of his left foot on prolonged standing. He is able to use stairs with some difficulty. He is able to dorsiflex his ankle to neutral only and he has normal plantarflexion.
  
• He has sustained significant injury to his left ankle. The fracture had mal united and he has started to develop secondary osteoartherities in his ankle. He will never have a normal gait and his symptoms will deteriorate with time.
  
• Reference is made to the 5th edition of the American Guide to the Evaluation of Permanent Impairment which assigns a 8% whole person impairment for intra articular ankle fractures with displacement.
  

In this case the plaintiff did go through some pain and suffering as can be seen from the medical reports and his own evidence. He still suffers discomfort and pain since he has to wear an ankle guard. When he walks his left ankle gets swollen.

Furthermore, movements of his ankle are restricted to a certain extent as a result of the injury. He will never have a normal gait.

It appears that, the plaintiff's symptoms will deteriorate with time. The mal union of his fracture and the presence of osteoartherities in his ankle, would adversely affect his mobility in future. He endured and continues to endure considerable pain and suffering. He was 48 years old at the time of the accident. He has a permanent incapacity calculated at 8%. Therefore, it is apparent that the plaintiff's enjoyment of life has been considerably reduced as a result of the injury he has sustained.

Loss of amenities of life

The plaintiff is entitled to have loss of amenities of life, which includes his complain about how his day to day life is affected and the discomfort and pain in his left leg. He will always walk stiffly, and his sporting and gardening activities are greatly circumscribed.

In A.G v. Praveen Sharma (FCA Reps 94/351) a young man of 19 who lost the lower part of his right leg as a result of negligence following a sport injury was awarded approximately $ 52000.00 in general damages.

In Tacirua Transport v. Chand ( FCA Reps 95/67) an award of $ 20000.00 was awarded for considerably lighter injuries.

Being guided by these awards and having considered the injuries suffered by the plaintiff in this case, I am of the view that a proper award for suffering and loss of amenities is $ 30000.00 and I so award.

Interest

The general damages award for pain and suffering will bear interest at the rate of 6% from the date of accident until today.

In this matter the cause of action arose in December 2005. I therefore award interest from that date to the date of this judgment i.e. a period of approximately five years and 2 months at the rate of 6% pa. This computes to $ 30000 x 6% x 5.2=$ 9360.00.

Cost is summarily assessed in the sum of $ 1500.00.

Orders

The orders are therefore, as follows:

1. The defendant shall pay to the plaintiff the total sum of $ 39360.00 being the general damages for pain and suffering, loss of amenities of life and interest thereon;
   
2. The defendant shall pay the plaintiff's costs of $ 1500.00.
   

Pradeep Hettiarachchi
JUDGE

17.2.2011