Kumar v Ba Provincial Holdings Company Ltd [2011] FJHC 801; HBC395.2008 (14 December 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 395 of 2008

BETWEEN:

SASHI KAMAL KUMAR (f/n Prem Kumar) of Lot 33, Gagali Place, Nakasi, Nasinu, Market Vendor.
PLAINTIFF

AND:

BA PROVINCIAL HOLDINGS COMPANY LIMITED a limited liability company having its registered office at Level 2, Rogorogoivuda House, Tavewa Avenue, Lautoka.
1st DEFENDANT

AND:

ISIMELI SAVUTINI BOSE of Qalitu Village, Vitogo, Lautoka, Farmer.
2nd DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. Daniel Singh for the Plaintiff
Ms. Prem Narayan for the Defendants

Date of Hearing: 25th July, 2011
Date of Ruling: 14th December, 2011

Decision
(Assessment of damages)

1. INTRODUCTION
   

1. The Plaintiff filled this action for damages due to motor accident. The interlocutory judgment was entered with consent in favour of the Plaintiff as the negligence is admitted and the damages to be assessed. The parties agreed to facts stated in the minutes of the pre- trial conference notes dated 25th July, 2011 and has also raised issues to be tried by the court. The two Medical Reports that were submitted by the Plaintiff were admitted without a contest and Plaintiff gave oral evidence. No proof of any future economic loss and this was admitted by the Plaintiff in his evidence. The damages to be calculated only for past and future pain and loss of amnesties of life. The special damages of $675, and for past economic loss of $1200, both of which the parties did not contest.
   

Agreed Facts

2. The following facts were admitted in the pre-trial conference minutes dated 25th July, 2011. The following facts were admitted on the day of the trial as both counsel expressed their desire to agree to more than what was already submitted to court and the hearing was adjourned to evening and I must thank both counsel for their genuine effort to conclude the pre-trial conference productively, and this enabled the court to reduce the time of the trial and also focused on the main issues of the trial. The agreed facts as per the minutes of the pre trial conference dated 25th July, 2011 are as follows
   
   1. The 1st Defendant was the owner of the motor vehicle registration number EC 198 (vehicle EC 198) as at 9th November, 2005.
      
   2. The 2nd Defendant was driving the vehicle EC 198 on 9th November, 2005.
      
   100. At all material times the 2nd Defendant had a valid driving licence to drive the vehicle EC 198.
        
   4. At all material times the 2nd Defendant was duly authorized by the 1st Defendant to drive the vehicle EC 198.
      
   5. The Plaintiff was the registered owner of the motor vehicle registration number DF 996.
      
   6. The Plaintiff had valid driving licence to drive vehicle DF 996.
      
   7. The 2nd Defendant was driving vehicle EC 198 along Queens Road, heading to Lautoka.
      
   8. The Plaintiff was driving along Queens Road, Lautoka heading towards Sigatoka.
      
   9. There was a collision between the vehicles EC 198 and DF 996.
      
   10. The Plaintiff was aged 40 at that time of the accident born on 17th August, 1965.
       
   11. Subsequent to the injuries the Plaintiff was attended to at the Lautoka Hospital.
       
   50. The injuries sustained by the Plaintiff were as follows
       
       1. Fracture of the left distal radius; and
          
       2. Fracture of the left distal femur and proximal tibia.
          
   13. The Plaintiff underwent open debridement an open reduction internal fixation.
       
   14. The Plaintiff was admitted at the hospital for 13 days being the period from 9th November to 22nd November, 2005 at the Lautoka Hospital.
       
   15. On 28th November, 2008 the Plaintiff assessed with a disability of 25% with the following
       
       1. Scarring on the left knee.
          
       2. Deformity of 30 cm right knee; and
          
       100. Deformity and diminished ROM of the left wrist.
            
       16. The plaintiff's income prior to the accident was at the rate of $50.00 per week.
           
   17. The Plaintiff was unable to work for a period of 6 months since the accident.
       
   18. The plaintiff is now earning at the rate of $161 per week. The above facts were agreed between the parties and further the parties agreed on the special damages and past economic loss as follows.
       
   19. The Assessment of Damages
       

Special Damages

i. Crutches	- $150
ii. Fibre cast plaster	- $ 80
iii. Medicine	- $200
iv. Travelling to Lautoka hospital (4X$50)	- $200
v. Travelling to pharmacy to collect
Bandages (9X$5)	- $ 45
Total	$675

Past Economic Loss

For 6 months $50X24 weeks = $1,200

Interest

Special Damages at the rate of 3% from the date of accident.

General Damages at the rate of 6% form 10th December, 2009

20. The Following Documents were Agreed
    
    1. Medical Report dated 28th May 2005 by Dr. Joeli Mareko.
       
    2. Medical Report dated 26th November 2008 by Dr. Joeli Mareko.
       
21. The following Issues were also raised by the parties
    
    1. What is the adequate compensation the Plaintiff is entitled to for the injuries he sustained on 9th November, 2005.
       
    2. The Plaintiff was ages 40 at the time of the accident. Is the Plaintiff entitled to any loss of future earnings.
       
    100. In the event that the Plaintiff is entitled to loss of income what is the appropriate multiplier to be applied.
         
    4. Is the Plaintiff entitled to costs
       
    5. What is the costs the Plaintiff is entitled to.
       

2. THE LAW AND ANALYSIS
   

3. The Medical Report dated 28th November, 2005 states as follows
   

'He was the driver .he sustained injuries to the left hand unable to move. Also he had open wound on the left Knee with inability to move the left lower limb. He had lacerations over the right knee.'

4. The Medical Report dated 26th November, 2008 also contained identical history of the injuries that were contained in the previous medical report.
   
5. Since the Medical Reports were admitted it can be safely deduced from the said report the injuries stated above were sustained by the Plaintiff and the condition stated in the said report as correct status of the Plaintiff when he sustained the said injuries.
   
6. The said medical reports further state under 'investigation' as follows
   

'Radiological X rays revealed fracture of the left Distal Radius and fracture of the left Distal Femur and proximal Tibia.'

7. The 'Treatment' accordingly were Pain Relief, Elevation, wound Debridement, Open Reduction internal Fixation, I V Antibiotic and he was admitted on the day of the accident 9th November, 2005 and was discharged on 28th November, 2005. No date of admittance was mentioned in any of the Medical Reports but considering the injuries and other circumstances it can be safely conclude that the Plaintiff was admitted immediately after the accident considering the severity of the injuries to his limbs and other circumstances.
   
8. The Medical Report obtained more than 3 years after the accident (on 26th November, 2008) reveals following observations and conclusions
   
   1. Scarring of left knee.
      
   2. Deformity of 30 cm right knee.
      
   100. Deformity and diminished ROM of left wrist.
        
   4. Diminished ROM of left wrist.
      
   5. X- ray revelation of nursing fragment of bone of the left distal femur
      
9. The final conclusion according to the Medical Report is that the Plaintiff's disability percentage is 25%. The Medical Report does not reveal that whether this is total disability percentage as the whole person or 25% disability of the both legs or of the left leg. The Plaintiff did not clarify this issue through oral evidence. Since the medical reports were admitted, Plaintiff without reading the medical certificates and its contents proceeded with the hearing without leading any evidence on the said issue. Even in the admitted facts that were submitted reads as 'On 28th November 2008, the Plaintiff assessed with a disability of 25% with the following...'.So even the agreed facts reiterates the contents of the Medical Report dated 28th November 2008 and importantly this does not clarify the disability percentage clearly whether this percentage is as the whole person or not.
   
10. It is clear that burden of proof is with the Plaintiff and any deficiency in proof would inevitably be held in favour of the Defendant and would reduce the Damages for the Plaintiff. The Court cannot presume such a vital factor, but in defence of this Defendant may argue that total percentage disability as whole person is the order of the day in the present day medical reports. But I would differ on that, specially where the injuries were concentrated on one or more limbs, still the medical reports, in such circumstances, contain disability percentage of that particular limb or limbs and this issue has to be clarified by the Plaintiff when the medical report does not explicitly state so. This was not questioned in the cross-examination and left unaddressed.
    
11. In the oral evidence the Plaintiff stated that he took rests often when walking and he walks only short distance without a rest. He also stated that there are plates inserted to his left leg and he cannot bend it and he had to hold something when he gets up. Considering the above oral evidence and in the absence of any evidence to clarify the percentage disability I am inclined to consider this percentage disability only confined to legs only.
    
12. In the absence of such clarification I would consider this 25% disability as the percentage disability of the left leg only. I come to this conclusion as 25% disability is very high percentage disability if it is taken as the whole of the person, and clearly conflicts with the evidence as he is gainfully employed as a sales person in business where he is earning a weekly net salary of $161 which is higher than what he used to earn before the accident. Considering the oral evidence of the Plaintiff there is no such disability stated except that difficulty in walking long distance and doing hard labour and even in walking he is not taking any assistance but the distance he can travel without a break has reduced. The Plaintiff has not proved any fact to clarify further, the percentage disability of 25% either in his oral evidence or through the other documentary evidence and even on the Medical Certificate is not conclusive and parties have only agreed what was contained in the medical report as a verbatim reproduction as an agreed fact and that does not help to resolve the issue conclusively. Taking the evidence in totality I consider the 25% disability as the disability of the limbs.
    
13. In the cross examination the Plaintiff admitted that in his present employment he earns $161 nett (175 gross) per week as a sales person as opposed to $50 he earned earlier before the accident. He had worked in his brother's shop and also tried to be independent sales man in the market, but he could not succeed.
    
14. The plaintiff also stated that he had a company earlier and had employed about 10 people, but unable to produce any accounts or tax returns, but stated that he earned only 50 per week. These were revealed in the cross examination and re-examination and did not state in the examination in chief. In any event his income was only $50 according to him, but in re-examination he stated that that was his drawing and other things were maintained by the company, but failed to provide what those other things were to help in the calculation of the loss of earnings.
    
15. He also stated that he had already completed 2 years in his present employment and his income is stable. Though the Plaintiff's counsel tried to lead the witness to state that his earnings at present cannot be a gauge, he persistently denied that and stated his present employment and income at present is stable.
    
16. In answering to cross examination he further stated
    

Q. I put it to you there is no future economic loss?

A. Yes, I agree there is an increase of $100

17. In re-examination to a leading question by the Plaintiff's counsel that $50 he earned was stated as a drawing as other expenses were borne by the Company, he said some of his family expenses were borne by the company, but did not give details of that. It is to be noted that none of that was revealed in the examination in chief and in the absence of any details of that it cannot be of any help to calculate future economic loss and the Plaintiff unequivocally admitted that there is no future economic loss.
    
18. The future economic loss has to be proved by the Plaintiff, the Plaintiff has failed to do so. The earnings of the plaintiff has increased approximately $100 per week, according to the admission by the Plaintiff's own evidence and he has also admitted that there was no future economic loss the attempt made by the Plaintiff's counsel in re-examination was only trying to flog a dead horse, where he had failed to produce any material evidence in examination in chief or in cross-examination through documentary evidence.
    
19. So the damages should be confined to general damages for past and future earnings as there is no proof of any future economic loss by the Plaintiff due to the injuries from the motor accident.
    
20. The Defendant has submitted the cases of Alak Ram v Ernest Patterson HBC 210 of 1997 where the claimant suffered fracture to the tibia, fibula left radius and right femur and right ankle. In that case the injuries were severe and hospitalization was more than 2 months and the patient was bed ridden for 6 months and two surgeries were performed, and the crutches were used for assistance in walking for more than 2 years. There was a permanent shortening of the leg and the award of compensation was $45,000. It has to be noted that was held on 16th March, 2008, more than 10 years ago.
    
21. In the case of Dinesh Kumar v John Elder HBC 560 of 1995 the claimant suffered compound fracture of the left tibia and fibula. He was in hospital for 11 days and released on crutches. There was a shortening of legs by 1 cm. The award of the general damages was $45,000 and it was held on 17th March, 1999, again more than a decade earlier.
    
22. Considering the authorities submitted to me I assess the past pain and loss of amenities to $30,000 and the future pain and loss of amenities $15,000. $30,000 will also accrue an interest of 6% from 10th December, 2010 to the date of trial.
    

100. CONCLUSION
     

23. A general damages of $45,000 is awarded for the past and future loss of amenities of life and pain of mind as there is no proof of future economic loss. The past economic loss is $1,200 and special damages is $675
    

4. THE FINAL ORDERS
   

1. General Damages of 45,000
   

i. Past damages $30,000 along with interest from 10th November, 2008 at 6% per annum to date of trial.

ii. Future Damages of $15,000 (no interest)

2. Special Damages of $675 and interest of 3% from 9th November, 2005 to the date of trial.
   

100. The past economic loss is $1,200, and interest of 6% from 1st May, 2009 to date of trial (date of accrual of loss for 6 months)
     

4. Cost is assessed at $2000 assessed summarily and the Defendant is ordered to pay the cost to the Plaintiff.
   

Dated at Suva this 14th day of December, 2011.

Mr. Deepthi Amaratunga
Master of the High Court
Suva