Korovou v Naidu [2011] FJHC 811; HBC289.2005 (16 December 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 289 of 2005

BETWEEN:

MARIKA KOROVOU of Laucala Beach Estate, Suva, Aircraft Engineer and his wife VENIANA KOROVOU of Laucala Beach Estate, Suva, Flight Attendant.
PLAINTIFF

AND:

SIDHARATH NAIDU (son of A.C Naidu) of Mission Road, Sigatoka, Doctor.
1st DEFENDANT

BEFORE: Master Deepthi Amaratunga

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

Date of Hearing: 8th, 9th & 10th March, 2011
Date of Ruling: 16th December, 2011

Decision
(Assessment of Damages)

1. INTRODUCTION
   

1. The Plaintiffs were driver and the front passenger of a motor vehicle that met with an accident with the vehicle driven by the Defendant. The liability is accepted and interlocutory judgment was entered against the Defendant and damages are to be assessed. The Medical Reports marked P1-1, P1-2 and P2-1 were admitted as evidence by consent of the parties.
   

Assessment of Damages for VENIANA KOROVOU

2. She was the front passenger in the vehicle driven by the first named plaintiff. She gave evidence and stated that she suffered injuries due to the accident and lost 3 teeth in her lower jaw and also suffered a cut in her lip. She also stated that she sustained cut injuries in her knee as well. She also stated that she had a severe pain in her body which turned blue after accident and she also stated that due to loss of teeth she is wearing a denture. She said that she was admitted to the hospital and after 3 days she was discharged, but her mouth was ‘wired’ and only liquid food was fed to her.
   
3. She also stated that she could not go to work for 3 months and for this period she was paid the minimum salary without allowance and has assessed the loss as $2,500, but was unable to provide any material to substantiate the loss of allowance. In the re-examination again the witness stated that she only lost her allowance and her salary was paid without any reduction. She also stated that she had obtained increments since the accident and has reached the highest salary scale. There is no economic loss proved. Past economic loss is not proved though she stated an arbitrary value of $2,500. She did not even state how that value was arrived at. There is no future loss of income as she has reached the highest point in her career and there was no disruption of that due to the accident. Importantly the witness did not reveal of any pain or suffering in her evidence and it has to be considered that all her injuries are fully healed and that is substantiated by her medical report of P2-1. Future loss has to be calculated considering the percentage disability.
   
4. No special damages were proved by the witness.
   

General Damages

5. The Medical Report P2-1 dated 15th February, 2005 stated inter alia as follows
   
   1. treatments
      
   2. Local Anesthesia
      
   100. Dental extraction of both sublux teeth
        
   4. Curettage of wound from blood clot, loose bone and pieces of glass
      
   5. Interdental wires placed between her lower right premolar and molar teeth
      
   6. Stabilized the fracture with 2 circumferential wires
      
   7. Wound and open cuts were closed with the placement of non resorbale sutures
      
   8. ‘under the ministry of Labour’s Workmen’s Compensation Act Cap 94, we had 4% of incapacity due to the total of two permanent teeth’
      
6. In the P2 -2 Medical Certificate dated 24th September, 2010 she was awarded 6% disability and a total of 10%.
   
7. It is to be noted that 2nd named Plaintiff did not indicate any present suffering or pain in her evidence. So, her future loss of amenities of life and pain has to be determined from the medical report only. She did not state any persistent pain.
   
8. After the accident she has lost 3 front teeth in lower jaw and she was also hospitalized for 3 days and her teeth were wired and was fed only liquids. These indicate severe pain of mind and she being an air hostess at that time would have cause caused even more anxiety due to this injury as her pleasant appearance is vital for her occupation. Considering that the fracture wires were removed only on 12th October, 2004, nearly after one month from the accident and was feeding only through the liquid food. The past pain and loss of amneties of life is assessed at $10,000. Considering the total disability percentage of 10% and other circumstances such as her occupation and age and other factors like she has to wear the dentures most of the time in her life and almost all the time when she is in her occupation, due to the nature of the occupation, I assess the future loss of amneties of life at $ 3,000.
   

Assessment of Damages for Marika Korovou

9. In his evidence he stated that due to this accident it got severely injured and his hip got dislocated and fractured and metal nuts and bolts were inserted to the hip. The right leg is shorter than the left one and because of that he cannot stand still for a long time or walk for a long distance. He also stated that his right knee is weaker than the left one. He also said that he feels a pain when he is driving for a long period of time, but otherwise he could drive a motor vehicle without much difficulty. He also stated that he underwent 3 surgeries, one in his hip and two in the elbow. He stated that he felt lot of pain after the accident. After the injury he had used a wheel chair for 1 ½ months, and has used a walking- frame for nearly 2 months and after that a walking stick was used for walking till recovery of the lost strength to his mussels in the leg. He has also attended physiotherapy exercises to regain the muscle strength for a considerable time.
   
10. He was a rugby player and had represented the country and in 2003 he played for club level. He had played for 7’s at club level. He did not state in his evidence of any loss of future income from the sport that he loved, since he is an aircraft engineer, at the time of accident.
    
11. At the time of the accident he was employed by Air Fiji as Light Aircraft Maintenance Engineer (LAME).
    
12. He also stated that his salary after the accident did not change much though he was employed by another company that maintained the same fleet of aircrafts under Sun Air. He said that he was employed in the office work instead of the field as he cannot reach certain parts of the plane due to his physical condition. He stated that he was deprived of the allowance that he received while working in the field, which he said was not entitled if worked in the office. He said his salary was 40,000- 45,000 per annum, with allowance and this was reduced to 24,000-26,000 without the allowance. He said that he was a Licenced Aircraft Maintenance Engineer (LAME) for 5 years before the accident. He was unable to produce documentary evidence to support his position relating to salary. His PAYE Tax details were submitted and state as follows
    

Year Annual Salary Tax Deducted

2003 31,660.46 7,379.22

2004 20,565.28 not employed from 4,353.76

2005 9,563.85 12.9.2004 – 25.9.2005 2,083.26

2006 40,338.00 9,130.50

2007. 35,318.00 7,422.95
      
13. The accident occurred in the month of September, in the year 2004 and before the accident the salary with the allowance was only 31,660 for the year 2003. In 2004 he has lost 4 months and in 2005 he has lost nearly 9 months due to the accident. There is no decrease of annual salary after the accident. His past economic loss was only confined from 12th September, 2004 to 25th September, 2005 (378 days).
    
14. He further stated that though he was on strike at the time of the accident when the industrial settlement was reached he was paid his salary. He did not work from 12th September, 2004 to 25th September, 2005 (378 days) he also agreed his loss of income from salary was 1377.09 X 15 weeks= 22,186.50. This was without allowance and without tax deductions and FNPF deductions.
    
15. He also sated that though he was entitled for $100 allowance per day that was not received daily and he could not state even an approximate figure as to how much he earned annually from the said allowance this was granted if he work before or after normal working hours so the loss due to non-receipt of allowance could not be calculated as it was not a predictable income with certainty and there was no evidence even to arrive at an average amount. From his salary details that were submitted there was no reduction of his salary when comparing salary before and after the accident. Considering the annual salary details that were submitted it is clear that there is a reduction of the annual salary in the year 2004 and 2005. This is due to loss of work of 4 months in 2004 and another 9 months in 2005 as he resumed work after the accident on 25th September, 2005. The said loss of salary for that period without the tax deduction is 22,186.50.
    
16. The medical report P1-3 state that his disability is 24% as the whole person and the present disabilities are as follows
    
    1. Pain in the right hip.
       
    2. Diminished ROM of the left elbow.
       
    100. He walked with antalgic gait.
         
    4. He cannot take part in sports. He is unable to run.
       
    5. Difficulty in getting out of chair.
       
    6. Cannot walk long distances.
       
    7. Weakness of the left upper limb.
       
    8. Recent X-ray shows osteoarthritis of the right hip
       
17. In oral evidence the Doctor further stated that there is possibility of developing a vascular necrosis which is fatal
    
18. He further said sometimes the patient might need hip replacement that would cost a minimum of 15,000- 20,000 (Indian Rupees) if surgery is performed in India and if the same is carried out in Australia or New Zealand the cost is much higher.
    
19. The plaintiff, in his submissions, has cited precedents to support his claim for pain and suffering and loss of amenities.
    
20. In Alak Ram v Ernest Patterson, HCCA No. 210 of 1997S, the plaintiff had suffered compound fracture of left tibia and fibula and fractures of left radius, right femur and ankle. He was awarded $45,000 general damages.
    
21. In Rajesh Prakash v Kamlesh Ramesh Parmar and D.Gokal& Co. Ltd, HCCA No. 350 of 1996, a 32 year old male technician suffered serious fractures of ankle in a motor vehicle accident. His left leg was shortened by 2cm resulting in him walking with a limp. There was limitation of all facts of movements of the ankle joint. His permanent incapacity was assessed as 20%, and the general damages awarded was $45,000-00.
    
22. In Chand v Padarath Bros. & Sons Ltd., [2005] FJHC 542, HBC 0134 of 1995, a 33 years old taxi driver and farmer had suffered comminuted fracture of distal right femur extending of knee joint, comminuted fracture proximal tibia and fibula (right) and open fracture of shaft of mid tibia (right) as a result of a motor vehicle accident. His right lower limb was shortened by 6cm and the range of motion of the right knee was limited. His incapacity was assessed as 25% disability for his injuries and was awarded $65,000 as general damages.
    
23. The defendant has cited Nand v Vatuwaqa [1997] FJHC 207 and Tevita Benico v Ambika Nand, High Court Civil Action No. 163 of 1990L.In Nand v Vatuwaqa, a truck driver had suffered 27-28.5% total permanent incapacity and the court had awarded $ 15,000 for pain and suffering and loss of amenities as a result of fracture of the right hip, fracture of the lower leg in four places and fracture of the neck. In Tevita Benico v Ambika Nand, the plaintiff had suffered a left mandibular fracture, dislocated hip joint, a ruptured knee, a fractured toe, a stiff and painful hip, an unstable knee and walked with a limp and the court had awarded $12,500.00 for pain and suffering.
    
24. The Defendant has also submitted the following cases

AG v Vimal Govind v Aliana Kotowasawas and Aviaataketenilage Court of Appeal N BU 0004 of 2003 where the awards made was 30,000(10% permanent disability with likelihood of developing arthritis and in AG v Broadbridge CA 5 of 2003 an award of $60,000 (45% permanent disability) for the injuries. Both these cases were more than a decade ago and the value of money has depreciates greatly during the past decade and the court when awarding an amount has to be realistic in application of the law. A mere similarity of the action or similarity of the percentage disability should not lead a court to merely accept the monetary award that was granted nearly a decade ago.

25. The loss of amneties of life will be different, depending on the person and his status of the society, though the pain of mind will be similar though not identical with similar injuries. The total disability percentage is only a generalized guide for the court to ascertain the depth of the injury and its effect on the human body aftermath. The court has to consider all the factors to consider and award a value for the loss of amneties of life and for the pain of mind. This is for past as well as for the future.
    
26. It is to be noted that both Medical Reports submitted to court marked P1-1,P1-2 and P1-3 were admitted by the parties with consent. The doctor who made P1-1 and P1-3 is the same Doctor who treated Mr. Marika and he gave evidence and described the content and the condition of the patient. He has examined the patient and his evidence can be accepted and the percentage disability of 24% can be accepted as the correct position as opposed to 19% disability according to P1-2 which was obtained in 2005 by the Defendant. It is to be noted P1-3 was obtained in 2010 and it clearly shows osteoarthritis of the right hip which was not diagnosed in P1-2 as x-ray was taken 5 years ago. This shows further deterioration of the condition of the patient and this is directly attributable to the accident. So, the percentage disability of 24% as the whole person can be accepted as the disability of the 1st named Plaintiff as the said medical report is more recent and also shows a recent development of osteoarthritis that needs to make account for in the calculations relating to the disability percentage. At the time of accident he was 32 years of age.
    
27. In the case of Singh v Lal [2011] FJHC 466; HBC303.2009 (3 August 2011) Justice Brito awarded $60,000 General Damages for a person who was assessed 31% disability and who needed crutches assistance to walk, after recovery.
    
28. Considering the severe pain of mind and loss of amneties of life the 1st named Plaintiff was confined to the hospital bed for 79 days and 3 surgeries that were carried out, I award $50,000 as the past pain and loss of amnesties of life.
    
29. The 1st named Plaintiff was a versatile rugby player who even represented Fiji in international tournaments. He had played Rugby, in its both forms and took part in 7's at competitive level and this evidence was not challenged in cross examination. After the accident he could not take part in the high physical contact sport like Rugby, at all. At the time of the accident his main income was not from rugby, but as an aircraft engineer, but his future enjoyment of this sport taking part in it actively has reduced and this is a factor that should be considered in his future loss of amnesties of life and pain. His future pleasure from playing the game of his choice, where he even represented the county has fully diminished. He suffers from pain now, if he stands for a considerable time and even he could not stand or seated long in the court while giving evidence and constantly needed to change his posture after some time. Though he could drive a car without much difficulty his shortening of one leg and other disabilities has made him difficult to drive for a long period of time. It is also noted that he has developed osteoarthritis according to recent radiological examinations and will need some treatment in the future as well. Considering the total disability percentage of 24% and his loss of enjoyment of life, including the sport activity as well as his private life, I award $35,000 as his future loss for pain and loss of amneties of life.
    

Future Economic loss

30. The Plaintiff has to prove the future economic loss and for that he called the witness Mr. S. Gounder. He said he was the Human Resource Manager of the Air Fiji at the time of the accident. He did not bring any document to prove that. He did not bring any official file or document to give evidence. He stated that Air Fiji is still in existence and asserted that he is its company secretary and also stated that its last meeting was also held after he assumed the office of company secretary. His evidence is fully based on his memory as he did not bring any document to substantiate to his position. Strangely, when he was confronted with the order of the court dated 2nd July, 2010 for winding up of the company Air Fiji Limited, he admitted that he was unaware of such an order. If he is the company secretary, as he asserted in his evidence, this cannot happen without his knowledge. The said Winding Up notice was also advertised in government gazette as well as in the local news paper (Fiji Times) and considering the publicity if he was actually the company secretary this should have known by him. This shows that Mr. S. Gounder was not telling the truth as to the correct position of the company and even to his own position in the company. So, his evidence cannot be relied upon as he was unable to substantiate his evidence through other documentary evidence. So his evidence cannot be relied upon to assess the future economic loss of Mr. Marika. P1-18 is a letter written by one Apisai Waqa, Maintenance Controller (Designate), but he was not called as a witness to explain or to prove what was stated in that letter. This letter is not dated and though it was written on a letter heading of the Air Fiji this cannot be relied on unless proved by other evidence. Since I have already stated that the evidence of Mr. S. Gounder, cannot be reliable the future economic loss is not proved. The documents submitted to court reveals that 1st named Plaintiff did not receive any reduction in salary after he resumed his work. The P1-18 letter with the heading "Re; Professional Assessment of Mr. Marika Korovou Post Car Accident in September, 2004" needed to be proved by calling the person who wrote it or through other acceptable oral or documentary evidence. P1-18 is undated and purposefully written for this incident and needs to be proved and since it was not proved it cannot be relied upon by the court. P1-20 shows that he was employed again as "Licensed Aircraft Maintenance Engineer at the Air Fiji Maintenance Hangars, Nausori Airport'. It also stated that the highest salary he could get would be FJD 100,000. This letter was written on 9th June, 2006 and the 1st named Plaintiff has left the company in 2008 on his own accord and the company was wound up in 2010. So, any future economic loss could not be calculated from the available evidence before me as he was employed by the same company as LAME after the accident. The 1st named Plaintiff also stated that when he resumed work as LAME he was assigned work inside the office and that work is also a part of the work of a LAME. He said in his evidence that he could not earn any overtime allowance when he worked in the office. This allowance was granted when he had to work beyond the normal hours and how much he earned from that allowance or any average value could not be presented to the court. So, any loss due to loss of allowance cannot be calculated. This allowance was not a regular one and can not be a basis for any future economic loss. Since the future economic loss needed to be proved by the Plaintiff and he has failed to do so I will not grant any damages for future economic loss.
    
31. So, there is no provision for future economic loss and his loss is for past economic loss, past and future pain and amneties of life are as follows.
    

Past Pain and loss of amneties of life 50,000

Future Pain and loss of amneties of life 35,000

Past Economic loss for loss of salary 20,000

(without tax rounded off )

Tax deduction at 21% 4,200 16,000

Tax is calculated from 2004 & 2005 PAYE

Details submitted.

(The past pain and loss of amneties of life and the past economic loss will also accrue an annual interest of 6% from the date of writ to the date of assessment.)

(The past pain and loss of amneties of life and the past economic loss will also accrue an annual interest of 6% from the date of writ to the date of assessment.)

2. FINAL ORDER
   

32. Damages for 1^st named Plaintiff
    1. Past Pain and loss of amneties of life 50,000
    2. Future Pain and loss of amneties of life 35,000
    100. Past Economic loss for loss of salary 16,000

[(a), & (c) above will also accrue an annual interest rate of 6% from date of writ to date of assessment]

33. Damages of 2^nd named Plaintiff
    1. Past Pain and loss of amneties of life 10,000
    2. Future loss of amneties of life 3,000

(a) above will accrue 6% annual interest rate from date of writ to date of assessment.

Dated at Suva this 16th day of December, 2011.

Mr. Deepthi Amaratunga
Master of the High Court
Suva