Chand v Master Builders and Joinery Ltd [2012] FJHC 10; Civil Action 52.2009 (20 January 2012)

IN THE HIGH COURT of FIJI
AT LABASA,
CIVI JURISDICTION

Civil Action No: 52/09

BETWEEN:

PRATAP CHAND of Buca, Savusavu.
PLAINTIFF

AND:

MASTER BUILDERS & JOINERY LIMITED
a limited liability company having its registered office at Main Street, Savusavu.
DEFENDANT

Counsels: Mr. S Prasad of Sarju Prasad Esq. for the Plaintiff;
No appearance for the Defendant.

RULING

Introduction

This is a ruling on an assessment of damages in a personal injury action. The Plaintiff, a 47 year old carpenter and joiner was employed by the Defendant at its workshop at Naqere, Savusavu. On the 17th July 2007 he was using a machine to dress timber when his left hand became crushed in the machine resulting in the loss of two fingers. He is a natural left handed person. He was then admitted to the Labasa Hospital from the 17th to the 22nd July. The particulars of the injury as stated in the claim were:-

(i). Traumatic amputation of left ring finger; and

(ii). Traumatic amputation of left little finger.

The medical report states that as a result of the injury the measure of his impairment is calculated to be about 8%, which is 3% for the ring finger and 5% for the little finger.
In the claim the Plaintiff alleges that the injuries suffered by him was due to the Defendant's negligence. He therefore claims damages. The Plaintiff then pleads damages for the following:-

1. Special Damages of $4,000:00

2. General Damages for:-

(i). Pain and Suffering;

(ii). Loss of amenities of life; and

(iii). Loss of future earnings and earning capacity.

3. Interest under the Miscellaneous Provisions (Death and Interest) Act.

4. Loss of National Provident Fund.

5. Costs of the action; and

6. In the alternative compensation under the Workmen's Compensation Act.

The Defendant was duly served with the statement of claim but did not file a defence. The Plaintiff then obtained judgment by default and the matter was put before me for assessment of damages.

Assessment of Damages.

Special Damages

The phrase special damages are used to signify that type of damage which the plaintiff must prove in certain cases as part of the cause of action but which is beyond the general damage and which must be pleaded.

The Plaintiff pleads the following special damages:-

1. Travelling and Hospital expenses - $500:00

2. Loss of wages - $3000:00;

3. Medical Expenses - $500:00

At the hearing the Plaintiff gave evidence that after the incident he was admitted to Savusavu Hospital and then later transferred to Labasa Hospital. He and his wife incurred travelling expenses from Bulileka to Labasa Hospital to the amount of $384:00. Although no receipt was given to them by the taxi company I am of the view that the costs of taxi between these two locations are reasonable under the circumstances and I would allow this sum in place of the $500:00 claimed.

Therefore the total travelling expenses is - $384:00.

Loss of Earnings for the period to date of Hearing.

The Plaintiff suffered his injuries on the 17 July 2007, he was at the time earning the sum of $119:40 per week. The Plaintiff claims that the total number of weeks to the date of assessment is 199 weeks. Hence his total loss of income is $119:40 X 199 weeks. He was also paid interim payments by the Defendant to the sum of $477:00.

Hence total loss of income is $23,760.00 - $477.00 =	$23,283.00
Total loss of earnings would be 8% of this figure which is =	$1,862.64

FNPF Entitlements.

Claim under this head is allowed, see Alusio Daino -v- Attorney General Suva High Court Civil Action No. 515/1996. The Plaintiff pleaded this head off damages and has provided evidence that he was a contributor to FNPF, it is therefore allowed. See also Shanti –v- Amalgamated Transport Company Ltd (1997) FJHC 246 regarding the need to plead a claim under this head.
The wages slip tendered showed that the deceased's contribution per week was $10:38. The total claimed was $298:02 and I allow this sum.

GENERAL DAMAGES

Pain and Suffering and Loss of Amenities of Life

Pain and suffering form part of the general damages and the Plaintiff is entitled to compensation for the pain and suffering both actual and prospective damages which is attributable to his injury. The medical report of 15 April states that he was admitted to the Labasa Hospital with the following injuries:-

1. Traumatic amputation of left ring finger. This is the middle phalanx.
2. Traumatic amputation of left little finger. This is the proximal phalanx.

He was treated with surgery, antibiotics and analgesics. The first amputation is at the middle digital bone of the ring finger and the second amputation at the last digital bone of the little finger. There is indeed no doubt that the Plaintiff would suffer some pain when he received the injuries. His evidence and that of the doctor confirms that the Plaintiff suffered very intense pain at the time of the injury and after. If the stumps touch something hard the pain would radiate to the rest of his hand and that such a condition according to Dr. Jaoji Vulibeci can remain with him for the rest of his life. In Tomasi Vusovuso –v- Government Printer HBC 44/06 July 2008 decision) a matter almost similar to this where the finger were crushed in a printing machine injuring the right ring and little finger, his Lordship Justice Jitoko granted the sum of $10,000:00 for pain and suffering and loss of amenities. His Lordship was of the view that although there was loss of grip and that the plaintiff was unable to use his right properly the above sum was sufficient. He was also of the view that the pain will be felt every now and then throughout his life but not always. The measure of impairment in that case was 16% whilst in this matter it is 8%. Taken this into account and the fact that there was complete loss of the middle and proximal phalanx in this case I am of the view that the sum of $5,000:00 is suitable and I award this sum accordingly.

(C) Loss of Future Earnings"

In the oft quoted words of Lord Blackburn, the general principle of compensation is to award "that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation";(Livingstone-v- Raywards Coal Co. [1880] UKHL 3; (1880) 5 App.Cas. 25, 39)

The Plaintiff was 47 years old at the time of the accident. He had approximately 8 years left before retirement. He is unlikely to advance his career any further taking into account his qualification. His evidence was that he is not a qualified joiner. He worked as a carpenter and joiner but with no specific qualification except his experience in the field. He said that he had worked in this field for about 20 years. He had gone back to his employer in the hope that he may be re-employed without success. He could still work notwithstanding his injuries. Under the circumstances it may not be appropriate to use the multiplier/ multiplicand method in this instance. The medical reports tendered as exhibits 3 & 4 referred to the Guide to Evaluation of Permanent Impairment as the source from which the doctors assess the measure of impairment. This guide is an American system of assessment of the measure of impairment used locally by our doctors. The evaluation of the 8% impairment of the whole person refers to the functional limitations of the left hand compared to the whole. It does not reflect the Plaintiff's ability to find work or to continue to be employed. His earning capacity has not been totally destroyed he still has the capacity to work or he would not have gone back to his employer. He no longer enjoys 100% of functions of his left hand and being a naturally left handed person, this inability must be taken into account in the assessment of damages.
The Court still recognises that the Plaintiff is entitled to damages for future economic losses both in the capacity and loss of earnings. In this regard I am satisfied that an award of $25,000:00 is appropriate in damages for the Plaintiff's claim under this head. This lump sum is not calculated on the conventional multiplier/multiplicand method and therefore does not attract FNPF elements.

Interest

An award of interests is at the discretion of the court and are often given and are payable on the past losses and special damages under section 3 of the Law Reform (Miscellaneous Provisions) Death and Interest Act. In this action I would allow interest to be payable as follows:-

1. Special damages

I would allow interest of 4% p.a. to be payable from the date of death to the date of judgment.

$384:00 + $1862:64 + $298:02 = $2544:66

$2,544:66 @ 4% from 17 July 2007 to 22 June 2011. = $397:00.

TOTAL = $2,941:66.

2. Pain and Suffering and Loss of Amenities of Life

I would allow any interest under this head and for loss of future earnings at 6% from date of action to date judgment.

$5000:00 + $25,000:00 @ 6% from 17 July 2007 to 9 December 2011. = $8,100:00.

TOTAL = $38,100:00

3 Costs

The Plaintiff is entitled to costs which I summarily assess at $1,000:00.

CONCLUSION.

Total damages awarded are as follows:-

1. Special Damages = $2941:66
   
2. General Damages = $38,100:00
   
5. Costs = $1000:00
   

I therefore give judgment to the Plaintiff to the sum of $42,041:66 inclusive of costs.

H A ROBINSON
MASTER
20 January 2012.