Mani v Kumar [2012] FJHC 1445; HBC215.2005 (23 November 2012)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

Civil Action No. HBC 215 of 2005

BETWEEN:

EDLIN MANI
(father's name Subramani) of Lautoka Police Compound, Police Officer.
PLAINTIFF

AND:

DHARMENDRA KUMAR
(father's name Raj Kumar) Naboutini, Sabeto, Driver and Police Special Constable.
1ST DEFENDANT

AND:

YEES COLD STORAGE SEAFODD LIMITED
a limited liability company having its registered office at Queens Road, Namaka, Nadi.
2ND DEFENDANT

Appearances : Mr. R. Singh, Patel & Sharma Lawyers, Nadi, for the Plaintiff.
Mr. Romanu, A.K. Lawyers, for the Defendant.

Date of Ruling : 23 November 2012.

RULING
(Interim Payment)

INTRODUCTION

[1]. In this claim for personal injuries arising out of a motor vehicle accident, the defendants' insurer has admitted liability. Because the insurer's admission of liability fulfills the requirements of Order 29 Rule 11(1)(a) and Rule 11(2)(a), this court then proceeded to assess and award interim payment on 31 January 2012 in the sum of $75,000. That figure reflected two things: firstly, my view of what a conservative estimate of the plaintiff's likely award will be after assessment of damages and secondly, what a reasonable proportion of that conservative estimate is.

[2]. The background to the motor traffic accident that led to Ms. Mani's personal injuries is set out in my ruling of 31 January 2012. Ms. Mani is now applying under Order 29 Rule 10(5) for a second interim payment.

ORDER 25 RULE 10(5)

[3]. Order 29 Rule 10(5) clearly states that "a second or subsequent application (for interim payment) may be made upon cause shown". What would amount to sufficient cause where a claimant is making a second application after an initial award? Neither counsel has addressed this issue specifically.

[4]. The Supreme Court Practice 1988 Volume 1 Part 1 (8th Ed) at Para 29/9-18/12 states as follows:

A second or subsequent application may be made for cause..., for instance because of unexpected delay in bringing the case to trial, underestimation of the plaintiff's needs or some special expense. The affidavit in support should bring the story up to date and should refer to the original affidavit which should be bespoken. It should specify the payments already received, whether by order or voluntarily.

GROUNDS FOR APPLICATION

[5]. In this instance, Ms. Mani seeks a second interim payment of $40,000 to cover plastic surgery fees in India for some scarring on her face as a result of the accident. She deposes in her affidavit that she will be travelling to India shortly for a medical review as recommended by her doctors. The medical reports of Doctor Joeli Mareko dated 21 May 2012 and Dr. O'Connor's dated 10 July 2012 are exhibited in her affidavit. The reports indeed recommend the trip abroad to India for medical review. All related expenses for this medical-review trip will be covered by the Fiji Police Group Welfare Scheme (FPGWS). But whilst she is there in India, Ms. Mani would like to have corrective plastic surgery to hide some scarring on her face. It is the costs of this planned plastic surgery for which Ms. Mani seeks a second interim payment in the sum of $40,000-00 because the FPGWS does not cover such procedures.

STRENGTH OF MANI'S CASE

[6]. Mr. Singh is of the view that Ms Mani would easily obtain an award around the vicinity of $450,000 to $500,000 based on the medical reports of Doctor Joeli Mareko dated 21 May 2012 and Dr. O'Connor's dated 10 July 2012. He contextualizes these reports against the general damages award of $300,000 in McCaig v Manu [2011] FJCA 20; ABU0010.2011 (21 March 2012).

[7]. Mr. Vananalagi opposes the application. He submits that there is no evidence of any flight, accommodation or hospital bookings by the plaintiff. He also reviews various cases and concludes that "there is unlikely to be a substantial award regarding the Plaintiff's injuries as she is fit for normal duties and does not have any complaint in contrast to the plaintiff in Ali v Radruta..". He further submits that because there is no evidence that the plaintiff has even made bookings to go to India even for the medical review, "we are left in the dark whether she would in fact make an arrangement while in India despite the lack of evidence..."

[8]. In Wilson v Dummett MIB, (25/11/2011, unreported) HHJ Seys Llewellyn QC rejected the suggestion, raised at a late stage in submissions by the claimant's leading counsel, that an undertaking might be given that the interim payment be devoted only to the expenditure as it occurred of professional care and case management. He stated:

...It seems to me that to make an order for an interim payment which I would otherwise not make, on the basis of such an undertaking, would be to proceed on the basis that I did not have the high confidence that otherwise I would need as to the regime being viable and requiring money. Further, if I were to do that, I would be fettering the Claimant's entitlement to her own money.

(my emphasis)

ISSUES

[9]. What plagues me on this second application is the need to ensure that any second interim award made does not over-inflate the cumulative total interim award to such a proportion as would overcompensate Ms. Mani. At the same time, I am cautious that she is not unnecessarily denied the damages to which she is entitled. I am also weary that matters that are appropriately reserved for hearing on assessment of damages – are not pre-judged at this stage.

ANALYSIS

[10]. The initial first payment, remains a sum which I think represents a reasonable proportion of a conservative estimate of what the plaintiff will be awarded after assessment of damages. I underscore the phrase "conservative estimate" because I think that, at this interim assessment stage, and in the particular circumstances of this case, where the court file is literally "inundated" with medical reports and invoices and receipts, it is safe to be conservative as one cannot assume that expenses for which money is claimed and/or medical reports relied upon will simply be rubberstamped at assessment of damages proper.

[11]. I also favour maintaining a conservative stance at this stage considering that the planned plastic surgery for which the plaintiff seeks this second award is not really a medical procedure per se –let alone an urgent medical procedure. On this note, I must say that I did see the plaintiff in Court and the scarring on her face is rather small and not very noticeable.

[12]. It is often argued by lawyers who oppose an interim payment that there is a risk that an interim award will tie the hands of the Court at trial or at assessment of damages proper. This, in my view is reason to maintain a conservative stance in this case.

[13]. For the plaintiff to convince me against an overly conservative assessment, she would have to establish that there is a real need for the second interim payment requested and that the amount she seeks is reasonable. She has not totally convinced me so.

[14]. But having said that, I am confident that a second interim award of $10,000 only will be perfectly within the confines of my conservative assessment.

ORDERS

(i) the defendants are to pay the plaintiff a further sum of $10,000-00 (ten thousand dollars only) in interim payment.

(ii) this is to be paid to the plaintiff within 7 days of the date of this ruling.

(iii) this case is adjourned to 30 January 2013 for mention to fix a date for assessment of damages.

.........................
Master Tuilevuka

At Lautoka
23 November 2012.