Tokasaya v Neptune (Fiji) Ltd [2013] FJHC 36; HBC294.2008 (4 February 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 294 of 2008

BETWEEN :

PITA TOKASAYA
of Wairua Settlement, Wailoku, Suva in Fiji, Scuba - Diver.
PLAINTIFF

AND:

NEPTUNE (FIJI) LIMITED
a limited liability company having its registered office at Tofua Street, Walu Bay, Suva in Fiji.
DEFENDANT

BEFORE : Master Deepthi Amaratunga
COUNSEL : Ms. S. Narayan of Diven Prasad Lawyers for the Plaintiff

Date of Hearing : 14th February, 2012
Written Submission filed: 30th January, 2013
Date of Decision : 4th February, 2013

DECISION

1. INTRODUCTION
   

1. This is an assessment of damages where the Plaintiff has obtained judgment by default. I need not consider the liability of the Defendant because of that. The Plaintiff was a diver who was engaged by the Defendant to collect sea- cucumber for commercial purpose. The sea-cucumber, which is a primitive form of creature and a delicacy in certain countries found in the sea bed and divers with protective gear, are needed to collect them. These divers needed professional diving gear including the oxygen and Nitrogen cylinders, regulator etc. Due to a faulty regulator which prevented proper mixing of Oxygen and Nitrogen for the supply of breathing air, the Plaintiff rushed to the surface and in the process his nervous system got affected due to decompression and now his permanent impairment is assessed as high as 83% as a whole person.
   

2. ASSESSMENT OF DAMAGES
   

2. The Plaintiff was a deep sea diver and was engaged by the Defendant to collect sea- cucumber which live on the sea bed. On the 4th February, 2006 while the Plaintiff was diving for collection of sea- cucumber and due to faulty regulator which mixes the Nitrogen and Oxygen in proper proportions and maintaining proper pressure. The Plaintiff experienced breathing difficulty and dived fast to the surface. He stated that once he realized the breathing difficulty he observed the pressure of the air had drastically reduced from the optimal level.
   
3. The history of the patient contained in the Medical Report dated 26.07.2007 of the National Rehabilitation Medicine Hospital states as follows
   

'Patient developed bilateral lower limb weakness after a deep sea diving incident in the Vanua Levu waters in February, 2006. The weakness of lower limbs progressively led on to patient's inability to walk and his inability to control his urinary flow and bowel movements. He was initially seen at the Labasa Hospital and treated as a case of decompression illness then evacuated to CWMH for recompression therapy. Patient was later admitted at the National Rehabilitation Medicine Hospital for medical rehabilitation from 27.02.2006 to 02.06.2006. He was seen again at the clinic for review on 26.10.2007.'

4. The Plaintiff produced another medical report dated 31st May, 2006, nearly 4 months after the accident that happened to the Plaintiff while diving in the deep sea, which stated that Plaintiff was admitted to the National Rehabilitation Medicine Hospital from 27.2.2006 2.6.2006 indicating that the Plaintiff was hospitalized for nearly 4 months in the said rehabilitation centre where he underwent Physiotherapy. Further the said medical report states as follows
   

'This is to confirm that the above named was admitted to this hospital from 27.2.2006 to 2.6.2006 for medical rehabilitation after being suffering from paraplegia due to decompression illness.

Upon completion of his medical rehabilitation therapy, he now still has sensory impairment at the level of the eighth thoracic vertebrae on the right side and seventh thoracic vertebrae on the left side. Complete sensory loss is noted at the level of the eleventh thoracic vertebrae on the right and for the-lumbar vertebrae on the left side.

His coordination is still impaired and his motor functions of all muscle groups on the left lower limb is graded as 3-4/5; except for the platar flexion which is graded as 5/5. Motor functions for all muscle groups of the right lower limb and upper limbs are graded as 5/5.

He is now able to walk with the aid of a walking frame but has a spastic gait and is independent on self –care.

Mr. Tokasaya has reached his maximum medical level of improvement and it is unlikely that any change will occur in the next year. However, there will be some changes expected but any further recovery or deterioration is not anticipated.' (emphasis added)

5. The said medical report which was obtained approximately 4 months after the incident and did not indicate any percentage of impairment assessment. It indicated that the Plaintiff could walk with a 'spastic gait' with the assistance of walking frame. The 'Complete sensory loss is noted at the level of the eleventh thoracic vertebrae on the right and for the-lumbar vertebrae on the left side' and the Plaintiff in his evidence stated that his right side hearing is permanently impaired and could not listen from the right ear.
   
6. The Plaintiff produced another medical report dated 26.10.2007 nearly 1 year and 8 months after the incident which reported the condition of the Plaintiff as follows
   

'Physical Examination

Examination revealed that his Ear nose and throat, respiratory cardiovascular systems and abdomen were within normal limits. His vital signs were also within normal limits. However, in his nervous system, muscular hyper tonicity was demonstrated in the lower limbs. His sensation was normal up to the level of the 8ththoracic vertebrae bilaterally, impaired at the level of the 9th thoracic vertebrae bilaterally and absent from the level of the 12th vertebrae downwards. His motor functions of both upper and lower limbs and with demonstrable impairment of his proprioception. He showed hyperreflexia with his deep tendon reflexes and positive clonus.'

7. The condition of the Plaintiff is more exhaustively described in the said medical report obtained nearly one year and 8 months after the incident. The final diagnosis according to the said medical report is stated as follows
   

'Patient was diagnosed as a case of T8 Paraplegia secondary to Decompression illness'

8. The Permanent Impairment rating according to the said medical report is 83% and this is in accordance with American Medical Association's (AMA) Evaluation of Permanent impairment (5th Edition). The proper assessment needs to be assessed using the latest edition of the AMA Evaluation Guide and though 6th Edition is currently used the first print of the said 6th Edition of the guide was in November, 2007. The 6th Edition was printed roughly about one month after the said medical report was obtained and 6th edition was not available at the time of assessment of the Plaintiff. Ideally, the Plaintiff should have obtained another assessment using the 6th Edition of American Medical Association Guide before the hearing of this assessment, since this is the latest guide that is applicable at the time of evidence being taken. The Plaintiff did not even called the Doctor to explain the Medical Report and in such a scenario it may be a wishful thinking to obtain another Medical Report using the 6th Edition of the American Medical Association Guide.
   

100. GENERAL DAMAGES
     
     1. Pain and suffering and loss of amenities of life.
     2. Loss of prospective earnings in the future.
        

1. Pain and suffering and loss of amenities of life
   

The Plaintiff experienced difficulty in breathing and when he checked the apparatus he found that the pressure of the breathing air had drastically reduced to 800 Psi where as it should have been around 2000 Psi. The Plaintiff was 65 meters below the level of the surface of the sea at that time and had to rushed to the surface. When he came to the surface he was unconscious and numb but regained conscious after some time. He was taken to a hospital at Labasa and after two days he was transferred to CWM Hospital. Though the Plaintiff regained conscious, he could only talk slowly and he could not walk at that time and his whole body was numb. At the CWM Hospital he was not given any medicine and was transferred to the Rehabilitation Centre for Physiotherapy which he underwent from 27th February, 2006 to 6th June, 2006. He was 41 years of age when the incident happened and in his evidence he said that he could walk with the help of a stick and his body aches during cold weather.

The counsel for the Plaintiff submitted a decision of the High Court in Rokodovu v Rokobutabutaki [1998] FJHC 151. This is a case of serious accident where the vehicle which the claimant was travelling toppled over a cliff and critically injuring the said claimant who was assessed as 100% impairment as a whole person. The claimant in the said case underwent several operations and was in extremely severe pain, considering the nature of the injuries suffered and a comparatively high award was granted fro pain and suffering by the High Court, which the Plaintiff's counsel relied heavily.

More importantly the said decision was subject to an appeal and the award for general damages by the High Court was reduced in Rokobutabutaki v Rokodovu [2000] FJCA 9; ABU0088U.98S (11 February 2000). In the said case the claimant was severely injured and subjected to number of operations and constant care and medications as opposed to the Plaintiff in this case who was only administered Physiotherapy. The amount granted for the said claimant is not an appropriate analogy considering the near vegetable state of claimant in that case who needed even special care and attention for daily needs. The Plaintiff did not underwent a single operation and cannot be considered as a person of the same pain and suffering in that case though the condition in that case was also described as paraplegic. Considering the severity of the impairment and the suffering I assess the general damages for the pain and suffering at $50,000 from the date of this decision. I will also grant an interest of 6% from the date of this decision to the final settlement of the sum.

2. Loss of prospective earnings in the future
   

The Plaintiff is unlikely to obtain a job because of his present age and physical condition. It is not needed to say that he cannot dive for living or for pleasure, since his impairment as a whole person is as high as 83%.The Plaintiff in his evidence stated that he earned $600-$2000 weekly. No evidenced of proof of the said income was produced. If such an amount was paid permanently by the employer he would have been subjected to PAYE Tax and he could have produced the details of the paid tax and his tax returns etc. Apart from his oral evidence I do not have any evidence, to substantiate such a high income. So, I do not believe this as correct position of the income of the Plaintiff. In any event the Plaintiff also stated that he did not get this income continuously. He said that his income was a variable one and mainly depended on the weather. He said that one sea-cucumber was sold at $7 and depending on his harvest the income also fluctuated. In the circumstances with the available evidence it is difficult to arrive at the income of the Plaintiff, but considering all the evidence in totality it seemed that the Plaintiff was a person who earned about $1,500 per month. The Plaintiff was 41 years of age at the time of this incident and after this he could not engaged in his chosen activity for living. The diving activity is inherently risky and hazardous to the health due to high pressure at the bottom of the sea and also regulated decompression is needed to minimize the effect to one's health. This kind of activity cannot be continued generally for an old person and taking the age of Plaintiff in to consideration and the highly challenging physical activity of a diver he could have normally continued as a diver to collect sea –cucumber for another 7 years. Considering the contingencies of life and the net present value of the money the proper multiplier is 5. Hence the loss of earning will be 1,500x 12x 5= $90,000.

The Plaintiff in his evidence did not state any expense that he had to incur due to nursing and any assessment of cost for such a thing and in the submissions for the Plaintiff, is nothing but an afterthought which is not substantiated by evidence. The same can be said about the claim for loss of FNPF.

As special damages the Plaintiff in his evidence sought following expenses

1. Costs for transportation to the hospital for Physiotherapy(5 trips) $19X5=$95
   
2. Medicines $200
   

100. Costs for medical reports $10
     

Total $305.

Interest of 3% from the date of incident to the date of this decision is applicable for the special damages.

The Plaintiff is also granted a cost of this action $1000 assessed summarily.

4. FINAL ORDERS
   
   4. The Defendant is awarded general damages of $50,000 and interest of 6%.
   5. For the loss of earnings the Defendant is awarded a sum of $90,000.
   6. The special damages of $305 and interest of 3% from the date of incident to the date of decision.
   7. The Plaintiff is also granted a cost of $1,000 assessed summarily.
      

Dated at Suva this 4th day of February, 2013.

Master Deepthi Amaratunga
High Court, Suva