Sansom v Kumar [2013] FJHC 565; Civil Action 70.2009 (28 October 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Action No. 70 of 2009

BETWEEN:

DOMINIC SANSOM of 15 Naimawai Street, Suva in the Republic of Fiji Islands, Businessman.
PLAINTIFF

AND:

PRAVEEN KUMAR of Aitkenvale Medical Centre, 295 Ross River Road, Queensland, Australia, Doctor.
DEFENDANT

BEFORE : Justice G. Deepthi Amaratunga

COUNSEL : Mr. Naidu R for the Plaintiff

Date of Filing of Submissions: 20th October 2011
Date of Decision: 28th October 2013

Decision (Assessment of Damages)

1. The Plaintiff obtained the judgment on default and only the assessment of damages of the claim is dealt in this judgment. The Plaintiff obtained interlocutory judgments on 12th February, 2009 before Chief Registrar.
   
2. The Plaintiff and Dr. Cama gave evidence at the hearing and the Plaintiff and also produced a record of assessment of impairment. The Plaintiff's claim is based on the failure to diagnose the Plaintiff's medical condition. I do not have to deal with the liability as the judgment against the Defendant was obtained, and liability of the Defendant is a non-issue in this decision.
   
3. Plaintiff is suffering from Deep Vein Thrombosis. The Plaintiff called Dr. Cama the Surgeon who prepared the impairment assessment of the Plaintiff and assessed the impairment of the Plaintiff at 8% as the whole person.
   
4. The Plaintiff described the difficulties that he encountered which I dealt later in this decision. The Medical Report of Dr. Ifereimi Waqainabete, produced as document no 1 of Plaintiff's Document state as follows
   

'The proximity of his Deep Venous Thrombosis and the need to continue with Warfarin puts him at risk of

1. Developing life threatening hematomas or bleeding in traumatic injuries.
   
2. Small likelihood of developing superficial ulcers or his leg due to Chronic Venous disease'
   
5. The more comprehensive medical report was produced during the trial, by Dr. Cama and this is dated 22nd March, 2011(Document No 2). The details of the medical condition is contained in the said report and states as follows
   

'Details of the medical problems

Mr. Sansom was seen in my clinic today with a history of a late diagnosis of left lower limb DVT on 3rd March 2003. He was initially admitted under the care of Dr. Josefa Nasaroa (Consultant Physician) at the Suva Private Hospital who then referred him to New Zealand where he was investigated further and treated accordingly. According to Mr. Sansom, he was later diagnosed with thrombosis of his inferior vena cava in New Zealand and decision was not to undergo any surgical intervention due to the proximal extent of the disease. All previous documentation of his illness from then up until now was not available for perusal, except his clinical notes from when he consulted Dr. Ifereimi Waqainabete on 27/01/10 and follow up notes regarding his disability assessments.'

6. The said medical report also states that total impairment was 8% as the whole person in the conclusion. The plaintiff could not participate in sport activities as he used to be. He also stated that he cannot sleep well and constantly wake up and the interval of sleep was one hour or less. In order to relieve his pain the Plaintiff is taking a pain relieving medication.
   
7. According to Dr. Cama the Plaintiff developed Deep Vein Thrombosis and as a result of that he has now developed a Post Thrombotic Syndrome. The medical report of the doctor also states that the Plaintiff is having multiple problems which have affected his quality of life. The main problems were detailed and according to that, Plaintiff has a painful and swollen left thigh, left leg and foot, heaviness of the left leg, and difficulty in sleeping at night. The above conditions were described under separate paragraphs with details. The Plaintiff could not sleep lying on his abdomen or left side and lying on his back for more than 20 minutes and if so it would also result in numbness and cramps.
   
8. The medical report confirmed that the Plaintiff had reached 'maximum medical improvement' since he sustained Deep Venous Thrombosis in 2003 and had evaluated the impairment of the patient as whole body impairment of 8%. Considering the continuous nature of the impairment and the disorder it had created including the sleeping disorder which affected the quality of his life the Plaintiff is seeking a damage of $100,000. I do not have a local case to guide as to the compensation for pain and suffering due to Deep Venous Thrombosis.
   
9. In Yanuca Island Limited v. Peter Elsworth the Fiji Court of Appeal in ABU0085 of 2005S it was held that an award of $100,000 cannot sustain. In that case the pain and suffering was much greater compared with the sleeping disorder and the heaviness and swollen left leg of the Plaintiff. The Fiji Court of Appeal reduced the damages in that case to $50,000. Considering the pain and suffering of the Plaintiff I award a sum of $10,000 for pain and suffering loss of enjoyment of life. The said amount will carry an interest of 6% from the date of issue of the writ to the date of judgment.
   
10. The Plaintiff produced documents to prove his income for years 2003, 2004, 2005, 2006, 2007 and 2008. According to the information produced, his income had reduced by at least $30,000 after 2004. Since the witness was not cross examined the evidence is not challenged, and the loss of income is 30,000 per year from 2005 to 20013(30,000X8=240,000).
    
11. The Plaintiff is currently 52 yeas of age and his future loss needs to be calculated. In Attorney General of Fiji v Broadbridge [2005] FJSC 4; CBV0005 of 2003S (8 April 2005) Fiji Court of Appeal held,
    

'We emphasise that nothing that we have said should be taken as casting doubt upon the utility of the multiplicand/multiplier as a method by which to assess future economic loss in personal injury cases in this country. When properly applied, it operates as a perfectly satisfactory method of carrying out what is always a most difficult task. It is, however, only a method by which the cardinal principle, of which Stephen J. spoke in Todorovic v. Waller, is to be fulfilled. Our point is simply that, as the common law stands, it is only one of a number of methods that can be used to assess such loss.'

12. Considering the age as 60, the further loss can be calculated by using a proper multiplier and multiplicand. I grant an award of $(30,000X6=180,000) as future loss, in the absence of any material in this regard in the submissions by the Plaintiff. The same amount can be reached by discounting at 25% for amount of projected loss for 8 years.
    
13. The Plaintiff had submitted a schedule of special damages on 30th May, 2011 and these are
    
    1. Medical Check up at $46X10 = 460
    2. Medication $30p.a 30X10 = 300
    100. Stockings 8 pairs per year (USD 80X8X10)

=USD6400 FJD11,520 exchange rate @1.8)

Total FJD12,280

14. The special damage will also carry an interest of 3% p.a from the date of incident (2003) to date of decision and 6% p.a thereafter till the final settlement of the sum.
    
15. The Plaintiff has also claimed for future medical expenses but the assessment of the impairment was carried out on the basis that maximum medical improvement was reached. If the maximum medical improvement reached there cannot be an award for future medical treatment and I reject that claim. Even if I am wrong on that, the future treatments were too speculative to grant any provision for damages
    
16. The cost of this action is assessed summarily at $2000.
    

FINAL ORDERS

1. The Plaintiff is granted a general damage of $10,000 and interest of 6% p.a from 24th February, 2009 to 28th October, 2013.
   
2. The Plaintiff is granted a special damage of $12,280 and an interest of 3% from 2003 to 2013 (ie. 10 years).
   

100. For future loss I have granted FJD 180,000.
     

4. The Past loss I have granted FJD 240,000.
   

Dated at Suva this 28th day of October, 2013.

Justice Deepthi Amaratunga
High Court, Suva