Tuqasa v Nair [2014] FJHC 331; HBC15.2012 (14 May 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
Civil Action No. HBC 15 of 2012

BETWEEN:

ALIPATE TUQASA of Wailevu Village, Farmer.
PLAINTIFF

AND:

RAMODHARAN NAIR of Wailevu Village, Labasa, Fiji, Driver.
1ST DEFENDANT

AND:

DALIP CHAND AND SONS LIMITED a limited liability company having its registered office headquarters at lot 4 Ritova Street, Labasa.
2ND DEFENDANT

BEFORE: Justice Deepthi Amaratunga
COUNSEL: Mr. P. Lomaloma for the Plaintiff
Mr. A. Kholi for the 1st & 2nd Defendants

Date of Hearing: 17th April, 2014
Date of Judgment: 14th May, 2014

JUDGMENT

INTRODUCTION

1. The Plaintiff was a passenger in a single cab turned in to a carrier of persons and goods which was common phenomenon in rural areas where public transport was not frequent as in urban or city areas. He was seated on the back left side of a said vehicle. The vehicle was stopped and parked by the side of the road for a passenger to get down and to unload her goods. The apart from the Plaintiff remaining passengers at the back of the cab belonged to a one family and all were seated on the right side, they were two children and their parents. One infant of the same family was in the front part of the single cab and the mother of the child who was on the back was about to get down to feed the infant. At that time, the vehicle was parked for the passengers who got down to unload her luggage. Suddenly, an omnibus at excessive speed veered off the road and collided with the left back side of the stationary vehicle that instantaneously killed the mother of the infant who was about to alight from the vehicle, and due to the high inertia of the relatively large bus, the single cab was airborne and thrown away injuring all the passengers who were seated on the back part of the said vehicle. The Plaintiff who was on the left side of the cab received serious injuries, his seven ribs were fractured.
   

ANALYSIS

2. The excessive speed and collision from the back of the stationary vehicle was a sheer negligence on the part of the driver of the bus. Even after this impact the bus had moved forward without any brake marks on the road indicating even after the impact bus had moved forward without the driver applying brakes, showing clear signs of lack of care for the users of the road. A passenger on the bus gave evidence and said driver was falling asleep intermittently during the journey and after the accident he had contacted a person from his mobile phone and left the scene of fatal accident and the commuters of the bus were left to their own after the accident. There were several cases filed by the persons injured and all agreed to abide by the decision of High Court Labasa Civil Action HBC 07 of 2012 regarding the liability of the Defendants. I have already decided that negligence of the 1st Defendant was proved and there was no proof of contributory negligence proved on the part of the driver of the single cab that was parked on the side of the road, where the Plaintiff was a passenger.
   
3. The Plaintiff who was a passenger of the said single cab having a registration number LC43 that collided with the bus driven by the 1st Defendant. He was seated on the back side of the single cab which was covered with a canopy. The Plaintiff suffered fractures of his 7 ribs and was treated in the surgical ward, as a patient in the hospital for 18 days. According to the medical report marked P2 the patient was treated with nasal oxygen, left sided chest tube drainage for haemothorax antibiotics and analgesics'.
   
4. The Plaintiff had visited the hospital after discharge once a week for three weeks and he said that his pain persisted for about 2 months and he had difficulty in lifting his left arm during that time. The Plaintiff who was frank about the pain said after two months he had started doing light work in his subsistence farm and was fully healed and he did not get the pain except in cold weather. The light work would have been analogous to physiotherapy exercises one would do under a properly trained physiotherapist after such a serious injury where seven of the consecutive ribs were fractured. The Plaintiff had approached the problem in a more pragmatic manner. He was able to farm in his land and in the process the pain disappeared and there was no restriction of movement of his left arm. The Plaintiff in his evidence was persistent that he has no permanent pain or impairment from this accident. He also said that he could do all the things he used to do prior to the accident and his pain and restrictions of the movements of the left hand remained only to two months after the discharge from the hospital.
   
5. The Plaintiff would have incurred expenses in travelling for clinical examinations and the counsel for the Defendants agreed for a special damage of which amounted to $495.
   
6. Since there is no permanent impairment the damages will confine only to the past pain and suffering. The Plaintiff was in a great pain and he was treated in the hospital for fractures of seven rib bones and blood drained out from the abdomen. Since the fracture of seven ribs would invariably affect the breathing as the expansion of abdomen was hampered he was treated with oxygen, too.
   
7. The plaintiff was 71 years old at the time of the accident. He said he could not remember what happened after the accident and when he gained conscience he was in the hospital with bleeding injuries on the left hand side of his abdomen. He also said he had difficulty in breathing. Neither he nor his medical report indicated any injury other than the fractures and injury on that part. The court needs to assess the award for such injury.
   

8. The principles governing the amount of such awards and the function of this court in relation thereto are set out by Lord Diplock in his speech in Wright v British Rlys Board [1983] 2 All ER 698 at 699–700, 702–703, 705–706, [1983] 2 AC 773 at 776–778, 780, 782, 784–785:

'My Lords, claims for damages in respect of personal injuries constitute a high proportion of civil actions that are started in the courts in this country. If all of them proceeded to trial the administration of civil justice would break down; what prevents this is that a high proportion of them are settled before they reach the expensive and time-consuming stage of trial, and an even higher proportion of claims, particularly the less serious ones, are settled before the stage is reached of issuing and serving a writ. This is only possible if there is some reasonable degree of predictability about the sum of money that would be likely to be recovered if the action proceeded to trial and the plaintiff succeeded in establishing liability. The principal characteristic of actions for personal injuries that militate against predictability as to the sum recoverable are, first, that the English legal system requires that any judgment for tort damages, not being a continuing tort, shall be for one lump sum to compensate for all loss sustained by the plaintiff in consequence of the defendant's tortious act whether such loss be economic or non-economic, and whether it has been sustained during the period prior to the judgment or is expected to be sustained thereafter. The second characteristic is that non-economic loss constitutes a major item in the damages. Such loss is not susceptible of measurement in money. Any figure at which the assessor of damages arrives cannot be other than artificial and, if the aim is that justice meted out to all litigants should be even-handed instead of depending on idiosyncrasies of the assessor, whether jury or judge, the figure must be "basically a conventional figure derived from experience and from awards in comparable cases" ...

The need for a judge in assessing damages for non-economic loss to have regard to awards in comparable cases has led to progressive general increases in the level of awards, particularly for serious injuries. These have been intended to reflect, though admittedly imperfectly, the general increase in the level of salaries and wages and, more particularly since inflation became rampant, the decrease in the real value of the money due to this cause. It is with the increase in the nominal amount of awards in "the money of the day" (to borrow the apt phrase used by Barwick CJ in O'Brien v McKean [1968] HCA 58; (1968) 118 CLR 540 at 545) due to inflation that your Lordships are primarily concerned in the instant case. That increase in awards has taken place irregularly by fits and starts rather than following the actual shape of the rising curve of inflation; and there have been periods, particularly between 1973 and 1979, when it lagged significantly behind the decrease in real value of the money of the day. This was pointed out in Walker v John McLean & Sons Ltd [1979] 2 All ER 965 at 970, [1979] 1 WLR 760 at 765, where the Court of Appeal reaffirmed the rule of practice that damages for non-economic loss are to be assessed by reference to the value of money at the date of the trial and not at some other and lower sum calculated by reference to an earlier and higher value of the pound ...

Lord Wilberforce, Lord Edmund-Davies and Lord Scarman [in Pickett v British Rail Engineering Ltd [1979] 1 All ER 774, [1980] AC 136] pointed out the fallacy underlying the new "no interest" guideline propounded by Lord Denning MR in Cookson v Knowles. As Lord Wilberforce succinctly put it ([1979] 1 All ER 774 at 782, [1980] AC 136 at 151): "Increase for inflation is designed to preserve the 'real' value of money, interest to compensate for being kept out of that 'real' value. The one has no relation to the other. If the damages remained, nominally, the same, because there was no inflation, interest would normally be given. The same should follow if the damages remain in real terms the same." ...

If judges carry out their duty of assessing damages for non-economic loss in the money of the day at the date of the trial, and this is a rule of practice that judges are required to follow, not a guideline from which they have a discretion to depart if there are special circumstances that justify their doing so, there are two routes by which the judge's task of arriving at the appropriate conventional rate of interest to be applied to the damages so assessed can be approached ...

My Lords, given the inescapably artificial and conventional nature of the assessment of damages for non-economic loss in personal injury actions and of treating such assessment as a debt bearing interest from the date of service of the writ, it is an important function of the Court of Appeal to lay down guidelines both as to the quantum of damages appropriate to compensate for various types of commonly occurring injuries and as to the rates of "interest" from time to time appropriate to be given in respect of non-economic loss and of the various kinds of economic loss. The purpose of such guidelines is that they should be simple and easy to apply though broad enough to permit allowances to be made for special features of individual cases which make the deprivation caused to the particular plaintiff by the non-economic loss greater or less than the general run of cases involving injuries of the same kind. Guidelines laid down by an appellate court are addressed directly to judges who try personal injury actions; but confidence that trial judges will apply them means that all those who are engaged in settling out of court the many thousands of claims that never reach the stage of litigation at all or, if they do, do not proceed as far as trial will know very broadly speaking what the claim is likely to be worth if 100% liability is established. The Court of Appeal, with its considerable case-load of appeals in personal injury actions and the relatively recent experience of many of its members in trying such cases themselves is, generally speaking, the tribunal best qualified to set the guidelines for judges currently trying such actions, particularly as respects non-economic loss; and this House should hesitate before deciding to depart from them, particularly if the departure will make the guideline less general in its applicability or less simple to apply. A guideline as to quantum of conventional damages or conventional interest thereon is not a rule of law nor is it a rule of practice. It sets no binding precedent; it can be varied as circumstances change or experience shows that it does not assist in the achievement of even-handed justice or that it makes trials more lengthy or expensive or settlements more difficult to reach. But, though guidelines should be altered if circumstances relevant to the particular guideline change, too frequent alteration deprives them of their usefulness in providing a reasonable degree of predictability in the litigious process and so facilitating settlement of claims without going to trial. As regards assessment of damages for non-economic loss in personal injury cases, the Court of Appeal creates the guidelines as to the appropriate conventional figure by increasing or reducing awards of damages made by judges in individual cases for various common kinds of injuries. Thus, so-called "brackets" are established, broad enough to make allowance for circumstances which make the deprivation suffered by an individual plaintiff in consequence of the particular kind of injury greater or less than in the general run of cases, yet clear enough to reduce the unpredictability of what is likely to be the most important factor in arriving at settlement of claims. "Brackets" may call for alteration not only to take account of inflation, for which they ought automatically to be raised, but also, it may be, to take account of advances in medical science which may make particular kinds of injuries less disabling or advances in medical knowledge which may disclose hitherto unsuspected long-term effects of some kinds of injuries or industrial diseases.'

In Walker v John McLean & Sons Ltd [1979] 2 All ER 965, [1979] 1 WLR 760 the plaintiff was a paraplegic. The parties had accepted the accuracy of the table of comparative values of the pound found in Kemp and Kemp The Quantum of Damages (4th edn, 1975) vol 2, p 601. Cumming-Bruce LJ said [1979] 2 All ER 965 at 970, [1979] 1 WLR 760 at 765:

'Great caution has to be exercised in the examination and analysis of comparable awards because the facts inevitably differ and the influence of other items in each total award play a part which it is not always easy to identify or measure ... In our view the recorded awards since 1973 are open to the criticism that they demonstrate that generally the courts have failed during the last five years to take sufficient account of the fact that the damages awarded for loss of amenity were worth significantly less than similar awards in earlier years. We do not encourage the application of a rigid multiplier to accord arithmetically with the changing values of the pound shown in the table to which we have referred. We content ourselves with the observation that by his award of £35,000 under this head the judge restores a consistency with awards made before 1973 which cannot be found in many awards made since that year.' (emphasis is added)

8. In Wati v SL Shankar Ltd; SL Shankar Ltd v Wati [2008] FJCA 103; ABU0078.2006S; ABU0086.2006S (18 April 2008) Fiji Court of Appeal held that $60.000 damages award by the court below was not excessive. In that case apart from the injury to the ribs there were other serious injuries. In that case the number of ribs fractured was 4 but other injuries were extremely serious in nature for example spleen was removed hampering natural immunization of the body from the germs, punctured lung and post-traumatic occasional headache and giddiness, linear scars on the left side (face, shoulder, posterior chest and abdomen), post-operative scar from splenectomy, loss of her spleen and ongoing need for immunization, punctured lung and drainage required at the time. All these indicate the award in this case for pain and suffering was not comparable to the case before me. It should be noted number of ribs fracture are no the sole guide for award. It can be safely deduced that the award should be less than $60,000.
   
9. In Prakash v Ram [2011] FJHC 786; HBC356.2005 (5 December 2011) the High Court awarded $30,000 as compensation for pain and suffering in a case where three ribs that were fractured and 'lock jaw' that resulted the patient unable to eat for some time. The injuries and disabilities in that case were
   

'Injuries;

a) Fracture of 3, 4 and 5 right ribs.

b) Lacerations and depression of right side of leg, hip and shoulder.

c) Lacerations and bruises on the left leg and left knee

d) 4cm cut on the right back scalp of head

e) Swelling of right side of stomach (abdomen)

f) Swelling and contusion of right eye.

g) Swelling and contusion of right arm

h) Swelling on right sub mandibular area.

i) Difficult in opening mouth.

j) Difficult in eating.

k) Abrasions on various parts of body.

l) Shock and concussion.

m) Blood coming out of nose.

Disabilities;

a) Loss of some power, and mobility and restricted movement of right hand and inability to lift ups and down with ease.

b) Difficulty in working due to injury.

c) Scarring.

d) Inability to eat solid food for three weeks.

e) Severe headaches

f) Lock jaw.

g) Pain in right hand and other areas of body.

h) Inability to concentrate on work as previously.

i) Inability to perform sporting activities as previously'

10. In the case above the injuries restricted the movement of the arm and also persistent pain and difficulty in sleeping. Though the numbers of the fractured ribs were only three there were other injuries to the patient. So, considering the seven fractured ribs of the Plaintiff this award seems to be more closer to type of suffering of the Plaintiff. Though the Plaintiff did not have injury to the mouth, it would compensate for the increase number of ribs broken. So the minimum award should be in the region of $30,000. The counsel for the Defendants had submitted this authority with the written submissions, but desired a lower award, but I am not convinced with his reasons for proposed reduction from $30,000. It is noteworthy that I do not have the severity of the fractures in any of the cases including the Plaintiff's. Fractures can be complete or incomplete or even hairline. It is assumed that due to the severity of the impact the fractures cannot be hairline considering the other complications the Plaintiff had. The severity of fractures will have an effect on pain.
    
11. It is important to be consistent with the awards of the court in personal injury actions. The importance of fair assessment goes beyond being fair to both parties. It is the duty of the court to be consistent with the awards of the cases submitted by the parties to the action. If there was no guide on the type of injury, still the court needs to be realistic rather than picking an amount from air which is unrealistic. If uncertainty in the awards for personal injury becomes order of the day, it will leave less room for reasonable settlements outside the court including mediation. In most of personal injury actions the Plaintiffs had already suffered injury and need speedy recovery of damages and High Court Rules of 1988 had facilitated this fast track approach, by reducing certain pretrial stages. This will be meaningless if inconsistent awards are made as highlighted by Lord Diplock in the case of Wright v British Rlys Board [1983] 2 All ER 698 . Though more than three decades passed, the said opinion has not lost its validity, and often cited in judgments.
    
12. In the case of Sashi Prakash v. The Commissioner of Police & Another (HBC 237 OF 2001L)(unreported)a person who had fractured 7 ribs with likelihood of developing osteoarthritis was awarded $42,000. Though this judgment was cited in the written submissions of the Plaintiff as well as in the judgment of the Prakash v Ram [2011] FJHC 786; HBC356.2005 (5 December 2011) (unreported) I was not submitted with a copy of it and my efforts to find the same was futile as the date of decision was not provided either in the said decision or in the written submission. I could not even find the said judgment in the electronic data base. If the date of decision was available it would have been traceable but without that I am not going to consider it as I am not certain as to other injuries and or permanent impairment of the person in that case. The Plaintiff in the case before me has no likelihood of developing osteoarthritis and already he is 74 years old and had told the court that he had fully recovered from the injury without any permanent impairment.
    
13. When an award is made due consideration is needed to made as to the past precedent. The Defendant had provided a case of Prakash v Ram [2011] FJHC 786; HBC356.2005 (5 December 2011)(unreported). Where a person was awarded $30,000 for fracture of five ribs with other injuries and with permanent impairment. In that case the claimant had stated that he had a persistent pain even at the time of the trial. The Plaintiff had seven ribs fractured and was honest about the pain and said that except during cold weather he experienced no pain. In the circumstances I would award $32,000 as general damages for pain and suffering. The Plaintiff is entitled for 6% interest, too. The cost of this action is summarily assessed at $3,000.
    

FINAL ORDERS

1. The Plaintiff was awarded a general damage of $32,000. A special damages award of $495 was accepted by the Defence at the trial so that is warded without a dispute. The Plaintiff is granted 6% p.a. interest from the date of writ for said awards.
   
2. The Plaintiff is also awarded a cost of $3000 assessed summarily.
   

Dated at Suva this 14th day of May, 2014.

Justice Deepthi Amaratunga
High Court, Suva