Daunivalu v Nair [2014] FJHC 353; HBC04.2013 (21 May 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 4 of 2013

BETWEEN:

SEVESA DAUNIVALU also known as SEPESA DAUNIVALU
of Wailevu Village, Labasa, Carpenter,
as the father and next friend of ANARE WARU NUISORIA
of Wailevu Village, Labasa, Infant.
FIRST PLAINTIFF

AND:

SEVESA DAUNIVALU also known as SEPESA DAUNIVALU
of Wailevu Village, Labasa, Carpenter,
as the father and next friend of MELIKI TUKANIA
of Wailevu Village, Labasa, Infant.
SECOND PLAINTIFF

AND:

SEVESA DAUNIVALU also known as SEPESA DAUNIVALU
of Wailevu Village, Labasa, Carpenter,
as the father and next friend of MAKERETA QAUQAU TUKANIA
of Wailevu Village, Labasa, Infant.
THIRD 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. A. Singh for the Plaintiffs
Mr. A. Kholi for the 1st & 2nd Defendants

Date of Hearing : 15th April, 2014

Date of Judgment : 21st May, 2014

JUDGMENT
INTRODUCTION

1. The three Plaintiffs are making this application through their next friend, father of the children in this action for their claims for damages in a motor vehicle accident. All parties consented to abide the issue of liability in civil action number HBC 7 of 2012 and I have already decided the issue of liability and need not deal with that issue in this action. The plaintiffs and their parents were travelling in a single cab turned in to a carriage with a canopy behind for shelter which is the most popular method of traveling in remote areas in Labasa. In the front seat apart from the driver there was one person and an infant, Makereta (3rd Plaintiff) and in the back of the single cab turned to carrier, which was covered with canopy there were two children (1st and 2nd Plaintiffs) and their parents. The mother of the Plaintiffs died instantaneously due to the impact of the accident as she was preparing to get down from the vehicle to feed the infant who was on the front seat. The collision was from the behind and due to impact the vehicle was thrown out for some distance from where it was parked.
   

ANALYSIS

2. The 1st Plaintiff was born in 2003 and was 6 year old when the accident happened. He was seated at the back part of the cab and due to the accident he received injuries to his head. According to the medical report filed P4 the injuries were as follows
   

'.......sustained a 4 cm laceration over the right parietal region and fracture of the right parietal bone.'

3. He was treated with antibiotics, analgesia and discharged after 4 days from the hospital. There was no evidence of stitched wound from sutures as suggested in the written submission but a laceration of 4 cm .The assessment of damages needs to be on the evidence presented to the court at the trial. The doctor who was called to give evidence said since there was head injury it was usual practice to keep the patient under observation for first 48 hours for injury management purposes. He said the injury was not a complicated one and there were no notes to support any complications from the head injury. The injury to the 1st Plaintiff, were supposed to be a reviewed within 2 weeks, after the discharge of the patient, but there was no evidence of such a review and also said clinically the injury was not a serious one. According to him the healing of the head injury would have taken 6 weeks. He also said that in order to fracture Parietal bone of the head the impact needs to be severe, hence the a fairly severe pain to the 1st Plaintiff.
   
4. The doctor said headaches in children were difficult to diagnose and there was no evidence of permanent impairment from the evidence produced in court. The alleged headaches were not proved to be direct consequence of the said accident.
   
5. The 1st Plaintiff had demonstrated some difficulty in engaging in educational activities in school. He was the oldest child and would have witnessed perhaps the most devastating scene ever, in his life, death of his mother in front of his eyes. This might have resulted psychological impact on him. Without any evidence to that effect I cannot directly conclude the causation for his behaviour to the accident. The Plaintiff did not produce such evidence to evaluate any permanent impairment to mental status of the child. The difficulties that he had in school can and may be due to other factors too. There are children who under perform early in the education, but improve later and even do better than most others later in the life due to factors other than mental trauma similar to what 1st Plaintiff experienced. The child phycology is a complex subject and needs more evidence from an expert to assess any permanent impairment in order to assess damages. The doctor who gave evidence stated that the injury to the head would have been very painful. Considering the nature of the injury and the time it would have taken to heal I award a general damage of $10,000 for pain and suffering from the head injury considering the cased submitted to me.
   
6. There was no comparable injury in the cases provided, but considering the awards made by this court and the fact that the 1st Plaintiff's failure to prove permanent impairment and the expected time to heal were considerations for the said award. The injury was not complicated but a painful one since it was on the head. There was no proof of any special damages for 1st Plaintiff. There was no evidence to the effect that even he had visited the hospital after discharge. In the circumstances I do not wish to make any award for special damages. The statement of claim in paragraph 13 claimed special damages for hospital expenses, travelling, private doctor, medical report and police report. There were no proof of any of the said special damages at the trial. In the schedule filed on 11th April, 2014 special damages for the 1st Plaintiff were medication, travelling and special diet, but no evidence of any of the said special damages proved.
   
7. 2nd Plaintiff was born in 2006 and she was 3 years at the time of the accident and there was no medical report of the injuries, but medical examination form from the Fiji Police was produced as P5. What the 2nd Plaintiff needs to prove are the injuries sustained from the accident but according to the evidence before me 2nd Plaintiff had not suffered injuries worth of considering. The doctor in his evidence stated that initial impression of the patient was that she was stable person both clinically as well as neurologically. There were only superficial injuries to her, but due to the nature of the accident she was admitted and kept under observation for the injury management for x rays of the head and spine but she was not diagnosed with any injury to them and after obtaining those x rays she was cleared of any abnormal conditions. According to P5 she sustained only abrasions to her right knee. The superficial external injuries and abrasions to the knee would have caused some pain and I award a $50 for pain and suffering. The 2nd Plaintiff was kept in the hospital for injury management purposes only and after the said examination it was confirmed that she did not have any serious injury worth of treating and discharged without recommending any review.
   
8. 3rd Plaintiff was the infant who was on the front part of the single cab along with the driver and another person. According to the medical report P6 she suffered fracture of 'midshaft of the left femur'. She was treated with gallow traction, analgesia and antibiotics. The infant was discharged against the medical advice by the relatives for reasons explained at the trial. There were logistical difficulty in keeping her in hospital without any assistance from the parents. The mother had already died and her funeral arrangements were needed to be attended and the father was in hospital with severe injuries and there were two other children one 6 and 3 also needing caring and all these responsibilities fell on the uncle of the Plaintiffs who gave evidence. He and his wife and other relatives had performed the responsibilities of the children and needs to be commended for their work at need of the hour. The discharge of the infant against the medical advice needs to be considered in the said context and I can see no fault on their part in taking such a decision and the fracture had got healed without complication.
   
9. According to medical report of Dr. Abhay Chaudhry, the child was extremely irritable at the time of the admission this can be expected as the child was apparently crying in need of breast feeding when the accident happened. The crying of the child was the reason for the mother to come out to feed her, but before that she died. The infant was stable on the clinical examination and had a swollen left thigh and x-ray indicated a fracture midshaft left femur. She was in the hospital for 18 days and doctor explained the difficulties that they encounter treating a child of this tender age with gallow traction, without assistance of the parents. Her mother died in the accident and the father was also injured severely so that she could not be attended by any of the parents at that moment. A seven month old infant in a hospital with fracture treated with gallow traction would have been very painful to the child. Again both parties were unable to submit any case law on such an injury
   
10. Under the circumstances the pain to the child would have been immense especially without the comfort of the mother as she was only 7 months old. She could not even stay away from the mother for few hours, during the journey and had to be constantly breast fed by the mother. Though she was outside the compulsory breast feeding 6 month period it seemed she continued to be breast fed till the demise of mother from this tragic circumstances. So, without the mother her fracture in the leg would have aggravated the pain and suffering. Specially the gallow traction would have been severe pain for an infant of 7 months and consider the circumstances of the case I ward $16,000 for the pain and suffering. There was no permanent impairment proved. According to the evidence now she experienced a bleeding nose, this apparently has no nexus to the injury. There was no proof of such nexus of the bleeding nose to the fracture in the leg. The child had started walking but she was a late starter. Again late start of walking can be due to factors other than injury. There are fairly significant number of children who start to walk late than the usual time and that was mainly due to the development of the child. In the absence of evidence of nexus between the injury and her late start of walk I will not consider it as a direct result of the injury.
    
11. Though the counsel for the Plaintiffs had filed a schedule of damages for the 1st and 3rd Plaintiffs, the schedule was contradictory to the details of the special damages sought in the statement of claim. The Plaintiff is precluded from claiming outside the special damages pleaded in the statement of claim and that is a trite law. For the 3rd Plaintiff only hospital expenses, travelling, medical report and police report were claimed as items for special damages in the statement of claim, but in the schedule of special damages included a significant claim for special damages amounting $22,800 for nursing which was not included in the statement of claim. I need not elaborate more to reject this claim for special damages not claimed in the statement of claim. Evidence was produced regarding the nutrition of the child but that was not pleaded as special damages for the 3rd Plaintiff in statement of claim and that needs to be rejected, too.
    

CONCLUSION

12. The 1st Plaintiff is awarded $10,000 as general damages for past pain and suffering. The 1st Plaintiff is also awarded 6% interest for the said sum from the date of issue of the writ to the date of judgment. The 2nd Plaintiff is awarded $50 for abrasions in one knee and 6% interest for the said period above. The 3rd Plaintiff is awarded general damages of $16,000 for pain and suffering and 6% interest from the issue of writ to the date of judgment. The cost of this action is summarily assessed at $3,000.
    

FINAL ORDERS

13. Following awards are made
    
    1. 1st Plaintiff a sum of $10,000 and 2nd Plaintiff $50 and 3rd Plaintiff $16,000 for their pain and suffering with 6% interest from the date of issue of writ to the date of the judgment.
    2. The cost of this action is summarily assessed at $3,000.
    100. The Defendants are jointly and or severally liable for the above.
         

Dated at Suva this 21st day of May, 2014.

.....................................
Justice Deepthi Amaratunga
High Court, Suva