Tamani v Permanent Secretary Public Workds Department [2015] FJHC 394; HBC12.2009 (20 May 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

HBC Action No. HBC 12 of 2009

BETWEEN :

MAXWELL SUTHERLAND TAMANI
Apprentice Electrician of Ritova Street, Labasa
PLAINTIFF

AND:

THE PERMANENT SECRETARY
Public Works Department
Nasilivata House, Ratu Mara Road, Samabula
1st DEFENDANT

AND :

THE OFFICE OF THE ATTORNEY GENERAL'S CHAMBER
Level 7 Suvavou House, Victoria Parade, Suva
2nd DEFENDANT

COUNSEL : Mr. A. Ram for the Plaintiff

Mr. D. Nair for the Defendant

Date of Hearing : 21st November, 2014

Date of Judgment : 20th May, 2015

JUDGMENT

Background

1. The Plaintiff filed this claim for personal injuries suffered by him in 2003. He was an apprentice working with the Public Works Department. He was an apprentice training for an Automatic Mechanical Engineering Trade Certificate at the Fiji Institute of Technology.
2. While working on a Caterpillar D6 Tractor under the supervision of the mechanic in-charge of the repair the rooter of the tractor fell on him and he got injured.
   
3. While the plaintiff filed this action to recover damages for permanent impairment the defendants submitted that the plaintiff has fully recovered from the injuries sustained.
   
4. At the Pre-Trial Conference stage the parties agreed on the following facts:
   
   1. The Plaintiff was an apprentice electrician working with the Public Works Department at Vatunibale Labasa, in 2003 under an attachment in the course of his training for a Automotive Mechanical Engineering Trade Certificate.
      
   2. The Plaintiff has enrolled at the Fiji Institute of Technology for the above Trade Certificate, and having completed the 1st stage pre- Level 1 of his course at the relevant time was on attachment with the 1st Defendant at its Labasa Depot.
      
   100. The 1st Defendant is responsible for the government department known as the Public Works Department.
        
   4. The 2nd Defendant is the legal representatives of the government of Fiji to sue and defend actions.
      
   5. The Plaintiff was on a four months practical training attachment with the Defendants as a trainee mechanic.
      
   6. On the 15th day of October, the Plaintiff was engaged in the repair of a Caterpillar D6 Tractor as an assistant to the mechanic in charge of the repairs when the rooter of the D6 Tractor fell and hit the Plaintiff.
   7. The Plaintiff was injured in the incident and taken to Labasa Hospital.
      
   8. At the time of the accident, the Plaintiff was an apprentice electrician and a student at the Fiji Institutes of Technology doing Automotive Mechanical Engineering Trade Certificate.
      
   9. The Plaintiff would have earned Fiji National Provident Fund contributions from his wages which are now lost.
      
   10. The Plaintiff was born on 8th August 1984 and was 19 years of age at the time of the accident.
       
   11. The Plaintiff is entitled to be paid Workmen's Compensation by the Defendants.
       
5. The following issues were raised for the Court's determination.
   
   1. Was the injury caused due to the negligence of the Defendants?
      
   2. What were the Plaintiffs injuries as a result of the incident?
      
   100. Can the Plaintiff rely on the doctrine of res ipsa loquitur to prove the negligence of the Defendants?
        
   4. Did the Plaintiff have a good prospect of employment and promotion to further enhance his career in his specialized field? Was he denied the opportunity due to the accident?
      
   5. As a result of the accident and injuries, did the Plaintiff suffer and what was the quantum of:-
      
      1. Loss and Damages (special and general)?
      2. Pain and suffering?
      3. Loss of amenities of life.
      4. Loss of earnings and future earnings capacity.
      5. Loss of Fiji National Provident Fund contributions.
      6. Loss of employment and further promotion.
      7. Interest on any sums awarded from the date of the accident.
         
   6. Is the Plaintiff entitled to the costs of the action?
      
6. After the conclusion of evidence both parties sought to file written submissions. However, I find that the Plaintiff has filed, but the Defendant has failed to file written submissions.
   

The Plaintiff's Case

7. The Plaintiff gave evidence and submitted that during his school days he had been engaged in sports and marked certificates (P1 – P3) he had got for sports. He had been an average student but couldn't sit for the School Leaving Certificate as he was expelled. In 2003 June he had entered Fiji Institute of Technology (P6). The F.I.T issued a letter to an employer for his attachment P7. After obtaining necessary approvals he was given the attachment with the Public Works Department P8-P9. At the PWD he was instructed about their policies, he was told that he can be assigned to places only if someone accompanies him. After one week of attachment on 15.10.13 he met with the incident. He was under the tractor with another attachee and a mechanic. He had to give the tools. The rooter was raised up. After finishing the job the attaché and the mechanic came out. Then the Plaintiff followed him and the rooter fell on him. The rooter can be released only by a lever in the tractor. When the rooter fell on him he became unconscious. He woke up in hospital. Couldn't move his hand or leg, couldn't turn, sit or go to the toilet. For nearly a month he had to be dependent on the mother to wash or get dressed. He couldn't carry any heavy things. He cannot continue in his studies with Automotive Mechanical Engineering in fear of thinking that the accident will happen again. He had got 4 certificates from his place of study P12 to P15. He can't now study or sit for tests as the head is hurting. He gets headaches, can't concentrate on things, feels dizzy, and can't play as the back is paining. Gets angry when in noisy atmosphere. He can't write now as he can't concentrate. The Plaintiff submitted P18 the accident report and said the rooter had fallen on his lower neck (back).
   

Under cross-examination the Plaintiff admitted that he had gone to Lautoka hospital and from the last x-ray taken, it was clear that his injury had healed.

8. Plaintiff called Dr. Joeli Mareko as PW 1. He is a qualified Orthopedic Surgeon. In his examination he had taken a x-ray which showed a compressed fracture of T 12 with diminished vertebral height. He confirms that the fracture can heal. The Plaintiff had signs of mental instability, Dizziness, Concussion which can be the result of his injury. The Plaintiff has suffered a disability of 14%.
   
9. PW 2 Dr Kitoni
   

He is a Tuberculosis specialist but only a few years experience in psychiatry. This witness was known to the Plaintiff before the accident. Under cross-examination it was elicited that his report was based on what the Plaintiff narrated to him.

10. Jone Solomone was a fellow apprentice who completed his contract with PWD. He is now under contract to PWD. He had not seen the accident. As a mechanic, he is now earning $5.60 per hour and works for 44 hours a week. A person working outside can earn more than this. This witness is not an eyewitness and his evidence pertaining to the accident cannot be considered.
    
11. Mr Peni Buikoto in evidence stated he is a psychiatric and has examined the Plaintiff in 2013 and gave the report P23. Before he came to his conclusion he had seen the reports of Dr Jaoji, Dr Kaitani, Dr Mareko. His reports were based on interviews with the Plaintiff and his mother. The Plaintiff is suffering from depression and post traumatic disorder. Depression is caused by a chemical imbalance in the brain. As per his evidence, accident per say is not a direct cause. The situation can be treated with medication and psychotherapy.
    
12. The Plaintiff's mother Aminio Tamani stated that Plaintiff was engaged in cultivating for family consumption, did sports but after the accident it had changed. Now the Plaintiff prefers to stay at home. Under cross examination she admitted that the Plaintiff had been questioned by Police pertaining to something at home, while attending school. She denied the defendant's suggestion of the plaintiff's alleged substance abuse. Under cross examination:
    

Q- Did your child suffer from any substance abuse as a teenager?

A- No

Q- Did he get into trouble as a teenager?

A- Some boys bought something and he assisted them.

Q- Because of that, was he taken to the Police Station?

A- No, he was taken because he stored it in the house.

13. Pardeep Mudaliar a mechanic has worked with D6 caterpillars. When the rooter is up a person will not go under, from the rear as there is a possibility of the rooter falling down. It is pertinent to note his evidence is not based on the rooter in question. No evidence was led as to his knowledge pertaining to the operation of the particular rooter involved in the accident.
    
14. Dr Sunil Harish gave evidence pertaining to the Plaintiffs' medical file at the hospital.
    

Defendant's Case

15. Mr Raghwa Nand had not seen the accident. Witness further stated when new attachments come, the Supervisor gives instructions on safety. He further submitted that apprentices are not paid. He was unaware of the accident as no report was sent to the office.
    
16. Mrs Khan in her evidence admitted that the Plaintiff had applied to do the attachment with PWD. The student was given protective gear and safety helmets, all were given the terms and conditions of attachments. The Apprentices are there only to observe and assess. They are not given jobs to do. The accident was reported and DW2 was aware of it. D1 has her signature in the accident report. Normally all Apprentices have to sign an indemnity form. She couldn't find the indemnity form given by the Plaintiff.
    

Analysis and Determination

17. This court has considered all the evidence led, documents marked and the closing submissions tendered. I have also considered the voluminous number of authorities cited by the Plaintiff.
    
18. The parties were not at variance on the fact that the Plaintiff got injured by the rooter falling on his lower neck area. However neither party had led any eyewitness evidence to show how the rooter came down.
    
19. As per the evidence the Plaintiff had been in Labasa Hospital for 5 days before being discharged. He had suffered a compressed fracture of T12 with diminished vertebral height at that level. Under cross examination the Plaintiff admitted that the fracture has now completely healed. The final medical report P 22 dated 5.2.2008 is also silent on any fracture.
    
20. It is pertinent to note the answers given by the plaintiff pertaining to the fracture under cross examination:
    

Q- In 2014 did you take a x-ray at Lautoka Hospital?

A - Yes.

Q- Did the X-ray report showed that there was nothing wrong with your body?

A - Yes.

Q- Your prognosis was normal as per the X-ray report?

A - Yes the x-ray report says everything is normal.

Under cross examination the Plaintiff admitted that he has not given any evidence about his latest medical report and agreed that it should have been disclosed.

21. I find the Defendant has pursued on a line of cross examination based on the Plaintiff's signing a form of indemnity. The Plaintiff under cross examination has admitted that any apprentice has to sign an indemnity form. However I find there is no issue raised on indemnity. It is also pertinent to note that the said indemnity form was never produced before Court. Accordingly the contents of the indemnity form, purported to have been signed by the Plaintiff is not before Court. The Court is not inclined to act on the contents of a document that is not led in evidence specifically when there is no agreement between the parties pertaining to the contents.
    
22. The Plaintiff's own witness Mudaliar who is a mechanic submitted that when he goes under D6 Caterpillar for repairs, the rooter has to be locked. If there is no chain lock, he submits that wooden blocks have to be placed. As per this witness's evidence when a person goes under the Caterpillar for repairs he must always go from the front as going from the rear is dangerous. He further submitted that when the rooter is up, if one goes from the rear then that person is taking a risk. The Plaintiff admitted that he went as well as came from the rear side of the Caterpillar, creeping under the raised caterpillar.
    

Analysis of the Issues

23. The Plaintiff in his evidence submits that he was following the mechanic and he went under the D6 Caterpillar as well as came out from the rear as he was following the mechanic who was his supervisor. The Defendant has failed to cross examine the Plaintiff on this issue. Further, when the rooter is raised there should be proper precautions taken to prevent it from coming down. The Defendants have failed to lead any evidence to show what safety precautions were taken to prevent the rooter from coming down before allowing the Plaintiff to go under Caterpillar. The Plaintiff was an apprentice learning at the PWD. It was incumbent on the PWD to ensure the safety of the defendant and to create a safe environment for learning. The Defendant failed to establish the precautionary safety procedures taken or to demonstrate that the plaintiff had in fact failed to observe the safety procedure and instructions. No evidence was led to demonstrate what advice was given to the defendant pertaining to safety. Thus considering the evidence before this Court I conclude that the defendant had breached the Duty of care towards the Plaintiff in creating a safe environment for his learning process. The injury caused to the plaintiff is a result of defendant's failure to create a safe and conducive environment for learning to the apprentices.
    
24. As per the evidence the accident caused injuries to the Plaintiff's lower neck/back region. This was not disputed by the defendant. As per the medical report the Plaintiff has suffered a T12 compressed fracture.
    
25. I have considered the evidence of the plaintiff, where he states that when he was coming out of the caterpillar he was following the mechanic and the other apprentice. This evidence was not challenged. When he came out the rooter had fallen on him. With this evidence the onus shifts to the defendant to establish that they had taken necessary precautionary safety measures to prevent the rooter accidently falling down. However, I find that the defendant has failed to discharge this onus. The defendant had failed to give any explanation. Accordingly, in my view this is an instance where maxim res ipsa loquitur can be applied.
    
26. The Plaintiff was an apprentice. He has just started on his practical in mechanics. It was submitted that he had completed Certificate 1 of his course. However, Plaintiff has failed to submit any evidence on how he had fared in his chosen field. As per the plaintiff's evidence during his school career he had been an average student but had completed only up to form 4. When he was in form 5 he had been expelled from school. As a result of the accident he was now not in a position to complete his studies. Under cross examination the plaintiff has admitted that in the last school exam FJCA he was able to get only 301 marks out of 700 marks and less than 45 in three subjects. During his school career he had taken part in sport. However the plaintiff failed to establish through evidence that he had continued with sports after he left school. The Plaintiff submitted certificates marked P12 –P15 issued by the Training Productivity Authority of Fiji where he has done up to Course 3 in Electrician Wireman course. I find all the certificates submitted and the courses he had done had been after his accident in 2003. The defendant submitted that this contradicts plaintiff's position of not being able to think or work. I find the plaintiff had failed to give a proper explanation on this issue.
    
27. The Plaintiff submits that after the accident he is not in a position to do hard work. He also submitted that he is not in a position to think and work. However it is pertinent to note that there was no evidence led to show whether he had applied for any jobs or whether it had been denied to him. In the absence of such the Court will have to consider the medical evidence to see whether the Plaintiff is in a fit and proper condition to work. As per the evidence of PW 6, PW7 the field chosen by the Plaintiff has lot of prospects. However as I have stated earlier the Plaintiff has failed to lead any evidence to demonstrate whether he had applied for jobs and that in his present state he was not acceptable to the prospective employers.
    
28. The defendant has failed to explain the safety measures that had been taken at the time of the accident, nor have they taken contributory negligence as an issue. In considering all the evidence, I come to the conclusion that the defendants have failed to take appropriate necessary precautionary measures pertaining to the safety of the Plaintiff on the day of the accident. I also conclude that in my view the plaintiff has satisfied Court that the defendant has failed to create a safe environment for plaintiff to learn. With that the onus shifts to the defendant to establish that the required duty of care a prudent man expects was provided. On the evidence submitted I am inclined to think that the defendant has failed to discharge the said onus.
    

Damages

29. In considering the damages the Plaintiff is entitled to, the Court considers the impairment the Plaintiff has suffered due to the accident. The Plaintiff called several doctors to give evidence pertaining to his impairment as a result of the accident.
    
30. The Defendant contested that for the Plaintiff to obtain damages they had to prove that the Plaintiff had suffered impairment and that was the result of the accident.
    

Impairment

31. Plaintiff has admitted under cross examination that apart from having pain he can do all what a normal person will do daily.
    

Q- All a normal person do daily, you can do?

A- I can walk, climb up, brush teeth, comb, eat.

Q- Apart from pain, do you live a normal life like any other person?

A- Yes.

32. To arrive at conclusion pertaining to the present physical condition of the Plaintiff it is pertinent to note the answers the Plaintiff has given under re-examination pertaining to the x-ray taken in late in 2014.
    

Q- What exactly did the Doctor tell you?

A- 2014 X-ray was clear so he let me go home.

Q- As per your findings have your body aches, back pain gone now?

A- Still I get the back pain.

Q- From 2009 to 2014 has the body healed?

A- My Doctors says its healed but the pain still remains in the lower back.

Q- Can you run 100m now?

A- I can run 100m, yes but tiring.

33. Dr Sunil Kumar Harish under cross examination stated that he had not treated the patient but has brought the file of the patient. Giving evidence from the file the witness submitted that there was a letter in the file by Dr. Jaoji which said that the doctor cannot come to a final conclusion about the Plaintiff's incapacity till he gets a report from St Giles hospital. The Doctor under cross examination admitted that on 6.8.14 a CT scan had been done on the Plaintiff and as per the finding there is no injury, no factures existing in the Plaintiff's body and that everything is normal. Witness under cross examination submitted:-
    

Q: Is there any other document to show that there was a x-ray done recently?

A: I asked for this, there was a CT scan, X-Ray done on 6.8.2014.

Q: What is the conclusion?

A: The report say it doesn't show any existing injury now.

This report had not been made available to Court by either party. However I find the Plaintiff under cross examination has admitted and corroborated the existence and the contents of the report.

34. I find the Plaintiff has failed to impeach the evidence pertaining to the scan report taken in 2014. The report itself was not made available to Court, depriving the Court to come to a conclusion. In my view sufficient evidence has been submitted by the plaintiff himself pertaining to the existence of the said report, and the final conclusion that bone injuries suffered by the plaintiff has permanently healed, thereby not causing a permanent impairment.
    
35. Dr Peni Moi a specialist in Psychiatry from St Giles hospital submitted, that the Plaintiff shows signs of depression, post traumatic disorder. He further submits that as per the Plaintiff's narration of events it related to a reported incident at the workplace. The witness described the post traumatic disorder as a disease which is a mental disorder and anxiety disorder which can arise out of a traumatic event. As per the doctor's evidences 1/3 of the patients with this disorder will recover with treatment. However for the plaintiff to come to a full recovery, he will have to undergo medication and psychotherapy in the form of counseling. He also submitted that depression is a different disorder. The witness stated there is a 50% possibility of full recovery with medication. The witness submitted that to give an opinion the patient has to be re-examined at least after 6 months of treatment. The witness also admits that P23 is only an interim report.
    
36. The Plaintiff has failed to submit any other report after P23. As per the medical evidence to assess permanent disability there should be an assessment after treatment. The author of P23 conceded that it's an inconclusive report as it was done while treatment was going on. In my view it is dangerous to assume permanent impairment based on an inconclusive interim report as it was done when the patient is still under medication. Therefore this Court is not inclined to act on P 23. Thus the Plaintiff has failed to produce a conclusive report assessing his mental status or the mental impairment as a result of the accident.
    
37. The Plaintiff relied on P20, P21, P22, P23 to establish that the injuries suffered in the course of the accident caused him the permanent impairment. The medical certificates have been issued in 2008, 2011, and 2013. The reporting Doctor has assessed the permanent impairment of the Plaintiff as a result of the accident. However, I find as stated earlier in this judgment under cross examination the Plaintiff admitted that after a medical examination in 2014, he had been informed that all is clear and all his injuries are healed. The Court cannot disregard this evidence, as it is an admission by the Plaintiff himself. The said medical conclusion had been revealed after the above mentioned medical certificates were issued. As per witness Dr Peni, P23 is not a conclusive report as he has to review the patient six months after commencing treatment. The Plaintiff has failed to submit any subsequent medical report. Witness Dr. Peni submitted that he has not examined the patient after the issuing of the first medical certificate P23.
    
38. Lord Blackburn in Livingstone v Raw Yards Coal Co. (1885) App Cas 25, 39 observed the underlying principle in awarding damages. This was quoted in Broadbridge v Maka HBC 0201/93S where the court held "compensation should as nearly as possible put the party who has suffered in the same position as he would have been in if he had not sustained the wrong".
    

In British Transport Commission v Gourley [1955] UKHL 4; (1955) 3 All ER 796. Court held " a successful Plaintiff is entitled to have awarded to him such a sum as will, so far as possible, make good to him the financial loss which he has suffered, and will probably suffer, as a result of the wrong done to him for which the Defendant is responsible."

Claim on Special Damages

39. Special damages has to be specifically pleaded and proved in Court, as held in Gourley (supra)."Special damage has to be specifically pleaded and proved." The Plaintiff has pleaded a sum of $775.00 as special damages. This consists of Transport and Medicine. In answering the claims the Defendant has specifically pleaded that the Plaintiff should substantiate and prove his claims pertaining to special damages. However, the Plaintiff has failed to discharge the onus pertaining to his claim on special damages; the plaintiff has failed to mark in evidence and submit any bills to substantiate his claim, thus I disallow the said claim.
    

General Damages

40. The Plaintiff had been in hospital for 5 days. The Plaintiff claims that from the day he met with the accident he suffered pain and the pain continuous till now. However under cross examination the Plaintiff admitted that as per last x-ray all his injuries are healed. He also admitted that the Doctor told him injuries are healed, there is nothing wrong with him. Under re-examination by his own counsel, he agreed that after the last x-ray was taken in 2014 the Doctor told him that the x-ray is clear so no comment can be made. He admitted that since the x-ray was clear he was asked to go home. Under cross examination he admitted that he did not disclose this fact in his evidence in chief. He admitted that he should have disclosed this.
    
41. In my view the defence has been successful in impeaching the credibility of the Plaintiff's evidence pertaining to pain and suffering specifically in view of plaintiff's own admission that as per the last x-ray he has been given a clearance. I have also considered the evasive nature of the plaintiff in answering pertinent questions put by the defence, regarding his present impairment. However, the plaintiff has suffered injuries as a result of the accident. I have already held that the accident occurred as a result of breach of duty of care towards the plaintiff by the defendants. Accordingly, in my view on a balance of probability the Plaintiff is entitled to some damages for the injuries suffered as a result of the accident. Plaintiff marked P20 which is dated in the year 2011. Under cross examination, it was established that the report was mostly based on what the Plaintiff stated. However the medical witness submitted that he had examined the party. As per the report he had been found with a tenderness in the back and lumber region. As per the x-ray there had been a compress facture of T12. It is also pertinent to note as per P22 the Plaintiff had been suffering from a back pain.
    

Pain and Suffering: Loss of Amenities of Life

42. As per the evidence led and the plaintiff's own admission I disbelieve the Plaintiff's evidence that he would suffer pain for the rest of his life. As per DR. Peni's evidence, P23 is an inconclusive report thus the Plaintiff has failed to prove that the Plaintiff had suffered a permanent psychiatric impairment as a result of the accident. The witness also conceded that depression can be caused by several factors which may not be related to the accident, but can be the result of post traumatic stress disorder which may be due to the accident. I find the plaintiff has failed to prove that the depression he is suffering was caused by nothing else but the accident. The plaintiff failed to challenge the accuracy of the 2014 report. Even though this report is not submitted to Court, when the plaintiff admitted the existence of the report and commented on the contents, the Court cannot disregard this evidence. The plaintiff has failed to attrack the accuracy of the report and also impeach the credibility of the author of the medical report. Thus the defendant's proposition not only goes unchallenged but is admitted by the plaintiff. However, the plaintiff's evidence that he met with the accident and suffered has to be taken into consideration. Considering all the evidence before me I conclude that the Plaintiff is entitled to damages for a limited period from the day of the accident till the doctor found nothing was wrong with him. Even though none of the parties marked the said report, under cross examination and when re-examined by the Plaintiff's own counsel he admitted the existence and the contents of the report. In my view in the light of this evidence this Court has to take into consideration the fact that the Plaintiff has been cleared of the injury caused by the accident and has been told that there is nothing wrong with him by 2014. The defendants' have been successful in impeaching the credibility of the plaintiff to an extent, when the plaintiff failed to disclose the existence and knowledge of the medical certificates in his evidence in chief.
    
43. In calculating damages under this heading I find the cases cited by the Plaintiff are of little assistance as the circumstances and facts are different from the present case.
    
44. In considering damages its pertinent to note the quote of House of Lords in British Transport Commission v Gourley (1955) VKHL 4[1955] UKHL 4; , [1956] AC 185 "the general damages which the law implies and is not specially pleaded. This includes compensation for pain and suffering and the likes, if the injuries suffered are such as to lead to continuing or permanent disability compensation for loss of earning power in the ......". As per the Plaintiff's own evidence when the doctor finds nothing wrong with him and that all his injuries are healed he disentitles himself of the relief under this segment of damages.
    
45. However I find the Plaintiff has established that he was injured, he suffered disability from 2003. As per his evidence in Court, now his injuries are healed and according to the Doctor nothing is wrong with him. This finding of the Doctor was not challenged by the Plaintiff.
    
46. The Plaintiff cited the following several cases-:
    

Salaitoga v Anderson Civ Appeal High Civil Action 353 of 1989; ABU 0026 of 1994 where a sum of $85,000.00 was awarded for a head injury.

In AG v Waqabaca Civ Apeal [1998] FJCA 43; ABU 0018U.98s for loss of all body functions due to cerebral palsy was awarded $85,000

However, I find the circumstances and facts of the cases cited are different to the present case. The Plaintiff claims $120,000 under this category on the basis of following facts:

1. The Plaintiff from the date of the accident until today suffers pain,
2. He is unable to do any hard work,

100. He cannot lift even ten (10) kilograms of flour or sugar,

4. He cannot continue with his studies,
5. He now does not have any gainful employment
6. He feels pain when it rains or when there is imminent bad weather, and
7. He is hot-tempered and is irritated when someone startles him,
8. Persistent headaches making it impossible to concentrate for long periods of time.
9. Consistent back pain making physical activity hard or near impossible.
   

Considering the plaintiff's evidence I find the plaintiff has suffered injury as a result of the accident. I have taken into consideration the case precedents cited, accordingly, I award a sum of $60,000 under this category.

47. In arriving at the said sum I have also considered the case of Eta Naqeletia v Kumar [2012] FJHC 29 and Rajendra Mani Naidu v Fiji Forest Industries Limited HCCA No. 39 of 2011.
    

Loss of Future Earnings

48. The plaintiff submitted that he had done a course in "Electrical Wireman". However the plaintiff failed to lead any evidence on the probability of his finding a job in this field or how much a qualified person would earn in this field.
    
49. At the time of the accident the plaintiff was not earning any money. No evidence has been led by the plaintiff to establish the probability of his passing the exams in the said field. The plaintiff has failed to lead any evidence on his accomplishments to qualify to be a professional in the said field of work.
    
50. In his evidence the plaintiff submitted that even though he did a motor mechanism course he didn't know the duration of the course or how long he had done the course before the accident. These answers show that the plaintiff had not much of an interest in the course he was doing. The document P6 states that the student shall conclude a minimum of 20 months of industrial attachment. The document P8 is dated 6.08.13 which establishes that till the month of August the plaintiff had not got his attachment with the PWD. The plaintiff concedes that he had been an apprentice with the PWD only for 1 week when the accident occurred. The plaintiff also failed to give any evidence as to how much he could have earned as a mechanic.
    

Answering questions by counsel the plaintiff submitted:

A- " I don't know the duration of the course, can't remember how long I did it.

He went on to say;

Q- If you were a mechanic, how much would you have earned?

A- $2 per hour, I don't know, I don't know how many hours I will work.

51. Under cross examination the plaintiff submitted that he studied up to form 4. The results were marked and the plaintiff also admitted that even in form 4 he managed to get only 301 marks out of 700 marks. His school career had ended when he was expelled from school in form 5. Analysing the evidence and plaintiff's educational qualifications, I find the plaintiff had failed to establish that he was a bright student or that he had a probability of passing the exams and obtaining the qualifications at F.I.T. The plaintiff has failed to establish his probable success in education by any independent witness.
    
52. The plaintiff had failed to give any evidence on his probability of passing the exams at the F.I.T had it not been for the accident. The plaintiff failed to give any evidence supported by independent corroborative evidence or documentary evidence to show that he had attempted to find a job or that he has been unsuccessful in his present capacity to find a job.
    
53. In view of the plaintiff's own evidence pertaining to the results of the last medical examination and the doctor's conclusion, the legal onus of proving Loss of earning capacity rests on the plaintiff. It is for the plaintiff to prove that he has lost his pre-accident earning capacity and he has been unable to find employment. In this I find support in the decided case of Kinston v Insurance Commission of Western Australia [2007] WAD C 216. I find the plaintiff has failed to discharge this burden.
    
54. The plaintiff relied on the High Court decision in Broadbridge V AG HBC 0201/93.S but has failed to tender the judgment of the Supreme Court in appeal. However this Court has considered the case AG v Broadbridge CBV 0005 of 2003. I find the circumstances and facts in the case before me are different to the said case.
    
55. As I have stated earlier in the Court the plaintiff has failed to lead any evidence on the probability of the plaintiff succeeding in his course if not for the accident. In Broadbridge case the Courts held "The High Court determined that this possibility on an event occurring that would either possibly adversely affect the earning capacity of an individual must be taken into accent in an assessment of future loss, provided that the possibility was real" . (The emphasis is mine). It was incumbent on the plaintiff to prove that there was a real possibility that the plaintiff would have succeeded in his learning. I find the plaintiff has failed to discharge this onus. This Court is reluctant to act on an assumption which hardly exists. In this regard I find the plaintiff has failed to lead any evidence on the intelligence or educational success of the plaintiff. Though there was fleeting evidence by the plaintiff to say that two of his siblings were in higher educational institutes, I do not think it is sufficient to create a comparison. No independent evidence was led in this regard. The two siblings failed to give evidence. Under the given circumstances of this case, I do not think a fleeting inference by the plaintiff pertaining to his siblings will shed any light on his own intelligence.
    
56. Considering the evidence before me and considering the plaintiff's own evidence where he considered that after the last medical examination the medical prognosis of him was normal and the report pertaining to the psychological effects are inconclusive, I decline to accept that the plaintiff's earning capacity is permanently impaired.
    
57. In my view the plaintiff has failed to lead sufficient evidence for Court to grant any relief under this segment. The Plaintiff has failed to prove his claim under this heading. In the absence of sufficient evidence I decline to grant any award under this heading.
    

Loss of FNPF

58. The Plaintiff has claimed for the loss of FNPF. As per the evidence he was only an apprentice, thus there was no FNPF contribution. Accordingly, the plaintiff has failed to lead any evidence of the probable loss of FNPF. The plaintiff failed to submit any decided cases on this issue. In the absence of any evidence I disallow any claim under this heading.
    

Interest

59. The Plaintiff has pleaded for interest on general and special damages. I agree in granting interest as discussed in Pickett and British Rail Engineering Ltd (1980) HL 136. Where it was held "interest on general damages was awarded for the purpose of compensating a Plaintiff for being kept out of the capital sum between the date of service of the writ and Judgment." I also considered the Judgment Rothmans Pall Mall (Fiji) Limited and Edward Narayan (Civ.App. No. 65/953) and Shell Fiji Limited v Chand 2012 FJHC 16;CBV 0003/2011.
    
60. Exercising the Court's discretion I award interest at the rate of 6% per annum on general damages from the date of writ to the date of hearing.
    

Conclusion

61. Accordingly for the above stated reasons I hold that the Plaintiff on a balance of probability is partly successful in his claim. Thus I award the Plaintiff damages in a sum $67,200. It is calculated as follows:
    

General Damages	-	$60,000
Interest	-	$ 7,200
Total	-	$67, 200

62. In considering the length of this trial and the amount of witnesses that were called I award a summarily assessed cost of $5, 000 to the Plaintiff.
    

.....................................

Mayadunne Corea
JUDGE

20.5.15