Kumar v Reddy [2016] FJHC 311; HBC282.2013 (8 April 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 282 of 2013

BETWEEN:

AVINESH KUMAR
Plaintiff

AND:

RISHKEN SHANEEL REDDY
Defendant

BEFORE : The Hon. Mr Justice D. C. Alfred

Counsel : Mr Diven Prasad for the Plaintiff
Mr V Sharma (Mr V Chandra with him) for the
Defendant

Dates of Hearing : 4, 5 and 6 April 2016
Date of Judgment : 8 April 2015

JUDGMENT

1. When the hearing of this action commenced, Counsel for the Defendant informed me that he wanted to submit a video film as evidence in this case. As there was objection to this by the Counsel for the Plaintiff, I adjourned the hearing to the afternoon to enable Counsel on both sides to resolve this and other issues.

2. When the Court sat again, Counsel for the Plaintiff informed me that the parties had agreed that the Defendant accept full liability for the accident and the hearing proceed on the issue of the assessment of the general and special damages only.

3. When Counsel for the Defendant confirmed this, I accordingly recorded an interlocutory judgment.

4. Counsel for the Plaintiff then informed me that he had agreed to the Defendant using the DVD as evidence in these proceedings and handed over the Agreed Facts signed by Counsel on both sides.

5. This is an action where the Plaintiff alleges that while riding a motorcycle No. 992E, on 25 May 2013, he collided with motor vehicle No ED 865 driven by the Defendant who was its registered owner. As a result of the accident, the Plaintiff sustained injuries and suffered loss and damage.

6. The Defendant in his Statement of Defence while admitting he was the owner and driver of the said motor vehicle, makes a general denial of all the other allegations in the Statement of Claim.

7. The hearing proper started with the Plaintiff calling his 1st witness. He was Dr Vaigalo Eddie McCaig (PW1). He said he had not examined the Plaintiff since December 2014. When cross examined by the Defendant's Counsel, he said in December 2014 he was not registered as an orthopedic surgeon. He had not seen any other doctor's report on the Plaintiff. He used to work with Dr Taloga who has many years experience in orthopedics and is an expert in orthopedics and Head of Orthopedics in Fiji. He would regard Dr Taloga's report (in Tab 1 of the Plaintiff's Bundle of Exhibits) as accurate.

8. PW1 was then shown the video clips. He said he recognized the Plaintiff in the 1st video and he was not using crutches. He (the Plaintiff) seems to be mobilizing well. He shows good mobility when driving the car. He was fully weight bearing getting in and out of the car. He was fully able to support his body weight without using walking aids. PW1 concluded by saying he did not think the Plaintiff was in pain. He had not seen any psychiatric report.

9. In re-examination, PW1 said to use a crutch would mean (one) is still in pain.

10. The next witness (PW2) was Mr Emosi Don Taloga who said he is an orthopedic specialist. He had examined the Plaintiff. He read his Medical Report (Tab 1) and explained its contents as well as the X-ray. He said the Plaintiff's post operative recovery was not complicated. The delay in recovery was due to the Plaintiff's blood pressure. He said an impairment of less than 15% is acceptable as normal. The 4% given to the Plaintiff, is taken from the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, and is for the 2.5cm muscle wasting. In Fiji, pain is not considered for the calculation of impairment. The Plaintiff had no shortening of the leg. The facture had united and healed. He had no basis for complaining of pain. His discharge was on 7 June 2013 and he should have been able to go back to what he was doing before.

11. When cross examined and being shown video clip 1, PW2 said he recognized the Plaintiff. The Plaintiff did not appear in pain nor in need of support for his right leg. He can work in an office environment. After the 2013 report, he can return to office work.

12. Dr Ronal Kumar is junior to him. A patient can be pretending. One needs to take the gait with a grain of salt. PW2 said he stood by his report of 4% impairment.

13. The 3rd witness (PW3) was Dr Ronal Kumar. He said he examined the Plaintiff on 19 February 2016. He said the Plaintiff needs to use a single crutch. The gait was the only criterion for assessment. The Plaintiff could have been pretending but he always needed crutches. Dr Taloga (PW2) is his (PW3's) orthopedic consultant. Dr Taloga has not shown the calculations but he had. The Plaintiff can take part in office work but is affected by his psychiatric problem.

14. Under cross-examination PW3 said he is not an orthopedic specialist. Dr Taloga has vast more experience. He (PW3) has not seen the Plaintiff walk without crutches. PW3 was now shown video clip 1, (which had been taken in November 2013). He now said the Plaintiff appears to be walking normally. He appears fine. He does not appear to be in pain. PW3's assessment would now be different and much lower and he would need to recalculate. The 20% impairment comes from the Plaintiff's gait. Pain is subjective but not an assessable criterion.

15. The next witness (PW4) was Moureen Ronika Chand, the Human Resource Manager of Vodafone Fiji Ltd. She said the Plaintiff was employed as the debt collection and legal officer. She explained the benefits of employment contract and said the company paid the FNPF contributions on the total reward package. The Plaintiff was employed till 17 July 2013. The company carried out a restructuring exercise and found out the Plaintiff's position was not required. As part of the restructuring exercise, the company tried to look for an alternative position for him but there was none available at that time.

16. Under cross-examination, PW4 said the Plaintiff was not terminated because of the medical certificate produced to the company. He was not terminated in relation to the accident. Vodafone does not terminate a person because he has a disability.

17. The 5th witness (PW5) was Sashi Prakash, the financial controller and company secretary of BOC (Fiji) Ltd. In 2001, BOC employed the Plaintiff. In 2009 the Plaintiff left to join Vodafone because they paid a higher salary.

18. The next witness (PW6) was the Plaintiff himself. He said he is 38 years old, and married. His wife is not employed now. He was employed by Vodafone for 3 ½ years when it offered him a redundancy package. He did not know why his contract came to an end early by redundancy. After the accident he went to the Navua Hospital where he was transferred to the CWM Hospital (CWM) on the day of the accident. He was not treated in the CWM. He was treated in the Suva Private Hospital (SPH) on the same day. He then gave a full account of his medical history after the accident to date, which I do not think I would need to reproduce here.

19. The Plaintiff continuing with his evidence said he commenced working with Carpenters Finance Fiji Ltd (Carpenters) on 15 September 2014. His employment contract with Carpenters was contained in Tab 13. He worked for 1 month and then resigned on doctor's advice. He confirmed it was him in the videos. He can walk without crutches. He cannot stand for a long time. His hobbies are soccer, kickboxing and scuba, which he is unable to do now due to pain and discomfort. He needed someone to assist him. His wife looks after him on a daily basis.

20. With regard to the Plaintiff's Schedule of Special Damages, the Defendant's Counsel said he accepted the Plaintiff had suffered the special damages referred to in items 3, 6 and 7 therein.

21. Thereafter, the Plaintiff gave evidence regarding the other items in the said schedule. He concluded by stating he was claiming general and special damages, interest and costs.

22. Under cross-examination, the Plaintiff said Vodafone made him redundant, but he did not agree it was because of structural changes. He felt Vodafone got rid of him because of his injuries. He agreed he resigned from Carpenters on 4 November 2014. He agreed the videos were taken on 2 November 2014. He denied he resigned on 4 November 2014 because of the video.

23. When video clip 1 was played, the Plaintiff agreed it was his car and he was driving it. It was him walking without crutches. It was his boxing gloves in his boot and they were on top of his crutches. He bought the car around 19 May 2014. He agreed he skipped into the car. It was him reversing the car. He was using his right leg. He was saying in the video recording that the car uses $30 of fuel to travel 150km and that he drives pretty fast. This vehicle he bought after the accident.

24. Regarding the Special Damages, he remembered he waited in CWM from 1:30 or 2:30pm to 8pm and then he went to SPH. He denied there is no mental issue and that he is lying in court about his impairment.

25. The final witness (PW7) was Reshmi Kumar, the Plaintiff's wife. On the day of the accident after being informed by a police officer she went to Navua Hospital. From there she took the Plaintiff to CWM and then SPH where he was for 14 days. Apart from the leg, the Plaintiff has no other problem. He had medical insurance in 2013 and the Insurance Company paid the full hospitalization amount of $19,946.58.

26. Under cross-examination PW7 said the medication was not paid by the Insurance Company. When video clip 1 was shown she said seeing the Plaintiff, she can say he is not in pain. She can see him getting into the car. She confirmed it is her husband driving the vehicle. With this, the Plaintiff closed his case.

27. Plaintiff's Counsel now submitted on the quantum. He referred to the 3 doctors and their medical reports. Dr Kumar had assessed disability at 23% and had done so, category by category, and Counsel asked that this be awarded. The Plaintiff had been diagnosed for depression. He had tried to find work but could not find work because of pain. He can work now based on the medical report.

28. Counsel asked for the following:

(i) $45,000.00 for pain and suffering (tibia and fibula).
(ii) Future nursing care at $70.00 per week from date of accident to 2015.
(iii) Loss of earning capacity for 3 years at $26,00.00 p.a totaling $78,000.00.
(iv) Loss of FNPF contribution at $80.00 p.w for 3 years totaling $12,480.00 plus 8% interest p.a thereon totaling $998.40.
(v) Loss of future earnings at $26,000.00 p.a for 5 years.
(vi) Interest between 5-7% p.a on the general damages and at half that rate on the special damages.
(vii) $19,946.58 for the Suva Private Hospital expenses.
(viii) $2,074.35 for medication expenses.
(ix) $220.00 for medical consultation.
(x) Counsel conceded he had no proof of the claim for the damaged motorcycle and riding gear totaling $16,699.00.
(xi) Counsel asked for a global figure of $1,000.00 for the transportation and fuel expenses.
(xii) Counsel again conceded there was no police report and proof of the loss of personal items.

Finally, Counsel asked for $3,500.00 as costs.

29. Counsel for the Defendant then submitted. The Plaintiff's witnesses, the doctors, gave different assessments. Dr Taloga is to be trusted as he is an expert. Dr Kumar is not a specialist in this area and after viewing the video, he said his assessment would change, while Dr Taloga said his assessment of impairment does not change. Dr McCaig, concurred with Dr Taloga, and said after looking at the video, that the Plaintiff was fully weight bearing and that 23% impairment is a gross exaggeration. PW4 said the Plaintiff was not made redundant because of disabilities. The sick sheets were not a ground of termination. PW5's evidence regarding BOC was not relevant.

30. The Plaintiff's credibility was in doubt and he had misled the court. His wife confirmed the insurance company paid for the hospitalization, The Defendant accepts liability, and says as follows. The permanent disability is 4%; general damages for pain and suffering should be $7,500.00. There was no loss of earning capacity as he can still continue with a desk job. He can do physical activity but is deliberately limiting himself. There was no past loss of earnings because Vodafone did not terminate the Plaintiff's employment for disability. He voluntarily resigned from Carpenters. There is no sick sheet which says he cannot work. The Plaintiff can work but does not want to work. He is not entitled to past or future loss of earnings.

31. With regard to the special damages, Counsel said he had no evidence that the insurance company paid the medication expenses but contended the insurance company had paid. The Plaintiff provided no evidence that he was the registered owner of the motorcycle and had paid its purchase price. There was no police report of the missing items 5 and 9 in the Schedule of special damages. With regard to transport expenses, Counsel would allow $500.00.

32. No costs should awarded to the Plaintiff. Counsel said he agreed with the rates of interest proposed by Plaintiff's Counsel but said no interest should be awarded because the Plaintiff delayed, but Counsel had no basis for saying there should be no interest.

33. Counsel for the Plaintiff now informed me that $10,000.00 had been paid as interim payment to the Plaintiff and should be deducted from the judgment sum but not the costs of $300.00. With this, the Defendant's Counsel agreed.

34. At the conclusion of the hearing, I said I would take time for consideration. Although this is an assessment of damages, it is not a matter for an extemporary judgment. This is because there are questions of importance and difficulty that I have to resolve in making my awards. My task is made easier when the nature and effect of the evidence led by the Plaintiff are considered. That is the reason why I have reproduced the evidence in detail.

35. In arriving at my decision, I have perused:

(1) The Statement of Claim.
(2) The Statement of Defence.
(3) The Plaintiff's Bundle of Documents.
(4) The Defendant's Bundle of Documents.
(5) The Plaintiff's up to date Schedule of Special Damages dated 18 March 2016.
(6) The Agreed Facts dated 4 April 2016.
(7) The Plaintiff's Closing submission.
(8) The Defendant's Written Submission.
(9) The Authorities cited by Counsel on both sides.

36. I now proceed to deliver my judgment.
At the outset, I lay down the lodestar that I follow in making my awards for damages:

1. That the general damages are to be fair, adequate and appropriate for the injuries sustained.
2. The damages are neither to be too generous nor too niggardly. They are to be just compensation to the claimant.
3. The special damages are to be strictly proved. A mere recitation will not suffice in the absence of adequate proof.
   

37. I start by noting that one thing stands out in this case with the utmost clearness and that is the admitted actions of the Plaintiff as shown in the video clip. He is walking without a single crutch and unaided by anyone. He is walking without a limp. He skipped into the car and reversed it. He is using his right (injured) leg (to operate the accelerator pedal and foot brake. He is saying to his passenger that he drives pretty fast. He displays a cheery disposition. In the boot of the car are his boxing gloves placed on top of his crutches. This surely is evidence of a return to his previous sporting activity and that the crutches are no longer needed. So it is therefore flatly incredible that he is alleging he is unable to work and needs the nursing care of his wife. Having seen and heard him in the witness box and in the video, I am in a good position to assess the value of his evidence. My conclusion is his narrative cannot be accepted as the evidence of a reliable and credible witness.

38. I would have thought, seeing his performance in the video should have brought the Plaintiff back to reality. But it did not. It is a matter for regret that neither he nor his Counsel saw fit to prevent further expenditure of court time, by recognizing that a major part of the Plaintiff's claims had collapsed and acting appropriately, by for instance dispensing altogether with PW5 whose evidence was so irrelevant that the Defendant's Counsel asked him only one question to which the answer was the Plaintiff's lawyer called him to give evidence. And Plaintiff's Counsel continued to advance arguments for claims which fail in limine.

39. Counsel on both sides provided authorities which were supposed to throw light for the assessment of the damages but they did not. Therefore I will rely on the persuasive authority of the decision of the High Court of Australia in: Planet Fisheries Pty Ltd v La Rosa [1968 119 CLR] 125-126 where the Court stated as follows: Damages must be proportionate to the injuries and the consequences as established in the evidence in the case. It is erroneous to derive a norm from a group of judgments delivered. The judgment of the court awarding damages is not to be overborne by what other minds have judged right and proper for other situations.

40. I note no psychiatrist was called to give evidence to confirm any mental or other problem that the Plaintiff was allegedly suffering from. Therefore for the purposes of the assessment I shall give no credence to any allegation by the Plaintiff that he is suffering from such a problem and shall only consider the orthopedic evidence. In this I am fortified by the Plaintiff's wife's evidence that apart from the leg, he has no other problem.

41. I will now consider my award for general damages. In doing so I shall first of all dispose of Dr Kumar's report. On the 1st page under "History of Present Medical Conditions" relayed to him by the Plaintiff, he says of the Plaintiff," He does not remember the events following this and only remembers waking up at CWM Hospital 2 days later." That this is purely imaginary is proved by the Plaintiff's own evidence that he remembered waiting from 1:30pm or 2:30pm to 8pm in CWM and then he went to Suva Private Hospital. This is confirmed by his wife's evidence that the Plaintiff recognized her when she arrived at Navua Hospital, that he was taken to CWM Hospital and when he was not treated there she took him to Suva Private Hospital at 8pm (on the same day). That I should set no store by Dr Kumar's evidence and report is fortified by the fact that after he saw the video, he made a volte-face and said his assessment would be different; it would be much lower and he would have to recalculate. In any event Dr Kumar admitted that he is not an orthopedic specialist and Dr Taloga has vast more experience than him.

42. As for Dr McCaig, he admitted he is not registered as an orthopedic specialist and after viewing the video, he stated the Plaintiff showed good mobility when driving the car, was fully weight bearing, was able to support his body weight without using walking aids, and was not in pain. I am of opinion that Dr McCaig's report and evidence, before he saw the video, can be similarly dispensed with.

43. That leaves only Dr Taloga and it is his reports and evidence that I will accept. Accordingly, I find and so hold that the Plaintiff only suffered fracture of the right tibia and fibula which have healed and a 4% permanent impairment. The apposite sum to be awarded as general damages is $18,000.00 for pain and suffering and loss of amenities.

44. As for loss of earnings and loss of earning capacity I note the Plaintiff did not lose his job at Vodafone because of his injuries or alleged disabilities. Vodafone made him redundant because of structural charges, which was a future event after he returned to work.

45. Carpenters did not terminate him. He left of his own volition. If it were because of doctor's advice, no doctor came forth to give evidence that he advised the Plaintiff to stop working.

46. For the above reasons I make no award for loss of earnings, past, present or future, nor for any loss of earning capacity, partial or at all.

47. There is no medical evidence provided that he needs any domestic or nursing care and no award will therefore be made for these. After all, he is a Plaintiff who drives a car all by himself

48. Because he did not lose his job as result of his injuries, he cannot be allowed any alleged loss of FNPF contributions.

49. At the end of the day all the evidence suggests the Plaintiff had made up his mind not to work anymore and not to take care of himself as any normal able bodied young man of his age would do.

50. I turn now to the Special damages set out in the Schedule. I set out below my awards, if any:

1. Hospitalisation for Suva Private Hospital. Because I accept the Plaintiff's wife's evidence that the insurance company paid for this, the claim of $19,946.58 is not allowed.
2. The claim for medication at $2,074.35 is allowed.
3. The claim for $16,699.00 has not been proved and is not allowed.
4. The transport expenses will be allowed at $500.00.
5. The loss of personal items has not been proved by any police report and is not allowed.
   

51. In the result, I assess the general damages at $18,000.00 and the special damages at $3031.35 which include the agreed items. From the general damages I deduct the interim payment of $10,000.00.

52. In fine, I order the Defendant to pay the Plaintiff:

1. $8,000.00 as general damages with interest thereon at the rate of 6% p.a from date of filing of writ to date of judgment today.
2. $3,031.35 as special damages with interest thereon at 3% p.a from the date of accident to the date of judgment today.
3. Post judgment interest at the statutory rate on the judgment sum of $11,031.35 to date of payment.
4. Costs which I summarily assess at $1,100.00.
   

Delivered at Suva this 8th day of April 2016.

David Alfred
JUDGE of the High Court, Fiji