Nisha v Salusalu [2016] FJHC 653; HBC23.2013 (19 July 2016)

IN THE HIGH COURT OF FIJI

AT LABASA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 23 OF 2013

BETWEEN : SHAZIANA SHAZLEEN NISHA OF Wailevu,

Labasa, student infant and by her father and next friend MOHAMMED JAMAL of Wailevu, Labasa, driver

PLAINTIFF

AND : GRACE HINANO SALUSALU of Salusalu Street, Labasa

1^ST DEFENDANT

AND : SATENDRA PRASAD of Wailevu, Labasa, Driver

2^ND DEFENDANT

AND : DALIP CHAND & SON LIMITED a limited liability company having its registered office at Labasa

3^RD DEFENDANT

AND : LEDUA SALUSALU of Salusalu Street, Labasa

4^TH DEFENDANT

Appearances: Mr. Sharma of Samusamuvodre Sharma Law for the Plaintiff

No appearance for the defendants

ASSESSEMENT OF DAMAGES

Introduction

[1] The action against the 2^nd and 3^rd defendant was withdrawn by the plaintiff’s counsel on instruction from the plaintiff before Justice Kotigalage on the 16 March 2015. On that day the Counsel for the 2^nd & 3^rd defendants sought and was given an order for costs to be assessed by the Master.

[2] The Bill of Costs for taxation purposes was then filed by the counsel for the 2^nd & 3^rd defendants but this is yet to be taxed by the Master. Although the plaintiff’s Counsel later opposed the costs awarded he did eventually on the 7^th August agreed to the costs provided this costs is not to be enforced until the completion of the matter.

[3] On the same date the Counsel appearing for the 1^st & 4^th defendants, Gibson & Co informed the Court that they were instructed not to appear for the 1^st & 4^th defendants. The summons for the withdrawal of the Counsels for the 1^st & 4^th defendant was thereafter filed and served on the 1^st & 4^th defendants and order to withdraw as counsels granted on the 19 October 2015. They were at the time appearing in the proceedings to protect the interest of the insurer.

[4] Default judgement was obtained against the 1^st & 4^th Defendant on the 13 November 2014. The 1^st & 4^th defendants were served with a copy of the default judgement on the 16 June 2015 and the damages was eventually assessed on the 9 February 2016 and for continuation on the 29 February 2016. The plaintiff’s Counsel was given 14 days to file a submission but this was not filed until the 5 April 2016.

The Claim

[5] On the 6^th November 2012 the plaintiff was a passenger on a bus travelling from Wailevu to Labasa on her way to school when it was involved in an accident with motor vehicle No. DU 091 driven by the 1^st defendant. The plaintiff alleges that the 1^st defendant drove the vehicle negligently, carelessly, recklessly and dangerously that it collided with the vehicle she was travelling on. As a result of the accident she suffered injuries and loss.

[6] The plaintiff was admitted at the Labasa Hospital for two weeks after the accident. The particulars of the injury are neck pain, swollen nose, blood in nose and tender nasal bridge. She also alleges that she suffered some permanent disabilities. Prior to the accident she was a healthy young student and that by reason of the accident she has suffered loss of amenities of life and continues to suffer loss and damage.

[7] The Plaintiff therefore claims from the defendants the following:-

1. Special damages;
2. General Damages;
3. General damages for pain and suffering and loss of amenities;
4. Punitive damages;
5. Costs on a Solicitor/Client indemnity basis;
6. Interest at the rate of 6% on general damages from the date os service of writ and 3% for special damages from the date of accident pursuant to the Law Reform (Miscellaneous Death and Interest) Act.
7. Such other relief the Court deems fit and just.
   

Damages

1. Special Damages
   

(i) Travelling Expenses

[8] The plaintiff’s father in his evidence stated that during the 10 days his daughter was in hospital he used to hire a van to take him and his wife to the hospital to see their daughter. His wife and the plaintiff’s aunty sometimes spend the night at the hospital. That there were 40 trips each costing $40:00 from Wailevu to Labasa Hospital. The total amount of travelling expenses claimed was $1,600:00. I am of the view that the amount claimed is excessive given that Wailevu is about fifteen minutes from Labasa Town I also accept that there are no receipts and is therefore not possible to be certain about the travelling costs. I am of the view that $500:00 is reasonable in the circumstances and I award this sum accordingly.

(ii) Medical Expenses

[9] The plaintiff claims the sum of $500:00 under this head for the purchase of tablets and medicine. I accept that she was admitted and that she suffered an injury which require medication but am of the view that most of it would have been provided for her from the hospital pharmacy. I am also of the view that the amount claimed is excessive and I award the sum of $100:00 under this head.

2. General Damages
   
   • (i) Pain and Suffering and Loss of Amenities of Life
     

[10] It is obvious from the medical report that when the plaintiff was admitted at the Hospital after the accident that she suffered some injuries. The medical report tendered as evidence of this fact states that she had pain and palpation of right leg, soft tissue swelling, was unable to flex right knee and that sensation was intact. In other words there were no nerve damage but indeed some soft tissue swelling. The doctor who gave evidence was uncertain about any long term consequences as the report did not state that. In fact the report did not state that there were any long term effect.

[11] What is clear though is that the plaintiff did suffer some injuries, was admitted to the hospital for a period of ten days, had physiotherapy treatment and was sent home. For that unfortunate experience there must be some damages for pain and suffering.

[12] The plaintiff’s counsel in his submission relies on the Court of Appeal decision in Nasese Bus Company Limited -v- Chand HCA 382 of 2006 as providing the guiding principle in assessing damages for pain and suffering. It was stated here that:-

“There are three guiding principles in measuring the quantum of compensation for pain and suffering and loss of amenities. First and foremost, the amount of compensation awarded must be fair and should compensate the victim of the injury in the fullest possible manner, bearing in mind that damages for any cause of action are awarded once and for all, and cannot be varied due to subsequent eventualities, some of which could not even be anticipated at the stage a court makes an award. Hence an award of damages should not only be fair, but also assessed with moderation, even though scientific accuracy is impossible. The second principle is that the sum awarded must to a considerable extent be conventional and consistent. Thirdly, regard must be had to awards made in comparable cases in the jurisdiction in which the award is made. However, it is also open for a court to taken into consideration a comparable award made in a foreign jurisdiction, particularly in cases where the type of injury is not very common, provided that the court takes into consideration differences in socio-economic and other relevant conditions that might exist between the two jurisdictions.”

[13] He further relies on the decision of Justice Kumar in Prabhu Lal vs Parmod Enterprises Limited Civil Action No. HBC 25 of 2014. In this case Justice Kumar referred to the Court of Appeal’s decision in Chands case and their statement that:-

“The assessment of damages under this head depends upon the consequences to the individual plaintiff (Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541 at 548 cited in Law of Torts by Balkin & Davis 5^th ed. At 11.28). In Hail v Rankin [200] QB 272 the English Court of Appeal had acknowledged monetary inflation to be considered while making the awards. However the amounts decided on in previous cases can be considered no more than as a guide, and any particular determination must depend on such factors as the intensity of the pain felt by the plaintiff and its likely duration (Balkins & Davis (supra) at 11.28).”

At paragraph 25 states in Chands case the Respondent/Plaintiff suffered from disc injury as a result of lifting heavy objects during his employment. The Learned Trial Judge found that the Respondent/Plaintiff has suffered from pain and could not play soccer which was his interest and had problems with his sex life because of back pain. Respondent /Plaintiff was also and in terms of Medical Officers evidence Respondent/Plaintiffs situation would not get better.

[14] What is certain though from the above matters submitted that each case has to be considered in its own set of circumstances. In the Chands case in particular the injury referred is more serious than in this case. There the injury suffered was a disc injury and the effect of that injury to the nervous system is more acute then in this case. Here the report states that sensation was intact. Still there should be an award and given that in Tacirua Transport Company Limited v Chand (1995) FJCA 32; 41FLR 44 for almost a similar type of injury an award of $20,000:00 was given in 1995 I am of the view that taking into account the age of the plaintiff, (who was approximately 17yrs) an award similar to that may be suitable. I would not go as far as the submitted amount but am of the view that $15,000:00 is suitable in the circumstance.

3. Interest
   

[15] The plaintiff’s entitlement to interest is at the discretion of the Court and this discretion is often exercised in favour of the plaintiff under section 3 of the Law Reform (Miscellaneous Provisions) Death and Interest Act.

(i) Special Damages

[16] The plaintiff is awarded interest of 4% on special damages from the date of the accident to the date of decision. That is 4% of $600:00 x 3 = $72:00. The total special damages inclusive of interest is therefore $672:00.

(ii) General Damages

[17] The total general damages awarded is $15,000:00 and I award 6% interest from the date of writ to the date of decision which is $2700:00. The total awarded for general damages inclusive of costs is therefore $17,700:00.

(iii) Costs

[18] The plaintiff’s counsel submitted that costs of $4000:00 should be awarded. I am of the view that as the matter was uncontested a costs of $2000:00 would be more appropriate.

Conclusion

[19] The total damages awarded inclusive of interest are therefore as follows:-

(1) Special damages : $ 672:00;

(2) General damages : $17,700:00;

(3) Costs : $ 2,000:00.

Total Damages payable : $20,372:00

[20] I therefore award damages to the plaintiff inclusive of costs to the sum of $20,372:00.

H. Robinson

Master, LABASA

19 July 2016