Lal v Lal [2016] FJHC 81; HBC25.2014 (10 February 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 25 of 2014

BETWEEN :

PRABHU LAL
of Tabucola, Labasa, Disabled
PLAINTIFF

AND :

SANT LAL
of Kurukuru Floating Island, Labasa, Driver
1ST DEFENDANT

PARMOD ENTERPRISES LIMITED
a limited liability company having its registered office at Ritova Street, Labasa
2ND DEFENDANT

BEFORE : His Lordship Hon. Justice Kamal Kumar

COUNSEL : Mr A. Sen for the Plaintiff
Mr S. Sharma for the Defendants

DATE OF HEARING : 16 November 2015
DATE OF JUDGMENT : 10 February 2016

JUDGMENT

1. This action was instituted on 4 June 2014, whereby Plaintiff claimed damages for injuries received by him in an accident on 14 March 2013, involving bus registration no. CX 080 driven by the First Defendant and owned by Second Defendant and a locomotive engine
   
2. In Civil Action No. 52 of 2014, being related action and arising out of the said accident this Court on 18 September 2015, held the Defendants liable for the accident.
   

3. On 16 November 2015, Counsel for the parties informed the Court that since liability has been determined in Civil Action No. 52 of 2014, there is no need for this Court to determine liability in this matter and that this Court only needs to determine quantum of damages.

4. Plaintiff called three witnesses whereas Defendants did not call any witness. Plaintiff's witnesses were:-

(i) Plaintiff ("PW1")
(ii) Mr. Maloni Bulanauca, General Surgeon ("PW2")
(iii) Subhas Chand ("PW3")

5. Plaintiff claimed for special and general damages.

Special Damages

Transportation, Medication and Crutches

6. During examination in chief of PW1 Counsel for the Defendants confirmed that Defendants were not challenging the amount claimed for transportation costs ($800.00), medication costs ($100.00) and cost for crutches ($45.00).

Loss of Wages

7. For loss of wages PW1 gave evidence that prior to the accident he worked as farm labourer and worked mostly for Subhas Chand (PW3).

8. During sugar cane harvesting season he was paid $25.00 per day when he worked with his bullocks. This sum included $10.00 being charge for the bullock.

9. During non-harvesting season he was paid $15.00 per day which equals to $120.00 for week for working on peoples farm.

10. During cross-examination PW1 maintained that during harvesting season he earned $150.00 to $160.00 per week and during non-harvesting season he earned $120.00 per week and worked in three farms.

11. I note that Plaintiff claimed $120.00 per week as loss of wages for 59 weeks.

12. Fifty-nine (59) weeks will be until the date Statement of Claim is signed which is 3 June 2014.

13. This means that Plaintiff most probably would have been earning $120.00 per week for both harvesting and non-harvesting season because 59 weeks also includes sugar cane harvesting season.

14. I have no hesitation in accepting PW1's evidence that he was earning average sum of $120.00 per week prior to accident.

15. There is also no medical evidence to suggest that the plaintiff was not medically fit to do farm work and to me Plaintiff appeared to have been a person who would have worked as farm labourer for quite a few years before retiring.

Care-Giver

16. Plaintiff has not provided any evidence to show that he has paid for care-giver or that anyone has charged him for providing that service. PW1's only evidence was that he owes people money for looking after him and he will pay when he gets money.

17. No evidence was provided as to who he owes that money and how much.

18. Therefore I cannot allow claim for care-giver.

Toilet and Bathroom

19. PW1 gave evidence that he had to have toilet and bathroom built so that he can have access.

20. In the Statement of Claim, Plaintiff claims $1500.00 for this expenses but in evidence in chief he stated that it costs him about $700.00 to build toilet and bathroom.

21. As such I will award $700.00 for cost of construction of toilet and bathroom.

22. In total I award a sum of $19,285.00 as special damages which said sum is made up as follows:-

Transportation Loss of Wages ($120.00 per week from date of accident till date of Judgment (147 weeks) Medication Crutches Construction of toilet and bathroom

$ 800.00 $17,640.00 $ 100.00 $ 45.00 $ 700.00 $19,285.00

General Damages

Pain and Suffering

23. The Plaintiff handed to Court following judgments in support of his submission for award of damages for pain and suffering:-

(i) Amin v. Chand [2012] FJHC 1015; Action No. 39 of 2008 (13 April 2012)

(ii) Chand & Anor. v. Amin; Civil Appeal No. ABU 0031 of 2012 (2 October 2015)

(iii) Asish Mudaliar v. Rajesh Rama & Anor., Labasa High Court Civil Action No. 3 of 2012 (4 April 2014)

(iv) Eta Naqelita v. Ram Kumar, Labasa Hgh Court Civil Action No. 19 of 2010

(v) Nasese Bus Company Limited & Anor. v. Muni Chand, Civil Appeal No. 40 of 2011 (8 February 2013).

24. The Fiji Court of Appeal in Chand's case cited at paragraph 23(ii) stated as to how damage is to be assessed for pain and suffering in very simple terms as follows:-

"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 5th ed. at 11.28). In Hail v Rankin [2000] EWCA 53; [2001] 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 (Balkin& Davis (supra) at 11.28)."

25. In Chand's 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 using crutches and in terms of Medical Officer's evidence Respondent's/Plaintiff's situation would not get better.

26. The Learned Trial Judge awarded $85,000.00 for past and future pain and suffering and loss of amenities of life, which was upheld on appeal.

27. In Asish Mudaliar's case Plaintiff suffered injuries as a result of being crushed between two buses.

The Plaintiff suffered from midshaft femur fracture (thigh bone) on 16 August 2011 when a rod was inserted. The rod was removed on 29 November 2012.

The Court found that Plaintiff suffered pain and suffering, lost amenities of life and injury suffered by Plaintiff was severe. Plaintiff at date of trial (4/4/2014) was 36 years old.

The Court awarded $60,000.00 for pain and suffering and loss of amenities of life.

28. In Naqeletia's case Plaintiff suffered following injuries:-

"1. Laceration upper lip and chin

2. Loose upper incision on the right side

3. Open fracture right radius and ulna, laceration over right forearm (measuring 15cm x 7mm x muscle deep and 10cm x 5xm muscle deep)

4. Close fracture left radius.

The blood investigation were normal limits. The X-ray findings were as follows:-

1. X-ray Skull - AP - Normal

2. X-ray right forearm - fracture radius and ulna

3. X-ray left forearm - fracture left radius

4. X-ray cervical spine - normal.

She was treated with antibiotics, analgesics, wound wash and back slab.

She was discharged on 12/9/09 with arrangements made for review in the surgical clinic"

The permanent disability was said to be nineteen per cent (19%). Court awarded Plaintiff $70,000.00 for pain and suffering and loss of amenities of life.

29. In Nasese Bus Company Ltd's case Respondent/Plaintiff suffered:-
    

(i) closed displaced comminuted intraarticular fracture of left ankle;

(ii) closed extensive degloving injury right thigh;

(iii) grade II anterious cruciate ligament injury right knee; and

(iv) multiple abrasions to both upper and lower limbs.

Respondent/Plaintiff was awarded $65,000.00 by the Honourable Trial Judge for pain and suffering which award was increased to $90,000.00 on appeal.

30. In Tamanibuici v. Prasad & Anor. Labasa High Court Civil Action No. HBC 34 of 2012 (29 September 2015) the Plaintiff suffered following injuries:-

"(i) Fracture of right femur;

(ii) Fracture of left forearm and ulna of left arm;

(iii) Fracture of right cavicle"

Plaintiff at time of accident was fourteen (14) years old. He had gone through surgery whereby rod was inserted in his right thigh and his leg was put on cast. Plaintiff was admitted on 5 June 2009.

The medical officer's evidence was that Plaintiff's skin and muscle was cut to release tension and ease flow of blood. After this swelling of Plaintiff's right leg increased that he had to go through open reduction surgery because the fracture of right femur was bad and had to be straightened. After this surgery Plaintiff's leg was put on plaster.

Plaintiff was discharged on 5 August 2009, but was re-admitted on 21 September 2009, because fracture had not united. On 29 September 2009, Plaintiff went through another open reduction and internal fixation surgery and was discharged on 1st October 2009.

In total Plaintiff was admitted for seventy one (71) days.

This Court awarded Plaintiff $70,000.00 for past pain and suffering and $10,000.00 for future pain and suffering.

31. In this instance Plaintiff at time of accident was 62 years old.

32. During examination in chief of Plaintiff's evidence Counsel for Plaintiff sought leave to correct paragraph 8(i) of the Statement of Claim by deleting right tibia and replacing it with left tibia. By Consent paragraph 8(i) of the Statement of Claim was amended accordingly.

33. Plaintiff gave evidence that:-

(i) On 14 March 2013, accident took place whereby bus registration No. CX080 in which he was passenger was hit by locomotive engine. The First Defendant was driver of the bus at the relevant time;

(ii) At the time of accident he was sitting on the right hand side and near the rear tyre of the bus;

(iii) The locomotive engine hit the bus at the place where he was sitting;

(iv) As a result of the accident he received injuries to his right rib and his left leg was crushed;

(v) The bones of his left leg were crushed and shattered and were broken into small pieces;

(vi) His skin was broken and he could see the bones;

(vii) He was removed from the window of the bus and after five (5) minutes he was taken to Labasa hospital in a van;

(viii) His leg at that time was very painful;

(ix) When he was removed from the bus his leg was hanging;

(x) At the hospital the nurses attended to him, cleaned his injury by wiping with cloth and gave medication;

(xi) He was seen by medical officer almost one hour after he arrived at the hospital;

(xii) Whilst waiting for medical officer his leg was very painful;

(xiii) After the medical officer saw him he was admitted and put on drips for the first night;

(xiv) During first night his leg was very painful;

(xv) He could not move his leg and if he did he could not bear the pain;

(xvi) Medical Officer informed him that if he had diabetes they will have to amputate his leg;

(xvii) He was checked and when they found that he was not diabetic he was operated the next day;

(xviii) During operation he was unconscious;

(xix) He found out that surgeon had put half inch ten nuts and bolts (Foot - 4, Ankle - 2 and Shaft -6);

(xx) Nuts on foot and ankle was fixed outside;

(xxi) After operation his left leg was elevated by using pillow for twenty-seven (27) days;

(xxii) He was admitted for thirty one (31) days;

(xxiii) He felt pain after the operation;

(xxiv) Plate fixed was heavy;

(xxv) When he was discharged he was given wheelchair by the hospital;

(xxvi) After he was discharged he went to Subash Chand's place because his home was on top of a hill, he had pit toilet whereas Subash Chand had flush toilet and had electricity;

(xxvii) He went back to hospital after two months when he was re-admitted;

(xxviii) When he was re-admitted the plate, nuts and bolts were removed and his leg was put on cast;

(xxix) He was discharged after four days and went back to Subash Chand's place where he stayed for a month;

(xxx) He bought crutches;

(xxxi) Cast was removed after two months;

(xxxii) He still walks with help of crutches and if he walks for long his leg gets swollen;

(xxxiii) He still feels pain in his left leg;

(xxxiv) Because of injury to his ribs he is not able to speak loudly and if he does he has pain.

34. Medical Officer who gave evidence for the Plaintiff stated as follows:-
    

(i) He is employed as General Surgeon and Chief Medical Officer at Labasa Hospital and has been at Labasa Hospital for past three years;

(ii) Injury was on left leg of Plaintiff and not on right leg as stated in Exhibit P1 which is a typing error;

(iii) Plaintiff sustained open fracture and was admitted at Labasa Hospital on 14 March 2013;

(iv) Plaintiff's leg was crushed and as a result Plaintiff's leg was hanging;

(v) Plaintiff's right ribs were not fractured but there were soft tissue injuries on Plaintiff's right ribs;

(vi) Plaintiff went through operations and they had four sessions;

(vii) Level of pain in respect to injury sustained by Plaintiff would be 4 or 5 on a scale of 1-5 with five being highest;

(viii) External fixaters were used to hold bones together;

(ix) External fixaters were made of stainless steel and was heavy;

(x) Plaintiff's leg being swollen is not uncommon for the type of injury suffered by Plaintiff;

(xi) It is possible that the injury will affect Plaintiff rest of his life;

(xii) It is possible for Plaintiff to suffer from arthritis in future because of the injuries.

35. After analysing the evidence of Plaintiff and the Medical Officer I assess the award for pain and suffering as follows:-

(i) Past pain and suffering - $65,000.00

(ii) Future pain and suffering - $ 5,000.00

Loss of Amenities of Life

36. Apart from Plaintiff giving evidence about the work he did to earn his living and his inability to perform such work Plaintiff has not given evidence of any activity he was engaged in prior to accident which he is not able to perform now.

The evidence about him not being able to work will be relevant to assess loss of earning capacity.

Hence I do not award any sum for loss of amenities of life.

Loss of Future Earning Capacity

37. Plaintiff has given evidence that he is not able to work on the farm because he is unable to work on uneven grounds and need assistance to work. Plaintiff at date of trial was using crutches.

38. With no prior medical history and from my observation of Plaintiff in Court I am of the view that if not for the injuries sustained by Plaintiff in the accident he would have been able to work for another four to five years without any difficulty.

39. I will allow future loss of income for four years at the rate of $120.00 per week. Hence the future loss of income is assessed in the sum of $24,960.00 ($120.00 x 52 x 4).

Interest

40. Since I have assessed loss of income upto date of judgment and this sum forms major part of special damages it is only fair and just that interest be awarded at lower scale.

41. I therefore assess interest on special damages at three percent (3%) per annum.

42. Interest on general damages should be awarded at around the standard rate which is six per cent (6%) per annum.

Costs

43. I take into consideration that:-

(i) The Defendants did not contest liability because of the decision on liability in related case being Civil Action No.52 0f 2014;

(ii) Defendants Counsel did not cross-examine the medical officer;

(iii) Defendants did not call any witnesses and both parties did not make any comprehensive submission at the close of the case.

44. I therefore assess costs of this action in favour of the Plaintiff in the sum of two thousand dollars ($2,000.00).

Conclusion

45. The damages and interest are calculated as follows:-

Special Damages (paragraph 22) Interest at 3% per annum from 14/3/2013(date of accident) to 10/2/16(date of Judgment) [1064 days] General Damages Past Pain and Suffering Interest at 6% per annum from 4/6/14(date of Writ of Summons) to 10/2/16(date of Judgment) [617 days] Future Pain and Suffering Loss of Future Earning TOTAL

$19,285.00 1,686.50 $65,000.00 $ 6,592.50 $ 5,000.00 24,960.00 $122,524.00

$20,971.50 $71,592.50

46. I make following Orders:-

(i) Defendants jointly and severally do pay Plaintiff a sum of $122,524.00 including interest;

(ii) Defendants, jointly and severally do pay Plaintiff cost of this action assessed in the sum of $2,000.00.

K. Kumar
JUDGE

At Labasa
10 February 2016

Maqbool & Co. for the Plaintiff
Samusamuvodre Sharma Law for the Defendants