Mati v Kumar [2018] FJHC 1236; HBC237.2017 (15 November 2018)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 237 of 2017

BETWEEN

CHANDRA MATI
PLAINTIFF

AND

VINESH KUMAR
FIRST DEFENDANT

AND

DINESH PRASAD
SECOND DEFENDANT

APPEARANCES/REPRESENTATION
PLAINTIFF : Mr Kumar [Legal Aid Commission]

DEFENDANT : Not Present / Not Represented

RULING OF : Acting Master Ms Vandhana Lal

DELIVERED ON : 15 NOVEMBER 2018

JUDGMENT
[ASSESSMENT OF DAMAGES]

1. The Plaintiff on 14 August 2017 caused a writ of summon to be issued against the Defendants Vinesh Kumar and Dinesh Prasad claiming damages for injuries sustained in a motor vehicle incident.
   
2. The writ of summon was served on the 2^nd Defendant only and there after an Interlocutory Default Judgment was entered against him on or about the 02 February 2018.
   

Subsequently the Plaintiff filed a summon for assessment of damages which is for determination before this court as the Second Defendant failed to appear and contest the application.

3. On the hearing date, the Plaintiff’s Counsel withdrew the Claim against the 1^st Defendant who the counsel informed was now deceased.
   
4. The said application for assessment of damage is made pursuant to Order 37 rule 1 of the High Court Rules which reads:

Where judgment is given for damages to be assessed and no provision is made by the judgment as to how they are to be assessed, the damages shall, subject to the provisions of this Order, be assessed by the Registrar, and the party entitled to the benefit of the judgment may, after obtaining the necessary appointment from the Registrar and, at least 7 days before the date of the appointment, serving notice of the appointment on the party against whom the judgment is given, proceed accordingly.

5. The Plaintiff only gave evidence on behalf of herself. She informed that on 15 August 2014 she was with her daughter and daughter in law.
   

She had got off the car (a taxi) and was holding the door when the driver of the taxi drove away.

She claims as a result she received injury on her hand and leg was broken and was in pain. She could not walk.

Two weeks later her feet turned black but she could not confirm if it was due to the fracture.

She was taken to the hospital in an ambulance and was admitted for three (3) weeks due to the fracture. Thereafter for two (2) weeks due to the blackening of her feet.

Later she came home and had a minor heart attack and was admitted for a week.

She cannot recall number of times she had frequented to the hospital due to the injury.

She would go in an ambulance costing her $18. Her daughter would assist her in making payments and keeping records.

She also paid for paying ward. She cannot read the receipt and informs her daughter would keep them.

Since the accident she cannot go to the toilet and bathroom and cannot do anything else, she is using a walker to walk.

Prior to the accident, she did physical work like cooking, cleaning and gardening. She cannot pick up things if they fall down as she cannot bend down.

6. The Plaintiff could not identify the receipts and for reasons unknown to this Court, the Counsel did not call the daughter to stand who had assisted the Plaintiff.
7. Having heard the Plaintiff’s evidence I wish to quote my Brother Master Azhar in Satellite Rentals Limited v Daniel Chandra Wati and others a Lautoka High Court Civil case number HBC 93 of 2015 where on paragraph 8 he had stated:
   

“....the witness was not subject to cross-examination. It does not mean that, the court can accept his evidence without evaluating it and assessing the credibility of the witness”.

8. The Plaintiff claims special damages made up as follows:

Medical expense - $3,408.90

Transport expense - $ 300.00

TOTAL EXPENSE $4,208.90

In addition she is seeking general damages for pain and suffering and loss of amenities and exemplary damages.

9. There is no material evidence how the Plaintiff came up with the figure of $4,208.90 as special damages.
   
10. The Plaintiff in her Statement of Claim sets out injuries suffered by her as:
    1. shock;
    2. loss of amenities;
    100. interochanteric Fracture of the left hip of the Plaintiff;
    4. plaintiff had to undergo hip surgery – Dynamic Hip screw
       

In her Statement of Claim, she stated that she was initially taken to Banabhai (Makoi) Health Centre and thereafter referred to Colonial War Hospital (CWM) where she was admitted. She had surgery for her left hip and frequented to the hospital.

Hence she is claiming damages for pain and suffering and loss of amenities.

11. There was no medical report tendered to confirm the injury sustained by the Plaintiff due to the incident and treatment she received. Nor is there any permanent impairment assessment tendered to confirm percentage of impairment. This creating difficulty to use comparative cases.
    
12. The Plaintiff claimed she was assisted by her daughter after the incident but her daughter was not called to give evidence to that effect.
    
13. The injuries claimed to be sustained by the Plaintiff has not been proven on the balance of probability.
    
14. Considering the above, the Plaintiff’s application for assessment of damages shall fail and is dismissed.
    
15. The Plaintiff has hearing problem and the Court was only notified of this when the plaintiff started giving evidence. The Counsel did not inform the Court of this in advance and/or made sure she had her hearing aid available.
    
16. At this stage my only advice to Counsel and parties in person is to inform the Court prior to the hearing date of their disabilities and additional assistance required at the time of hearing. The Court either wise cannot fully assist witnesses if these disabilities are highlighted only at the hearing stage.
    

.................................
Vandhana Lal [Ms]
Acting Master
At Suva.