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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
[CIVIL JURISDICTION]
Civil Action No. HBC 124 of 2014
BETWEEN: JONE RAIQEU JONE RAIQEU Senior of Namara, Nalawa, Rki.
Plaintiff
ANDu>AND: RAMESH CHAND ofRoad, Rewasa, Rakiraki, Fki, Farmer.
1st Defendant
<
2nd Defendant
Before: Master U.L. Mohamed Azhar Date of Decision: 17th July 2020 DECISION Accident – claim for personal injury – no defence or counterclaim – interlocutory judgment by default – damages
– special damages – necessity of proof – pain and suffering and loss of amenities of life – physical and
social limitation – guiding principle – loss of future earning – loss of earning capacity – interest. I do not think there is any difference of opinion as to its being a general rule that, where any injury is to be compensated by damages,
in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which
will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained
the wrong for which he is now getting his compensation or reparation. In assessing damages for injury caused to a plaintiff workman by the tortious negligence of the employer or his servants a jury would
be directed that, their damages being a compensation once for all, they must consider not merely past injury, pain and suffering
endured, expenses incurred and earnings lost, but also future loss. They would have to measure in money the future effects of permanent
or continuing disablement, but they must consider also the possibility of future diminution or loss of earnings arising independently
of the cause of action, from increasing age, from accident or illness in futuro, and so forth. They would be directed that they had
to give solatium for suffering and compensation for disablement, but so that the tort-sufferer should not make a profit out of the
wrong done him, the object being by the verdict to place him in as good a position as he was in before the wrong, but not in any
wise in a better one. The necessity of alleging and proving actual temporal loss with certainty and preciin ales of the sort has been insisted upon for
centurinturies: Les: Lowe v.Harewood W.Jones.196; Cane v. Golding Sty.176; Tasburgh v. Day Cro.Jac. 484; Evans v.Harlow 5 Q.B.624.But
it is an ancient and established rule of pleading that the question of generality of pleading must depend on the general subject-matter:
Janson v.Stuart 1 T.R.754; Lord Arlington v Merricke 2 Saund. 412, n.4; Grey v. Friar 15 Q.B.907; see Co.litt 303d.Westwood v. Cowne 1 Stark. 172; Iveson v. Moore 1 Ld.Raym. 486. In all actions accordingly
on the case where the damage actually done is the gist of the action, the character of the acts themselves which produce the damage,
and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage
done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage,
as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist
upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry. The frequent inability of curial procedures to deto determine with certainty what has happened in the past, let alone what would have
been or what will be, necessarily gives rise to a need for a number of subsidiary rules governing the determination of the loss or
injury which a plaintiff has actually sustained by reason of a wrongful act. One such subsidiary rule is that, even in an action
for repudiation or breach of contract where damage is not an element of the cause of action, a plaintiff bears the onus of establishing
the extent of her loss or injury on the balance of probabilities. To satisfy the requirements of that rule, a plaintiff must, if
she is to recover more than a nominal amount in such an action, affirmatively establish assessable damage, that is to say, loss or
injury which is capable of being measured in monetary terms (see, e.g, Luna Park (N.S.W.) Ltd. v. Tramways Advertising Pty. Ltd.
[1938] HCA 66; (1938) 61 CLR 286, at pp 301, 307, 311, 312). In many cases, proof of the full extent ofloss or injury sustained will involve establishing an evideevidentiary
foundation for positive and detailed ultimate findings by the court upon the balance of probabilities. 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 take 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. It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss
of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation
for diminution of earning capacity is awarded as part of general damages. With the greatest respect to the learned judge he has not addressed himself to the real issue. His finding is no more than a finding
that Appellant is not at the present time suffering any financial loss as the result of his injury, and, if he continues his present
employment, he will never suffer any such loss. The real question is whether his capacity to earn has been adversely affected, and,
if so, what is the reasonable compensation for such loss. There is no justification for limiting this head of damage to loss of his
present employment resulting from his disability. What if that employment is terminated for any other reason? Is he to be bound to
be an employee for one employer all his working life and lose all chance of choice?...... There is clear evidence that appellant’s capacity to earn has been adversely affected, although, as long as his present employment
continues, he will get as much in remuneration as if he had not been injured and had remained in that employment. Other avenues
of exploiting his abilities, either as an employee or on his own account or in other localities, are adversely affected. Any termination
of his present position for any cause will place him on the market as a man with a considerable impairment in respect of the class
of the work he has qualified himself for and chosen for his occupation. In my view the learned judge erred in law and in fact in
holding that appellant suffered no loss in his capacity to earn. For this some reasonable assessment must be made in fixing general
damages. ‘It is true, as stated by Scarman LJ in Smith v Manchester Corpn, that the loss of earning capacity has arisen at the time of and in consequence of the accident, but its financial consequences may
or may not arise at all or may arise at any future time.’ Where a plaintiff is in work at the date of the trial, the first question on this head of damage is: what is the risk that he will,
at some time before the end of his working life, lose that job and be thrown on the labour market? I think the question is whether
this is a ‘substantial’ risk or is it a ‘speculative’ or ‘fanciful’ risk (see Davies v Taylor, per Lord Reid and Lord Simon of Glaisdale). Scarman LJ in Smith v Manchester Corpn referred to a ‘real’ risk, which I think is the same test. In deciding this question all sort of factors will have to
be taken into account, varying almost infinitely with the facts of particular cases. For example, the nature and prospects of the
employers’ business: the plaintiff’s age and qualifications; his length of service; his remaining length of working life;
the nature of his disabilities; and any undertaking or statement of intention by his employers as to his future employment. If the
court comes to the conclusion that there is no ‘substantial’ or ‘real’ risk of the plaintiff’s losing
his present job in the rest of his working life, no damages will be recoverable under this head. But if the court decides that there is a risk which is ‘substantial’ or ‘real’, the court has somehow to
assess this risk and quantify it in damages. Difficult as this is, the courts sometimes have to assess the money value of a chance
in other contexts (see, for example, Chaplin v Hicks and Otter v Church, Adam, Tatham & Co). Clearly no mathematical calculation is possible. Edmund Davies and Scarman LJJ said in Smith v Manchester Corpn that the multiplier/multiplicand approach was impossible or ‘inappropriate’, but I do not think that they meant that
the court should have no regard to the amount of earnings which a plaintiff may lose in the future, nor to the period during which
he may lose them. What I think they meant was that the multiplier/multiplicand method cannot provide a complete answer to this problem
because of the many uncertainties involved. The court must start somewhere, and I think the starting point should be the amount which
a plaintiff is earning at the time of the trial and an estimate of the length of the rest of his working life. This stage of the
assessment will not have been reached unless the court has already decided that there is a ‘substantial’ or ‘real’
risk that a plaintiff will lose his present job at some time before the end of his working life, but it will now be necessary to
go on and consider (a) how great this risk is and (b) when it may materialize, remembering that he may lose a job and be thrown on
the labour market more than once (for example, if he take a job and then finds he cannot manage it because of his disabilities).
The next stage is to consider how far he would be handicapped by his disability if he was thrown on the labour market, that is what
would be his chances of getting a job, and an equally well paid job. Again, all sorts of variable factors will, or may, be relevant
in particular cases, for example, a plaintiff’s age; his skills; the nature of his disability; whether he is only capable of
one type of work or whether he is, or could become, capable of other: whether he is tied to working in one particular area: the general
employment situation in his trade or his area, or both. The court will have to make the usual discounts for the immediate receipt
of a lump sum and for the general chances of life. The consideration of this head of damages should be made in two stages. 1. Is there a ‘substantial’ or ‘real’
risk that a plaintiff will lose his present job at some time before the estimated end of his working life? 2. If there is (but not
otherwise), the court must assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer
if that risk materializes, having regard to the degree of the risk, the time when it may materialize, and the factors, both favourable
and unfavourable, which in a particular case will, or may, affect the plaintiff’s chances of getting a job at all, or an equally
well paid job. It is impossible to suggest any formula for solving the extremely difficult problems involved in the second stage of the assessment.
A judge must look at all the factors which are relevant in a particular case and do the best he can. ‘Where the loss of damage to the plaintiff is future pecuniary loss, e g loss of future earnings, there should in principle be no interest. The judges always give the present value at the date of the trial, i e, the sum which, invested at interest, would be sufficient
to compensate a plaintiff for his future loss, having regard to all contingencies. There should be no interest awarded on this because
a plaintiff will not have been kept out of any money. On the contrary, he will have received it in advance.’ If those financial consequences arise during the period before the trial they will be taken into account by way of special damages,
and interest will be payable on those damages in accordance with the established rules. But if they have not arisen at the time of
the trial, then it seems to me that for the purpose of interest they are in the same position as damages awarded for future loss
of earnings as such. It seems to me to be impossible to say as regards future consequences of a loss of earning capacity that the
plaintiff in these circumstances will have been kept out of his money. For these reasons, in my judgment, the award of interest in
this case under this particular heading was wrongly made, and I, for my part, for the reasons I have given, would allow this appeal
to the extent of reducing the figure of £1,250 to £,250 and eliminating the interest on that sum. U.L Mohamed Azhar 17/07/2020
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Appearance: Mr. R. Chaudhary for the Plaintiff
Both Defendane absent and unrepresented
01. This is the Notice of Assessment of Damages, Interest and Cost, filed by the plaintiff pursuant to Order 37 rule 1 of the High
Court Rules, following the Interlocutory Judgment sealed by him on 18th of April 2016 against both defendants in this case. The plaintiff on 22.11.2011, with some others, was travelling in a tractor-trailer
belonged to the first defendant and driven by the second defendant, in Rakiraki. The tractor stopped and everyone, including the
plaintiff got out of the trailer. The second defendant instead of moving the tractor forward reversed it and the left big tyre of
the tractor went over the left leg of the plaintiff, causing fracture of left distal tibia. The plaintiff being a minor sued, by
his father and next friend, the defendants and claimed a special damage in sum of $764.00 and general damages for pain and suffering,
loss of amenities and lose of earning capacity together with the interest and cost.
02. The plaintiff initially could not serve the writ on the defendants and it expired; however the plaintiff got it extended with
the leave of the court and then served it on the defendants. The defendants did not file the acknowledgment or the defence. The plaintiff
then sealed the interlocutory judgement for default against both defendants.
03. At the trial for assessing the damages the plaintiff testified and called the Orthopedic Surgeon Dr. Eddie McKay attached to
Lautoka Hospital to give evidence on his behalf. The plaintiff and his witness tendered in evidence two Exhibits – his Birth
Certificate and Medical Report. The plaintiff, having completed his Fiji School Leaving Certificate in 2012, was farming with his
father in his farm. He was, at the time of giving evidence, following a course in Agriculture at Fiji National University to become
a professional farmer. On 22.11.2011 he was seated on a tractor-trailer driven by the second defendant with others, and all of them
got out of it at a destination. At that time the second defendant, instead of driving forward, negligently reversed the tractor.
The tractor’s big tyre went over the leg of the plaintiff near ankle and he fell down. The brother of the plaintiff who was
with them shouted to stop the tractor and the second defendant then stopped it. The plaintiff was in severe pain. He was first taken
to Rakiraki hospital, where he was given some injections for pain and thereafter was transferred by an ambulance to Lautoka hospital.
The X-ray was done at Lautoka hospital and it showed closed fracture of left distal tibia. The left distal tibia was manipulated
under anesthesia and he was discharged on 24.11.2011. He was readmitted on 06.12.2011 due to infected wound on the left ankle and
treated with antibiotics and wound debridement. It must be noted here that, the injury was actually on left ankle of the plaintiff
and he showed the scar to the court during his testimony. However, there is a typographical error on the Medical Report which says
the injury was in his right ankle.
04. The plaintiff claims damages under three different heads, namely special damages in sum of 764.00, damages for pain and suffering
and loss of amenities of life in sum of $ 20,000.00 and loss of earning capacity in sum of $ 10,000.00. In addition, he claims interest
at the rate of 6% on the amount for pain and suffering and loss of amenities from August 2014 till November 2017.
05. It is the general principle of the law that the 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. Lord Blackburn in Livingstone v. Rawyards Coal Co. [1880] UKHL 3; (1880) 5 AC 25, held at page 39:
06. The court, in assessing the damages for the injury caused to any party due to the tortuous act or omission of other, should consider
the several factors such as injury, pain and loss of amenities, expenses incurred, loss of earnings and future losses etc. However,
tort-sufferer should not make a profit out of the wrong done to him. Hamilton LJ in Harwood v. Wyken Colliery Company [1913] UKLawRpKQB 31; [1913] 2 K.B 158 stated at pages 169 and 170 that:
07. The plaintiff in his testimony has given breakups for his claim of special damages in sum of $ 764.00. The total sum of $ 764
includes the three trips in carrier from Namara to Lautoka hospital at the rate of $ 70 per trip; four trips from Koronubu, Ba to
Mission Hospital for check up at the rate of $ 20 per trip; three trips from Yalalevu, Ba to Mission Hospital by carrier at the rate
of $ 8 per trip; two trips he made from Lautoka to Sigatoka by carrier for the purpose of indigenous massaging of his leg at the
rate of $ 150 per trip and another $ 150 for the medication such as bandages, paracetamol, painkillers, plasters etc. that he bought
from the pharmacy. However, there is no single receipt for any of such expenses claimed to have incurred to him.
08. It is settled that, the special damages have to be pleaded and proved (Lord Goddard in itish Transport Commissimission v Gourley [1955] UKHL 4; [1956] AC 185). The fic damages are accrued and ascertained financial loss whic which the plaintiff had incurred. Unless agreed by the parties, special
damages should be expressly pleaded; they must be claimed specifically and proved strictly (per: Edmond David LJ in Cutler v Vauxhall Motors [1971] 1 QB 418). The plaintiff pleaded the special damages claimed in this case; however, the question is whether those damages have been proved.
Bowen L.J. in Ratcliffe v Evans
09. DEANE J in Commonwealth of Australia v Amann Aviation Pty Limited [1991] HCA 54 held at paragraof his judgment that;
Master of the High Court
At Lautoka
URL: http://www.paclii.org/fj/cases/FJHC/2020/535.html
