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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
Civil Action No. HBC49 of 2020
BETWEEN:
SHARWAN KUMAR of Branch Road, Labasa, Unemployed
PLAINTIFF
AND:
PINTO INDUSTRIES PTE LTD a limited liability company having its registered office at Vakamasisuasua Industrial Subdivision Labasa, Fiji
DEFENDANT
Before:
Banuve, J
Counsels:
Sarju Prasad Esq for the Plaintiff
Gordon & Co for the Defendant
Date of Hearing:
27 January 2025
Date of Judgment:
25 March 2026
JUDGMENT
PARTICULARS OF NEGLIGENCE
(i) Failing to drive with due care and attention.
(ii) Failing to keep any proper lookout or to have any proper regard for the Plaintiff at the material time.
(iii) Failing to exercise such degree of care and control over the said forklift, as was warranted having regard to all the circumstances.
(iv) Failing to take any adequate precaution to ensure that it was safe for the Plaintiff.
(v) Failing to advise the Plaintiff of the risk involved.
(vi) Failing to provide or maintain a safe and proper system of work or instruct their workmen including the Plaintiff to follow that system.
(vii) Exposing the Plaintiff to a risk of injury or damage of which they knew or ought to have known.
(viii) Failing to provide additional workmen to attend to such dangerous activity;
(ix) Requiring the Plaintiff to engage in a dangerous activity alone without due regard to his safety.
(x) Failing to caution the forklift operator to be more careful while carrying out dangerous activity as in this situation.
(xi) Failing to see the Plaintiff in sufficient time or at all to save the accident.
(xii) Being careless and/or negligent and reckless under all the circumstances of the case.
5. The Defendant filed an Amended Statement of Defence, on 14 April 2021 in which it denies all liability, and allege rather, that the Plaintiff’s injury were sustained and caused by reason of the sole negligence of the Plaintiff, and/or his own serious and wilful misconduct, or further, his injury were caused by reason of contributory negligence and/or his serious and wilful misconduct. The actions of the Plaintiff amounting to negligence and/or contributory negligence were particularized. The said particulars appear as an agreed issue in the ‘Agreed Facts and Issues,’ filed by the parties in the Pre-Trial Conference Minutes.
6. According to the Pre-Trial Conference Minutes filed on 23 December 2024, the following facts and issues were agreed between the parties.
AGREED FACTS
ISSUES
Pinto Industries Ltd.
Rules Briefing 25/2/19
OHS Rules.
Dated 11th March 2024
Mr Hussein : Okay, now let me bring you back to the pathway that you were talking about. The pathway for walk, can you explain to me what is the pathway used for?
Mr Nand : Pathway was used for the laborers to take-carry their material in the wheel barrow to put in the machine.
Mr Hussein : Okay and on that particular day what was there at the pathway?
Mr Nand : Wheelbarrow. I mean the forklift was there when he got hurt.
Mr Hussein : So the forklift was where exactly?
Mr Nand : On the pathway.
Mr Hussein : On the pathway?
Mr Nand : Yeah
Mr Hussein : And that pathway is normally used for workers?
Mr Nand : Workers
Mr Hussein : Do forklift use that pathway?
Mr Nand : No
Mr Hussein : Okay-why don’t the forklift use that pathway?
Mr Nand : Because it was for the workers, another exit was for the forklift.
That was not safe for the forklift.
PW1 also testified that he was responsible for the formation of a OHS Committee and two documents Exhibits D1 and D2, were tendered through him.
PW2 testified that he was injured whilst working at the Defendant’s premises on 24 May 2019. At the time he was earning $147 net a week .
The Plaintiff explained that the forklift came into the premises and went by him to pick up cement whilst he was working at the plastic making machine. On encountering difficulty trying to exit through a narrow internal entranceway measuring about 4 feet wide, the forklift driver called out to the Plaintiff to place a piece of timber underneath the left front tyre to facilitate balance and traction and the heavily laden machine to exit. Whilst bent down in a narrow space against an adjoining wall to place the piece of timber under the left tyre as requested ,the forklift moved and hit the Plaintiff’s head causing him to lose consciousness. The Plaintiff only recovered in Hospital, then was taken to Suva the next day for urgent surgical treatment at CWM Hospital, then was sent back to Labasa Hospital, from where he was discharged on 3 June. The Plaintiff’s wife looked after him for 2 months and then his mother-in-law took over his care for which she was paid a fee. The Plaintiff continues to attend clinics for his injury. The Plaintiff testified that it was the forklift driver’s fault that caused the accident. The Plaintiff also testified that he has spent money as set out in a ‘Schedule of Special Damages,[1]’ covering Medical Damages, Police Report (Medical and Police Expenses). Transport Expenses, Loss of Earnings, Loss of FNPF contribution and Nursing Care (mother-in-law).
The issue of Special Damages were largely not contested by the Defendants and liability for its payment was conceded to by the Defendants in submissions.[2]
PW3 Indra Wati the Plaintiff’s wife gave evidence that she was informed of the accident whilst at work at her place of work a Garment Factory on 24 May 2019. She then went to the Emergency Section of the Labasa Hospital but could not see the Plaintiff until late in the evening when he was transferred to the Men’s Surgical Ward, where she found him unconscious was in neck braces and the left side of his head swollen. PW3 was informed by the doctors that her husband had been injured at work but that he had to be shifted to CWM Hospital, Suva, on the next day. The Plaintiff underwent a CT scan at CWM Hospital and then later transferred back to Labasa Hospital. The treatment protocol that the Plaintiff was subjected to at the Labasa and CWM Hospitals were not disputed by the Defendants.[3] The -Plaintiff was discharged on 3 June 2019, taken home by his family, in pain, by taxi as whilst they had a car, the Plaintiff was the sole family member who could drive. Subsequently, the Plaintiff was visited at his home in Siberia, Labasa by nurses to check on his wound dressing, and he had to attend a fortnightly clinic at the Hospital to assess his condition. After a period of 2 months PW3’s mother was enlisted to assist in the care of her husband, for which she was paid $15 a day, as PW3 had to return to work.
PW3 stated that prior to the accident, the Plaintiff was a normal person, used to work, take part in religious activity, spent time with his children, family and friends and played football. After the accident the Plaintiff gets angry and easily frustrated and about once a month suffers from fits and is unable to spend time with PW3, and their children, cannot tolerate loud sound or music. The Plaintiff is no longer employed as he continually suffers from bodily pain, headache and is physically weak, and has to be taken to Hospital for regular clinic by taxi to and from Siberia, where they reside. The Plaintiff was paid his salary for a period of 2 years after the accident, before the Defendant ceased its payment, thereafter, PW3 has been solely responsible for her family’s upkeep, from her wages. PW3 is unable to leave her husband alone to attend social gatherings, as he cannot look after himself well, and their life together as a couple is not good.
DW1 Dr Alan Biribo, a Neuro-Surgeon, testified that he examined the Plaintiff, and provided a Report[4] dated 11 March 2024. The doctor testified he found the Plaintiff not honest and inconsistent with his response to questions so could not conduct a balanced and fair assessment. DW1 was unable to proceed with an impairment assessment of the Plaintiff because of the lack of radiological evidence to support the symptoms presented as well as inconsistencies noted in the clinical examination.
DW2, Ravin Kumar, the Accountant at Pinto Industries Ltd confirmed that the Plaintiff was employed in the Plastics Division. He testified that Pinto Industries Ltd was fully compliant with the National Occupational Health and Safety Services in 2019, as evident by a Certificate of Workplace Registration.[5]
When pressed, DW2 maintained that he had a ‘fair idea’ that the company was OHS compliant, despite the accident sustained by the Plaintiff occurring in 2019, prior to his commencing employment with the Defendant company in 2021.
DW3, Nelson Kumar, the Construction Manager with the Defendant company, testified that he knew the Plaintiff, but did not witness the accident. DW3 stated that he saw the Plaintiff attend a wedding in Siberia sometime after the accident, appeared norma, and had driven to the venue in a vehicle, although he was using a walking stick to get around.
DW4, Chandar Hash testified that he was also admitted at the Mens Surgical Ward of Labasa Hospital in May 2019, as he had an obstruction (fish bone) to his throat which required attention, he said he was aware that someone had been admitted next to him in the Ward, whose head was crushed in a forklift, seemed to be in a lot of pain, although he did not know his name nor could he identify him.
The Defendants did not seriously contest this issue and the Court notes that the parties had agreed to this amount at the PTC. The Court finds in the affirmative, on this issue.
(ii) Was it an implied term of the Plaintiff’s contract of employment that the Defendant would provide and maintain a safe and proper system of work?
The Defendant affirmed in evidence that its factory and workplace were fully compliant with the Occupational Health and Safety Rules and Regulations. DW2 Ravin Kumar testified that Pinto Industries Ltd was fully compliant in 2019, with OHS requirements, as attested to in a Certificate of Workplace Registration issued dated 5 April 2019.[6] The Defendant , however denies that it owes a duty of care,[7] in the circumstance, to the Plaintiff.
The Court finds however, that the Defendants does owe a duty of care, at common law, to the Plaintiff, and its effort to disprove this duty is misconceived, as the Court will allude to later.
The Plaintiff was an employee of the Defendant, at the material time, as such the Defendant owed him a duty of care to provide a safe system of work, free of danger and risk to the Plaintiff.
“ At common law an employer is under a duty of care to take reasonable care for the safety of his employees so as not to expose them to unnecessary risk. This duty of care must be considered and in measuring it, one must balance the risk against the measures necessary to eliminate the risk-Watt v Hetfordshire County Council [1954] 2 AllER 368.[8]
(iii) Was the Plaintiff directed by the servants and agents of the Defendant company on 24 May 2019 to place/pack/slot in a piece of timber underneath the left front wheel of the forklift registration No JJ 58 for the forklift to gain height and maintain its balance and to be able to move out of its narrow passage?
The Courts finds in the affirmative on this query.
(iv) Did the forklift suddenly shift from its original place causing the Plaintiff’s head to be pressed against the wall resulting in the Plaintiff sustaining injuries?
The Court finds in the affirmative on this issue and, on the balance of probabilities, the forklift was driven negligently into an access way in the factory, normally used by workmen, and inappropriate for use for heavy mobile machines, like forklifts, and consequently by operating the machine on the factory floor, on the relevant day, it stuck at a narrow aperture on the factory floor, because of the differing levels in the floor. The Court finds that this issue establishes that it was inappropriate for the forklift driver to operate the forklift in the manner he did on 24 May 2019, since the narrow internal entrance on the factory floor which he used, coupled with the differing levels in the floor, were clear evidence that it was not adapted for safe forklift operation and the decision by its driver to do so on 24 May 2019, exposed workmen like the Plaintiff, working in the adjacent plastics factory, to an inherently dangerous and unsafe work practice. This unsafe practice was exacerbated by the forklift driver directing the Plaintiff to leave his workstation at the plastics factory and place a piece of timber, under the left tyre of the mobile, heavy-laden forklift. In leaving his work station at the plastics factory as requested the Court finds that the Plastic Factory OHS Rules[9] no longer applied to the Plaintiff, as the hazardous act of placing the timber under a mobile forklift was not part of his duties in the plastics factory, and it is disingenuous for the Defendant to suggest otherwise. The forklift, under the control of its driver, shifted because of the enhanced traction/balance caused by the timber, which its driver did not control, directly causing the accident, to the Plaintiff, resulting in his sustaining serious head injury. The decision to direct the Plaintiff , to undertake the inherently dangerous and hazardous act of placing a timber under a mobile, heavy machine like the forklift, without any safety supervision , is further evidence that the Defendants breached the duty of care, it owed the Plaintiff to provide him with a safe and healthy workplace. The Court emphasizes that it finds the Defendants had breached the duty of care it owed to the Plaintiff, in the circumstance.
(v) WHETHER the Plaintiff suffered injuries by reason of his sole negligence and/or contributory negligence and/or serious and/or wilful misconduct and/or voluntarily assuming and accepting a risk of injury?
It would be noted from the Court’s finding at (iv), and affirmed here, that it does not find the Plaintiff either negligent or contributory negligent, rather that it was the Defendant that breached the duty of care it owed the Plaintiff, as defined in law -Chand v Vision Trading Ltd- Civil Action HBC 128 of 2014. The Court also finds after evaluating the evidence that the Plaintiff could not have contributed to the accident occurring. Put in another way, the Plaintiff had been normally engaged at his workplace in the Plastics factory on 24 May 2019 for which his health and safety had been prescribed by the Plastic Factory OHS Rules.[10]As discussed earlier the Court finds that these Rules did not apply to the hazardous task the forklift driver asked the Plaintiff to leave his workstation at the plastics factory, to undertake.
The issue of contributory negligence, on the other hand depends entirely on the question of whether the Plaintiff could have reasonably avoided the consequences of the Defendant’s negligence-Grayson v Ellerman Lines Ltd ( 1920) AC 466 at 477-The Court finds that the Plaintiff was in no position to avoid the consequence of the Defendant’s negligence. The Defendant had a practice of ordering laborers like the Plaintiff to carry out additional work and duty, other then that which they were formally allocated, at any time. The capricious manner which these additional duties could be imposed meant that the orderly safety and health guidelines imposed by the OHS Rules and Regulations, would not be guaranteed. Further, workers like the Plaintiff could not be expected to refuse or avoid taking on the ‘additional work ‘required of them by the Defendant, even if inherently dangerous, given their lowly employment status and for fear of reprisal from the Defendant, as employer, if they refused, as this exchange in the Court Record[11] reveals;
Mr Gordon: Yes. Mr Kumar I put it to you given that you are working there for some 12, 13 years you ought to have known the danger of what you have been asked to do?
Mr Kumar: Yes, Your Lordship
Mr Gordon: And you could have said no and avoided the injury that was caused to you?
Mr Kumar: If I would have said no, company would have sent me home.
The Court finds that the Defendant’s attempt to extend the cover provided by the Plastic Factory OHS Rules to cover the ‘additional hazardous work undertaken by the Plaintiff on 24 May 2019, as disingenuous, and the Court finds that the Rules did not apply in the circumstance on the said place of accident leading to the serious injury sustained by the Plaintiff on 24 May 2019.
(vi) What is the extent of the injury of the Plaintiff?
The Court accepts the Particulars of Injuries in paragraph 9 of the Amended Statement of Claim filed on 16 March 2021, as confirmatory of the extent of physical injury sustained by the Plaintiff from the accident he had on the Defendant’s premises on 24 May 2019, as it is not contested by the Defendant, at trial.
(vii) Whether the said accident was caused due to the negligence on the part of the forklift operator who was the servant and agent of the Defendant and whether the Defendant is vicariously liable for the actions of the Forklift operator?
.
(viii)-(ix) Whether the Defendant was negligent and/or reckless about the safety of the Plaintiff at the material time? Did the Defendant owe a duty of care to the Plaintiff and if so, what were those duties of care and did it breach those duties of care?
The Defendant was clearly reckless about the safety of the Plaintiff at the material time by not providing any supervision to guarantee a modicum of safety to the Plaintiff when undertaking the inherently hazardous and dangerous task of placing a piece of timber under the tyre of a mobile forklift, as he was directed to undertake on 24 May 2019.
In relation to the contents of the duty of care, the Court can only proceed on the basis of the evidence before it. The Plastics Factory OHS Rules[12] provides rules and guidelines to ensure safety for workers engaged in the Plastics factory. Placing timber under the tyres of an operational forklift is not a recognized activity undertaken in the plastics factory, so the fact that the Plaintiff was directed to do so by the forklift driver, breached the duty of care to provide a safe workplace for the Plaintiff in that factory, guaranteed by the Plastics Factory OHS Rules.
(x) Whether the Plaintiff now suffers from permanent incapacity because of his injuries and if, so what is the degree of impairment?
There is dispute between the parties about the issue of medical evidence in relation to reports provided by Dr Kiran Gaikwad and Dr Alan Biribo. Dr Gaikwad had been summoned by both parties to clarify his findings in relation to a Medical Report, dated 2 June 2022 he had compiled after examining the Plaintiff. Both parties were aware of the Report and had disclosed it in Affidavits Verifying their List of Documents, signaling their intent to rely on the Report, at trial. A Medical Report was also prepared by Dr Alan Biribo, dated 11 March 2024, whose use was objected to by the Plaintiff. After a careful consideration of the relevant position of the parties, the Court will allow the use of Dr Gaikwad’s Report, whilst disallowing the use of Dr Biribo’s Report for the reasons outlined.
(a) Dr Kiran Gaekwad
The matter proceeded to trial, on the understanding that Dr Gaekwad and Dr Biribo who were both travelling from Suva, would only be available on 28 January 2025. The Plaintiff had no objection about the calling of Dr Gaikwad as an expert witness, as both parties relied on the Report he had complied, dated 2 July 2022, and the Report had been exchanged in pre-trial discovery. The Plaintiff agreed that it would close its case on 27 January 2025, and due to time constraint, counsels agreed that the Plaintiff would on 28 January 2025, allow the Defendant to call Dr Gaikwad as his witness, and allow the Plaintiff to cross examine him. Prior to the case commencing on 28 January 2025, the Court was informed, that contrary to the understanding reached between the parties on 27 January 2025, the Defendant would not be calling Dr Gaekwad as a witness. The Defendant objected to the Plaintiff re-opening its case to enable him to call Dr Gaekwad, and asked for a ruling on this issue. In order to avoid delay the Court said it would rule on this issue, later. It does so now. The Court finds the approach taken by the Defendant as disingenuous. The Defendant had known on 27 January 2025, that the Plaintiff would not be calling its own medical witness Dr Rauni Tikoinayau, whose evidence it sought to rebut through Dr Gaikwad, as he was unwell. It was incumbent on the Defendant to inform the Plaintiff, before it closed its case, that it would not be calling Dr Gaekwad, since it knew that the Plaintiff would not be calling Dr Tiloinayau. This would have allowed the Plaintiff the opportunity to call Dr Gaekwad, who was a witness common to both parties, before it closed its case.
In order to address the prejudicial effect of this development the Court has examined the contents of the report provided by Dr Gaekwad, and allowed its use, and has used it in its determination, since neither party objects to its content.
The Court otherwise accepts the particulars pleaded in paragraph 12(a) to (e) of the Amended Statement of Claim, filed on 16 March 2021 as confirmatory of the extent of permanent incapacity sustained by the Plaintiff from the accident he had on 24 May 2019.
(b) Dr Alan Biribo.
The Court will not allow the use of the Medical Report prepared by Dr Biribo, dated 11 March 2024[13], because the Defendant had not complied with Order 25, Rule 8(1)(b) of the High Court Rules 1988, and not disclosed the substance of the Report within the prescribed period. As affirmed in Haworth v Starwood Properties Ltd [2019] 809; HBC215.2012 (16 August 2019);
53. O.25, r 8(1)(b) requires a special report on the expert evidence to be prepared for the purposes of a personal injury action, failing which expert witnesses may not be called. This is to be prepared after discovery.
54. As pointed out, the Plaintiff has not complied with this requirement.
55. The Rule is intended to assist the Court by limiting expert evidence and also to accord justice to the parties by allowing them sufficient time to consider and respond to expert evidence. Such evidence is only opinion on which witnesses may differ and is based on expertise on which alternative professional views may be required.
The Court, therefore, based on Dr Gaekwad’s Report, finds that the Plaintiff suffers
from permanent incapacity from the injury he sustained in the accident caused by
the Defendant, at its premises on 24 May 2019. The Court also finds the degree of
impairment to be 28% as, assessed by Dr Gaikwad in his Medical Report dated 2
June 2022.[14]
(xi) Has the Plaintiff suffered pain and suffering and loss of amenities of life and loss and damages because of the accident and the resulting injuries? If so, what is the quantum of special and general damages payable to the Plaintiff?
| | | | |
| SCHEDULE OF SPECIAL DAMAGES |
| 1 | MEDICAL AND POLICE EXPENSES | | |
| | (a) MEDICAL EXPENSES | | |
| | Medicines | 1,300.00 | |
| | Medical Report (CWM) | 105.00 | |
| | Medical Report (Dr R. Tikoinayau) | 1,327.00 | |
| | | | |
| | (b) POLICE REPPORT | 21.80 | |
| | | | |
| | Total Medical and Police Expenses | | 2,753.80 |
| | | | |
| 2 | TRANSPORT EXPENSES | | |
| | Airfare Labasa/Suva | 105.00 | |
| | Boat fare from Suva to Labasa | 65.00 | |
| | Transport expenses Home/Hospital Return various occasions | 549.20 | |
| | | | |
| | Total Transport Expenses | | 719.20 |
| | | | |
| 3 | LOSS OF EARNINGS | | |
| | Period of Loss | 24/5/2019 (Date of Injury) to 6/12/2024 (Date of Hearing) | |
| | Number of Weeks | 185 Weeks (289 – 10415 weeks) (1295 days) | |
| | Net Income per week | 417.20 | |
| | Agreed in PTC | | |
| | 185 weeks | | 27,232.00 |
| | | | |
| 4 | LOSS OF FNPF CONTRIBUTION | | |
| | Loss of FNPF for 185 weeks @ $12.80 per week as agreed in PTC | 2368.00 | |
| | | | |
| | Total FNPF Contribution | | $2,368.00 |
| | | | |
| 5 | NURSING CARE | | |
| | Cost of Nursing care | 17389.00 | |
| | | | |
| | Total of Nursing Care | | $17,389.00 |
| | | | |
| | TOTAL OF SPECIAL DAMAGES | | $50,462.00 |
| | | | |
(c) The Court has adjusted the amount awarded as ‘Loss of Earnings’ as it was affirmed at trial that the Plaintiff was paid by the Defendant for a period of 2 years after the accident , and finds that the Plaintiff is entitled to a sum of $50,462.00 (Fifty Thousand and Five Hundred and Forty Two Dollars) as special damages.
General Damages
Pain and Suffering and Loss of Amenities
(d) The Plaintiff sustained serious injury to his head on 29 May 2019, which irrevocably changed his life. Over the immediate period after the accident it is undisputed that the Plaintiff went through a traumatic and debilitating period of suffering, given the severity of his injury which irreversibly altered his personal, social and family life.
PW3, the Plaintiff’s wife testified that after the accident the Plaintiff was basically home bound, not able to care for himself , cannot work without assistance and reliant on others to maintain personal hygiene and suffers continuously from pain to date, requiring frequent visits to Labasa Hospital for treatment and medication to alleviate his pain and suffering.
The Defendant lead evidence of DW3, Nelson Kumar and DW4, Chandar Hash against the claim of loss of suffering and loss of amenities by the Plaintiff. The Court has carefully evaluated the evidence of these 2 witnesses, and on the balance of probabilities, do not find them reliable. Mr Kumar (DW3) was defensive on cross examination and the Court finds on the balance of probabilities, as altogether too convenient and designed to discredit, the Plaintiff, despite him barely acquainted with the Plaintiff at work, and the significant difference in their work station, with the Plaintiff being a laborer and DW3, the Construction Manager. The evidence of DW4, Chandar Hash was of little relevance since he could not identify the Plaintiff, despite their admission at Labasa Hospital, at the relevant time.
(e) The Court finds that the evidence adduced by the Plaintiff as being unchallenged on this issue.
Dr Kiran Gaikwad assessed the Whole Person Impairment of the Plaintiff at 28% using the AMA5. In Kumar v CJ Patel & Co Ltd [2019] FJHC 406;HBC 07.2017, the Court held, as follows;
38. In determining damages, it is necessary to consider general level of comparable award
39. In Chand v Courts (Fiji) Ltd and Sheik Mohammed Amin, Civil Appeal No ABU0031 of 2012 (2 October 2015) the Court of Appeal upheld an award of general damages of $85,000 where the plaintiff was assessed with 18% whole person impairment. He had suffered back injury and could only walk with crutches.
40. The principles laid down in Chand’s case to determine damages for pain and suffering was followed in Fiji Forest Industries v Naidu [2017] FJCA 106;ABU0019.2014(14 September 2017).
(f) In this case, the Plaintiff and his wife gave unchallenged evidence in regards to pain and suffering and loss of amenities of life. The Plaintiff submits that based on Dr Gaikwad’s assessment, and on comparable awards given in cases like Nasese Bus Co Ltd v Chand [2013] FJCA 9;ABU40.2011 where general damages awarded were $90,000 (Ninety Thousand Dollars) and in Kumar v CJ Patel [2019] FJHC 406; HBC 07.2017, where general damages awarded were $110,000.00 (One Hundred and Ten Thousand Dollars), that the award for pain and suffering and loss of amenities ought to be $100,000 (One Hundred Thousand Dollars).
(g) The Court accepts that this award is appropriate in the circumstance.
Loss of Future Earnings
(h) In determining the loss of future earnings the Court in Kumar v CJ Patel & Company held:
“56. In AG v Suruj Narayan, (ABU 0057 of 2008) Calanchini, J (as he then was cited the following passage from the decision of the House of Lords in Wells v Wells [1998] UKHL 27; [1999] 1 AC 345 at paragraph 66:
A plaintiff who has been deprived of earning capacity, whether in whole or in part has lost the chance of exploiting the chance of exploiting that capacity to the full. In most instances, the chance of exploiting the capacity is high and this is reflected in the approach taken by the courts, which is usually to assume that it would have been exploited to the full, at least to the normal retirement age. That one hundred percent probability is then discounted by the chances of its not being exploited due to the normal contingencies of life.”
(i) In submissions, the Plaintiff referred to the multiplier used by Justice Brito-Mutunayagam in Eta Naqeletia v Kumar [2012] FJHC 29, where the Court took a multiplier of 8 years for a 46 year old fish vendor and the case of Fiji Forest Industries Ltd v Naidu [2017] FJCA 106 where the Court of Appeal used a multiplier of 11 for a 41 year old casual laborer .
(j) The Plaintiff worked for 12 -13 years prior to the accident and has not been able to work after the accident, nor does he hold any qualification to enable him find alternative employment, were he physically able to. The Plaintiff is not physically able.. In evidence, it was shown that the Plaintiff earned $4.00 per hour, is required to work an 8 hour day, in a 5 day week amounting to $160.00 (One Hundred and Sixty Dollars), gross weekly, with FNPF deductions, his net weekly wages was $147.20 (One Hundred and Forty Seven Dollars and Twenty cents).
The Plaintiff proposes a multiplier of 11 years as appropriate given the Plaintiff is 42 years old, and he therefore is entitled to a sum of $84,198.40 (Eighty Four Thousand, One Hundred and Ninety Eight Dollars and Forty cents ($147.20 x 11x 52) as loss of future earnings . The Plaintiff is entitled to a sum of $9,152 (Nine Thousand, One Hundred and Fifty Two Dollars) ($16x 11x52) for loss of future FNPF. The Court accepts the Plaintiff’s proposal.
| | | | |
| 1 | GENERAL DAMAGES | $100,000 | |
| 2 | Interest on General Damages @ 2% per annum | $10,980.82 | From 28/9/20 to 25/3/26 |
| 3 | SPECIAL DAMAGES | $50,462.00 | |
| 4 | Interest on Special Damages @ 2% per annum | $6,915.23 | From 24/5/19 to 25/3/26 |
| 5 | Loss of Future Earnings | $84,198.40 | No interest paid |
| 6 | Loss of FNPF | $9,152.00 | No interest paid |
| | TOTAL | $261,708.45 | |
ORDERS:
Dated at Labasa this 25th day of March 2026
Savenaca Banuve
JUDGE
[1] Exhibit P5
[2] During trial the Defendant’s counsel had stated that he has no objections to the Schedule of Special Damages filed by the Plaintiff’s
counsel (Exhibit P5). In response the Plaintiff had not lead particulars of the incurred expenses (see paragraph 129 Plaintiff’s Written Submissions)
[3] Transcript p 82 of 172
[4] Exhibit D4
[5] Exhibit D5
[6] Exhibit D5
[7] Paragraph 18 Amended Statement of Defence filed on 14 April 2021
[8] As referred to in Chand v Vision Trading Ltd-Civil Action HBC 128 of 2014, per A.M Mohamed Mackie,J
[9] Exhibit D2
[10] Exhibit D2
[11] Page 74 of 172.
[12] Exhibit D2
[13] Exhibit D4
[14] Index I Medical Report from Dr Kiran Gaikwad dated 2.6/22-PLAINTIFF’S BUNDLE OF DOCUMENTS
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