Saqasaqa v Director, Government Shipping Services [2009] FJMC 5; Civil Case 369.2007 (28 August 2009)

IN THE RESIDENT MAGISTRATES COURT
CENTRAL DIVISION, SUVA

Civil Case No. 369 of 2007

BETWEEN:

ILIESA SAQASAQA
PLAINTIFF

AND:

THE DIRECTOR, GOVERNMENT SHIPPING SERVICES
FIRST DEFENDANT

AND:

ATTORNEY GENERAL OF FIJI
SECOND DEFENDANT

Counsel for the Plaintiff: Mr D Prasad, Diven Prasad Lawyers
Counsel for the Defendants Ms Hughes, Attorney General’s Chambers

Date of Hearing: 16 February 2009
Date of Judgment: 28 August 2009

JUDGMENT

[1] This is the Plaintiffs claim against the Defendants in common law for compensation for injuries received in the course of his employment.

[2] Liability having been admitted by the Defendants, the matter was called on 16th February 2009 for hearing on quantum only before the learned Magistrate Mr M S Khan.

[3] There is an Up To Date Schedule of Special Damages dated the 19th day of November, 2008 and a List of Exhibits in the Court’s file.

[4] Both the Plaintiff and the Defendant have filed submissions on damages with the Court.

[5] Mr M S Khan is no longer with the judiciary as of 10 April 2009, and this action has been assigned to the Court for judgment pursuant to s 47 of the Magistrates Court Act.

[6] This Court has had the benefit of the Judge’s Notes, the pleadings on file, the Bundle of Exhibits and counsel’s submissions in giving judgment herein.

The Evidence

[7] At the hearing on quantum, Dr Steven Traill, Orthopaedic Surgeon of CWM Hospital [PW1] was called as an expert witness for the Plaintiff.

[8] The Plaintiff also gave evidence from the witness box.

[9] Dr Traill gave evidence that he had examined the Plaintiff, and that the Plaintiff had suffered a fracture of the fibula as set out in Dr Tuivaga’s medical report dated 7th September 2006 [Exhibit 1].

[10] Dr Traill gave evidence of the difficulties and pain the Plaintiff was still suffering, as set out in detail in his medical report dated 18th November, 2008 [Exhibit 2].

[11] Disability was assessed at 7% with symptoms of osteoarthritis in the right hip.

[12] Dr Traill noted in his report that the Plaintiff has pain on physical exertion and has weakened muscle power of right ankle extensors and reduced hip flexion.

[13] The Plaintiff gave evidence that he suffered injuries on his right leg on 5th September, 2006. It was 2 days before he arrived at hospital since he was at sea. His right leg was in a cast for 2 months and he was on crutches for 3 months.

[14] The Plaintiff was unable to attend work for 3 months, during which time he received half pay. He still works for the First Defendant receiving the same pay but he has been assigned light work duties in the office.

[15] The Plaintiff gave evidence that he cannot rotate his ankle fully since the accident, he cannot stand for long, he suffers pain in the hip when he bends, and he cannot run or jump.

[16] The Plaintiff gave evidence of using 2 to 4 Panadols daily for pain, and his wife assists by massaging his leg after work.

Special Damages

[17] The Plaintiff in his Submissions claims $232.00 as special damages for medicine, significantly less than that claimed in the Schedule of Special Damages.

[18] Although no receipts were produced to support this figure, the Plaintiff gave evidence from the witness box that he uses 2 – 4 Panadols per day, and he purchases them at $1.00 per packet. The Plaintiff did not state how long a packet lasts.

[19] In their Submissions the Plaintiffs solicitors claim $232.00 for medicine calculated at $1.00 per packet x 27 months. That calculation would result in a claim for $27.00, not $232.00.

[20] Using the Plaintiffs formula of one packet per month at $1.00 per packet, the Court awards the Plaintiff Special Damages in the amount of $28.00 for medicine from October, 2006 through January, 2009.
General Damages

[21] The Plaintiff is entitled to general damages for the injury he suffered and the 7% permanent disability he has incurred.

[22] The Plaintiff is still working for the Defendant on the same wages as before, and has not suffered any damages for loss of earnings, loss of earning capacity and loss of FNPF contributions.

[23] The general damages claimed are for pain and suffering and loss of amenities.

[24] According to Dr Traill’s medical report, the Plaintiff is 51 years old and suffering antalgic (painful) gait, he is unable to sit for more than 15 minutes due to right hip pain, and he has impairment of flexion of the right ankle and right hip, resulting in 7% permanent disability.

[25] The Plaintiff told Dr Traill that he has pain during cold or rainy weather and while running, jumping, walking uphill and lifting heavy objects. He can only sit cross legged for 5 minutes.

[26] The Plaintiff can walk unlimited on level terrain and can utilise public transportation.

[27] Dr Traill did not quantify the Plaintiffs pain score.

[28] The evidence before the Court is that the Plaintiff spent 2 months with his leg in a cast and 3 months using crutches.

[29] The Plaintiff also suffered for 2 days while en route to the hospital where he was first treated, as his injury occurred at sea.

[30] Both the Plaintiff and the Defendant have cited various cases in support of their submissions on damages. The Plaintiff is asking that $40,000.00 be awarded for pain and suffering and loss of amenities, while the Defendant has submitted that the sum of $15,000.00 would be a more appropriate award.

[31] The Plaintiffs counsel cited the case of Permanent Secretary for Health & Anor v Kumar & Anor, Fiji Court of Appeal Civil Appeal No. ABU 84 of 2006 (20 June 2008) for the proposition that prior awards in Fiji should be reviewed and that higher awards should be allowed.

[32] That case dealt with an infant who became blind due to medical negligence. It was in that context that the Court of Appeal awarded $220,000.00 for pain and suffering over the defendants’ objection that the infant had not suffered catastrophic suffering or disability.

[33] The Court of Appeal case of Plantation Village Ltd v Anderson [2003] FJCA 34; Civil Appeal No. ABU 0007 of 2003 (14 August 2003) referred to the Australian case of Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 for the basis of awarding general damages for pain and suffering as follows:

"We would emphatically reject this submission. It is the relationship of the award to the injury and its consequences as established in the evidence in the case in question which is to be proportionate."

[34] Therefore to determine an appropriate award of general damages for this Plaintiff the Court must look to the effect or consequences of the injury on the Plaintiffs quality of life and his activities, not just to what other plaintiffs have been awarded for similar injuries.

[35] The evidence before the Court shows that the Plaintiff was age 49 when injured, he suffers pain on a daily basis, and he finds certain activities, such as sitting cross legged, squatting and walking uphill, difficult.

[36] The Plaintiff is still working for the First Defendant at the same wages, although now he does light duties in the office rather than working as a rigger.

[37] The Plaintiff is able to manage his pain with 2 -4 Panadols per day and a leg massage from his wife after work.

[38] The Plaintiff has not identified any hobbies, sports or other activities of which he has been deprived, except for attending traditional functions where he would be required to sit cross legged.

[39] There is no evidence before the Court about how often or how regularly the Plaintiff attended such functions while working as a rigger onboard the First Defendant’s ships, making it difficult for the Court to judge the extent of loss of amenities.

Other Judgments for General Damages

[40] In Rothmans Pall Mall (Fiji) Ltd v Narayan Fiji Court of Appeal Civil Appeal No. ABU 0065 of 1995 (8 February 1997) the Court of Appeal uphold an award of $60,000.00 for pain and suffering, but the plaintiff in that case was left with a stiff knee, one leg shorter than the other, a suppurating abscess on his thigh from bone disease and a metal rod in his leg causing constant pain and discomfort.

[41] The Court of Appeal increased damages from $25,000.00 to $60,000.00 in the case of Singh v Rentokil Laboratories Ltd., Fiji Court of Appeal Civil Appeal No. ABU 73 of 1991 (20 August 1993), but there the plaintiff had suffered 8 different fractures at age 39, resulting in impairment to 3 limbs, malunion of the mandible and degenerative arthritis requiring hip replacement in the future, estimated to cost $NZ10,000.00. In addition that plaintiff had to undergo further surgery and treatment to correct defects in his original medical treatment in Fiji.

[42] In Ram v Singh, High Court of Fiji Civil Action No. HBC 102 of 2001 (29 April 2005), general damages of $50,000.00 were awarded for a plaintiff who suffered 50% disability from a work related accident where he sustained a fracture at the base of the skull and was left with post concussion headache, stiff right hip causing a limp, painful lower back and diminished sex drive.

[43] In the case of Dinesh Kumar v. John Elder, High Court of Fiji Civil Action No. HBC 560 of 1995 an award of $45,000.00 was made for pain and suffering for a fractured left tibia and fibula. The plaintiff was only 14 years old, and spent 21 months on crutches. His wound discharged pus for 3 years. His injured leg became an inch shorter than the other resulting in him walking with a limp.

[44] In Fong v John Beater Enterprises Pty Ltd, High Court of Fiji Civil Action No. HBC 482 of 2003 (2 September 2005), the High Court of Fiji awarded $36,666.00 in general damages to a mechanic who suffered fractures of the right femur and pubic rami, who had a steel rod inserted in his femur, suffered life threatening post operative complications and was left with a permanent limp.

[45] In Rajesh Prakash v Kamlesh Ramesh Parmar & Anor, (unreported) Suva High Court Civil Action No. 350 of 1996 (19 November 1999) Pathik J. awarded a cinema technician aged 32 $45,000.00 for pain and suffering and loss of amenities. He had suffered a fractured left ankle and was left with an obvious limp and a shortened left leg. His disability was assessed at 20%, he had difficulty in doing his job, and was unable to play his usual sports.

[46] In the case of Marika Lawanisavi & Anor. v Pesamino Kapieni Court of Appeal Civil Action No. ABU0049 of 1998 (13 August 1999), the Court of Appeal reduced a 47 year old supervisor’s award of general damages from $40,000.00 to $25,000.00 because his injury had healed and he was able to return to work. The reduced award reflected the pain and discomfort of the initial hospitalisation and treatment and the recuperation period at home and some lingering back pain.

[47] In Ali v Lautoka General Transport Co. Ltd., High Court of Fiji Civil Action No. HBC 295 of 1995L (15 July 2005), the High Court of Fiji awarded $20,000.00 for past pain and suffering and $20,000.00 for future pain and suffering to a young man aged 26 who suffered a leg injury as a passenger on the Defendant’s bus.
That plaintiff had a dislocated hip and broken fibula and tibia, with the broken fibula badly joined. He spent a month in hospital and had to use crutches while recuperating. There was continuing pain in the right ankle and osteoarthritis expected in the future. That plaintiff also claimed for future medical expense for painkillers.

[48] With respect to this Plaintiff, there is ongoing pain but it appears manageable. The disability is assessed at only 7%. The Plaintiff is still able to work. He was 49 at the time of his injury and 51 at the time of the hearing. Therefore future pain and suffering will be for a shorter period of time than in the cases with younger plaintiffs referred to by the Plaintiffs solicitors in their submissions.

[49] While his injury has had a negative effect on the Plaintiffs quality of life and activities, the consequences of this injury have not been dire or severe or catastrophic. The general damages to be awarded to the Plaintiff must reflect this.

[50] The Court has particular regard to the cases of Fong v John Beater Enterprises Pty Ltd [supra], Marika Lawanisavi & Anor. v Pesamino Kapieni [supra] and Ali v Lautoka General Transport Co. Ltd. [supra] as coming the closest to this Plaintiffs injury and circumstances.

[51] Because this Plaintiff has to cope with daily pain in his regular activities, he has suffered greater residual effects than the plaintiff in Marika Lawanisavi & Anor. v Pesamino Kapieni [supra], and the award of general damages should reflect that.

[52] Looking at all the factors, especially the effect of the Plaintiffs residual pain and loss of flexion on his quality of life, and keeping in mind the pain and suffering endured by the Plaintiff at time of injury and during treatment and the 7% disability suffered by the Plaintiff, as well as the pain the Plaintiff will likely continue to suffer for many years, the Court awards the Plaintiff the sum of $30,000.00 in general damages for pain and suffering.

Nursing Care and Future Medical Expenses

[53] The Plaintiff has claimed $8,600.00 as the cost of nursing care. It is calculated as $10.00 per day for his wife’s services in massaging his leg and assisting in other ways from 6th September 2006 to 6th February, 2009.

[54] If the Plaintiff was incurring any expense for his wife’s nursing care, it should have been pleaded as special damages. Instead it was pleaded as part of general damages.

[55] Further there was no evidence given by the Plaintiff or the Plaintiffs wife to support this claim. The Plaintiff was injured at sea on 5th September 2006, and he wasn’t seen at Vunisea Hospital until 7th September, 2006. How could his wife provide massage or nursing care on 6th and 7th September, 2006 and thereafter while the Plaintiff was in hospital?

[56] The cases cited by the Plaintiffs solicitors relate to future nursing care, but the Plaintiff has calculated his claim based on past nursing care.

[57] The overseas cases relied upon by the Plaintiff relate to awards to cover the cost of future operations and medical treatment and are not applicable to this Plaintiffs situation.

[58] In his Submissions In Reply, the Plaintiff cites two local cases, Jai Raj v Flour Mills of Fiji, High Court of Fiji Civil Action No. HBC 624 of 1998 and Jovesa Rokobutabutaki v Lusiana Rokodovu, Fiji Court of Appeal Civil Appeal No. ABU 88 of 1998 (11 February 2000) in support of his claim for his wife’s nursing care.

[59] In Jovesa Rokobutabutaki v Lusiana Rokodovu [supra] the Court of Appeal stated as follows:

"Ground 3 (ii) Excessive award for future nursing care

This was accepted at $60 per week for somebody to look after the respondent and assist her with activities she could not carry out herself, and applying a multiplier of 16 His Lordship awarded $49,920. It was again submitted that this was too high and that a multiplier of 8 should have been used, but we can see no justification for such a reduction; the care will be needed for the rest of the respondent’s life, whether it is given by her relatives (whom the Judge rightly held should be paid for it) or by an employee whom she wishes to engage when she moves into separate accommodation. This award will stand."

[60] That case involved a young woman age 26 permanently paralysed from the breast down in a motor vehicle accident, who needed constant assistance and care, including a catheter for bladder function. The Court of Appeal referred to this care as being for activities the plaintiff could not carry out herself.

[61] The court below had awarded damages for future care, stating as follows:

"In her condition she will need to employ someone to look after her. The likely cost will be on my estimate and also as suggested by Mr. Kapadia $60.00 per week; she is entitled to recover the costs even where help is provided gratuitously e.g. by a family or friend [vide DONNELLEY v JOYCE [1973] EWCA Civ 2; (1974) Q.B. 454].

So far care has been provided by the plaintiffs parents. It was decided in GRIFFITHS v KERKEMEYER [1977] HCA 45; (1977) 139 CLR 161 that a plaintiff should receive damages representing the value of gratuitous services necessitated by the injury done to a plaintiff by a negligent defendant. That decision was further explained by the High Court in Van Gervan v Fenton (1192) [1992] HCA 54; 175 CLR 327. It is now clear that the damages are to be awarded, not by reference to the sum, if any, expended upon services rendered to the plaintiff or to the loss incurred by any carer, but by reference to the market cost of providing the services needed by the plaintiff as a result of the damage suffered. "

[62] In the case of Jai Raj v Flour Mills of Fiji, [supra], the award for nursing care was actually increased by the Fiji Court of Appeal as the trial judge had mistakenly calculated it on the basis of the wife losing earnings of $30 per month when she was actually losing earnings of $30 per week in order to provide care and assistance to her husband. The husband’s right arm had been amputated and his left arm was severely limited in movement and function.

[63] Neither of those cases involved a plaintiff who was still able to work after the accident. There is no evidence of any particular activities this Plaintiff is unable to carry out for himself. There is also no evidence before the Court that the Plaintiffs wife has lost any earnings in order to care for her husband.

[64] The Plaintiff has overlooked to provide any evidence as to the market value of the services provided by the Plaintiffs wife.

[65] The only evidence that the Plaintiff requires care/nursing is the statement by Dr Traill in his medical report [Exhibit 2] that "Although Mr Saqasaqa’s fracture had united he still has some pain on physical exertion and has some difficulties with activities of daily living." Dr Traill does not state that the Plaintiffs condition requires daily massage or any kind of physiotherapy.

[66] In the circumstances, and considering the very limited evidence tendered by the Plaintiff, the Court is not persuaded that the Plaintiff requires "nursing care" from his wife for activities which he cannot carry out himself. Dr Traill’s medical report [Exhibit 2] only refers to some difficulties the Plaintiff encounters with daily activities, it does not state that the Plaintiff requires assistance with his daily activities.

[67] The Court holds that the Plaintiff has not met his onus of proof with respect to his claim for nursing care in the amount of $10.00 per day from 6th September 2006 to 6th February 2009.

[68] The Court finds that the Plaintiff is entitled to damages for the cost of future medical care. The Plaintiff gave evidence of using 2 – 4 Panadols per day, with one packet costing $1.00.

[69] There is also a reference in the medical report [Exhibit 2] to possible early onset of osteoarthritis of right hip, although that is only a suspicion.

[70] It is clear that the Plaintiff will continue to use Panadols to manage his pain in the future, and may need additional medication for osteoarthritis.

[71] Therefore the Court awards the sum of $198.00 to cover the cost of future medicine, calculated at 1 packet Panadol per month at $1.00 per packet for 198 months, starting from February, 2009 and continuing to age 67.6, which is the life expectancy at birth for a male in Fiji according to the CIA World Factbook (2008 estimates).

[72] No submissions have been made to the Court with respect to an appropriate multiplier by counsel. As it is quite likely that the cost of the Plaintiffs medicine will increase in the future, if it hasn’t already increased due to the recent 20% devaluation of the Fiji dollar, the Court declines to adjust the award for future medicine by using a multiplier.

Solicitors’ Costs

[73] In the Plaintiffs Submissions on General Damages, the Plaintiff requests costs of $3,000.00 on the basis that "The Defendant has been on notice since 27th September 2004 when the Writ of Summons was filed."

[74] That statement by the Plaintiffs solicitors is quite clearly and obviously incorrect. The injury to the Plaintiff occurred on 5th September, 2006. Writ of Summons was filed on 5 November 2007. The date of 27th September 2004 is of no significance whatsoever.

[75] This error by the Plaintiffs solicitors was brought to their attention in the Defendants’ Submissions on Damages.

[76] Instead of acknowledging their error, the Plaintiffs solicitors reassert that "The Defendants has been on notice since 27th September 2004 when the Writ of Summons was filed" in their Submissions in Reply.

[77] It has come to this Court’s attention that these same submissions on costs by the Plaintiffs solicitors have appeared in submissions filed by them in other cases, word for word. It appears that the Plaintiffs solicitors are merely cutting and pasting these submissions without editing them to match the facts of the case at hand.

[78] This is unacceptable conduct on the part of the Plaintiffs solicitors. They have made specific allegations of (i) undue delay by the Defendants and (ii) unusually high disbursements to justify their request for $3,000.00 costs. Such allegations must be based on the particulars of this specific case to avoid misleading the Court.

[79] The Court rejects the Plaintiffs solicitors’ submissions on cost in toto, as being a cut and past job not based on the facts of this case. The Court does not find any undue delay by the Defendants. Both parties requested several adjournments to conduct settlement talks. The Defendants admitted liability as a result thereof, but quantum was not agreed.

[80] There is no evidence before the Court of the Plaintiffs disbursements, other than the costs endorsed on the Writ of Summons in the amount of $53.76. The hearing was on quantum only, with only 2 witnesses.

[81] However, the Plaintiffs solicitors have filed additional pleadings herein, including Up To Date Schedule of Special Damages, List of Exhibits, Submissions on General Damages and Submissions in Reply, which should be taken into consideration in assessing costs.

[82] Solicitors’ costs in favour of the Plaintiff are summarily assessed at $1,700.00 plus $53.76 disbursements.

[83] Summary of Damages Awarded:

(a) Special Damages $ 28.00

(b) General Damages $30,000.00

(c) Future Medical Expenses $ 198.00

(d) Total Damages $30,226.00

(e) Solicitors’ costs and disbursements $ 1,753.76

(f) Total Award including costs $31,979.76

DATED this 28th day of August, 2009.

Mary L Muir
RESIDENT MAGISTRATE, SUVA