IN THE FIRST CLASS MAGISTRATES COURT AT SUVA
CIVIL JURISDICTION

Civil Case No. 72/2014

BETWEEN:

KEVIN LI YU of Tamavua,Suva, Fiji.Businessman.
[Plaintiff]

AND:

VISHAL CHANDRA REDDY of Laucala Bay, Suva,Fiji.
[Defendant]

Mr. Maharaj (MC Lawyers) for the Plaintiff
Mr.O'driscoll for the Defendant 

Judgment

Facts

[1] Plaintiff filed statement of claim on 5th May 2014 claiming general damages and special damages and other remedies from the defendant for the injuries and damages sustained by the Plaintiff as a result of the accident caused due to the negligent driving of the defendant. 

[2] Defendant filed statement of defence and admitted that there was an accident as alleged but categorically denied the claim and further stated that he denies the liability since the plaintiff sustained any injuries as a result of accident was caused due by sole and/or contributory negligence of plaintiff. And prayed with cost the action to be dismissed. 

[3] Matter was fixed for hearing on 17/2/15 but meanwhile the plaintiff filed interrogatories on 10/2/2015. And defendant was supposed to answer within 7 days. But the defendant failed to answer till the date of hearing. But at the hearing date the hearing was vacated with consent of the plaintiff. Defendant was given further time till 4/3/15 to tender answers to interrogatories. 

Formal Proof 

[4] On 4/3/15 defendant did not appear and did not file any answers. Therefore plaintiff made application under order xxv rule 11 of magistrate Act to struck out the statement of defence. Orders granted by this bench to struck out the statement of defence and to place in the same position as if defendant as there was no reasonable explanation given by defendant for their failure to answer for interrogatories. Then the matter fixed for formal proof on 16/4/2015.

[5] On 9th April 2015 the Plaintiff filed an affidavit and a motion that his evidence is taken by way of affidavit and that his affidavit is read as he lives in China and would not be able to attend for formal proof hearing. The application was made Pursuant to Section 4 of the Evidence Act 2002 Order V Rule 17 of the Magistrate Court Rules. The defendant did not appear and orders granted to Plaintiff to tender affidavit evidence.

[6] At the formal proof date defendant seek to vacate the same but plaintiff object. Further plaintiff agreed subject to any settlement refixed formal proof for 321/8/2015. 

Evidence 

[7] As per Pre Trial Minutes both parties has agreed to the fact that on 29th April 2013 the plaintiff was a pedestrian on Rewa Street, Flagstaff and whilst crossing the road was bumped by the defendants vehicle which at the material time was driven by defendant. Both parties were blaming each other for the liability of the accident. This court accepted the affidavit evidence of plaintiff. 

[8]Affidavit of Kevin Li Yu sworn on 23/3/15 contains details of the injuries suffered by the Plaintiff as a result of the accident. Plaintiff added as a result of the accident the Plaintiff sustained bodily injuries and was rushed to CWM Hospital and subsequently transferred and admitted at the Suva Private Hospital for treatment. He listed the injuries as follows; 

1.8cm laceration to the anterior lateral side of the left knee and x-ray revealed a depressed fracture of the lateral tibia plateau.
2.The wound was debrided in the operating theatre with fracture fixation and bone grafting done a few days later.
3.He was on intravenous antibiotics and pain killers. 
4.He was admitted to the Private Hospital on 30/4/2013 and discharged on 6/5/2013 with crutches.

[9] He has annexed to his affidavit two medical reports from Suva Private Hospital (SPH) dated 2/5/2013 and 15/2/2014 prepared and signed by Dr Talonga. He has also attached to his affidavit the Tax Invoice of $13,000 from Suva Privet Hospital dated 6/5/13 incurred by the Plaintiff during his treatment.

[10]The Plaintiff's claim damages (amount to be assessed by court) for pain and suffering and loss of Amenities. Further claims special damages in the sum of $13,000 (being fee paid to privet hospital inclusive of medication) from the defendant. 

[11] Since there was no active statement of defence before this court did only consider the plaintiffs case but defendant was allowed to dispute the amount of damage claimed. it was identified by this bench at formal proof date the only issue before this court is to determine was the amount of damage that plaintiff is entitled to claim against defendant. Therefore this bench would not consider issue of contributory negligence as alleged by defendant. 

[12] After listening to oral submissions of both counsels at the formal Proof date the defendant was willing to pay $15,000 and special damages as pleaded that is $13,000. But plaintiff claimed $50.000 for special and general damages. Therefore this bench and both counsels agreed the sole issue of this matter as quantum of damage for pain and suffer. 

[13] The defendant seeks 14 days to file written submissions on. Plaintiff filed his submission on 23/6/2015 and defendant filed submission on 27/10/2015. Then plaintiff filed counter submission to defendant's written submission on 4/12/2015. 

Relevant Law

[14] Plaintiff has cited several case authorities from English and Fijian law on the issue of ascertaining of quantum of damage for pain and suffers. Basically has relied in principles of Heaps v Perrite Ltd [1937] 2 All E.R.60 . in this case LJ stated that;

 " we have also to take into account not only the suffering which he had immediately after the accident,but the suffering that he will have throughout his life in future;the constant necessity of having assistance in the various things that he has to do for his own purposes, apart from earning money." 

[15] Defendant has contested above stand by his submission. Since plaintiff has no permanent disability or lasting defect in this matter it has be material distinguish from cases cited by plaintiff. Further stated that there is no evidence on permanent disability or has not pleaded the same but as per medical report tendered with affidavit has indicated that plaintiff is healing well. Therefore the defendant is only entitling to for pain and suffering at the time of the accident and during the recovery period which must be $15,000. 

[16] In Prakash v Khan [2009] FJHC 160; HBC 068.2002(5 August 2009) plaintiff suffered a fracture pelvis and superficial abrasion over his shoulder due to negligent driving. He was hospitalised for 2 days and attend 4 follow ups after discharge. He was feeling pain and discomfort when lifting heavy objects and in cold weather. The fracture was well united.it was assessed he has 0% permanent disability. The court granted $30,000 for pain and suffer even bench found that there was no significant effect on hi employment or day to day life.

Ashish Mudliar v Rajesh Rama &Ors [Civil High Court Action No. 3 of 2012, date of decision 4 April 2014. In the above matter, The Plaintiff was a 36 year old pedestrian and walking in between two buses to cross the road when the bus number CR 460 moved forward and the Plaintiff was crushed in between the two buses on 06th August 2011. The Plaintiff suffered serious injuries as Plaintiff's right communicated mid shaft tremor fracture on the bone was broken to more than one piece and an operation was done to insert a steel rod and the rod was removed after two months. The Plaintiff continued visiting the hospitals for regular check-ups. There was no assessment of the Plaintiffs disability conducted or presented to court. The Court awarded the Plaintiff a sum of $60,000 as damages for pain and suffering.

Chand v Padarath Bros & Sons Ltd [High Court Civil Action No. HBC 134 of1995. A 33 years old taxi driver and farmer had suffered open comminuted fracture of distal right femur extending to knee joint, comminuted fracture proximal "tibia" and fibula (right) and open fracture of shaft of mid "tibia" as a result of motor vehicle accident. His right lower limb was shortened by 6cm and the range of motion of the right knee was limited. His incapacity was assessed as 25% disability for his injuries and he was awarded $65,000 as general damages.

Atish Sharma v Hardwood Sales & Marketing (Fiji) Ltd [Civil Action No. HBC 137 of 2008. In this instant case, in the course of the Plaintiff's employment the plaintiff was using an Electric Bench saw to rip a piece of batten length wise when the said batten shot back hitting his left thumb later which was amputated. The Plaintiff was found to have had a permanent disability of 35%. The Court ordered a sum of $20,000.00 as General Damages for pain, suffering and loss of amenities of life of the Plaintiff.

In Lata v Kumar [2014] FJHC 757; HBC222.2009 (21 October 2014) the plaintiff
Injuries Suffered by one of the plaintiff was a large wound over left forehead and was admitted for 2 weeks in Nadi Hospital and He complained of numbness over the left side of the forehead extending backwards to the scalp area. A loss of sensation to the left side of the forehead and the immediate area of the scalp were mostly to injuries to the supratrochlear and supraorbital nerves. The permanent disability was assessed at 1% permanent disability. He was granted award of $30,000 accordingly for pain and suffering. 

Determination 
 
[17] This is a formal proof matter. But still the plaintiff must prove his case with acceptable evidence. And the duty of the court not less than a contested matter. The bench must not accept whatever tendered by present party blindly but should consider it judicial manner. 

[18] Therefore still there is no change in standard of proof. According to Law the Burden of Proof is incumbent on the Plaintiff to prove its claim on the balance of probabilities. The Court in Narayan n Krishna [2012] FJMC 223, held that:

"11. The burden of proof lies upon the party who substantially asserts the affirmative of the issue (Robins v National Trust Co. (1927) A.C. 515). The burden of proof in any particular case depends on the circumstances in which the claim arises. In general the rule which applies is "Ei qui affirmant non ei qui negatincumbit probation". It was held in Levy v AssicurazioniGenerali (1940) A.C. 791 that "this rule is adopted principally because it is but just that he who invokes that aid of the law should be the first to prove his case, and partly because in the nature of things, a negative is more difficult to establish than an affirmative".

[19] The standard of proof required in civil cases is generally expressed as proof on the balance of probability. Lord Denning in "Miller v Minister of Pensions (1947) 2 All E.R 372) held that "if the evidence is such that the tribunal can say "we think it more probable then not' the burden is discharged, but if the probabilities are equal it is not".

[20] Therefore this bench has to see was there sufficient evidence from plaintiff with regard to pain and suffer and based on the same evidence must ascertain the quantum of damage. Sevesa Daunivalu & Ors v Ramodharan Nair & Dalip Chand and Sons Ltd (Labasa H/C Action No:HBC4of 2013) it was held "…..the assessment of damages need to be on the evidence presented to the court at the trial"

"…..failure to prove permanent impairment was a consideration of the award of damages for pain and suffering…." Therefore it is correct to say the permanent disability would be a consideration but not the sole consideration of court at the event of awarding of damages for pain and suffering.

[21] Plaintiff tendered medical reports dated 2/5/2013 and 15/2/2014 by Dr.E.D.Taloga –Orthopedic Surgeon affirm that the plaintiff has suffered with 8cm laceration on the anterior –lateral side of the left knee and a depressed fracture of the lateral tibia plateau of some extremity. The plaintiff has been admitted on 30/4/2013; operated and discharged on 6/5/2013 with crutches. And he was reviewed of 13/5/13 and 17/6/13. There is nothing mention about permanent disability. This report has not challenged by defendant. Therefore this court accepts it as evidence of injuries sustained by plaintiff. 

[22] The defendant submitted Sevesa Daunivalu & Ors v Ramodharan Nair & Dalip Chand and Sons Ltd (Labasa H/C Action No: HBC4of 2013) . In this case Deepthi Amaratunga J Awarded $16,000 for child who suffered fracture to mid shaft of the left femur but no permanent impairment found. It is suggested to follow this decision in this matter as the facts are similar.

[22] Further suggested since the plaintiff has filed this matter at Magistrate Court claim should reduce by 50% that's $15,000 since the granted award in High Court in the matter of Prakash v Khan [2009] FJHC 160; HBC 068.2002(5 August 2009) was $30,000. As it is the right of litigant to select by which court his matter to be heard and it is personal decision of the same person. Therefore this court thinks it has no relevancy on determination of quantum since the claimed pain and suffering is same. What matters is the value of claim should be within $50,000 limitation on Jurisdiction. If the award is within this range it is not open for dependent to discuss. In this the general damage has yet to be deciding by this bench. 

[23]This bench would consider other judgment of magistrate court as persuasive but not as binding authorities due to jurisdictional issue. This court thinks this claim is based on pain and suffering but not based on permanent disability or visible or hidden permanent marks on face or body of plaintiff. Therefore sole concern at this claim must be not the plaintiff recovered without any marks or has come to court without claim of present and future pains but whether the plaintiff had suffered pain or not. 

[24] Permanent disability or lacerations would be helpful in ascertain the quantum of damage as evidence but it is not the sole concern as it is possible to a person to suffer without this permanent disabilities or lacerations if the injuries are internal and fully recoverable. 

[25] This court noticed that plaintiff had injuries including fracture. Therefore plaintiff is entitling to an award for his pain and suffering as the others. This court further noticed Fijian court has granted around $30,000 as damage for single fracture. Therefor this court assess the general damage for pain and suffer in the circumstances of this case at $ 25,000 after consider the case law and tendered documents and written submissions by plaintiff and defendant .

[26] Therefore this court grant;

a)	 Judgment for general damages against the defendant in the sum of $25,000 to Plaintiff.

b)	In addition the Defendant should pay $ 13, 00.00 as Special damages to the plaintiff.

c)	 Further the plaintiff is entitle to $ 750.00 cost of litigation including Court Fee, Bailiff Fee, Solicitors Cost within 14 days from the date of this judgment and; 

d)	Pursuant to Order 32 Rule 8 of the Magistrates Court Rules the plaintiff is awarded legal Interest for general damages at the rate of 5%, from the date of the incident and Interest on special damages at the rate of 3% from the date of this judgment until the full sum is paid by the Defendant to the Plaintiff, but total sum is limited to $50,000.

[27] Judgment to be entered accordingly.

On 5th Feb 2016, at Suva, Fiji Islands

Neil Rupasinghe
Resident Magistrate