Wati v Reliance Transport Ltd & Anor [1978] FJSC 133; Action 24 of 1977 (4 July 1978)

IN THE SUPREME COURT OF FIJI
CIVIL JURISDICTION

Action No. 24 of 1977

BETWEEN

NIRMALA WATI d/o Ram Lochan
Plaintiff

AND

RELIANCE TRANSPORT LTD. & ANOR
Defendants

R.I. Kapadia for the plaintiff
Keil for 1st and 2nd defendants
Jamnadas for 3rd defendant

ASSESSMENT OF DAMAGES

This claim arises as a result of a road accident which happened on the 11th June 1974 when a general omnibus owned by the first defendant and driven by the second defendant was in collision with a cargo truck owned and driven by the third defendant. At the time the plaintiff, a school girl aged about 15 years, was a fare-paying passenger in the bus and in the collision she suffered severe injuries to her right arm and particularly the elbow joint. On the 8th May 1978 judgment by consent was entered for the plaintiff against the defendants, the liability of the first and second defendants being fixed at 60% and that of the third defendant at 40%. It was further ordered that judgment be entered for the plaintiff for the sum of $100 special damages and that general damages be assessed by the Chief Registrar of the Supreme Court together with costs to the plaintiff in the same proportions as mentioned above. It was further ordered that the special and general damages be paid to the Public Trustee of Fiji and that after payment of legal costs and a sum of $100 special damages to the father of the plaintiff the balance be held by the Public Trustee in trust for the plaintiff for her education and advancement until she attains the age of 21 years.

At the hearing before me on the 7th June 1978 the plaintiff and the defendants were represented by counsel. Three agreed medical reports were put in by consent (Exhibits A, B and C) as was a certified copy birth certificate (Ex. D).

The agreed medical reports read as follows:-

"

CWM.12/11
IP. No. 25487/74

COLONIAL WAR MEMORIAL HOSPITAL MEDICAL REPORT

1st July, 1976.

Nirmala Wati d/o Ram Lochan,

Indian, female, est 15 yrs.

P/A: Toko, Tavua.

She was admitted here on 11.6.74 following the injuries she sustained. These were the extensive soft tissues disruption at the back and inner aspect of her right elbow, with bad fragmented fracture of the lower shaft of her rt. Humerus extending into her right elbow joint. The intra-articular structures were completely disrupted.

The above mentioned injuries were appropriately attended in the operating theatre - cleaned, bleeders controlled, ruptured tissues sutured and bone fragments aligned by suturing. The arm was then immobilised in P.O.P.

Medication included antibiotics, sedatives, and prophylactic sera for tetanus and gas gangrene.

She was allowed home on 26.6.74 to be followed up at the outpatient fracture clinic.

She was re-admitted on 24.7.74 for manipulation of her stiff Rt. Elbow under general anaesthetic, and was discharged again on 26.7.74.

When reviewed on 30.6.76 her Rt. Elbow is ankylosed (fixed and stiff) in a position of 80 degrees flexion. The joint movement is completely lost. Her fracture has well united and strong.

Sgd. E. Vudiniabola
CONSULTANT SURGEON

Messrs R.I. Kapadia & Co.,

Barristers & Solicitors,

G.P.O. Box 672,

SUVA.

B.

"

C/ - Surgery
74 Cumming Street
SUVA

23 November 1977.

Messrs Robert Mitchell & Associates,

Barristers & Solicitors,

P.O. Box 1056,

SUVA.

Dear Sirs,

re NIRMALA d/o Ram Lochan

I refer to your letter reference 7380/ir to Kapadia & Co. Barristers & Solicitors (the latter's reference 0860QK/89G.K/ir dated 15.8.77).

Following your request I carried out the examination of Nirmala d/o Ram Lochan Indian female, approx. 15 years old of Toko Tavua. On examination I found this patient's right elbow joint movement is completely lost. Right elbow is anchylosed (i.e. fixed and stiff) in a position of 80 degrees flexion.

There is obvious deformity - swelling of right elbow joint indicating well healed fracture.

I confirm the Medical Report given by E. Vudiniabola Consultant Surgeon dated 1.7.76 (ref CWM 12/11 IP No. 25487/74) and estimate her permanent residual incapacity to the extent of 35%.

Yours faithfully,

Sgd. Dr. Rajendra Tarak"

C.

"

The J.P. Bayly Clinic
Box 417, G.P.O.,
Suva, Fiji.

30.5.78

Medical Certificate

Re Nirmala Wati d/o Ram Lochan

As requested I have examined Nirmala Wati.

She complains that she cannot shift her arm at the elbow. She cannot do the washing. She cannot comb her hair. She cannot write. She cannot pull the bucket from the well. She has no pain.

On examination there is irregular scarring about the R elbow. There is no movement at all in the R elbow and there is some wasting of the R arm. The joint is fixed at about 130 degrees which is about the optimum position if it must be fixed.

Her background is life on a farm and a fixed R elbow in a Right handed person would be a great handicap and would incidentally reduce her prospects of marriage.

Under the Schedule to the Workmens Compensation Ordinance 1964 the loss of the arm at the elbow rates at 70% of incapacity and the loss of the hand at the writs rates at 60%. As against these figures it should be noted that the restoration of flexion at the elbow is possible but difficult and it presupposes very sophisticated surgical techniques not routinely available in Fiji.

Considering all factors involved I would place her percentage of incapacity at 45 percentum.

Sgd. George R. Hemming

30.5.78"

These reports are detailed and explicit; the surgeon and the two doctors are in complete agreement on the vital issue of the residual loss of amenity namely the ankylosis of the plaintiff's right elbow. In this regard I note the observation by Dr. Hemming where he states

"......... the restoration of flexion at the elbow is possible but difficult and it pre-supposes very sophisticated surgical techniques not routinely available in Fiji"

The plaintiff and her father gave evidence which confirmed the matters referred to in paragraph 10 of the statement of claim. However, it transpired that the plaintiff is right handed and this will aggravate the plaintiff's incapacity.

Two other witnesses were called for the plaintiff but their evidence was, in effect, confined to her diminished prospects of marriage by reason of her disability.

All three Counsel addressed me briefly and I was referred to certain decided cases which I have perused.

Turning now to the actual assessment of damages; as stated earlier judgment has already been entered for the plaintiff in the sum of $100 and it follows that I am only concerned with general damages which will be for pain and suffering and loss of amenities.

In the circumstances of this case it seems to me that there should be separate awards in respect of pain and suffering, which were endured over a period of some six weeks, and loss of amenity, which may well be life long. From the very nature of the injuries it is clear that the plaintiff, who was then 15 years old, must have experienced severe pain at the time of the accident and considerable discomfort until her final discharge from hospital; under this head I award the sum of $1000.00.

Compensation for loss of amenity is a different matter, and I quote Edmund Davies L. J. in Towell v. Davidson & Co. Ltd 1971 C. A. 1971

"The final result is a most unfortunate one in a man still under 40 years of age. He goes about the place with a manifest injury, in the sense that there is the locking of the left arm in this position of 120 degrees. One must not make too much of his evidence about interference with such hobbies as swimming and fishing; but in many human activities - the simple act of dressing, bathing himself, and trying to play a ball game with his three children: he cannot catch a ball; he can bowl, but if he wants two hands, as most people do when they catch a ball, he could not do it - in a number of such not unimportant ways this is a patently and substantially disabled man".

Such is the plight of the plaintiff in the present case; through no fault of her own she is a 'patently and substantially' disabled young woman, probably for life; and she is not yet 20 years of age.

From what has gone before in this assessment and particularly the contents and implications of the three agreed medical reports it is clear, in my view, that damages must be moderately heavy. In a case such as this it is most difficult to assess a sum of money as compensation for a physical injury which will have lasting and possibly permanent effects upon a persons life, especially when there is no 'datum line' from which to calculate reasonably certain figures e.g. loss of past and future earnings. However, bearing in mind all the circumstances, I consider that damages for loss of amenities (including diminished prospects of marriage and physical disfigurement) would be properly reflected in the sum of $9000.00.

It follows that the total damages assessed amount to $10,000.00 the liability if the 1st and 2nd Defendants being fixed at 60% and that of the 3rd Defendant at 40% together with costs to the Plaintiff in the same proportions. Special and general damages to be paid to the Public Trustee of Fiji and that after payment of legal costs and a sum of $100.00 to the father of the plaintiff the balance be held by the Public Trustee in trust for the plaintiff for her education and advancement until she attains the age of 21 years.

Sgd. (V. H. Vivian)
CHIEF REGISTRAR

4.7.78