Sami v Singh [1979] FJSC 74; Action 263 of 1977 (8 June 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA

Civil Jurisdiction
Action No. 263 of 1977

BETWEEN:

NARAYAN SAMI s/o Appal Sami
(Plaintiff)

AND

1. RAM DEO SINGH s/o Raj Kumar
2. SADA SIWAN REDDY s/o Narayan Reddy.
(Defendants)

Mr. G.P. Shankar, Counsel for the Plaintiff
Mr. C. Gordon, Counsel for the Defendants.

JUDGMENT

In this case the plaintiff claims damages in respect of injuries he received when he was knocked down by a truck owned by the first defendant and driven by the second defendant, who at the time was the agent or servant of the first defendant.

The defendants have admitted liability and the parties have agreed special damages in the sum of $1050. There remains the question of general damages only.

As a result of the accident the plaintiff suffered a fracture of the lower end of the left humerus which, in spite of one operation has still not reunited. The plaintiff is thus left without the use of his left arm, although he can do some light work with his left hand. Since he is a manual worker a cane cutter, or farm labourer and is left-handed it virtually means that he is unable to do his normal work, and he is unfitted for any other work even if it were possible for him to find such work. For a man in his circumstances that is most unlikely.

Dr. McNamara, who gave evidence before the court, said that a further operation involving a bone graft, the bone being removed from another part of the plaintiff’s body, might cause the bone to reunite. Such an operation would take up to 12 months, would probably result in pain for 4-6 weeks, would have a 70% prospect of success, though the arm would even then still be left with a 30% disability.

The plaintiff has however refused to have another operation. Having had one operation which was not successful, he is perhaps understandably reluctant to endure the pain, discomfort, and immobility for about another year of another operation which could be as unsuccessful as the first operation, and at best would never restore more than 70% of the arm’s former ability. I cannot say that his attitude is unreasonable, and although I must make some adjustment to reflect his reluctance to minimise the effects of the accident, I would not consider that the adjustment should exceed 10%.

If the plaintiff did submit to another operation there would need to be a further adjustment to account for further pain and suffering.

The plaintiff worked as a cane cutter earning about $1250 per year. He is aged about 26 years. His counsel has argued that he should receive $1250 ×10 (i.e. full wages for 10 years) as general damages, making a total of $12,500.

Counsel for the defence has argued that loss of future earnings should be set at $4000 with $1000, for pain and suffering. He referred to the case of Ram Sakal v. Rahimtullah and Rahimat Ali, Civil Case No. 33 of 1973 where a cane cutter lost the use of his hand which might eventually have to be amputated and was awarded a total of $9000 special and general damages. That case is not on all fours. We don’t know what hand was injured, presumably the arm itself was not damaged and of course wages have gone up quite considerably since then.

I consider that the figure of $12,500 quoted by counsel for the plaintiff to be a reasonable figure to work on but I would make adjustments to it. I would deduct 10% from that figure to make allowance for the fact that the plaintiff still has some use left in his hands. - so long as no strain is put on the arm, and I would deduct 10% to allow for the failure of the plaintiff to minimise the effect of the accident by submitting to a further operation. This will result in a deduction of 20% or $2,500 from the figure of $12,500, leaving a sum of $10,000 as general damages. This will reflect pain and suffering, loss of future earning and deprivation of enjoyment of sports and other recreational activities.

I therefore give judgment for the plaintiff for the sum of $1050 special damages and $10,000 general damages making a total of $11, 050 and costs.

(Sgd.) G.O.L.Dyke.
JUDGE.

LAUTOKA,
8th June, 1979.

Messrs G.P. Shankar & Co., for the Plaintiff
Messrs. Gordon &Co., for the Defendants.

Date of Hearing: 19th January, 1979.