Maharaj v Seniwakula [1979] FJSC 83; Action 348 of 1978 (16 November 1979)

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

Action No. 348 of 1978

BETWEEN

PARMANAND MAHARAJ
s/o Sahadeo Maharaj
PLAINTIFF

AND

MOSESE SENIWAKULA
DEFENDANT

Mr. B.C. Patel, Counsel for the Plaintiff
Mr. C. Gordon, Counsel for the Defendant

JUDGMENT

For the sake of convenience I will deal with the present action together with C.A. 349/78 and C.A. 350/78. The plaintiff in this action together with his wife (the plaintiff in C.A. 350/78) and his daughter (the plaintiff in C.A. 349/78) were in a car which was in collision with a car driven by the defendant in all three actions. They each sue the defendant for damages for injuries received. The defendant admits liability in each case and these proceedings were limited to the assessment of the quantum of damages.

I will deal first with the wife. She suffered contusions to both legs but in fact only the injury to the left leg left any scar. The consultant surgeon from Lautoka Hospital who gave evidence for the plaintiffs described it as an area scar 4 x 1 cm in size on the anterior aspect of the left leg, below the knee with scattered dipigmentation and hyper pigmentation with minimal depression over both scars. These represented a cosmetic deformity of mild degree. The plaintiff gave evidence that the leg had swollen, become sceptic and required penicillin injections and bandaging every day. It was a time when she was pregnant and was very uncomfortable. For some time the scar was deep, but it has got better. She produced a photograph of the scar which she says was taken a week before the action, but she also showed the scare to the court. It seems to me that the scar had improved considerably, and I would not consider it to be very unsightly. What the doctor said sums it up to succinctly - perhaps even with a little exaggeration. The scar represents a cosmetic deformity of very mild degree. The plaintiff seems to be quite unnecessarily sensitive about it and claims that she is ashamed of it and now has to wear saris and long dresses rather than the short dresses she would prefer to wear. With due respect I cannot believe that for an Indian lady - or any lady for that matter - having to wear a form of dress as beautiful as a sari can be a hardship. And in any case I cannot accept that the scar is so unsightly that it has to be kept covered up. The lady is an attractive lady and I am sure is justifiable proud of her appearance, but she is not a model or dancer where small imperfections might be important. I cannot imagine anyone being put off or being more than mildly intrigued by the small scar on her leg. I see no reason why she should not return to short dresses as often as she wants, whether in the office, in the home or anywhere in public.

I would assess damages to be paid in her case for personal injury, pain and suffering at $300, and therefore give judgement in her favour for this amount.

The case of the daughter Kavita, the plaintiff in C.A. 349/78 is rather different. Here is a little girl of about 8 years of age, received two injuries to the face. The injuries described in the statement of claim do not agree with those described by the consultant surgeon Dr. McNamara or those indicated to me in the court. These are an elliptical pigmented scar measuring 3cm. at the outer end of the right eyebrow and a hypertrophied scar in the region of the right naso-labial fold extending downwards to the muco-cutaneous junction of the right upper lip. Apparently there was also a small injury to the tip of her left middle finger, but that has not been referred to in the statement of claim and I cannot take it into account.

Of the two facial scares the one near the right eyebrow has healed satisfactorily and to me was scarcely visible. The other injury to the cheek has left a more noticeable scar. Cosmetic surgery was attempted by Dr. McNamara involving excision of part of the scar, and re-suturing to try to improve the appearance of the injury. This was only partly successful so the father (the plaintiff in C.A. 348/78) took her to Australia where further cosmetic surgery was performed. Again this was only partly successful and Dr. McNamara has classified her injuries as serious cosmetic disability. Further cosmetic surgery could be attempted in the future which might further improve the facial appearance of the girl although some disfigurement will probably always remain. The plaintiff is a pretty little girl with an attractive smile and no doubt as she grows up she will become more conscious of impediments to her beauty. But unless she wants to go in for beauty contests or become a model or film star I cannot imagine that the scars are likely to affect her future prospects. The scar near her eyebrow is scarcely discernable and although the scare to her cheek is more noticeable I really don't think it detracts much if anything from her appearance. She remains a pretty little girl and will no doubt grow into a beautiful young lady and I am sure that even without further surgery any embarrassment she might feel over the scar can be effectively reduced or eliminated by careful use of cosmetics.

In my opinion her case is hardly worse than that of the schoolgirl in Atherton v Lancashire County Council reported in Kemp and Kemp, the Quantum of Damages, Vol. 2 at page 3667 who suffered nasty cuts in the vicinity of the lip and chin. She was left with considerable cosmetic disability although her facial appearance could probably be improved by plastic surgery. There were other side effects. She was awarded £550 general damages.

In this case I would assess general damages at $1500. Although special damages were not pleaded counsel in court applied to amend the statement of claim in order to submit a claim for special damages arising out of her trip to Australia and the medical treatment she received there. The claim amounted to over $900 and included air fares for herself and her father to Australia (because it was said that she could not travel on her own, or in the care of airline), hotels accommodation, meals and even the hire of a television set whilst in the hospital.

However there was no evidence that this expensive trip to Australia was necessary. Dr. McNamara recommended her to the Plastic and Reconstruction Surgeon in Sydney, but he never said that the trip was necessary or that treatment was only possible in Australia. In fact he had carried out an operation himself, and although he was not altogether satisfied with the result, there seems to be no reason why he could not have carried out a second or even third or fourth operation himself. Although the parents of the child might be prepared to pay for the most expensive treatment so as to minimise the effects of the scar, and may well consider that any slight improvement in its appearance would justify the expense. I do not consider that this additional cost should be passed to the defendant. The award of general damages I have made is if anything on the high side considering the appearance of the scar now. It would be more appropriate to the scar before the trip to Australia and would take into account any future attempts to improve its appearance.

I would therefore limit the award in respect of Kavita to $1500 general damages with no award in respect of special damages.

The case of Parmanand Maharaj, the plaintiff in C.A. 348/78 is more serious. He sustained a posterior dislocation of the left hip together with a fracture of the acentabulum and Ischial Tuberosity involving the articular surface of the hip.

The injury has healed and the only abnormality detectable at this stage is a moderate 5% restriction of the external rotation of the hip. However the injury has been complicated by an earlier injury to the right ankle. This places an extra strain on the left hip, causes further restriction on the plaintiff's activities, and is likely in the future to increase to the level of a probability the likelihood that there will be early onset (possibility in about 10 years) of degenerative joint changes in the hip resulting in considerable restriction and necessitating major surgery - i.e. to replace the hip joint. So the prognosis is not good, partly due to the injury which itself has deteriorated, and partly due to the injury to the hip which incidentally aggravates the ankle injury and is itself aggravated by the ankle injury. The plaintiff has suffered considerable pain and discomfort, he still suffers pain and discomfort after exertion and in cold weather (luckily in Fiji he should not get much of that). He can look forward to pain and discomfort in the future and the prospect of major surgery in about 10 years.

The plaintiff is a transport manager, and although he has tried to persuade the court that he needs to travel round the country in buses and cars, and to drive these vehicles, I think he has rather exaggerated his need. He has certainly not suffered any financial loss in his job, in fact on the contrary his salary has gone up as he has assumed greater responsibilities so there can be no award for loss of future earnings. His activities will become increasingly restricted, but some of this would be due solely to his ankle injury.

In his case I would assess general damages for pain and suffering and loss of amenities and taking into account future pain and suffering and major surgery at $5000.

To sum up then in C.A. 348/78 I give judgement against the defendant in the sum of $5000. In C.A. 349/78 I give judgment against him in the sum of $1500 and in C.A. 350/78 I give judgment against him in the sum of $300 together with costs in each case to be agreed or taxed.

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

LAUTOKA
16th November, 1979