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Supreme Court of Fiji |
IN THE SUPREME COURT OF FIJI
AT SUVA
Civil Appeal No. CBV 0006 of 2008
(On Appeal from Fiji Court of Appeal
Civil Appeal No. ABU 0084 OF 2006)
BETWEEN:
THE PERMANENT SECRETARY FOR HEALTH
and
THE ATTORNEY GENERAL OF FIJI
PETITIONERS
AND:
ARVIND KUMAR (father’s name: Deo Prasad) and
KAMNI DEVI (father’s name: Appalsami)
both of 212 Vomo Street, Lautoka as parents and next to friend
of JASHNIL KUMAR (father’s name: Arvind Kumar) an infant.
RESPONDENTS
Coram : The Hon Justice SaleemMarsoof, Judge of the Supreme Court
The Hon Justice SathyaaHettige, Judge of Supreme Court
The Hon Justice William Calanchini, Judge of Supreme Court
Date of Hearing: Monday, 17th October 2011, Suva
Counsel: Mr. S. Sharma with Ms. R. Pranjivan for Petitioners
Mr. S. Maharaj for Respondents
Date of Judgment: 3rd May 2012, Suva
JUDGMENT OF THE COURT
[1] The Petitioners have sought special leave to appeal from the Judgment of the Court of Appeal of Fiji dated 20th June 2008 (Byrne, JA Shameem, JA and Scutt, JA), which partly allowed the Petitioner’s appeal against the decision of the High Court at Suva dated 20th July 2006 (Pathik, J) holding that the Petitioners are liable in damages for the loss sustained by the Respondents, Jashnil Kumar, an infant, and his parents, due to the negligence of the Petitioners, which led to the said infant totally losing the sight of both eyes.
[2] Jashnil was born prematurely with a birth weight of 1.52 kilograms, at Lautoka Hospital on 21 January 1996, and was kept in an incubator in the Premature-Birth Nursery in the Maternity Ward of the hospital for 3 weeks, and thereafter for another week in the Maternity Ward of the said hospital, before being discharged.
[3] It is not in dispute that during the period Jashnil was kept in the incubator, he was given supplemental oxygen, in accordance with standard procedure. Due mainly to the Petitioners’ failure to produce in court the medical folder relating to Jashnil, there was no evidence placed before the High Court regarding the amount of oxygen that was administered. However, there was overwhelming expert testimony to the effect that as a result of over-doses of oxygen, a premature baby was likely to develop a condition called retinopathy of prematurity, and the High Court concluded, after a lengthy trial, that it was the failure on the part of the Petitioners to monitor the level of oxygen that was administered while Jashnil was in the incubator that caused Jashnil to develop this condition, which ultimately deprived him of his eyesight.
[4] On the basis of its finding that Appellants had been negligent in all the circumstances of the case, the High Court awarded to the Respondents the sum of $458,735.00 along with interest, as damages. It appears from the judgment of the High Court dated 20th July 2006 that in arriving at the aforesaid sum,the High Court broke down the loss sustained by the Respondents into the following heads:
Total (excluding interest): $458,755.00
[5] Before the Court of Appeal, the Petitioners did not seek to challenge the finding of the High Court that they were liable in negligence. The Petitioners only sought to challenge the quantum of damages awarded by the High Court, as being excessive, disproportionate and inconsistent with similar awards made in Fiji. In response to the Petitioner’s appeal, the Respondent also filed a Notice of Cross Appeal in the Court of Appeal.
[6] In its judgment dated 20th June 2008, the Court of Appeal did not vary the amount awarded by the High Court to Jashnil’s parents, nor do the Petitioners seek special leave to appeal from this Court with respect to the amounts so awarded to Jashnil’s parents as special damages. However, with respect to damages for pain and suffering, and for the loss of earning capacity and economic loss, the Court of Appeal varied the damages awarded by the High Court in the following manner:-
(a) Under the head of damages for pain and suffering and loss of amenities, the Court of Appeal dismissed the Petitioners’ appeal and allowed the Respondents’ cross appeal, and increased the award of the High Court from $190,000.00 to $220,000.00.
(b) Under the head of loss of earning capacity, the Court of Appeal dismissed the Petitioners’ appeal and the Respondents’ cross-appeal and upheld the award of the High Court in the sum of $78,000.00.
(c) Under the head of economic loss, the Court of Appeal allowed the petitioners’ appeal and reduced the amount awarded by the High Court from $160,000.00 to $118,000.00.
(d) Under the head of costs, the Court of Appeal partially allowed the Petitioners’ appeal and quashed the award of the High Court of $30,000.00 as costs, and in lieu thereof ordered that the Respondents’ costs be taxed, if not agreed.
[7] The Petitioners’ application for special leave to appeal is in fact limited to the decision of the Court of Appeal relating to its award of general damages for pain and suffering and loss of amenities, wherein the Court of Appeal dismissed the Petitioner’s appeal against the award made by the High Court under this head, and allowing the Respondents’ cross-appeal, increased the amount awarded by the High Court from $190,000.00 to $220,000.00. The Petitioners have specifically prayed that the award with respect to pain and suffering and loss of amenities of life be reduced to $90,000.00 as a proportionate and consistent award.
[8] The principal grounds on which the Petitioners seek special leave to appeal from this Court, as set out in paragraph 6 of the Petition filed in this Court, are:-
(a) The Court of Appeal failed to apply and adopt a long line of judicial decisions in Fiji, in which awards under the head of general damages for pain and suffering and loss of amenities had been made in accordance with the socio-economic conditions in Fiji.
(b) The Court of Appeal erred in law and in fact in holding that awards for general damages for pain and suffering and loss of amenities must be same as that in other developed countries, without any investigation of factors influencing awards in other countries.
(c) The Court of Appeal erred in law and in fact in failing to make an award that is reasonably proportionate, and consistent with amounts usually awarded in Fiji for personal injuries of a similar nature (loss of eye-sight)
(d)The Court of Appeal erred in law and in fact in making an award for pain and suffering that is grossly disproportionate to the current prevailing awards in Fiji, and substantially increasing the awards payable under the head of pain and suffering and loss of amenities.
Special Leave to Appeal
[9] Mr. S. Sharma, who appears for the Petitioners, sought to support his application for special leave to appeal on the basis that the decision of the Court of Appeal from which special leave to appeal is sought, raised far reaching questions of law in the assessment of damages in all fatal or personal injury claims for pain, suffering and loss of amenities.
[10] It was stressed by Mr. Sharma that the Court of Appeal had in the instant case departed from a long line of judicial decisions at all tiers of the Fiji judiciary which had awarded damages in personal injury cases for pain, suffering and loss of amenities in accord with social and economic conditions prevailing in Fiji. He submitted that in its judgment, the Court of Appeal had altogether abandoned the approach hitherto followed by the courts in awarding damages, and particularly took objection to the view of the Court of Appeal that a court cannot distinguish between an under-privileged litigant and a wealthy, or socially important litigant, when computing compensation for personal injury (paragraph 16), and the same holds good as between a litigant from an ‘under-developed’ or ‘undeveloped’ country and a litigant from a more developed country (paragraph 17).
[11] Mr. Sharma submitted that the Court of Appeal had erred in law when it suggested that the award for general damages under the head pain, suffering and loss of amenities should be the same as in developed countries, without any investigation of factors influencing awards in other countries. He stressed that the award was grossly disproportionate to the amounts usually awarded in Fiji for personal injuries of a similar nature (loss of eye-sight), and that it in the circumstances, special leave to appeal should be granted against the decision of the Court of Appeal.
[12]The Respondents have sought to resist the application of the Petitioners for special leave to appeal principally on the basis that the variation made by the Court of Appeal of the quantum of damages awarded by the High Court for pain and suffering and loss of amenities amounted to a mere increase of $30,000 to the amount awarded by the High Court, which was for $190,000.00. The Respondents contended that the said variation was made on the basis of the special facts of the case, and it did not give rise to any far reaching question of law or matter of great general or public importance.
[13] Mr. Maharaj has submitted on behalf of the Respondents that the increase of the quantum of general damages awarded by the High Court by a mere $30,000.00 on a finding of fact in the context of the special factual circumstances of the case, does not give rise to any far reaching question of law, or a matter of great general or public importance, there being no matter of substantial general interest to the administration of civil justice pleaded in the petition.
[14] He has invited our attention, in particular to, paragraph 34 of the judgment of the Court of Appeal to show that the decision of that court was made solely on the basis of the special facts of the case, and that no far reaching question of law or matter of great general or public importance is involved. In that paragraph, the Court of Appeal stressed that $220,000 is “not an exorbitant amount to compensate Jashnil as much as money can, for the terrible injury he suffered at the hands of the Appellants.”
[15] In the context of the question whether special leave to appeal ought to be granted in the circumstances of this case, it is useful to note that the requirements for a grant of special leave were settled by the Privy Council in Daily Telegraph Newspaper Company Limited v McLaughlin[1904] UKLawRpAC 45; [1904] AC 776, which was the first case involving an application for special leave to appeal from a decision of the High Court of Australia to be decided by it. Lord Macnaghten, at page 779 of his judgment, after observing that the same principles should apply as they did for an appeal from the Supreme Court of Canada, referred to the case of Prince v Gagnon [1882– 83] 8 AC 103, in which it was stated that appeals would not be admitted-
"save where the case is of gravity involving aer of public interest, or some important question of law, oaw, or affecting property of considerable amount, or where the case is otherwise of some public importance or of a very substantial character."
[16] As noted by Lord Macnaughten at pages 778 to 779, even in such cases special leave would be refused if what is canvassed is the decision on the facts of a particular case, where the judgment sought to be appealed from was plainly right, or not attended with sufficient doubt to justify the grant of special leave.
[17] It is pertinent to note that Section 7(3) of the Supreme Court Act No. 14 of 1998, echo to a very great extent the criteria for the grant of special leave to appeal that were settled by the Privy Council in Daily Telegraph Newspaper Company Limited v McLaughlin. It is provided in that section that -
“In relation to a civil matter (including a matter involving a constitutional question), the Supreme Court must not grant special leave to appeal unless the case raises-
(a) a far reaching question of law;
(b) a matter of great general or public importance;
(c) a matter that is otherwise of substantial general interest to the administration of civil justice. ”
[18] These criteria have been examined and applied by the Supreme Court of Fiji in decisions such as Bulu v Housing Authority [2005] FJSC 1 CBV0011.2004S (8 April 2005), Dr. Ganesh Chand v Fiji Times Ltd., CBV0005 of 2009 (31st March 2011) and Praveen’s BP Service Station Ltd., v Fiji Gas Ltd.,CBV0018 OF 2008(6th April 2011), and it is clear from these decisions that special leave to appeal is not granted as a matter of course, and that for the grant of special leave, the case has to be one of gravity involving a matter of public interest, or some important question of law, or affecting property of considerable amount or where the case is otherwise of some public importance or of a very substantial character. Even so special leave would be refused if the judgment sought to be appealed from was plainly right, or not attended with sufficient doubt to justify the grant of special leave.
[19] Having carefully examined the principal grounds urged by the Petitioners for the grant of special leave to appeal, in the light of the evidence and the submissions made by learned Counsel, we are of the opinion that ground (a) on the basis of which special leave has been sought, need not engage the attention of this Court any further as we find that the Court of Appeal has in paragraph 20 of its judgment agreed that there should be consistency in the level of general damages awarded in similar cases, which is a point conceded by both Counsel in the course of their submissions before us.
[20] Nor do we find any justification for granting special leave to appeal on grounds (c) and (d) urged before us, as they simply seek to re-agitate factual issues that have been considered and dealt with by the lower courts, and they do not satisfy the criteria laid down in Section 7(3) of the Supreme Court Act No. 14 of 1998. These grounds do not raise any far reaching question of law or raise any matter of great general or public importance, or is otherwise of substantial general interest to the administration of civil justice.
[21] We are, however, inclined to grant special leave to appeal on the basis of ground (b) urged before us, which specifically raises the question whether the Court of Appeal erred in law and in fact in holding that awards for general damages for pain and suffering and loss of amenities must be same as that in other developed countries, without any investigation of factors influencing awards in other countries. We consider that this ground raise not only a far reaching question of law, but also involve a matter of great general or public importance.
[22] We are not impressed by the submission of Mr. Maharaj that the variation made by the Court of Appeal of the quantum of damages awarded by the High Court for pain and suffering and loss of amenities amounted to a mere increase of $30,000.00 to the amount awarded by the High Court, as what the Petitioners are contending for is that consistently with the awards previously made by the courts in Fiji Islands, the award could not have been more than $90,000.00, and in fact have prayed that the damages awarded under this head should be confined to that figure. If the Petitioners succeed on this appeal, they could have the damages quantified by the Court of Appeal reduced substantially from $220,000.00 to $90,000.00.
[23] Accordingly, special leave to appeal is refused on the basis of grounds (a), (c) and (d) urged before us, and we grant special leave to appeal to the Petitioner only on the question set out as ground (b), which is formulated as follows:-
“Did the Court of Appeal err in law and in fact in holding that awards for general damages for pain and suffering and loss of amenities must be same as that in other developed countries, without any investigation of factors influencing awards in other countries?”
Relevance of Awards of Developed Countries
[24]Learned Counsel for the Petitioners and the Respondents agreed at the commencement of the hearing of this application for special leave to appeal that pursuant to the practice generally followed by this Court, any question or questions on which special leave to appeal is eventually granted may be disposed of on the basis of the submissions made by them at the hearing for special leave.
[25] The question arsing on this appeal is whether the Court of Appeal fell into error in law and in fact in holding that awards for general damages for pain and suffering and loss of amenities must be same as that in other developed countries, without any investigation of factors influencing awards in other countries, and increasing the damages awarded by the High Court under this head from $190,000.00 to $220,000.00, in the face of the Petitioners’ contention that consistently with awards already made by the courts in the Fiji Islands, it should not be more than $90,000.00.
[26] Mr. Sharma has, on behalf of the Petitioners, argued with great force that the High Court and the Court of Appeal have erred in taking into consideration the higher quantum of awards made in more developed countries in person injury cases, and in particular overlooked the time honoured principle that foreign awards can be taken into account for purposes of computing the amount of award to be made in a particular case only if the relevant socio-economic conditions are similar to those prevailing in the Fiji Islands. Mr Sharma has stressed that the failure of the High Court and the Court of Appeal to keep in mind this fundamental principle of assessment of damages, has resulted in disproportionately high and unreasonable awards being made in this case.
[27] It is in this context, noteworthy that the High Court had, in the course of its judgment, stressed that pain and suffering is not measurable by any absolute standard and it is not easy, if indeed possible other than in the most general way, to compare the degree of pain and suffering experienced by different people. The Court in fact enumerated, in some detail, the main factors that were taken into account in arriving at the figure of $190,000.00 as damages for the pain and suffering and loss of amenities suffered by Jashnil almost immediately after his birth, while he was being kept in the incubator. These included the factors such as having to depend on others for support, care and assistance, the inability to take part in daily chores of life, inability to do any sports or indulging in many hobbies, limitations in employment opportunities, prospects of marriage, and indeed loss of many facets of life, all of which had to be endured possibly throughout his life time. The High Court summarised it by saying that Jashnil will not be able to do all those things which a person with eye sight can do.
[28] The High Court did not allude, in the course of its judgment, to any previous decision of a Fijian or other court that dealt with the quantum of damages for pain and suffering and loss of amenities of life by way of a comparative award for total loss of the sight of both eyes, but it did make reference to the Fijian decision of Rokodovu,which was a paraplegic case where a sum of $200,000.00 under this head.
[29] However, it is important to note that the learned High Court Judge considered the decision of Higgins J of threme Court of Australitralian Capital Territory in TomislavLipovacbhnf Maria Lipovac v Hamilton Holdings Pty Ltd, Peter Black, Tom Gavranic and The Australian Capital Territory [1996] ACTSC 98, in which a sum of Australian $359,246.00, was awarded as general damages in a case of case of cerebral palsy where the child had profound brain damage ring ring constant care and attention both medical and otherwise for the remainder of his life, and the dictum of Greer Ln Heaps v Perrite Ltd 1937) 2 All E R 60  suggestiat in such cuch cash cases, 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 ture.” From a considensideration of these decisions, the learned High Court Judge came to the conclusion that Jashnilwas entitled to a “very substantial amount by way of general damages.”
[30] The Court of Appeal adopted a similar approach to the High Court, except that it felt that the general damages awarded for pain and suffering and loss of amenities, should be increased by $30,000.00. The Court of Appeal expressed the view that the socio-economic conditions of Fiji must be relevant in making an award under this head, but it should not be an over-riding factor in the assessment of damages. The Court of Appeal stressed that the task of a court is to arrive at a proper figure in current Fiji dollars which will properly compensate a person who has suffered pain and loss of enjoyment of life, and the fact that Fiji is a developing country should not necessarily inhibit a court from awarding damages comparable to those in more developed countries.
[31] The reasoning of the Court of Appeal in this regard is found in paragraphs 16 to 18 of its judgment, which are reproduced below:-
“16. ........It follows therefore in our view that an under-privileged litigant who suffers injury hurts just as much as a wealthy or socially important litigant who suffers the same injury. Therefore, at least in theory, each is entitled to the same compensation under the law.
17. This Court has held constantly over the years that the latter statement is incorrect and that an ‘under-developed’ or ‘undeveloped’ country cannot afford to pay awards of damages comparable to those in more developed countries. Implicit in this contention is that, were it to be otherwise, the flood gates would open and unsuccessful Defendants would be ordered to pay damages comparably higher than those awarded in more developed countries and would suffer dire financial consequences.
18. This Court considers for reasons on which we shall expand later, and with great respect to previous decisions of this Court, that this prophecy of doom can no longer be supported in Fiji.”
[32] We note that after referring in paragraph 19, to the judgment of this Court in Attorney-General v. Paul Praveen Sharma(Civil Appeal No. ABU0041/93) in which we had stressed the need to maintain a consistency of awards in similar cases, in paragraph 20 of its judgment, the Court of Appeal concluded as follows:-
“20. This Court agrees that there should be consistency in the level of general damages awarded in similar cases but we add this rider, that if there has been an error in the approach of the courts to the award of general damages for pain and suffering then it must say so. There should not be consistency merely for consistency’s sake. Of course, to some extent, the so-called socio-economic conditions of Fiji must be relevant but in our Judgment they should not be an over-riding factor in the assessment of damages under this head. The task of the Court must be to arrive at a proper figure in current Fiji dollars which will properly compensate a person who has suffered pain and loss of enjoyment of life.”
[33] Despite the incidental reference to comparable awards of developed countries in paragraphs 17,18,19 and 20 of its judgment, which probably was a response of the Court of Appeal to the Petitioners’ attack on the reasoning of the learned Judge of the High Court that the award made by Higgins J. of the Supreme Court of Australian Capital Territory in the case of TomislavLipovacbhnf Maria Lipovacmight be used as a comparable award, the Court of Appeal in its judgment did not advert to any actual awards of any developed country or attempt to compare them with the award made in this case by the High Court. Nor have either learned Counsel who appeared before us cited any comparable award of a Fijian or other court in a comparable case of total loss of the sight of both eyes. The written submissions filed by Mr. Sharma on behalf of the Petitioners in this Court did contain an annexure showing awards made for pain and suffering in Fiji Islands, which include four cases involving eye injuries, but none of them involved an award for total loss of eye sight affecting both eyes.
[34] Of these Fijian awards, the one that came closest to the instant case was an award made on 25th May 1995 in a sum of $37,500.00 for complete loss of one eye with very minimal light vision in the other, and a case decided in 1997 resulted in a lesser award of $25,000.00 for a less serious left corneal laceration. But, there were two other awards made in 1998 for loss of one eye only, where the awards were much higher, the first of which made on 23rd March 1998 being for $42,500.00 and the later one made on 13th October 1998 going up to $50,000.00. The annexure was of little use to consider whether the award made by the High Court in this case on 20th July 2006 was consistent with previous local awards, in the absence of full particulars relating to the nature of the injury and the age and standing in life of the victims concerned, and in the absence of statistical information relating to the rates of inflation between the dates of the said awards and the actual award made by the High Court in this case.
[35] Mr. Maharaj, who appears for the Respondents has in his written submissions, invited our attention to the English case of AB (by her litigation friend the Official Solicitor) v South East Coast Strategic Health Authority [2007] LTLPI 15.02.08, which involved a female child who developed retinopathy due to the failure of the special care unit in which she was nursed, to monitor adequately the oxygen level and suffered total functional blindness. There was evidence that the plaintiff developed obesity and serious mental health problems, which eventually led to type I diabetes. The case was eventually settled out of court for £2,250,000.00, of which the estimated general damages for pain and suffering and loss of amenities of life was £160,000.00. Mr. Maharaj has converted the said £160,000.00 to Fiji $462,131.00, and submitted that the English award was much more than double the amount awarded by the Court of Appeal in the instant case, and supports the position that in fact the Court of Appeal did not take into account any comparative awards from developed countries, but simply decided the quantum taking into consideration the seriousness of the injury suffered by Jashnil and the actual loss caused to him.
[36] It is clear from a plain reading of the judgment of the High Court that the court arrived at its awards for pain and suffering and loss of amenities of life on the basis of the special facts of the case, and only referred to awards of other more developed jurisdictions only incidentally. The Court of Appeal appears to have adopted a similar approach, but for the variation of the award of the High Court for pain and suffering and loss of amenities by 30,000.00, a matter that will be considered in detail later on in this judgment. However, it is clear from the following paragraphs of the judgment of the Court of Appeal that it was moved very much by the sad plight of the victim of the negligence of the Petitioners:-
“25. As the Trial Judge said at p.40 of the Court Record - "The infant lives in a world of darkness. He has a painful existence both mentally and physically having completely lost one of the body’s most important senses when he can only hear sound and perhaps imagine".
26. Jashnil will never in the future be able to see the sun rising or setting over a calm sea and watch the various light changes as it does so; he will never see the colours of a rainbow because no matter how they are described to him he will never understand what those colours are. He will never see rain coming over the sea with the visibility changing as it does so because no amount of description will be able to convey to him as it does to some people this magic of nature. If he ever marries and has children he will never see his children’s faces.
27. And yet the Appellants say he has received too much.
28. He will never be able to appreciate the beauty of wet roofs beneath the lamp-light or, as the Poet Rupert Brooke wrote in his poem, TheGreat Love, "firm sands; the little dulling edge of foam that browns and dwindles as the wave goes home." He will never see the magic of a variety of flowers in a garden or have the joy of watching children at play or of kittens playing with a ball of wool, throwing caution to the wind as they do so. These are the little things of life the sight of which will, in the present state of medical knowledge, be forever denied to him. And yet the Appellants say he has received too much.”
[37] There are three guiding principles in measuring the quantum of compensation for pain and suffering and loss of amenities. First and foremost, the amount of compensation awarded must be fair and should compensate the victim of the injury in the fullest possible manner, bearing in mind that damages for any cause of action are awarded once and for all, and cannot be varied due to subsequent eventualities, some of which could not even be anticipated at the stage a court makes an award. Hence, an award of damages should not only be fair, but also assessed with moderation, even though scientific accuracy is impossible. The second principle is that the sum awarded must to a considerable extent be conventional and consistent. Thirdly, regard must be had to awards made in comparable cases, in the jurisdiction in which the award is made. However, it is also open for a court to take into consideration a comparable award made in a foreign jurisdiction, particularly in cases where the type of injury is not very common, provided that the court takes into consideration differences in socio-economic and other relevant conditions that might exist between the two jurisdictions.
[38] We note that the High Court, which had the advantage of seeing the victim and hearing the testimony of the witnesses, which advantage an appellate court does not possess, had awarded a sum of $190,000.00 as general damages for the pain and suffering and loss of amenities suffered by the victim. In increasing this award on appeal to $220,000.00, the only reason adduced by the Court of Appeal was that the “prophecy of doom” arising from the inhibition of a Fijian court from making awards of damages comparable to those in more developed countries can no longer be supported in Fiji. Adverting to the relief sought in the cross appeal filed in the Court of Appeal by the Petitioners that the award for pain and suffering and loss of amenities be restricted to $90,000.00, the court in paragraph 34 of its judgment stated as follows:-
“34. ........To reduce an award of $190,000 to a mere $90,000 cannot be justified; rather, we consider that there is very good reason for increasing the amount of general damages for pain and suffering to the amount claimed in the Cross-appeal, namely $220,000 and we so order. In our Judgment this is not an exorbitant amount to compensate Jashnil as much as money can, for the terrible injury he suffered at the hands of the Appellants. (Emphasis added)
The “very good reason” the Court of Appeal had in mind for increasing the award under this head to $220,000.00, must necessarily be that it considered the general level of awards made in Fiji for pain and suffering and loss of amenity was low and inadequate, and should be made compatible to those made in other more developed jurisdiction.
[39] In this context, Mr. Sharma has, on behalf of the Petitioners, invited our attention to the decision of the Privy Council in Chan Wai Tong &Anor v Li Ping Sum [1985] 1 Lloyd’s Rep 87, in which Lord Fraser of Tullybelton, observed that “a court should in general have regard only to awards in the same jurisdiction or in a neighbouring locality where the relevant conditions are similar.” We note that the reasoning of the Privy Council has been uniformly applied in Fiji by the Court of Appeal in several decisions such as MarikaLawansiaavi&Anor v PesaminoKapieni (Civil Appeal No. ABU0049 of 1998, 13th August 1999) and JovesaRokobutabutaki&Anor v LusianaRokodovu (Civil Appeal No. ABU 0098 of 1998, 11th February 2000), and remains sound.
[40] We are of the opinion that Court of Appeal has failed to have regard to the fundamental principle of law that comparative awards from foreign jurisdictions should be considered in the light of differences that may exist in the socio-economic conditions and even parity rates, making sufficient allowance for inflation. Although Mr. Maharaj has contended that this case had been decided by the Court of Appeal on its special facts, we are inclined to the view that the Court of Appeal was influenced by the higher quantum of damages awarded in general by other more developed jurisdictions, as no other reason can be discerned from the judgment of that court for increasing the award made by the High Court.
[41] It is noteworthy that in JovesaRokobutabutaki, the court observed that the “level of damages for personal injuries in Fiji has traditionally been markedly below that of its more prosperous common-law associates, reflecting the differences in their socio-economic conditions...”, and in our view to disregard the reasoning of the Privy Council in Chan Wai Tong &Anoras “dogma” would raise major policy issues.
[42] Indeed, the question that arises in this context is whether making policy changes involving the quantum of damages that can be awarded in personal injury cases, which will no doubt have serious implications on society in general and institutions such as hospitals in particular, fall within the legitimate province of a court of law. Ideally, such changes should emanate from the legislative or executive branches of government, and the courts should be slow to spearhead change. However, in the absence of legislative or executive guidelines, the responsibility may remain in the courts to review in appropriate cases, the quantum of damages that have been awarded in the past, but in doing so, it would be necessary to take into consideration all relevant factors that may have a bearing on the matter.
[43] In this regard, it will be useful to refer to the valuable observations made by Lord Wolf MR, in Heil v Rankin [2000] EWCA 53; [2000] 2 WLR 1173, in which the Court of Appeal of England considered certain recommendations of the Law Commission, in the context of eight appeals involving the quantum of damages (tariffs) for pain and suffering and loss of amenity. The approach of the Court of Appeal of England in this case is reflected in paragraph 28 of the judgment of Lord Wolf wherein he recognisedthe dangers which can arise from too rigid an application of tariffs, but observed that-
“.....it has been the continuous responsibility of the courts not only to set tariffs for damages for non-pecuniary loss in the case of personal injuries, but also, having done so, to keep the tariffs up to date. The courts sought to achieve this by deciding guideline cases and subsequently making allowance for inflation, that is, the depreciation in the value of money, since the guideline was laid down.”
[44] Lord Wolf acknowledged in paragraph 29 that changes in society can result in a level of damages which was previously acceptable no longer providing fair, reasonable and just compensation, taking into account the interests of the claimants, the defendants and society as a whole. He considered it clearly desirable for the courts at appropriate intervals to review the level of damages so as to consider whether what had been previously acceptable remains appropriate.
[45] However, in performing this task of review, the court should be guided by objective criteria such as economic statistics and indicators, inflation rates, and the like in evaluating comparative awards from within the same jurisdiction, and when considering comparative foreign awards, not only changes in parity rates and rates of inflation, but differences in the socio-economic conditions would be extremely relevant. Unfortunately, the Court of Appeal did not evaluate comparative awards, whether local or otherwise. In our view, its approach that standards applied in more developed jurisdictions should be adopted in Fiji does not accurately reflect the relevant factors that a court should consider when assessing non-pecuniary compensation.
[46] Unlike the High Court, the Court of Appeal did not have the advantage of hearing witness testimony or even seeing the victim of the Petitioner’s negligence. In increasing the award made by the High Court, the Court of Appeal has simply overlooked the cardinal principle that “the exercise of discretion by the trial judge in the estimation of damages ought not to be interfered with by an appellate court unless the trial judge has erred in point of law or in his approach to the assessment or unless the assessment itself, by its disproportion to the injuries received, demonstrates error on the part of the trial judge.”(perBarwick CJ in Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 at paragraph 4).
[47] For the forgoing reasons, we are of the view that question (b) on which special leave was granted by this Court, should be answered in favour of the Petitioners, and we accordingly hold that the Court of Appeal erred in law and in fact in holding that awards for general damages for pain and suffering and loss of amenities must be same as that in other developed countries, without any investigation of factors influencing awards in other countries. We do not disturb the award of $190,000,00 made by the High Court under this head as we are satisfied that the said award was made taking into consideration the nature of the injury inflicted on Jashnil and the pain and suffering and loss of amenity occasioned thereby.
[48] Accordingly, we make order allowing the appeal. However, as the appeal to this Court was confined to the enhanced award made by the Court of Appeal with respect to general damages for pain and suffering and loss of amenities, we would only vary the award made by the Court of Appeal by substituting the sum of $190,000.00 in place of the $220,000.00 in paragraphs 44 and 45 of the judgment of that Court and also substituting the sum of $468,500.00 for the sum of $498,500.00 in paragraph 45 thereof, and we make order accordingly. We do not make any order for costs in all the circumstances of this case.
Hon. Mr. Justice SaleemMarsoof
Judge of the Supreme Court
Hon. Mr. Justice SathyaaHettige
Judge of the Supreme Court
Hon. Mr. Justice William Calanchini
Judge of the Supreme Court
Solicitors:
Attorney General’s Chambers for Petitioners
Messrs Suresh Maharaj & Associates for Respondents
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