Tuberi v Gopal [2001] FijiLawRp 9; [2001] 1 FLR 47 (2 February 2001)

ANISA TUBERI v SIMON GOPAL & ANOR

High Court Civil Jurisdiction

3 November, 2000, 2 February, 2001

HBC 273/00L

Assessment of damages – negligence – no defence or counterclaim – interlocutory judgment by default on liability – fair and just award for minor miscellaneous injury – decided cases reconsidered in light of inflation and Court of Appeal recommendation for more generous awards

The Plaintiff was a fare-paying passenger in a car owned by D1 and driven by D2. The car was involved in an accident during which the Plaintiff suffered left conjunctival irritation, multiple left ear lacerations which required stitching, elbow bruises which continue to show scarring, residual chestpains and shoulder pains. The Plaintiff suffered pain for a week and suffers continuous headaches and continuing pain to the back of the head. She continues to require physiotherapy to lessen the shoulder backaches. The Plaintiff issued a writ alleging negligence and claiming damages for pain and suffering, loss of amenities, loss of earning capacity, costs, and interests. The Defendants failed to file a defence and the Plaintiff entered an interlocutory judgment. The Court set about assessing general and special damages. The Court discussed various awards of damages awarded for minor miscellaneous injuries. The Court found there was clearly some loss of amenities, which could pose obstacles for the Plaintiff's earning capacity.

Held – The court must do its best to assess the effect that continuing headaches may have on work performance though to some extent speculation is unavoidable. In the light of decided cases, which are now considered quite old, remarks by the Court of Appeal recommending a more generous approach, and inflation mean that any award today must be more generous. Plaintiff awarded $3,000 for pain and suffering, $1,000 for scarring, $2,000 for loss of amenities, $4,000 for loss of earning capacity totaling $6K for pain and suffering, scarring and loss of amenities + interest @6% on the total sum from the date of the accident to date of judgment + costs + special damages (with no interest) about which she gave evidence.

Judgment for Plaintiff against Defendants for $12,004.00 inclusive of costs.

Cases referred to in Judgment
Deo Raj v Mohammed Rafiq [1982] CBV 309/91 3 September 1982
Mohammed Rafiq v Deo Raj & Anor. [1984] ABU 44/83 28 March 1984
Norma Ellen Tivoli v Pillay & Ors. [1985] CBV 693/82 23 August 1985

Patimio Bacaivalu v Nadi General Transport Company & Anor. [1985] CBV 512/83

Rajendra Chaudhary for the Plaintiff
First Defendant in person
No appearance by the Second Defendant

2 February, 2001.

JUDGMENT

[Assessment of Damages]

Gates, J

The Plaintiff was a fare-paying passenger in a car owned by the 1st Defendant and driven by the 2nd Defendant, who was the son of the 1st Defendant. A writ was issued on 24 August, 2000 alleging negligence and claiming damages for injuries the Plaintiff received as a result of a single vehicle accident. No defence was filed by either Defendant, and so an interlocutory judgment by default on liability was entered on 13th September, 2000 against both Defendants. The assessment is to be made therefore of general damages, and also of special damages suffered: see Mohammed Rafiq v Deo Raj and Anor. (unreported) Fiji Court of Appeal Civil Appeal 44/83, 28 March, 1984.

The Plaintiff is a 46 year old single lady. She has been working for 15 years with FSC. She is the Personal Assistant to the General Manager, Administration.

On 27 March 1999 she was a passenger in the 1st Defendant's car. As a result of the 2nd Defendant's negligent driving, the car left the Queens Road at Navutu, and landed in a gully. The Plaintiff had difficulty climbing out. She was in pain. She was taken to Sigatoka Hospital and was admitted for 1 night. She suffered severe pain for 1 week, and pain lingered on for a further 2 weeks. The pain was felt on the neck and back. The pain still persists in the neck area. She has headaches daily to the back of the head which she tries to ignore. Her injuries she said were on her left side and on the face. Her left ear was cut, which required stitching. Marks remain on the ear lobe. Her left elbow was scratched, and some minor scarring still shows.

She gave evidence of her special damages. She had transport costs for travel to Sigatoka Hospital, and to Korolevu for back massage on one occasion, dressing trips and hospital fees, in all amounting to $80. She has not lost any salary. She said she had not been playing squash since the accident, though she felt she could still.

She is claiming damages for pain and suffering, loss of amenities, and loss of earning capacity, costs, and interest.

Dr. Samuela Korovou gave evidence concerning her examination and assessment at Sigatoka Hospital. He also gave his opinion on the residual effects of her injuries. He tendered a report of 7 February, 2000, from Dr. Okedara, a doctor who has since returned to his own country. Dr Okedara noted that the Plaintiff on admission on 27.11.99 had:

1) Bruises and soft tissue swelling over the left cheek bone and below the left lower eyelid.

2) Left conjunctival irritation,

3) Multiple left ear lacerations.

4) Left elbow bruises and small cut.

5) Musculoskeletal chestpains.

6) Left shoulder pains.

7) Headaches.

He confirmed that her left ear lacerations were stitched and that she was treated with various drugs. She was discharged after bed rest the next day.

Dr. Korovou added that the shoulder pain and headaches were residual symptoms of the accident. The impact was likely to have given rise to the headaches. Panadol could be taken for the headaches and physiotherapy would assist in lessening the shoulder backaches.

The 1st Defendant who attended the assessment hearing had no questions to put in cross-examination. He informed the court however of the circumstances of the accident, of estrangement from his son, the 2nd Defendant, and of his present poor financial situation.

As Mr. Chaudhary conceded, this was not an easy assessment as it did not fit neatly into any particular category of injury. He did however assist the court by citing some Fiji cases. These dealt with minor miscellaneous injuries.

In Norma Ellen Tivoli v Pillay and 2 others on 2 May (unrepresented) Lautoka Supreme Court Civil Action 693/83 23 August 1985, the Plaintiff was a bus passenger. She suffered a laceration to her scalp and forehead, concussion, a haematoma on her right thigh, and a fracture of the upper third of the left ulna. As a result of stitching of the laceration to the forehead she was left with a scar which embarrassed the Plaintiff. The surgical drainage of the haematoma on the right thigh left a pronounced scar. The fractured ulna was put in a plaster but eventually left "a slight resultant deformity being a small lump at the site of the fracture". There was restriction of movement also. The Plaintiff suffered no loss of salary. Dyke J considered there was some exaggeration as to the effects of the scarring and the restriction of movement. His lordship concluded:

"With regard to an award for pain and suffering I consider that $2500 would be sufficient. With regard to loss of amenities for the embarrassment the Plaintiff feels because of her scars, I would award a total of $2000. For loss of earning capacity, as I have said this is speculative and would be nominal, and I would award $1500. Together with special damages agreed at $300 that makes a total of $6300.

Judgment is therefore given for the Plaintiff for a total of $6300 and costs to be taxed if not agreed."

In Deo Raj v Mohammed Rafiq (unreported) Lautoka Supreme Court Civil Action 309/91 3 September 1982 Dyke J said:

"The Plaintiff suffered a number of minor abrasions and lacerations, the main ones being to his left forearm, his right ear and his right eyebrow. These have healed! and although they have left scars they are not particularly disfiguring, and have left no permanent impairment. I would award general damages of $750 in respect of these.

The Plaintiff also suffered damage to his right leg, the right patella suffering a compound fracture and the main tendon joining the muscle to the bone being completely ruptured. The joint was full of blood. He was rendered unconscious by the accident and recovered consciousness many hours later.

His leg injuries required surgery and the patella was completely removed. The tendon was repaired under surgery. He was discharged from hospital about 7 days later with his leg in plaster. He returned to hospital about 7 times for follow-up treatment, the final review being in April 1981, about 9 months after the accident.

The patella completely recovered. There was some disfigurement of the knee without the patella. Permanent incapacity was put at 10%. Again his lordship felt there was some exaggeration. He awarded as follows:

"I would assess pain and suffering at $1500, loss of amenities of life at $750 and loss of earning capacity at $1500.

Judgment is therefore given for the Plaintiff for $715 special damages and $4500 ($750+$1500+$750+$I500) general damages - making a total of $5215 - and costs to be taxed if not agreed."

In Patimio Bacaivalu v Nadi General Transport Company & Anor. (unreported) Lautoka Supreme Court Civil Action 512/83 delivered in 1985 by Cullinan J., his lordship made a consolidated order for 4 cases. The Plaintiffs had all been passengers in a bus and suffered minor injuries.

Patimo was a 16 year old student who suffered a 2cm cut on the bridge of the nose, also to the left forearm and right elbow, an undisplaced fractured nasal bone, and a small cut on the right middle finger.

His nose was sutured which left a small scar. He suffered breathing difficulties and headaches. He became unadventurous. He was awarded $750 for pain and suffering, and $250 for loss of amenities.

Shaheed Ali, a 30 yr old Airline Travel Officer, had lost consciousness. He suffered:

i) a small laceration in the right comer of the mouth which required 3 sutures;

ii) a small (2mm) laceration on the right upper eye-lid;

iii) braising and effusion of the left knee;

iv) two deep abrasions on the right shin; and

v) severe jarring of the cervical spine, resulting in severe muscle spasms.

Initially he could not work, and limped. He had pain in his neck still and left knee. He had obvious scars at the right corner of his mouth, right upper eye lid and right shin, though his lordship considered these "quite small" and considered they afforded no cosmetic difficulty. The Plaintiff was awarded:

Pains and suffering - $1,000

Loss of amenities - $1,500

$2,500

Two other passengers were awarded a total of $2,500 and $2,800 each respectively, the last suffering bruises, rib fractures, pain and "a terrible backache."

The category of miscellaneous minor injury is not an easy area in which to arrive at a fair and just award. The court however has to do its best.

The Plaintiff in the case before me is to have the special damages about which she gave evidence. For a period of 4 weeks the Plaintiff suffered with pain, and still suffers daily headaches. These last will probably settle down in time, meanwhile they have to be endured and must make the task of concentrating at work more difficult. The scarring on the elbow is significant, though minor. There is clearly some loss of amenities. If the headaches persist they may affect the Plaintiff's earning capacity. If they continue on a daily basis, though minor, they could place some obstacle on the proper performance of the Plaintiff in her job. The court must do its best to assess this risk though to some extent speculation is unavoidable. I bear in mind that the cases cited were delivered in 1982 and 1985 and are therefore to be considered now quite old. Inflation over the years mean that any award today must be more generous. Additionally the Court of Appeal in the early 1990s often commented on the low level of awards in Fiji, recommending a more generous approach.

I ignore interest on the special damages. Instead I award 6% interest on $6,000 (the total sum for pain and suffering, scarring, and loss of amenities) from the date of the accident 27.11.99 to date of judgment 2.2.01.

In the result I make the following award:

		$
1.	Special Damages	80
2.	Pain and Suffering	3,000
3.	Scarring	1,000
4.	Loss of Amenities	2,000
5.	Loss of Earning Capacity	4,000
6.	Interest at 6% [on items 2, 3, and 4]	424
7.	Costs	1,500
		$12,004

There will be judgment for the Plaintiff against the Defendants in the sum of $12,004 inclusive of costs.

Judgment for Plaintiff.

Marie Chan and Ashika Bali