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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI
CIVIL APPEAL NO. ABU 0024 OF 2009
(High Court Action No. 21 of 2008
at Labasa)
BETWEEN:
THE HEADTEACHER
(Qalitu District School, Bagata, Cakaudrove)
First Appellant
AND:
PERMANENT SECRETARY
(Ministry of Education)
Second Appellant
AND:
ATTORNEY-GENERAL AND MINISTER OF JUSTICE
Third Appellant
AND:
ILAITIA TUIVERE
(by his father and next friend Iliesa Tabuyagona)
Respondent
Coram: Byrne, AP
Calanchini, JA
Wati JA
Date of Hearing: 13 September 2010
Counsel: Mr S D Turaga for the Appellants
Mr A Ram for Respondent
Date of Judgment: 19 January 2011
JUDGMENT
Calanchini JA
[1] This is an appeal against a decision of the High Court (Inoke J) at Labasa handed down on 24 June 2009. The Court awarded judgment to the Respondent in respect of his claim for damages for negligence and ordered the Appellants to pay to the Respondent special damages in the sum of $1500.00, general damages and interest in the sum of $48,160.00 ($43,000 plus $5160) and costs in the sum of $3500.00.
[2] The Acting President of the Court of Appeal, the Honourable Mr Justice Byrne has retired. On 12 November 2010 the parties indicated to the Court that they consented to the two remaining members of the Court continuing the appeal.
[3] The background facts were succinctly stated in the Judgment of the learned trial judge. I would adopt his Lordship's statement of the facts which I now set out so far as they are relevant to this Appeal.
[4] The Respondent was injured on 16 February 2007 whilst at the Qalitu District School, in the province of Cakaudrove. He fell into a hole dug into the ground which was used as an incinerator. He burnt the bottom of both feet. He was seven years old at the time he fell into the incinerator.
[5] The Respondent by his father and next friend commenced proceedings against the Head teacher, the Ministry and the Government. He claimed damages for loss and damage suffered as a result of his injuries which in turn he alleged were caused by the negligence of the Appellants.
[6] In paragraph 9 of the Statement of Claim the Respondent set out the "Particulars of Negligence"
"Particulars of Negligence
(a) That the 1st Defendant failed to take any or adequate precaution for the safety of the Plaintiff while he was engaged in the said duty.
(b) That the 1st Defendant failed to take any or reasonable care to prevent injury or damage to the Plaintiff from unusual dangers of which they ought to know or have known.
(c) That the 1st Defendant failed to provide any safe or proper system of work for the children.
(d) That the 1st Defendant left the children unsupervised and failed in its duty of care to the Plaintiff."
[7] The Respondent claimed special damages of $500.00 being $100.00 for medical expenses and $400.00 for travelling expenses. He claimed general damages for pain and suffering, loss of enjoyment of life, scarring and discomfort, physical disfigurement, impairment, mental anxiety and emotional stress. He also claimed interest and costs.
[8] In the Defence the Appellants admitted that the First Appellant was the Head Teacher of Qalitu District School. They claimed that the school was located at Vunivesi and not at Bagata. The Appellants admitted that the Second Appellant was entrusted with all the duties and functions required to oversee, care, maintain and improve the education of children in Fiji. They also admitted that the Third Appellant could be sued on behalf of the Government of Fiji.
[9] As the learned judge noted the Appellants denied negligence and claimed that the Respondent was at the school in the care and supervision of his father. They claimed that the incident took place at a time when school had ended. They alleged that the Respondent was forbidden by the school rules from going to the incinerator or taking rubbish there.
[10] In his judgment the learned judge referred to the statement of agreed facts that formed part of the Minutes of the Pre-Trial Conference. It was agreed that the Respondent was a young child of school age and was a student of Qalitu District School at the relevant time. It was agreed that on or about 16 February 2007 the Respondent fell into a school incinerator which was located within the school compound. It was also agreed that the Respondent suffered burns to his lower limbs and was hospitalized from 16 February to 7 March 2007 and has suffered loss and damage.
[11] Having carefully considered the evidence of the ten witnesses called by the parties, the learned trial judge set out his findings of fact. He found that at the time of the incident there were three teachers present at the school but only one of them was on duty. The three teachers were busy with other duties and were not supervising the Respondent. There was a practice that school children did tasks for the school including the picking up of rubbish and taking it to the school incinerator. On the day in question one of the teachers told the Respondent to "pick up rubbish" and take it to the incinerator as part of this practice. The Respondent went to the incinerator in obedience to this direction. The school incinerator was a pit in the school ground but was not protected by any railings or guards. The Respondent and another boy were playing by jumping across the incinerator. They collided and the Respondent fell into the incinerator pit fire and burnt his feet. There were no teachers present at or near the incinerator at the relevant time. The Respondent did not know that his father was at the school at the relevant time. The Respondent's father was at the school working on teacher's quarters and was unaware that the Respondent was still at the school when the incident happened. The Respondent had not been told to go home. The school had rules and a practice forbidding students of the Respondent's age from going to the incinerator. These rules were not followed on this occasion.
[12] The learned trial judge considered at length the decision of the High Court of Australia in Commonwealth v. Introvigne [1982] HCA 40; (1982) 150 CLR 258. Applying that decision to the facts before him, the learned judge concluded that the Appellants owed a duty of care to the Respondent which was re-enforced by the admissions made by the Appellants in paragraph 2 and 3 of the Defence. He concluded that it was reasonably foreseeable that school students such as the Respondent would play at or around the incinerator if left unsupervised. He was satisfied that it was also reasonably foreseeable that if the incinerator was unfenced or unguarded that a student would fall in and get injured. The presence of the Respondent's father at the school and whether he knew of the Respondent's presence at the school did not discharge the Appellants from their duty towards the Respondent. The failure to supervise the Respondent or to provide fencing or other forms of protection around the incinerator amounted to breaches of the duty that was owed by the Appellants. The Respondent had gone to the incinerator because a teacher had sent him there and as a result, if there were school rules about the Respondent's not going there, the teacher had not followed the school's own rules. Contributory negligence had not been raised in the Defence and even if had, could not succeed in the light of the statements made by Mason J in the Introvigne decision (supra) at paragraph 38. The learned judge concluded that the Appellants were negligent and liable for the Respondent's injuries.
[13] The learned judge then considered the question of damages. He dealt first with the special damages claimed by the Respondent. He noted that there was no documentary evidence to support the amounts claimed. He noted that the amounts claimed in the writ were a total of $500.00. He awarded that sum together with a further $1000.00 in respect of the Respondents need in the past and in the future for special shoes. The learned judge noted that at present four pairs are needed each year and that the injury is permanent. The learned judge accepted Counsel's submission that the annual figure for shoes was $60.00 and that the amount needed would be about $2000.00. He considered an amount of $1000.00 received now and invested for the future would be sufficient and as a result he awarded a total of $1500.00 for special damages. He declined to award interest on that amount.
[14] By way of general damages the learned trial judge noted the Respondent's medical evidence that the Respondent's burn scars could remain for life. Incapacity had been assessed at 15% but the evidence was equivocal as to whether the incapacity was permanent.
[15] The judge also noted that the medical evidence for the Appellants was that the Respondent's incapacity was 5% and permanent and that the scars were permanent. The evidence was to the effect that the Respondent's feet had sustained deep burns.
[16] The Respondent was awarded a global figure of $43,000 as general damages in respect of pain and suffering, loss of enjoyment of life and disfigurement. The learned judge awarded interest on general damages at the rate of 6% for two years on the basis that the cause of action arose on 16 February 2007 and more than two years had elapsed from then till the date of judgment. This was calculated at $5160.00. The appellants were ordered to pay the Respondent's costs fixed at $3500.00.
[17] The Appellants seek an order that the judgment be wholly set aside on the following grounds:
"1. That the learned trial judge erred in law and in fact in holding that Qalitu District School was a public school run by the Ministry of Education.
2. That the learned trial judge erred in law and in fact by failing to distinguish the High Court of Australia decision in Commonwealth –v- Introvigne [1982] HCA 40; (1982) 150 CLR 258 against the local circumstances as dictated by section 12 of the Education Act Cap 262 and relevant provisions for the following reasons:
(a) Failure to make proper assessment on the varying degrees of control vested to the administration of Committee-run school like Qalitu District School as opposed to public schools funded and controlled by government;
(b) Failure to properly distinguish the different degrees of control vested to government fully-funded Public Schools and Committee-run schools;
(c) Misdirection in its conclusion that the 2nd Appellant had a statutory duty in the administration of all schools in the country without fully canvassing the special nature of Qalitu District School;
(d) Failure to distinguish and separate the different roles of the respective Appellants;
(e) Failure to make a finding to the degree of liability between 1st and 2nd Appellants;
(f) Failure to make any specific awards against the 1st Appellant contrary to the Respondent's pleadings;
(g) Its finding to award for damages to all the Appellants is unfair, unreasonable, unjustified and not supported by law.
3. That the learned trial judge erred in law and in fact in not making a decisive finding of fact as to whose responsibility is to provide fencing to the incinerator and such failure undermines the basis of damages awarded against the 2nd and 3rd Appellants.
4. That the learned trial judge erred in law and in fact in not making a finding of contributory negligence in accordance with his finding at paragraph 11 (ii) of the judgment.
5. That the learned trial judge erred in law and in fact in failing to make a decisive finding whether the school had ended at 2.15pm and that the school children had been sent home as noted in triable issue No. 2 in the Pre-Trial Minutes.
6. That the learned trial judge erred in law and in fact in concluding that the student was not properly supervised without a decisive finding of fact as to when do the legal responsibilities of teachers at Qalitu District School end and vice versa the safety issue reverts to parents or guardians.
7. That the learned trial judge erred in law and in fact in holding that the 2nd Appellant was negligent and liable for the injuries suffered by the Respondent.
8. That the learned trial judge erred in law and in fact in awarding the quantum of damages and is unfair, excessive and unreasonable in relation to the circumstances of the case:
(a) $1500.00 for special damages when only $500.00 was pleaded.
(b) A lump sum of $43,000.00 for general damages contrary to the distinctions of different heads of damages as per the pleadings.
(c) $5160.00 for interest on general damages for 2 years as opposed to the 1 year from the date the writ was filed."
[18] The first two grounds of appeal raise a preliminary issue concerning pleadings. The Respondent's Statement of Claim pleaded that the First Appellant was the head teacher of the Qalitu District School and that his duties and responsibilities included the day to day management of the school. In the Defence the Appellants did not take issue with that assertion and indicated that the school was located at Vunivesi and not at Bagata.
[19] The Respondent's Statement of Claim also pleaded that the Second Appellant was a Government body entrusted to oversee, care, maintain and improve the education of children in Fiji. The Appellants admitted this assertion.
[20] The Respondent then pleaded that the Third Appellant was a Government Authority empowered to provide legal advice, litigate and be sued on behalf of the Government. The Appellants also admitted this assertion.
[21] The Defence did not raise any issue whatsoever in relation to either the type of school involved or the identity of the responsible management authority.
[22] The Appellants submit that the learned trial judge wrongly proceeded on the basis that the Qalitu District School was a public school run by the Ministry of Education. However that was certainly the way the claim was pleaded. The head teacher and the Permanent Secretary of the Ministry of Education were joined as the responsible authorities.
[23] The Appellants submit that the learned judge should have concluded that the Qalitu District School was registered with the Ministry of Education under section 16 (9) (a) as a community based school under a school committee as the controlling authority and/or owner of the school.
[24] It is my view that this ground cannot succeed on appeal for the following reasons. First, the fact that the Qalitu District School was a community based school under the control of a school committee was not pleaded. In my opinion this fact was a matter that was required to be pleaded pursuant to Order 18 Rule 7 which, so far as is relevant, states:
"7(1) A party must in any pleading subsequent to a statement of claim plead specifically any matter ...:
(a) Which he alleges makes any claim ... of the opposite party not maintainable; or
(b) Which, if not specifically pleaded, might take the opposite party by surprise; or
(c) Which raises issues of fact not arising out of the preceding pleading
(2) .....
(3) ...."
[25] I note that not only did the Appellants fail to;lead a material fact that challenged the basis of the Respondent's claim, the Appellants had admitted the contents of paragraphs 2 – 4 in the Statement of Claim, except for one minor detail that was of no significance.
[26] There were no Minutes of the Pre-Trial Conference in the Court Record and as a result I am not able to determine what facts may have been agreed between the parties. I note that the learned judge's notes taken at the trial start on page 87 of the Record. On the first page the following notes were made by the trial judge:
"Preliminary matters – what basis is the 2nd and 3rd Defendants are being sued on. The Statement of Claim does not specifically expressly pleaded.
Both counsel agree that if the first defendant is negligent or otherwise liable to the Plaintiff then the 2nd Defendant will be liable vicariously or otherwise and similarly the third defendant."
[27] The trial proceeded on that basis and evidence was adduced in accordance with the agreement that counsel had reached as stated in the Judge's notes. At no stage did the Appellants seek to put into evidence any certificate specifying the controlling authority pursuant to section 16 (9) of the Education Act. In order to have done so, the Appellants would have required the leave of the Court to amend the Defence. There is no material before me to suggest that the Appellants had sought to amend the Defence so as to lead such evidence.
[28] The type of school and hence the identity of the controlling authority having management responsibilities was a material fact. The Appellants did not plead in the Defence that fact nor lead any evidence to establish that fact at the trial. They cannot raise the issue on appeal under those circumstances.
[29] In the court below the Appellants conducted their case on the basis that the school had already closed and that as a result there was no supervising duty of care owed to the Respondent at the time he was injured. They relied on the fact that the Respondent's father was present at the school at the relevant time and that as a result the responsibility for the Respondent's safety had reverted to the father. Having chosen one method of conducting their defence, it is my opinion that the Appellants are precluded from raising a different defence on appeal. The material facts upon which the Appellants now seek to defend the Respondent's claim were or ought to have been well known to the Appellants and their legal advisers. They have not put forward any explanation to this Court as to why those facts were not pleaded nor as to why evidence was not adduced in support of these facts at the trial. Whether it was due to inadvertence or due to a decision to take their chances that the question on liability would be decided in their favour, in any event, in my opinion, they are bound by the course the trial took. They are bound by the agreement to which the trial judge made reference in his notes that appeared on page 87 of the Record. A similar approach was adopted by a majority of the House of Lords in Wilson and Another –v- United Counties Bank Limited and Another [1920] AC 102.
[30] Although issues raised by the Appellants in ground three are to some extent linked to grounds one and two, there are also some matters upon which I consider it necessary to comment. In particular, the reference that "such a failure undermines the basis of damages awarded against the 2nd and 3rd Appellants."
[31] First, as has already been noted, no objection was taken in the Defence to the manner in which the Second and Third Appellants had been joined in the action.
[32] Secondly, the Appellants, through their Counsel, at the commencement of the trial, agreed that if the First Appellant was found to be negligent or otherwise liable to the Respondent then the Second Appellant will be liable vicariously or otherwise and similarly the Third Appellant. (See page 87 of the Record).
[33] Thirdly, all the Appellants are jointly and severally liable and there was no obligation on the part of the learned judge in the absence of a notice under Order 16 Rule 8 of the High Court Rules, to proceed any further than assess the quantum of damages payable by the Appellants.
[34] Finally, in this case it was obvious from the pleading that the Third Appellant was joined pursuant to section 12 of the State Proceedings Act Cap 24 as a nominal defendant. Both the Permanent Secretary for Education and the Attorney-General were joined as representatives of the State and upon the agreement of Counsel at the commencement of the trial were being sued on a vicarious basis. We refer to the observations of the Court of Appeal in Attorney-General –v- Josefa Matau and Others [2000] 1 FLR 271 at page 272:
"The character of the proceeding as one involving a claim based on vicarious liability was obvious from the pleadings, and it was accepted by all parties that this was the only issue for determination of the trial. If there had been any deficiency (in the pleadings), they can be taken as having been amended to accord with the unanimous agreement of the parties to proceed with the trial on that single point."
[35] There was a unanimous agreement between the parties that the trial in this case would proceed on the basis that if the First Appellant was negligent then the Second and Third Appellants would be vicariously liable. In my opinion ground three must also fail.
[36] Ground four raises the issue of contributory negligence. At the outset I note that the Appellants did not plead contributory negligence in their Defence. In my opinion none of the facts that have been pleaded in the Defence could be construed as raising an allegation of contributory negligence. The legal position under such circumstances is clearly stated in the headnote of the decision in Fookes v. Slaytor [1979] 1 All ER 137:
"The defence of contributory negligence was only available if it was pleaded. It followed that in the absence of a pleading by the defendant of contributory negligence the judge had no jurisdiction to make a finding of such negligence on the part of the plaintiff."
[37] There is no need to consider this ground any further and I simply conclude by saying that there was no error on the part of the learned judge. As a result this ground of appeal must also fail.
[38] In relation to ground 5 (mistakenly referred to as ground 4 in the Notice of Appeal) I make the comment that in view of His Lordship's finding that one of the three teachers present at the school had requested the Respondent to pick up rubbish and take it to the incinerator, it was not necessary to make a finding that school had ended at 2.15pm. Furthermore, it would appear from this finding of fact that His Lordship had rejected the claim that the Respondent had been sent home. I also add that there was no copy of the Minutes of the Pre-Trial Conference in the Court Record. This ground also fails.
[39] In relation to ground 6 (ground 5 in the Notice of Appeal) I make this observation. His Lordship found as a fact that although the Respondent's father was present at the school grounds working on a construction job, he was unaware of the Respondent's presence at the school at that time. He was present on the school property in his capacity as a construction worker, not as a parent. He was unaware that the Respondent was still in the school compound and he was certainly unaware that the Respondent had been requested to pick up rubbish and take it to the incinerator. Furthermore, His Lordship also found as a fact that the Respondent was unaware of his father's presence at the school. Under those circumstances it was not necessary for the learned judge to consider the question of reversion of responsibility to the parents or guardians. This ground fails.
[40] At this stage it is appropriate to comment briefly on the role of an appellate court in relation to findings of fact made by a trial judge. In Soma Raju –v- Bhajan Lal [1976] 22 FLR 163 this Court considered and applied the comments of Lord Summer in S.S. Hontestroom –v- S.S. Durham Castle [1927] AC 37 at page 47:
"None the less, not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be left alone."
[41] This approach was affirmed in Shaheed Imroz Ali –v- Muktar Ali and Sharida Banu (unreported Civil Appeal No. 29 of 2006 delivered on 3 December 2009).
[42] I am unable to find any reason for disturbing the findings of fact that the trial judge listed on page four of the judgment.
[43] In relation to ground 7 (shown as ground 6 in the Notice) I consider that the conclusion reached in paragraph 26 of the learned judge's judgment that the Appellants "were negligent and liable for the Plaintiff's injuries" should be read as meaning that the Second Appellant was vicariously liable for the injuries suffered by the Respondent. Such a conclusion is consistent with the agreement referred to in His Lordship's notes on page 87 of the Record and is also consistent with the pleadings. This ground fails.
[44] The final ground of appeal is concerned with the award of damages. The Appellants challenge the award of special damages, the quantum of general damages and the award of interest on general damages.
[45] Dealing first with the question of special damages. The Appellants appeal the award of $1500.00 when only $500.00 was pleaded. The award consisted of an amount of $500.00 for medical and travel expenses already incurred. The amount of $1000.00 was awarded for the future expense of having to buy four pairs of special shoes each year.
[46] Indeed, in his Statement of Claim the Respondent sought to recover out of pocket expenses in the amount of $500.00 in respect of travel and medical expenses. There is no material before this court that indicates the Respondent sought leave to amend his Statement of Claim so as to include a claim for future out of pocket expenses for new shoes.
[47] In general terms a claim for relief by way of damages is a reference to general damages. The claim for damages does not enable a Plaintiff to recover damages that are classified as special unless they have been specifically pleaded in the statement of claim. If a claim for special damage is not pleaded then it cannot be proved in evidence and assessed as part of the judgment.
[48] However the real issue here is not so much one of pleading but rather one of classification. It is usual, in a claim for personal injuries, that a reference to special damage or special damages in the Statement of Claim is taken to be reference to past expenses and past loss of earnings. A reference to general damages is taken to include a claim for future expenses, future loss of earnings, past and future pain and suffering and loss of amenity (enjoyment of life). Special damages, if pleaded, will be taken to relate to past pecuniary loss to be calculated as at the date of trial. General damages are all other items of damage whether pecuniary or non-pecuniary.
[49] The Respondents claim for future expenses associated with the need to purchase shoes in the years following the trial represent a claim for future pecuniary loss and as such is classified as a claim for general damages. Under those circumstances it need not be expressly pleaded. The learned trial judge did not err in awarding an amount for this head but rather in classifying the item as special damages.
[50] This ground of appeal did not seek to challenge the award of $500.00 for the special damages pleaded by the Respondent. I would allow this aspect of the appeal only in the limited sense that the judge classified the amount as special damage. I see no reason why the amount of $1000.00 should not be awarded as general damages.
[51] The next aspect of this ground concerns the award of general damages in the sum of $43,000.00. I note the reference at paragraph 13.8 of the Appellants' submission to the Court of Appeal decision in Anitia Singh –v- Rentokil Laboratories Limited [1993] 39 FLR 220 and make two comments at this stage. First, Counsel should always refer to the authorised report citation if the decision has been reported. That decision has been reported. Otherwise the unreported citation should be complete. This includes the appeal number and the year together with the subsequent date of delivery of the judgment.
[52] Secondly, that decision must now be considered in the context of the recent decision of this Court in The Permanent Secretary for Health and Another –v- Arvind Kumar and Kamni Devi (unreported Civil Appeal No. 84 of 2006 delivered on 20 June 2008).
[53] In particular I refer to the comments of the Court that commence on page 5:
"This appeal raises some important questions about the current level of awards of damages for pain and suffering in Fiji because it is said by the Appellants that in arriving at an amount of damages for pain and suffering the Courts must take into account the socio-economic conditions of Fiji. By this the Appellants mean that because Fiji is classed as an "undeveloped country" awards of damages for pain and suffering must be lower than those in more developed countries.
The Court has been referred to numerous cases in Fiji and overseas which are said to support this contention. In our judgment it is time to review what has almost become dogma in the award of damages under this heading in Fiji.
....
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.
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.
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.
....
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.
....
We also agree that the Court should refer to other awards "as not more than broad guidelines to ensure that (the judge) is on the right track."
[54] In awarding the amount of $43,000.00 as general damages, the learned judge has not itemised the damages awarded. This is not unusual and quite often a global figure is fixed as a once and for all payment of compensation. In arriving at that amount His Lordship appears to have accepted the submission made by Counsel for the Respondent.
[55] We accept the finding that the pain and suffering experienced by the Respondent may not have been as severe as those cases where a limb has been amputated. However the Respondent did suffer severe burns to the lower limbs which represented 36% area burns. I have no doubt that the pain experienced, at least in the short term, as a result, was severe. He was hospitalized for 19 days.
[56] I also note that the Respondent has been left with a permanent incapacity that will have at least some impact on what would have otherwise been in all probability an unimpeded enjoyment of life in the future.
[57] I also accept that there has been scarring which the Appellants' medical evidence confirmed would be permanent.
[58] Although the global figure fixed by the learned judge may have been at the higher end of the range, I do not consider it to be unreasonable nor to be inconsistent, given the current value of Fiji dollars, with earlier awards for similar injuries to Plaintiffs of similar ages.
[59] The final aspect of ground 8 is concerned with the award of interest. The learned judge awarded interest on general damages at 6% for two years being the period from the date of the incident up to the date of trial, approximately.
[60] As the learned judge noted, interest is awarded pursuant to section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27. The rate of interest is a matter of discretion for the court and to be awarded interest must be pleaded as part of the relief sought.
[61] The Respondent claimed interest in his Statement of Claim and the learned judge fixed the rate at 6% as "the usual rate on damages".
[62] In Attorney-General of Fiji –v- Charles Valentine (unreported Civil Appeal No. 19 of 1998 delivered on 28 August 1998) this Court at page 2 noted:
"Section 3 gives an unfettered discretion to the Court and although guidelines may assist it is not for this Court to circumscribe that discretion by specific rules. However, it must be exercised rationally and in Jefford v Gee [1970] EWCA Civ 8; [1970] 2 QB 130 the Court of Appeal analysed the logic behind the assessment of interest in personal injury claims in a way which may assist the High Court in the proper exercise of its discretion."
[63] The Court then set out the conclusions of the Court of Appeal and at page 3 noted:
"Pain and suffering and loss of amenities. Interest should be awarded at the appropriate rate from the date of service of the writ to the date of trial."
[64] On the material that is before the Court I can discern no basis for departing from the guideline above that has been approved and applied by this Court.
[65] In Valentine's case (supra) this Court noted at page 4 that:
"Counsel referred us to a range of interest rates which have been awarded in the High Court, going up to 10% (which we would find hard to justify); our impression is that most have been between 5% and 7%."
[66] In that case the Court considered 6% to be an appropriate rate of interest and I see no reason why that rate should not be applied in the present case.
[67] Therefore I have concluded that interest on general damages of $44,000.00 (being the sum awarded of $43,000 together with $1000 for future expenses) should be awarded at 6% from the date of service being 10 June 2008 to the date of trial which I am prepared to accept concluded with the delivery of the judgment. This is a period of about 12 months and as a result the award of interest is to be amended accordingly.
[68] In substantive terms the appeal has failed and I would award costs to the Respondent.
Wati JA : I agree.
The orders of the Court are
Hon Justice W Calanchini
Justice of Appeal
Hon Justice A Wati
Justice of Appeal
Solicitors:
Office of the Solicitor-General, Suva for the Appellants
Gibson & Company for the Respondent
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