Singh v Sundar [1993] FJHC 74; Hbc0388d.91s (1 September 1993)

The Plaintiff's claim is for damages against Island Customs Agencies Limited, the Second Defendant (hereinafter referred to as the 'Defendant') arising out of a motor vehicle accident on 30th July, 1990.

On 8th February, 1993 no Acknowledgment of Service or Appearance having been filed and served by the said Defendant judgment was entered against it on 8th February, 1993 with damages to be assessed and costs.

The hearing of assessment of damages took place before me (as the then Chief Registrar) on 10th June, 1993 when the Plaintiff testified in support of his claim. The decision was to be given on notice.

The Plaintiff was a lorry boy employed by the Second Defendant. On 30th July, 1990 he was being carried by the First Defendant (a servant of the 2nd Defendant) in a goods vehicle Registered No. BA111 in the course of his employment. The First Defendant drove the said vehicle on Golf Course Road at Samabula so negligently and unskilfully that it went out of control and collided into a parked truck Registered No. G1726 on the opposite side of the road.

The First Defendant was prosecuted and convicted in the Magistrate's Court, Suva on the 19th November, 1990 for the offence of Careless Driving and was fined the sum of $25 in default two weeks imprisonment.

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As a consequence of the said accident the Plaintiff suffered personal injuries and was admitted to the CWM Hospital for treatment. The Medical Report tendered to Court reads as follows:-

"This man was admitted following a motor vehicle accident on the 31.7.90. He sustained a bimallcolor fracture of the right ankle joint.

On the 2.8.90 under General Anaesthetic Internal fixation of Right Ankle was carried out. The fibular portion was fixed with a four hole Shuman plate and the medical mallcolus fixed with a screw.

He has had a good result though he gets pain at night. He has been an open card from the Fracture Clinic."

The Plaintiff testified that as a result of the accident he received injuries to his right ankle and was admitted to the CWM Hospital. On 2nd August, 1990 an operation to the ankle took place under anaesthetic when a plate was placed in his ankle. He said that he was discharged from hospital after three weeks but his ankle was in plaster for six months after the operation.

He attended hospital for check up for over a year. The Plaintiff says that he still has pains at night and in day time. He said he cannot lift or carry a heavy load as his right leg cannot take the weight. He has difficulty in walking a long distance.

The Plaintiff is 35 years of age and is married with 4 children aged 9 years, 8 years, 1 year and 1 month.

After the accident he was paid $35 per week (i.e. half his weekly wage of $70) for 6 months i.e. from 30.7.90 to 31.1.91. He now claims the sum of $910 being the other half for loss of wages for 6 months.

The Plaintiff further claims the sum of $1820 being loss of wages for six months i.e. for the period 1.2.91 to 31.7.91 at $70 per week as he did not find employment until after July, 1991.

On the evidence before me I am satisfied that the Plaintiff suffered the injuries as stated by him and as outlined in the Medical Report which has been tendered to Court in evidence. The accident I further find was as a result of negligent driving on the part of the First Defendant who was the servant of the second defendant. The conviction of the first defendant speaks for itself and hence the question of liability for injuries on the part of the second defendant is not in doubt.

I have no reason to doubt the Plaintiff's testimony and I do find that he still suffers from pain as a result of the injury and as a consequence of the operation to his ankle. This pain it appears to me will remain with him for some time; in other words his condition will not be back to normal, namely, as it was before the accident.

I also accept the Plaintiff's testimony that he did not find employment until the end of July, 1991.

As for special damages, I am satisfied with the Plaintiff's claim of $2795 being made up as follows:-

Medical and Transport Expenses	50.00
Loss of half wages from 31/7/90 for six months at $35 per week	910.00

Loss of wages from 1/2/91 to 31/7/91 at $70 per week	1,820.00
Medical Report	5.00
Police Report	10.00
	_________ $2,795.00 _________

As for General Damages the plaintiff is entitled to damages for pain and suffering which he suffered as a result of the said injuries. Prospective as well as past suffering must be allowed for. In HEAPS J PERRITE LTD (1937) 2 AER 60 GREER L.J said:-

"We have to take into account not the suffering which he had immediately after the accident but the suffering that he will have throughout his life in future."

"In actions for personal injuries, the court is constantly required to form an estimate of chances and risks which cannot be determined with anything like precision; for example, the possibility that the injury will improve, or deteriorate, or the possibility of improved earnings if the accident had not occurred: see FAIR v. LONDON AND NORTH WESTERN RLY CO (869) 21 LT 326". (MUNKMAN: Damages for Personal Injuries and Death 8th Ed. at p.10)

As far as the case before me is concerned I accept the doctor's report and what the Plaintiff has said about his condition at the time of the assessment. He makes the point that he still suffers from pain both at night and day, that he cannot lift or carry heavy load and that he cannot walk long distances. There is no expert evidence as to how much the Plaintiff will be affected in future as a result of the operation to his ankle.

Mr. Kapadia was unable to refer me to any local decided case with similar injuries but he has referred me to two cases, viz. DAWSON v J BROCKBANK & SONS Kemp & Kemp, Quantum of Damages Vol. 2 page 10713 and at page 10718 to JOHNSON v BRITISH RAILWAY BOARD. These cases cannot be compared with the one before me and the award of damages of 12,000 and 8000 respectively are on the very high side. In RAM KAUR & OR. v GHURAU PRASAD & OR. (C.A.50/76) where a fracture of the shaft of the left femur occurred and a metal rod was inserted, general damages was awarded in the sum of $1000. A number of cases are referred to in MUNKMAN: Damages for Personal Injuries and Death at pages 234 - 235 dealing with injuries to ankle. In CORSE 1986 CLY 1046 case of "Woman, 33; Right ankle seriously bruised, swollen, unable bear weight 5 weeks, off work 5 months, after 3 years still discomfort in cold, 1500"; and in ROSS 1988 SLT 385 a man, 34. Ankle sprain, torn ligaments, off work 8 weeks, discomfort after 2 1/2 years 1250. In a local case of SOMARU DASS AND MOAPE NAIDUKI & ANOR (C.A. 621/88), the then

Chief Registrar Filimone Jitoko awarded $3500 as general damages bearing in mind, inter alia, RAM KAUR (Supra). In DASS the injury comprised of comminuted fracture of the midshaft of the femur of the right thigh.

In the light of my observations hereabove, in my estimation the present day award should be $6000 for an injury of the nature before the Court.

As to future loss of earnings, counsel submits that he is entitled to some damages under this head. I do not think that he should have any difficulty in finding a job. However, I consider that pain to the injured ankle would continue to bother him from time to time and I think that a week's loss of earning each year will be a reasonable award to give him. The Plaintiff is a young man of 35 years of age and in his case based on the multiple of 15 the amount calculated at the rate of $70 per week x 15 amounts to $1050.

"for a plaintiff in his thirties having a normal expectation of working life a multiplier of 14 or 15 has often been taken."

I therefore award him the sum of $1050 for loss of prospective earnings as the result of the accident.

Accordingly there will be judgment for the Plaintiff against the Defendant in the sum of $9845.00 with costs to be taxed if not agreed.

High Court of Fiji

Singh v Sundar [1993] FJHC 74; Hbc0388d.91s (1 September 1993)