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Chand v Singh [1994] FJHC 84; Hbc0363j.89s (20 July 1994)

IN THE HIGH COURT OF FIJI
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0363J.89S

Between:

VIREND CHAND
f/n Ragho Prasad
Plaintiff

- and -

AMAL JEET SINGH
f/n Harjindar Singh
1st Defendant

- and -

TACIRUA TRANSPORT COMPANY LIMITED
2nd Defendant

Mr. T. Fa for Plaintiff
Mr. H. Lateef for Second Defendant

JUDGMENT
ASSESSMENT OF DAMAGES

This is an action for damages against AMAL JEET SINGH (the First Defendant) (hereinafter referred to as 'D1') and TACIRUA TRANSPORT COMPANY LIMITED (the second defendant) (hereinafter referred to as 'D2'). The D1 has not been proceeded against and on 22 July 1991 D2 admitted liability before Jayaratne J. when judgment was entered against it with damages to be assessed by the Chief Registrar.

The assessment commenced before the then Chief Registrar but on his transfer from that position the hearing commenced de novo before me (as Chief Registrar) on 25 February 1993. Hearing was not completed until 14 November 1993; written submission was filed by defendant on 21 January 1994 and by the Plaintiff on 8 April 1994. I now therefore give judgment in my present capacity.

The facts relating to the accident as a result whereof the Plaintiff suffered injuries are that the first defendant (D1) at all material times and date was the driver of a toyota land cruiser Reg. No. BR 033 which was owned by the second defendant. The second defendant (D2) is a bus company that deals with the transportation of members of the public between Nausori, Suva, Waibau and Nabukaluka. At the relevant time and date the plaintiff was in the employment of D2. On Sunday 11 December 1988 the plaintiff was driving for D2. At about 7 p.m. that day the plaintiff returned to the D2's depot at Sawani. Upon the instruction of one Baba f/n Sher Singh a senior employee of D2, D1 drove the plaintiff in toyota land cruiser No. BR 033 along Princes Road to the plaintiff's home in Vunidrovo. About 1 mile from the Sawani Bridge whilst negotiating a corner along Princes Road towards Nausori direction the said toyota land cruiser somersaulted along the road wherefrom the plaintiff sustained injuries.

The accident was as a result of negligence on the part of D1. He was charged with the offence of careless driving at the Nausori Magistrate's Court (Case file no. 53/89) when he was convicted and fined the sum of $25.00 in default 25 days imprisonment.

The Plaintiff testified as to the nature of injuries he received in the accident. For the injuries he sustained he was examined by Dr. Welby Korwa, Dr. Arun Nath and Dr. Tuisawau.

After the accident he says that he was unable to work because of pain in the arms, legs and chest. When he complained of pain his employer gave him a letter (exhibit 2) dated 9 May 1989 stating that the Plaintiff is "no longer employed" by them and that he had "left employment on his own will on medical grounds".

He said he used to earn $65 gross or $47 to $55 nett per week. He said that he cannot do any gardening or walk long distances. Due to injuries his married life is also affected. He is forty years of age, married with 2 children aged 12 years (a boy) and 21 years (daughter).

The Plaintiff drove for two and a half years for the defendant company before the accident.

In cross-examination he admitted he reported back to work on 9.1.89 and drove D2's buses. He was paid his wages in full for the period of his absence. He said that he told his employer that he is sick and is unable to work. He agreed he was paid his wages until 6 may 1989. After that he worked for various people as a driver on a casual basis.

The defendant's witness VIKRAM CHAND PRASAD (DW1), a company director, testified that in 1990 and 1991 the Plaintiff was employed by them on 10 to 15 occasions on a casual basis when they were short of drivers. Most of the time Plaintiff said he was "sickly" similarly SUBHAS CHANDRA (DW2) a bus proprietor employed him as a driver at times for a few hours. He said that the Plaintiff used to complain about his poor health.

The paymaster for D2 produced records showing the times the Plaintiff worked. He said that after the accident the Plaintiff was paid 3 weeks sick leave pay until 8 January 1989. He worked throughout till he 'resigned' on 6 May 1989. DW3 said that he does not know why he left; he was capable of driving and never complained.

As far as the medical condition of the Plaintiff is concerned I have the evidence and Report of DR WELBY KORWA (PW1) (called by the Plaintiff) and that of DR. JOHN FATIAKI (DW4) (called by the defendant).

The Plaintiff claims

(a) special damages in the sum of $2000 being for medical and transportation expenses;

(b) loss of earnings at $65 per week from the date he was laid off until judgment;

(c) General damages;

(d) costs of the action.

I shall now deal with each of the above claims as follows:-

(a) Special Damages

The Plaintiff's claim for $2000 as special damages has not been substantiated. The claim is mainly for medical and transport expenses. He said he used taxis from Sawani, Nausori to CWM Hospital and return. Some documents and receipts that he had were lost in the flood and hence he is unable to produce any document to substantiate his claim.

Although the Plaintiff initially claimed $2000 under this head of damages, in his written submission his counsel reduced it to $1000. No doubt the Plaintiff is entitled to recover as special damages those medical, hospital, nursing and attendance expenses which he has reasonably incurred up to the date of trial as these are recoverable. But the Court is reluctant to grant the sum claimed unless it is satisfied as to how the amount is made up. In KHUSWANT SINGH s/o Karan Singh and JAMES KNOWLES AND ROYAL TRANSPORT COMPANY (C.A. 92/76 Supreme Court) KERMODE J. on the item of claim such as this said:-

"I have no evidence as to how the sum is made up. While I appreciate that a person does not usually obtain receipts for small payments the defendants are in no position to challenge such a claim unless some evidence is led to establish the claim. Mr. Kapadia must have been advised of the items which make up this sum. The defendants could have sought particulars but then failure to do so does not absolve the plaintiff of his obligation to substantiate his claim.

As I have stated apart from a bare statement that he claimed the sum of $65, the plaintiff merely stated that he went to hospital once or twice a month and that return journey by taxi was more than $3. How many trips he made by taxi is not known, nor did he state who paid for the taxi. No evidence was led regarding medical expenses and no receipts were produced.

I do not consider that the Court should be called on to assume that this plaintiff (or someone on his behalf) must have incurred expenses for travelling and medical treatment. Nor should the court have to assess a figure in the absence of satisfactory proof of special damages.

In this case although the Plaintiff said in cross-examination that he made notes of 'expenses' and that he 'destroyed it', there is no documentary evidence to substantiate this item of special damages. No doubt some expenses must have been incurred; special damages must normally be proved strictly but in the present case I accept that it is not usual to accept receipts from taxi drivers etc; but because the defendant is agreeable to allow a lesser amount of $200 under this item I shall allow special damages in the sum of $300."

In BRITISH TRANSPORT COMMISSION v GOURLEY [1955] UKHL 4; (1956 AC. 185) LORD GODDARD stated that special damage "has to be specially pleaded and proved. This consists of out of pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation".

However, in this case bearing in mind that there is a strong possibility that the Plaintiff may have lost the receipts he says he had and also the fact that substantial expense must have been incurred from Nausori to Suva etc a reasonable sum ought to be awarded to the Plaintiff.

I therefore assess it at $500.00 (five hundred dollars). The Plaintiff is entitled to interest on this sum from the date of service of 'writ' namely 23 October 1989 to date of assessment judgment namely 20 July 1994 at 10% per annum which for 4 years 9 months amounts to $238 in round figures. Thus the total amount payable under this head is $738.00 (seven hundred thirty eight dollars).

(b) Loss of Earnings & (c) General Damages

I shall deal with these two items together. There are therefore two matters on which assessment of damages is required, namely loss of earnings and general damages.

On the loss of earnings aspect SALMOND & HEUSTON on the LAW OF TORTS 20th Ed. at p.543 states:

"It is settled that the plaintiff is entitled to damages for the loss of the earnings or profits which would normally have accrued to him up to the date of the judgment. But what he is entitled to claim is the loss of what would have been in his pay-packet - i.e. the net amount after deduction of income tax and social security contributions, or unemployment benefit. Normally the amount can be calculated easily by multiplying the plaintiff's weekly wage or salary by the number of weeks during which he was incapacitated by his injuries".

Secondly, as for item (c) which is general damages, it has as its main component loss of income. As to the method of assessing the sum SALMOND & HEUSTON (supra) at p.543 has this to say:

"The use of the "multiplier" is the favoured method of assessing the sum: the plaintiff's net annual loss is multiplied by a figure chosen so as to produce an overall sum which is intended to provide, by withdrawals of both interest and capital, compensation for the lost income in the years ahead. The multiplier should not be confused with the number of working years which would have been left to the plaintiff if he had not been injured, since allowance is made for contingencies such as illness, which might have struck him in any event, as well as for the fact that the plaintiff in a sense receives his compensation in advance as a lump sum. In practice the multiplier hardly ever exceeds 18, even in the case of young plaintiffs..... A plaintiff may sometimes be awarded damages for loss of earning capacity, i.e. a potential handicap in the job-market in the future. After some doubt the prevailing view appears to be that this is to be regarded as a factor to be taken into account in assessing damages for loss of earnings, rather than a separate head of damage."

There is also under general damages the claim for non-pecuniary loss which is divided into two main categories, viz. pain and suffering and loss of amenities of life.

I am grateful to both counsel for their comprehensive written submissions to which I have given very careful consideration.

Upon a proper analysis of all the evidence adduced in this case there is no doubt and I do find that as a direct result of the injuries received by the Plaintiff he is left with certain physical deformities and incapacities; he still complains of bodily pain. I accept the evidence and reports of the three doctors. To get a clear picture of the Plaintiff's injuries and his present condition I can do no better than quote from their reports.

On the day of the accident the Plaintiff was medically examined and treated by Dr. Arun K. Nath whose Medical Report (exhibit B) has been tendered to Court. The injuries noted by him in the Report are as follows:-

"1. Swelling of nose with Epistaxis

2. Laceration, swelling and tenderness of right shoulder
   
3. Superficial laceration on posterior aspect of right elbow
   
4. Laceration on right knee
   
5. Moderate to extreme tenderness on the left lower chest."
   

The doctor said that the injuries were consistent with that of motor vehicle accident. He said that the X-rays of chest revealed fracture of 8th and 9th ribs on the left side.

DR. JOHN FATIAKI in his report dated 15 January 1991 (exhibit E) said that he examined the Plaintiff once in 1988 and "on review today (15 January 1991) he has some limitation of wrist flexion with generalised complaints of body aches and pains and tenderness over his (L) thorax and (A) shoulder. In my opinion, his residual disability as a percentage of permanent incapacity is assessed at approximately 15%." He also stated that he was "treated at CWM Hospital as an outpatient and all x-ray investigations were normal with the exception of his fractured ribs."

DR. WELBY F KORWA was the third doctor who prepared a Report (Exhibit I) on the Plaintiff gave evidence at the hearing. His Report dated 13 November 1991 includes his findings, comments and conclusions; I accept them along with the other two reports and the evidence of Dr. Fatiaki with which counsel do not disagree. Dr. Korwa's Report does set out in full the actual condition of the Plaintiff and it is apt that I set it out hereunder and which is as follows:-

"Injuries:-

He alleged that he sustained:-

a) A swollen and bleeding nose,

b) Lacerations over the right shoulder region,

c) Lacerations over the posterior aspect of the right elbow joint.

d) And bad pain over the lower aspect of the left side of his chest.

e) Abrasions to the anterior aspect of the right knee joint.

Findings:-

On examination the following anomalies are detected.

1. Three small scars of various sizes are present over the shoulder which he alleged are caused by the lacerations he sustained from the accident. The shoulder joint movements are restricted. Abduction is short of 10 to 13 degrees and rotatory movements are also restricted.
   
2. He now has a badly deviated nasal bone which may be caused by a fracture of that bone. The underlying nasal septum is also deviated and has caused partial obstruction to the nostrils.
   

100. The depressed fracture of the right zygoma (cheek bone) has given him a dented deformity to the right side of the face.
     

4. There is grade I - II paralysis of the facial muscles on the right.
   
5. He still complains of occasional left lower chest pains particularly during rainy and cool weather. X-rays taken at time of accident showed presence of fracture of the 8th and 9th left ribs.
   
6. He still complains continuous and persisting low back ache which he alleges restricts his movements, finding difficulty in sitting down from a standing position and vice versa. He is now very worried about his sexual activities, which are greatly reduced.
   

Comments & Conclusions:

This man met with an accident sustained various significant deformities and incapacities. It is three years ago since the accident and he is still nursing the injuries and not being able to return to work.

1. He is not able to abduct the right shoulder joint fully and even less rotatory moves with the joint. I award him 10% impairment of his upper extremity which equates to nine 9% percent permanent incapacity.
   
2. The broken nasal bone which left him with an obvious deformity and a deviated nasal septum interferes with his breathing and may lead to other complications in years to come. I award him 25% impairment of his upper respirator function which equates to 15% permanent incapacity.
   

100. The present fracture right Zygoma (cheek bone) has left him with asymmetrical facial deformity.
     

4. The paralysis of muscles of expression on the right side of the face is likely due or caused by depressed fractured right cheek bone and is permanent. Paralysis of these muscles will affect his eating, talking, facial expressions and not to mention others in later years of life. I award him 25% impairment of function of the muscles of the right said of the face which equates to 15% permanent incapacity. He therefore incurs a total permanent incapacity of thirty nine percent (39%).
   

I find that at the time of the accident the Plaintiff was 38 years of age. He is married with two children and is the only breadwinner in the family. He was a driver by occupation (driving buses mainly) and that was the only source of his livelihood. He drove for two and a half years for D2 when he met with this accident. His average weekly wages was $55 per week nett. I further find on the evidence before me that from the time of the accident (including the period of his absence from work) the Plaintiff worked for the defendant until 6 May 1989 when he was retired from work because he complained that he was not well. Thereafter he worked as a driver for various people on a casual basis and for short periods.

I accept the doctors' reports and findings on the Plaintiff's physical deformities and his present and past suffering. As a result of the pain under which he is still labouring he is unable to drive as well except on a casual basis.

Mr. Lateef was strongly of the view that the Plaintiff pretended to be in "pain" and "sleepy" when he appeared during the hearing. Mr. Fa thought that this was being "unkind" to the Plaintiff. Although I have watched his demeanour, I prefer to rely on the medical reports.

In this case I find on the evidence that the Plaintiff has not completely lost his earning capacity for he has worked for the defendant after the accident and he has also worked for other people albeit for short periods. He is capable of doing casual work as a driver (but not long hours) and other work and thereby derive some income. According to Dr. Fatiaki he is capable of driving and able to do other type of work.

The Plaintiff therefore is unable to return to his former work at the same rate of pay or take any other work with similar or better pay. He is handicapped in getting new work with good rate of pay because of his disability. It is possible that in future as indicated by medical report, he will have to take time off for pain he is suffering, for the broken ribs or a future medical attention.

Quoting from MUNKMAN ON DAMAGES FOR PERSONAL INJURIES AND DEATH 9th Ed at p.76:

"It has been said again and again that it is a question of fact in each case what chance there was of a loss of earnings and no case is a guide to any other: there is no 'conventional' figure: PAGE ENFIELD AND HARINGEY AREA HEALTH AUTHORITY (1986) Times, 7 November, CA."

The claim for future loss of earnings "is to cover the risk that, at some future date during the claimant's working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market (CHAN WAI TONG v LI PING SUM [1984] UKPC 49; (1985) AC 446) (MUNKMAN supra p.76).

Bearing in mind the doctors' findings and the Plaintiff's inability to continue working as a full-time driver, in my estimation his nett earning has been reduced by one-third. In other words in money terms he is capable of earning two-thirds of $55 nett per week which he earned as D2's driver prior to the accident. I estimate his loss at $18 nett per week. The fact that he is receiving destitute allowance is not in my finding an indication that he is not capable of working at all.

The accident took place on 11 December 1988 and the Plaintiff was paid his wages in full until 6 May 1989 when he finished his employment with D2. Therefore on my findings he would be entitled to loss of earnings from 6 May 1989 to 20 July 1994 (date of Judgment in this assessment) i.e. for 270 weeks. Hence damages awarded will be at $18 per week x 270 weeks = $4860 plus interest at 10% amounting $2560 making a total of $7420.

As for loss of future earnings, it is reasonable to suppose that the Plaintiff who was in apparent good health prior to the accident would have continued in remunerative employment as a driver till he was 52 years of age. In RAMESH SINGH v SUBHAMA NAIDU (127/89, Lautoka unreported) WILLIAMS J used a multiplier of 15 in the case of a carpenter aged 36.

In Halsbury 4th Ed Vol 12 at para 1156 it is stated:

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

It is six years since the accident and at that time the Plaintiff was 38 years of age. I have already awarded him loss of earnings for 6 years up to 20 July 1994 i.e. at 44 years of age which is his present age. Another eight (8) years will make him 52 years old and I propose to now use 8 years as the multiplier in my assessment for loss of prospective earnings. The total multiplier therefore is 14. The total for loss of prospective earnings calculated at 52 weeks x 8 years = 416 weeks at $18 per week amounts to $7488.

In assessing general damages I take into account the Plaintiff's prospective and past suffering and I also take into account the loss of enjoyment of the ordinary amenities of life.

Mr. Fa has referred the Court to a number of cases but I must say that the injuries suffered in those cases were of much more serious nature and for different types of injuries compared to the Plaintiff's injuries and hence the amount for damages were high. In WALDON v WAR OFFICE (1956 1 WLR p.51 CA) it was held:

"that although a judge is not bound to hear reference to such cases, he may do so. He has a discretion to decide whether in his view the reference to such other cases would or would not assist him."

In WALDON (supra at p.57) PARKER L.J. said that:

"I think that counsel can be trusted only to refer to other cases very sparingly, bearing in mind that each case depends upon its own facts, and only rarely can another case be of real assistance to the judges".

For guidance in assessing damages in this case I have relied on KEMP & KEMP - THE QUANTUM OF DAMAGES. Cases referred to there deal with awards for specific injuries and I have considered them to suit the circumstances of the case before me. For the purposes of this case the areas in which I have to focus my attention on, following Dr. Korwa's Report, are (a) shoulder injury, (b) broken nasal bone, (c) fracture of cheek bone and (d) paralysis of muscles of expression on the right side of face and (e) broken ribs.

For (a), in "GRATTAN (1982) CLY 881 - woman, 73. Thrown down in bus, severe shock, bruising, sprain left shoulder, residual effects up to 18 months 1250." (MUNKMAN supra p.247).

For (b), in "COUSINS v LAMBETH, SOUTHWARK & LEWISHAM AREA HEALTH AUTHORITY (1986 C.A.) - General Damages 5000" (KEMP & KEMP Vol 2 C5-025).

For (c), in "RE AGBO (1983) - General damages 3000" (KEMP & KEMP Vol 2 C5-029/1).

For (d), in "REDFERN (1988) - general damages 12000" (KEMP & KEMP vol 2 C5-016)

For (e), in "JACKSON v TORQUAY LEISURE HOTELS (1991) - General damages 1750" (KEMP & KEMP K2-039/1)

After giving careful consideration to the whole matter, bearing in mind the pain and agony that the Plaintiff has suffered and likely to suffer in future and also the fact that he will not be able to enjoy his life in full in years ahead, for general damages (including pain and suffering and loss of amenities of life) I consider that a fair and reasonable sum to award would be $20000.00 (twenty thousand dollars) and I do so award. The Plaintiff is entitled to interest at 10% thereon from the date of service of writ i.e. 23.10.89 to date of judgment i.e. 20.7.94 = 4 years 9 months which comes to $9500.

I have awarded interest on certain heads of damages bearing in mind that the "object of a court in awarding interest to a successful litigant is to compensate him for being kept out of money which the court has found is properly due to him" (KEMP & KEMP 16-003; PICKETT v BRITISH RAIL ENGINEERING LTD (H.L) [1980]).

According to KEMP & KEMP Vol 1 4th Ed. interest should be awarded for "special damages", "general damages for pain and suffering and loss of amenities". It is payable from "date of service of the writ until the date of trial". But no interest is awarded for loss of future earnings.

In MUNKMAN (supra) at p.43 it is stated that:

"When judgment is given on a claim for damages, it becomes a 'judgment debt' which automatically carries interest until it is paid. Originally this was fixed at the rate of 4%, which become much too low in the years of inflation, and it is now varied from time to time by statutory order in line with market rates (at present, since 1985, 15%)".

There is also the following provision in the LAW REFORM (MISCELLANEOUS PROVISIONS) (DEATH AND INTEREST) Act Cap 27 Vol 3 LAWS OF FIJI to award interest "at such rate as it (Court) thinks fit":-

"3. In any proceedings tried in the Supreme Court for the recovery of any debt or damages the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment:

Provided ..."

In this case I have seen fit to award interest at the rate of 10% per annum.

In the result, I assess and award damages and interest as hereunder:-

Special damages $500

Interest thereon (see infra) $238 $738

Loss of Earnings $4860

Interest thereon (see infra) $2560 $7420

Loss of prospective

earnings $7488 $7488

General damages - pain and

suffering and loss of

amenities of life $20000

Interest thereon

(see infra) $9500 $29500

______ _____

$45146

______

Accordingly there will be judgment for the Plaintiff against the defendant in the sum of $45146 (forty-five thousand one hundred forty-six dollars) with costs to be taxed if not agreed.

D. Pathik
Judge

Suva
20 July 1994

HBC0363J.89S