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Kumari v Vutikali [1996] FJHC 112; Hbc0024j.94s (9 May 1996)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 24 OF 1994

Between:

KAMLA KUMARI
d/o Bhagat Prasad
Plaintiff

- and -

MOSESE VUTIKALI
Defendant

Mr. Ram Chand for the Plaintiff
No appearance of the Defendant

JUDGMENT

In this action the Plaintiff claims damages pursuant to a default judgment dated 29 March 1994 entered against MOSESE VUTIKALI the defendant.

This claim for personal injuries arises out of a motor vehicle accident on 8 February 1993 at Tailevu. The defendant who owned a motor vehicle (a carrier) Regd. No. E5596 drove his said carrier so negligently that it collided with a concrete electric post. As a result whereof the carrier tumbled over and the Plaintiff a sweet- seller who was a fare paying front seat passenger suffered certain injuries as stated hereafter.

The Plaintiff in her Statement of Claim claims that as a result of the injuries she received she has suffered loss of earning and considerable pain and discomfort and claims under the following heads: (a) special damages $400, (b) loss of earnings - 4 weeks x $25 per day = $750, (c) future earning capacity $48,100.00 based on a multiplier of 37, (d) prospects of marriage and (e) pain and suffering.

But when she testified she claimed as follows: special damages in the sum of $350 after abandoning her claim for $50 for Police and Medical Reports; loss of earnings $750; and she said that she did not wish to quantify the said items (c), (d) and (e). There was no evidence as to "prospects of marriage".

At the time of the accident the Plaintiff was self-employed as a sweet seller and was 33 years of age. In her evidence she testified that as a result of the accident she suffered injuries as follows:- (a) 3 upper front teeth were broken, (b) lower bottom teeth 'mobile', (c) bruise on lips (d) chin injured and (e) pain in head and teeth.

The Plaintiff was examined and treated the same day by a Medical Officer at Lodoni, Tailevu (exhibit 2) and by a doctor at Korovou on 15 February. The medical report shows that the injuries were cut to lips and to skull which required 3 stitches. She also lost 3 teeth.

I am satisfied that the injuries suffered by the Plaintiff were as a result of the said accident arising out of negligent driving on the part of the defendant. She is therefore entitled to damages.

I shall now deal with the claim for damages under the various heads referred to hereabove as follows:-

(a) Special damages

The sum of $350 which she claims is $100 for "medication" and $250 for travelling expenses to and from hospitals.

There is no proof of this claim; it is only the plaintiff's word. These bare statements are not sufficient in a claim for special damages. The Court should not be called upon to assume that the Plaintiff suffered such a loss. In MAHENDRA NAIDU s/o Adiappa and RAVINDRA PATEL s/o Motibhai Patel C.A. No. 105/79 (West Div), WILLIAMS J. said:

"No receipt or evidence has been tendered to show that hospital fees amounted to $50.00 and I do not accept that figure. I am unable to guess what it would be and I do not allow it. As LORD GODDARD and the F.C.A. have pointed out claimants are expected to call evidence supporting their claims and not simply to say this is what I have paid or suffered in losses then expect to be awarded those sums".

Further, on this aspect (on medical and transportation) in TACIRUA TRANSPORT COMPANY LIMITED and VIREND CHAND f/n Ragho Prasad (Civ. App. 33/94S) the Fiji Court of Appeal said:

"There was no detailed evidence of any actual expenditure by the Respondent on these matters although, as the Judge observed, there must have been some such expense. The Respondent was treated at the C W M Hospital in Suva and for that purpose had to make a number of trips between Nausori and Suva.

In British Transport Commission v Gourley [1955] UKHL 4; (1956) A.C. 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 calculations."

Similarly, Devlin J. in Hayward v Pullinger and Partners Ltd (1950) W.N. 135 observed that unless special damages were contained in the Statement of Claim, evidence to establish them could not technically be relied on at the trial.

While we realise that the Judge was endeavouring to give some recognition of the fact that the Respondent must have been put to some expense, we are unable to see how there was any basis for him to make the award that he did. No specific sums were claimed in the Statement of Claim, and the Respondent in his evidence has given no indication of the number of trips he made for medical treatment. While the absence of receipts and other documents by reason of flood damage may not have been fatal there was in the end altogether insufficient evidence to enable a calculation to be made of the amount which should be awarded. In the course of the hearing in this Court, however, counsel for the Appellant indicated a sum of $100 would be regarded as sufficient to meet the medical and transportation expenses and we understood counsel for the Respondent to agree that that sum would be accepted."

Bearing in mind the above passage and in the circumstances of this case I would award the sum of $100.00 under this head.

(b) Loss of earnings

The Plaintiff claims $750 for 4 weeks at the rate of $25 per day for loss of earnings.

If she worked 7 days a week and earned $25 per day then the total comes to $700. It is not clear whether $25 is gross or net earnings as a sweet seller.

The evidence is most unsatisfactory on this claim. There is no medical report to say that she was unfit for work for four weeks. I cannot imagine her working 7 days a week selling sweets at ACS school.

If anything she would sell Mondays to Fridays when the school is in session.

This also is a special damages claim and there ought to be proper evidence to enable the Court to make an award. Very reluctantly, instead of rejecting the claim outright in the absence of sufficient proof, doing the best I can in the circumstances bearing in mind the nature of injury which does not appear to be serious I would allow the sum of $60 per week as net income per week for 5 days a week for 4 weeks making a total of $240.

(c) Future earning capacity

This claim is misconceived; there is no evidence whatsoever of loss of future earning capacity and I also do not find that the Plaintiff is affected as far as this claim is concerned.

I disallow this claim.

(d) Prospects of Marriage

This item of claim is also misconceived. There is no evidence to show that this has or will come about as a result of the accident. In any case no evidence was adduced under this head if the Plaintiff was at all entitled to this type of claim in the present situation.

(e) General Damages

The Plaintiff is entitled to general damages for pain and suffering which she has suffered as a result of the said injuries.

There is no medical report before me on the 'past' and prospective suffering except the evidence of the Plaintiff. She says that she still experiences "headache, pain, gum bleeds", bottom teeth are "shaking" and she cannot sleep at night.

On 'pain and suffering' it is stated in KEMP & KEMP (Vol 1 p 2007 2-010) that:

"...the court must take into account, in making its assessment in the case of any particular plaintiff, the pain which he actually suffered and will suffer and the suffering which he has undergone and will undergo. Pain and suffering are 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, however, the individual circumstances of particular plaintiffs clearly have a significant effect upon the assessment of damages".

In this case, in my view the fact that there is still some pain could be of a passing nature. In the absence of medical evidence in this regard it is very difficult to ascertain the exact nature of the persistent pain and whether it is as a direct result of the accident or not. However, I am satisfied that the Plaintiff is now fully recovered and I am further satisfied that the Plaintiff is under no disability as would affect her future earning capacity. It follows therefore that almost all of the general damages will be attributable to pain and suffering.

Upon a consideration of the evidence before me and with no submission by counsel for the plaintiff as to quantum on injuries of this nature I award a sum of $800 as general damages.

To summarize, I assess damages as under:-

Special damages $100

Loss of earnings $240

General damages

(pain & suffering) $800

$1140

There will therefore be judgment for the plaintiff against the defendant in the sum of $1140.00 (one thousand one hundred and forty dollars) with costs to the plaintiff to be taxed if not agreed.

D. Pathik
Judge

At Suva
9 May 1996

HBC0024J.94S