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Singh v Katonivere [1997] FJHC 261; Hbc0242d.94s (10 December 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 242 OF 1994

Between:

JAINENDRA PRASAD SINGH
Plaintiff

and

1. KINIJOJI KATONIVERE
2. THE ATTORNEY GENERAL
Defendants

Mr. R.I. Kapadia for the Plaintiff
Mr. D. Singh for the Defendants

ASSESSMENT OF DAMAGES

In this action the Plaintiff by Writ of Summons claims damages for personal injuries suffered by him on 16 June 1993 at Daku, Labasa arising out of a motor vehicle accident as a result of negligent driving on the part of the first defendant who was driving a Government motor vehicle Registered No. GL245 as the servant of the second defendant.

On 20 March 1997 I found as follows (as stated in my judgment):

"that the accident happened through negligent driving on the part of the first defendant. I further find that there was lack of necessary caution on the part of each driver and that each one contributed to the accident. The Plaintiff in my estimation contributed to the accident to the extent of 10% to make him partly liable for the accident. But the defence of inevitable accident fails."

Judgment was entered for the Plaintiff against the defendants in the proportion stated above and for damages to be assessed.

I have before me the evidence of the Plaintiff in regard to the injuries he suffered, the treatment he received from time to time and his present condition. His evidence has been well summarised by Mr. Kapadia and this appears hereafter under the heading General Damages.

I also have the evidence of VIJENDRA KUMAR, manager of Labasa Branch of ASCO motors who testified that the pre-accident value of the vehicle involved in the accident was $8500.00. The vehicle was a complete wreck. Mr. Singh for the Defendants submits that $4000.00 would be an appropriate claim as no 'receipts' have been tendered as to its value.

Heads of damages

The Plaintiff claims damages under the following heads and I shall now consider the assessment of the appropriate damages and in doing so I have considered counsels' submissions in writing:

(a) General damages

(b) Loss of prospective earnings

(c) Cost of future care and medication

(d) Damages to Van

(e) Special damages

(f) Interest

(a) GENERAL DAMAGES

Facts and injuries established by evidence

I accept the following as facts about the Plaintiff from the evidence before me (which are summarised by Mr. Kapadia in his submission). They are as stated hereunder:

* He was an in-patient at the Labasa Hospital for 61 days (16/6/93 - 16/8/93).

* He was on traction for over a month lying continuously on his back. As a result, blisters were caused on his back.

* He endured great pain, agony and discomfort while at the hospital. He was unable to sleep properly or eat comfortably. He endured further agony on the wheel chair for 6 weeks and on crutches until March, 1995 - a total period of about one year and nine months.

* He was admitted again to Labasa Hospital on 12/10/1993 for further treatment.

* He was treated also at Lautoka Hospital. He had the misfortune to be taken to the operating theatre three times while at Lautoka Hospital. General anaesthetic was given on each of those occasions, but there was no operation. On the fourth occasion, he was operated under general anaesthetic.

* He had over 60 x-rays, was given 52 pints of drips and three pints of blood. He was unconscious for about 3 days.

* He underwent 13 operations for his leg injury and 4 operations for his arm injury.

* His arm was put in plaster for 6 weeks. It did not work. He then had a major operation and a plate and pin were put in.

* He had physiotherapy for more than a year when he had to spend about two hours at the hospital everyday.

* He still attends hospital and is on pain killers.

* His sex life has been greatly affected. Sex is now less frequent and less enjoyable.

* He cannot now play his favourite sports - soccer, volley ball, table tennis and badminton.

* Although, because of his young age he has recovered more than was initially expected by Dr. Jugal Kishore on 9/2/1994, his life is still restricted and full of pain and will be worse as he becomes older.

I also find as fact that the Plaintiff was born on 1 January 1965 and the accident took place on 16 June 1993. At that time he was 28 ½ years old. He is married and at the time of the accident his wife was pregnant. The Plaintiff was a highly qualified motor mechanic and had done a five year course in automotive engineering. He had been running his own business for some years. As for his income I have the undisputed evidence that had he worked outside he would have got $250 to $300 per week and I accept that as a fact.

Mr. Singh for the Defendants points out that the Plaintiff has "grossly exaggerated" his injuries. He says that "no marked visible or permanent disability was apparent in Court" when he was giving evidence and that the medical report dated 30 July 1996 of Dr. Siti Vudiniabole states that "he is freely ambulant without assistance and has a normal gait" and that "X-rays reveal fracture union". The Plaintiff stated in his evidence that he drives to work.

The Medical Report dated 30 July 1996 by Dr. Siti Vudiniabola of Labasa Hospital, shows that the Plaintiff was admitted to hospital with the following injuries.

"1. Fracture Displacement Distal shafts (L) radius and ulnar.

2. Fracture displacement proximal shaft (R) femur
   
3. Fracture separation of the Pubic symphysis"
   

The Report further states as follows:

"His (L) forearm fracture was internally fixed on 14/7/93 with a pin and plate (later removed on 12/10/93 and 6/6/94) and his (R) femur fracture internally fixed with a K-rod on 2/8/93 (later removed on 18/1/95).

When recently reviewed on 17/7/96 he is freely ambulent without assistance and has a normal gait. X-rays reveal fracture union.

He complains of intermittent (weeks) lower lumber back pains coupled with (L) hip, pubic area pains and (R) ankle pains radiating down from his (R) thigh. These pains occur at random and mostly after a day's prolonged heavy exertion.

Residual apparent scars are as follows:

(i) (L) forearm ventrum longitudinal scar 10 x 0.4cm

(ii) (L) dorsum longitudinal scar 10 x 0.4cm

(iii) (R) thigh lateral aspect longitudinal scar 34 x 0.4cm from buttock to knee".

The Plaintiff has made a remarkable progress although the Medical Report dated 9 February 1994 from Dr. Jugal Kishore (Consultant Surgeon) of Labasa Hospital stated, inter alia, that "I think in view of this extent of injuries he will be cripple for the rest of his life".

Consideration of claims
General damages

Assessing damages for non-pecuniary loss is fraught with difficulties. This problem has been stated by EARL OF HALSBURY LC in THE MEDIANA (1900) AC at 116 thus:

"You very often cannot even lay down any principle upon which you can give damages..... Take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident..... But nevertheless the law recognises that as a topic upon which damages may be given."

The injured person is entitled to compensation and the Court does its best and this process is described by MEGAW LJ in FUHRI v JONES (1979 C.A. unreported) in the manner following:

"It will be appreciated, of course, though it is not always fully understood by persons who are not directly concerned with the law, that the law cannot attempt to attribute any particular figure of damages to any particular physical injury, serious or trivial. There is no way in which it can be said that such-and-such an injury is worth so much in terms of money. Indeed, in most cases for most injuries, anybody would say 'I would rather have avoided this injury than have any amount of money whatever in compensation'. But the court has to do the best it can by way of what are really conventional figures in relation to injuries, the court assessing, of course, on the individual facts of the case, what is sometimes called the tariff, making adjustments for particular facts of the particular case."

In making awards which are fair and reasonable the Court has to fall back on previous amounts so that the figure arrived at are in proportion to awards in other cases of those who have suffered injuries of comparable severity. (BRISTOW J in LIM POH CHOO v CAMDEN AND ISLINGTON AREA HEALTH AUTHORITY (1979) Q.B. 196 at 201 C.A).

In 'general damages' are included pain and suffering, cost of future nursing and attendance and medical expenses, loss of amenities and loss of future earnings. It is a convenient list but not conclusive.

Pain and suffering

The Plaintiff is entitled to damages for pain and suffering. As stated in KEMP & KEMP (Vol I p200) 2-010):

"...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".

I have been helpfully referred to a number of authorities. Under this head Mr. Kapadia submits that the Plaintiff is entitled to an award of $75,000.00 and in support of this proposition he has referred the Court to cases of KYLIE-JANE ANDERSON v IOWANI SALAITOGA, (Action No. 26/94 FCA) $85,000 general damages awarded, PAUL PRAVEEN SHARMA v THE ATTORNEY-GENERAL & ANOR (Action No. 41/93 FCA), SUBHASH CHAND v MUNI NADAN & ANOR (314/87 (Ltka), and EDWARD NARAYAN v AMPUTCH & ROTHMANS, (Action No. 65/95 FCA).

Mr. Singh referred to other authorities such as ANITRA KUMAR SINGH v RENTOKIL LABORATORIES LTD (Civ. App. No. 73/91, FCA) - $60,000 awarded , FIJI SUGAR CORPORATION LTD v ABDUL SAMAD and TANGAVELLU (C.A. 47/93, FCA) - $37,500 awarded and MATHEW LANYON v THE ATTORNEY-GENERAL OF FIJI (C.A. 70/91) - $15000 awarded. He suggested that the sum of $8000 is more than adequate for general damages.

For guidance I have considered the awards made in the abovementioned cases bearing in mind the degree of seriousness of the injuries in those cases.

I have already outlined hereabove the nature of injuries suffered and the pain and suffering the Plaintiff went through as a result of the accident. He still suffers from certain disabilities.

Prospective as well as past suffering must be allowed for in HEAPS v PERRIETE LTD (1937) 2 All E R 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).

The treatment which he received at the hands of doctors and in the hospitals has already been stated hereabove.

Loss of amenities

There is allegation that the Plaintiff's sex life has also been affected as a result of the injuries he received. I accept his evidence in this regard. In MADHUKAR NATH SHARMA (supra) the sum of $5000 was awarded, but that was a much more serious case giving rise to loss of amenities as a consequence of the amputation of a leg.

I would incorporate this sub-head of damage under general damages as was done in GUASTO v ROBINSONS OF WINCHESTER LTD (Kemp & Kemp) Nov 17, 1977 10-251 p.10251) which was a case of "amputation" of leg below knee and there was medical evidence there which stated that there was a "compressed fracture of the fourth lumber vertebra" which caused weakness in the right foot and 50 per cent loss of sexual functions and an award was made and incorporated in general damages. I propose to do the same in this case rather than assess separately for loss of sexual function on the facts of this case.

Loss of future earnings

Looking at his injuries, there is no doubt that this young man of about 29 years of age (at time of accident), a highly qualified automotive engineer and running his own business has had a set back as far as his business is concerned. He is not able to give his full personal attention to his business as much as he used to prior to the accident; he did say that had he worked outside as a mechanic he would be earning $250 - $300 per week prior to the accident.

The need to give a separate assessment for "past and future loss of earnings" has been clearly stated in COATES v CURRY (The Times 22.8.97 at p36 C.A.) thus:

"It was not appropriate, in determining damages for personal injury, to lump together past and future loss of earnings without allocating or indicating a means of identifying a specific figure for each. Past losses were generally more easily assessable and it was necessary to know their size so as to calculate interest on special damages."

To protect the Plaintiff against the consequences of future inflation, "because damage have to be awarded once for all here and now", (LIM supra p.201) LORD PEARSON dealt with this aspect in TAYLOR v O'CONNOR (1971) AC 115 at pp 142-143 when he said:

"Certainly it is right to have regard to the prospect of continuing inflation as an important factor in the situation, but I do not think a mere increase in the multiplier is a suitable method of protecting against inflation, though it achieves something. I think protection against inflation is to be sought by investment policy, and the lump sum of damages should be assessed on the basis that it will be invested with the aim of obtaining some capital appreciation to offset the probable rise in the cost of living."

In my judgment the Plaintiff's earnings has been reduced by 10% as a result of the accident. Based on weekly income of $250 (if he worked for an employer) and using a multiplier of 16 it will give a total of $19,200.00 ($100 x 12 month = $1200 per month x 16 years).

Cost of future care

Mr. Kapadia submits that the sum of $10,000 should be allowed under this head. Whereas Mr. Singh is against any award at all.

There is hardly any evidence before me to support this claim. I bear in mind the following passage from the judgment of the Fiji Court of Appeal in ROTHMANS PALL MALL (FIJI) LIMITED and EDWARD NARAYAN (Civ. App. No. 65/953) disallowing claim for 'future care':

"With respect His Lordship seems to have been persuaded by speculation rather than proof that such a sum - or indeed any sum - was likely to be required to cover future nursing services. There was no claim to this effect and no evidence to support it, and Mr. Sweetman rightly complains that the defendant had no notice of it and no opportunity to contest it."

Whatever 'future care' is likely to be involved could properly be taken into account in assessing general damages and this is what I propose to do.

To conclude, therefore, on general damages I have considered the submissions and the authorities. In regard to reliance on previous cases I have borne in mind the observations of JENKINS L.J. in WALDON v WAR OFFICE (1956) 1 W.L.R. 51 at 57 when he said:

"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 judge. And secondly, I think that the discretion must always be on the judge himself to decide whether in his view the reference to such other cases would or would not assist him."

On the question of damages award, in 1993 when the Fiji Court of Appeal gave its judgment in ANITRA (supra) it stated:

"... With some exceptions they (range of awards) are well below the figures we might think appropriate at this time August 1993 or at the time of judgment in this Action was given, October 1991."

The Court went on to state further at p.12 that:

"We are mindful that in setting the figure it must be one appropriate for Fiji and the conditions which apply here. The level of damages in our neighbouring countries is persuasive but not decisive - to be otherwise, would require a very detailed and prolonged investigation of factors influencing awards in each of those countries.

We favour the global approach to general damages whilst not disregarding the checks and balances that may come form itemising each of the four conventional heads. This like the annuity tables approach to test the multiplier selected, is not more than that - a check which may or may not help."

I have approached the assessment of general damages based on the totality of the disability and in this regard I adopt the words of TOWNSLEY J in FOWLER v PUNTER (1959 Qd R 510 (FC), 526 when he said:

"I deprecate any suggestion that one may take a list of physical injuries and, from previous awards, assign an amount of each injury and thus arrive at a total. That process may, and perhaps necessarily would, result in the duplication of some elements, particularly with respect to the restriction on future activities, economic and social. In regard to those latter aspects of damage it seems to me that it is the totality of disability which has to be considered and that will seldom, if ever, be the equivalent of the sum of separate disabilities individually assessed".

To sum up, therefore, in assessing general damages, I take into account pain and suffering (past, present and future), the loss of amenities; all of which I have dealt with hereabove. It is proposed to award a general figure for the sub-heads rather than attaching a figure to each sub-head because there are the multiple injuries suffered by the Plaintiff. As is said by HAROLD LUNTZ in ASSESSMENT OF DAMAGES FOR PERSONAL INJURY AND DEATH 3rd Ed. at p.52:

"it is improper to award to each of the injuries a sum representing the amount which would have been awarded if that had been the only injury and then to add up the various sums to make the total award."

For the above reasons I award the sum of $60,000.00 by way of general damages.

Special damages

Special damages are accrued and ascertained financial loss (per Edmund Davies L.J. in CUTLER v VAUXHALL MOTORS 1971 1 Q.B. 418 at 426) which the Plaintiff has incurred by the date of the trial. Subject to what I say hereafter unless agreed by the parties special damages should be expressly pleaded. They must be claimed specially and proved strictly.

The absence of receipts and other acceptable evidence have been variously dealt with by the Courts. Where there have been agreements there is no problem. However, it is proper to make a calculation based on sufficient evidence. Even Mr. Singh has in his submission agreed to reduced figures on certain items despite the absence of receipts.

In NARENDRA KUMAR f/n Shiu Kumar and SAIRUSI DRAWE (Action No. 60/89) PALMER J at p 12 of his judgment said:

"Notwithstanding that not a single receipt has been produced in evidence I am satisfied from the Plaintiff's evidence that he paid those amounts and I propose to allow the sum of $255 accordingly."

In that case the sum of $255 was amount paid to Dr. Sharma ($225 for his report and $25 for his first check-up and $5 to the hospital for its report).

Sometimes Courts have taken a very hard line like in MAHENDRA NAIDU s/o Adiappa and RAVINDRA PATEL s/o Motibhai Patel C.A. No. 105/99 (West Div) when 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 expect to be awarded those sums".

The Fiji Court of Appeal in TACIRUA TRANSPORT COMPANY LIMITED and VIREND CHAND f/n Ragho Prasad (Civ. App. No. 33/94) went to the extent of commenting on the desirability of strict proof when it said at p.3 that:

"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."

Damages to van

The sum of $8500 is claimed for damages to the van in question. Mr. Singh is prepared to allow $4000.00.

This loss may be claimed as an item of special damages. I accept the evidence of VIJENDRA KUMAR who testified that the pre-accident value of the vehicle was $8500.00. It was a complete wreck.

Loss of income

On loss of income, the Plaintiff was away from his garage for the period 17.6.93 (date of accident) to 31.12.94, (that is, 74 weeks). At the rate of $250.00 per week the loss comes to $18500.00. I allow this sum.

Nursing Care

The Plaintiff claims the sum of $2470.00 for engaging 2 boys to nurse him. There are no receipts to prove this claim. The evidence is most unsatisfactory in this regard. I cannot see the absolute necessity to incur this alleged expenditure on the Plaintiff's part while he was admitted to Labasa and Lautoka Hospitals.

I disallow this claim altogether.

Medical Expenses

Medical and hospital expenses which are reasonably incurred are recoverable. Since this item is not disputed I allow the claim of $253.00.

Transport Expenses

There is a claim of $2066.00 under the item travelling by air and taxi. No receipts have been produced for the whole of this claim. Mr. Singh suggests a figure of $300 which I allow in place of $732 for travelling for wife and mother. He accepts $834.00 air fare as reasonable. For taxi from Vuda to Lautoka he suggests $100 in place of $280 which I allow. I reject the claim for $200 for 'wife's expense for child care'.

Therefore the total I allow on this item is $1234.00.

Interest

There is a claim for interest and this has been pleaded as required (vide USHA KIRAN v THE ATTORNEY-GENERAL OF FIJI F.C.A.) Civ. App. 25/89 and THE ATTORNEY-GENERAL OF FIJI v WAISALE NAICEGULEVU F.C.A. 22/89). The Plaintiff is therefore entitled to interest on general and special damages.

It was held in PICKETT and BRITISH RAIL ENGINEERING LTD (1980) H.L. 136 at 137, which was a case of personal injuries, that "interest on general damages was awarded for the purpose of compensating a plaintiff for being kept out of the capital sum between the date of service of the writ and judgment ..." As for interest on special damages it was held in JEFFORD AND ANOTHER v GEE [1970] EWCA Civ 8; 1970 2 WLR 702 at 703 that "in general interest should be allowed on special damages from the date of accident to the date of trial at half the appropriate rate".

In ROTHMANS (supra) at p.8 there was some discussion on the date the interest should start. It went as follows:

"His Lordship awarded it from the date of the accident but Mr. Sweetman informed us that Fiji practice is to take the date the proceedings were issued as the starting date, and we did not understand Mr. Shah to disagree, although he said there were cases when by agreement it ran from the accident date. Mr. Sweetman referred us to the decision of the House of Lords in Wright v British Railway Board [1932] 2 All ER 698, in which the date of commencement of the proceedings was taken. There are arguments for selecting either date. Counsel did not dispute that interest was a matter in the discretion of the trial judge and we are not disposed to interfere with his decision that it should run from the date of injury to the date of trial."

However, under section 3 of the Law Reform (Miscellaneous Provisions (Death and Interest) Act Cap. 27 there is discretion in the Court to fix rate of interest which should be paid. The section provides:

"3. In any proceedings tried in the (High) 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 ..."

In the exercise of my discretion I will award interest on general and special damages at the rate of $6.00% per annum.

Summary

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

General damages $60000.00

Interest thereon at $6.00 %

p.a. from 16.6.93 (date of

accident) to 10.12.97

(judgment on assessment

of Damages) $16200.00 $76200.00

Special damages (damages

to van $8500, medical

expenses $253, transport

expenses $1234 $ 9987.00

Interest thereon at 6.00%

p.a. from 20.5.94 (date

of issue of Writ) to

10.12.97 (judgment on

assessment of damages) $ 950.00 $ 10937.00

Loss of income (17.6.93 to

31.12.94) i.e. 74 weeks at

$250.00 per week $18500.00

Interest thereon at 6% p.a.

for the same period. $ 1665.00 $ 20165.00

Loss of prospective earnings $19200.00 $ 19200.00

$126502.00

Less 10% Contributory negligence

(on General damages $76200

and Loss of income $20165) 9636.00

$ 116866.00

There will therefore be judgment for the Plaintiff against the Defendants in the sum of $116866.00 with costs to the Plaintiff in the sum of $350.00 unless Counsel wish to address me on it.

D. Pathik
Judge

At Suva
10 December 1997

HBC0242D.94S