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Nisha v Samut Ali & Sons Ltd [1999] FJHC 131; Hbc0401j.93s (19 November 1999)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 401 OF 1993

Between:

ZAIBUN NISHA
as executrix and Trustee of ISMAIL DEAN
f/n Hafiz Ud Dean deceased
Plaintiff

and

1. SAMUT ALI & SONS LIMITED
2. NAREND f/n Raghwan
3. QUEENSLAND INSURANCE COMPANY LIMITED
Defendants

Mr. V. Maharaj for the Plaintiff
Mr. R. Krishna for the Defendant

JUDGMENT
(on Assessment of Damages)

The matter before me is for assessment of damages further to judgment delivered by me herein on 15 January 1997 when I entered judgment in favour of the plaintiff as follows (pages 15-16 of the judgment):

"there will therefore be judgment against the first and second defendants for damages suffered by the Plaintiff which is to be assessed unless agreed with costs against them to be taxed if not agreed. As far as the third defendant is concerned since it is a nominal defendant and is liable to satisfy a judgment under the said section 11 I do not propose in the circumstances of this case to enter judgment against it but leave to it to comply with section 11 in so far as it is applicable to it with liberty reserved to it to apply to Court generally with no order as to costs against it."

The defendants (1st and 2nd defendants) appealed to Court of Appeal against the finding on the issue of liability which was heard on 19 May 1998 and was dismissed with costs on 29 May 1998.

The hearing of assessment of damages commenced on 4 August 1998 and concluded on 11 August 1998 after the court granted leave to the Plaintiff to Amend her Statement of Claim by adding 'paragraph (D)' as a further and/or alternative ground on which the Plaintiff based her claim on behalf of the Estate of the deceased pursuant to Law Reform (Miscellaneous Provisions Death and Interest) Act Cap.27 and for the benefit of the deceased under the Compensation to Relatives Act Cap.29.

Background facts

This action commenced on 8 March 1994 and the trial began on 16 October 1995. The Plaintiff ISMAIL DEAN (now deceased - the "deceased") testified on the issue of liability and a substantial amount of evidence was adduced on the issue of damages when it was finally agreed by both counsel that issue of liability be determined first. That was done, but the defendants, as stated above, appealed to Court of Appeal. The appeal was dismissed.

The deceased Ismail Dean died on 20 March 1996 before the trial concluded and his widow ZAIBUN NISHA was substituted as Plaintiff pursuant to leave granted by this Court on 25 March 1996. She continued the proceedings as the sole Executrix and Trustee of the Estate of Ismail Dean the deceased. Probate was granted her on 15 May 1996. Hence she could maintain and claim damages from the defendants for the injuries suffered by the deceased which would have been payable to him had he been alive.

This damages action arose out of personal injuries suffered by the deceased as a result of an accident in which he was hit by motor vehicle Reg. No. A1774 owned by the first defendant and driven by the second defendant as agent of the first defendant on 15 October 1991. The third defendant was joined as a party (nominal defendant) to this action as it had issued a Third Party Policy of insurance in the name of the first defendant pursuant to the provisions of Motor Vehicle (Third Party Insurance) Act Cap.177.

Consideration of the claim for damages

I have before me helpful written submissions from both counsel in this matter. I shall now deal with the damages claims under the various heads.

About the Plaintiff/Applicant

At the time of the accident the applicant was about 55 years old and at death about 59 years. He claimed to be a very religious man and since the accident because of the injury to his knee he was unable to kneel down and pray and had to sit in the chair to do so. He was a businessman as well and ran a number of businesses.

Plaintiff's injuries and medical history

On the nature of the injuries received by the Plaintiff, evidence was given by Dr. JOELI MAREKO (p.77-83 of the Record, prepared for Appeal to Fiji Court of Appeal), who among others, treated the deceased after his admission to Lautoka Hospital on 16 October 1991. According to Medical Report dated 28 April 1993 (exhibit 3 p.135 of Record) the deceased on 'presentation' on 16 October 1991 (day after the accident) it was found 'his right leg was deformed and open wound was bleeding with decrease motion of the Right Leg'. The x-rays revealed 'fracture Tibia, Fibula, Comminuted and open on the Right side with extensive soft tissue injury.' Further in the Report it is stated that he was given surgical treatment under 'general anaesthetic', 'wound debridement was done' and 'long leg cast'. Ten weeks after admission i.e. on 25 October 1991 he was discharged and 'was continually reviewed in clinic'.

Dr. Joeli testified that when he examined the plaintiff the patient was 'conscious' and because of 'injury to right lower limb, external bleeding in right, lower limb - between the right knee' x-rays were taken on 16.10.91 which showed 'multiple broken pieces; subsequent x-rays 18.10.91 'falling in line - we manipulated it - improved alignment ....; given antibiotics - intravenous antibiotics that treats the injection in open wound. Later followed by oral antibiotic - he was still in plaster when discharged - using crutches'.

The doctor said that after discharge there was a regular follow up until June 1993. The Plaintiff still complained of pain at the fracture site. The present condition is 'shortening of leg (right) by 3 cm; leg tilted inwards - various angulation of right leg - have to undergo major surgery overseas to straighten up - other leg will have to bear the burden - will walk with abnormal pain because of shortening pain at fracture site. Painful right knee'.

Further in his evidence the doctor stated that on 22 June 1995 he prepared a Report (exhibit 4 p.137 of Record) which says:

"At present he suffers from

(1) Shortening of the (R) lower limb by 3cm

(2) Varus angulation of the (R) leg

(3) Deformity of the (R) leg at the fracture site

(4) Developing progressive osteoarthritis of the (R) leg.

With all this problem he will have pain in the fracture site and the (R) knee. He will be unable to lift heavy load. He suffers from a permanent disability - 15%."

The doctor said that the plaintiff told him that he suffered from stroke and in June 1995 he was 'recuperating'.

In cross-examination the doctor said that 'as age progressed chances of osteoarthritis increases. He said that 'osteoarthritis comes with non-alignment of bone. Heel raised is not very comfortable. Because of deformed leg this will not help the plaintiff'.

The law

In making awards which are fair and reasonable the Court does fall back on previous awards so that the figures 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 Australia, the authority on whether other judgments may be referred by way of comparison to the case at hand is Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118. There the court said (at 124-125) as follows and this I bear in mind:

"It is the relationship of the award to the injury in its consequences as established in the evidence in the case in question which is to be proportionate ... Whether it is so or not is a matter of judgment in the sound exercise of the sense of proportion. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases.... The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between the situations may be supposed to be seen.... The judgment of a court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing from what we were invited by Planet's counsel to act upon in this case. The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand."

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 cases: 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." (emphasis added)

In any assessment in a personal injury case and in particular when large sums are likely to be awarded it is important to bear in mind the following passage from the judgment of Lord Denning M.R. in Lim Poh Choo (supra) at 215 which was a case of severe brain injuries:

"In considering damages in personal injury cases, it is often said the defendants are wrongdoers. So make them pay up in full. They do not deserve any consideration. That is a tendentious way of putting the case. The accident, like this one, may have been due to a pardonable error such as may befall any one of us. I stress this so as to remove the misapprehension - so often repeated - that the plaintiff is entitled to be fully compensated for all the loss and detriment she has suffered. That is not the law. She is only entitled to what is, in all the circumstances, a fair compensation - fair both to her and to the defendants. The defendants are not wrongdoers. They are simply the people who have to foot the bill. They are, as the lawyers say, only vicariously liable. In this case it is in the long run the taxpayers who have to pay. It is worth recording the wise words of Parke B. over a century ago:

"Scarcely any sum could compensate a labouring man for the loss of a limb, yet you don't in such a case give him enough to maintain him for life... you are not to consider the value of his existence as if you were bargaining with an annuity office... I therefore advise you to take a reasonable view of the case and give what you consider a fair compensation": see Armsworth v. South-Eastern Railway Co. (1847) 11 Jurist 758, 760, quoted in Rowley v. London and North Western Railway Co. [1852] EngR 1037; (1873) L.R. 8 Ex. 221, 230.

Consideration of heads of damages

The Plaintiff claims damages arising out of the accident herein. I have already outlined hereabove the deceased's condition medically before he died. In the Writ of Summons there is a claim for general damages and special damages. There is also a damages claim in respect of the deceased's private motor vehicle registration No. AN967 which was damaged in the said accident. There is also a claim for 'interest' and costs.

(A) General damages

Under the head of General Damages the plaintiff claims as follows:

(i) pain and suffering and loss of amenities of life

(ii) loss of prospective earnings in the future

(i) Pain and suffering and loss of amenities

The Plaintiff is entitled to damages for pain and suffering. As stated in Kemp & Kemp (Vol. 1 p.2-007-2-010):

"...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".

As already stated at the time of the accident (15.10.91) the deceased was 55 years of age and he died 4 years 3 months later (20.3.96) at the age of 59 years. I have already outlined hereabove the pain and suffering he went through and what his medical condition was at the time of his death. There is no doubt that the cause of death is totally unconnected with the injuries suffered by the deceased at the time of the accident.

As for loss of amenities, damages under this head will compensate the deceased when he was alive for loss of enjoyment resulting from the accident, namely, when he can no longer do the things he was accustomed to doing. "Damages within this category are included loss of any of the five senses, loss of sex drive, damage to the Plaintiff's marriage prospects, loss of enjoyment of hobbies, employment and, indeed loss of any facet of life. The court will take into account how long the Plaintiff will be deprived of these amenities; if it is for the rest of his life the amount of damages will be awarded in proportion to the plaintiff's age and life expectancy. However, age is not necessarily the determinative factor..." (Book on Medical Negligence by M. Khan and Michelle Robson 1997 p.204-205).

Mr. Maharaj referred the Court to a number of cases of awards such as Anitra Singh v Rentokil Laboratories 73/93 FCA where plaintiff had suffered very serious injuries. He sustained broken jaw, fracture of right elbow which fused at an angle, fracture of right tibia and fibula, angulation and shortening of the right leg. Here $25,000 was increased to $60,000 on Appeal; FSC & Anor v Subarmani & Ors 114/91 FCA where $37,500 was awarded for the total loss of one eye and upheld on Appeal; and Kylie Jane Anderson v Iowane Salaitoga 26/94 FCA where $85,000 damages for pain and suffering and loss of amenities for an Australian tourist who received severe injuries to her legs and other parts of the body was upheld on Appeal.

Mr. Krishna for the defendants referred the Court to the Court of Appeal case of Loganandan Pillay v Subhas Chand and The New India Assurance Company Ltd (Civ. App. No. 64/96, judgment 28.8.98) where the Court gave guidelines on general damages.

I have borne these guidelines in mind in assessing general damages in the case of the deceased herein and it would be apt to set them out for ease of reference. At page 13 of the judgment in Lognandan (supra) it is stated that the Court must "have regard as far as possible to order awards for general damages in Fiji in order to preserve a measure of consistency as well as fairness". The Court then referred to its judgment in Attorney-General of Fiji and Doctor Hubert Elliot v Paul Praveen Sharma 1994 F.C.A. at p.358 which stated:

"The third ground of appeal concerns the level of the general damages awarded in relation to the circumstances of the case and the previous decisions of the courts in Fiji. There is no doubt that in fixing the quantum of general damages a trial judge, having calculated the amounts which appear to be appropriate under the various heads of such damages, must then consider whether the total of those amounts is itself appropriate in all the circumstances of the case. In coming to a conclusion on that matter he should have regard to the need for consistency in the level of general damages awarded in similar cases. However, such similarity must include matters such as the pre-injury earning capacity or prospects of the injured person, not merely the nature of the injury. There may also be disparity in the degree of pain and suffering and the extent of the loss of the amenities of life. Disparity in such matters justifies disparity in the quantum of general damages."

The Court also goes on to state on this aspect by referring to its decision in Anitra Kumar Singh v Rentokil Laboratories Limited 1995 F.C.A. No. 73 where it said:

"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 from 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."

In considering this head of damages I have been guided by, apart from the cases to which Mr. Maharaj and Mr. Krishna referred me to, the two cases of Court of Appeal, namely, Marika Lawanisavi and Isei Ravisivi, and Pesamino Kapieni (Civ. App. No. 49/98S) and Marika Lawanisavi and Isei Ravisivi and Pradeep Raj f/n Shiu Raj (Civ. App. No. 50/98S) which were delivered on 13 August 1999. These two cases also discuss the principles involved in assessing general damages stating, inter alia, in Pradeep Raj (supra) at p.4 that "the Court should aim at a level which bears a reasonable proportion to awards involving leg injuries made in other cases, in the light of the relative severity of the injuries, and the pain and suffering, disabilities and loss of amenities".

Bearing in mind the principles and guidelines stated hereabove I would award the sum of $45,000 for pain and suffering and loss of amenities in this case.

Special Damages

Under special damages the Plaintiff claims the sum of $125,000.00 being made up of $100,000.00 for pre-trial loss of income for the period October 1991 (date of accident) to date of trial in October 1995 based on an average yearly net income of $25,000.00 for 4 years which would give a figure of $100,000.00.

Then there is the post-trial loss of income.

Mr. Maharaj says that the deceased could not run his business after the accident because his leg was in plaster and he was immobile. He said that the Bank called in its securities, consequently the deceased suffered losses. The plaintiff is claiming the further sum of $25,000.00 for the post-trial loss of income up until his death on 20 March 1996.

For the defendants, Mr. Krishna submits that the Plaintiff is not entitled to the said sums or in any sum at all as special damages because it has not been specifically pleaded as it should have been. He referred the Court to a number of authorities on the subject of 'special damages'. He says, however, that if the Court is of the view that the plaintiff is entitled to an award of special damages, then there is no or not sufficient evidence to enable the Court to quantify the amount of the loss. Mr. Krishna further submits that the claim for "loss of future earnings and economic loss and loss on sale of assets are claims not pleaded as special damages and therefore the Court ought to dismiss the claim. In any event these claims would be too remote. These awards would also constitute double or duplicate damages".

In his written Reply to the defendants' written submission on the subject of 'special damages', Mr. Maharaj refutes Mr. Krishna's arguments as to the need to plead special damages specifically. He asserts that particulars of special damage, in particular, particulars relating to 'loss of income' suffered by the deceased had been supplied to the defendants well before the trial.

Mr. Maharaj said that the Plaintiff's Financial Statements for the period 1989 to 1991 together with copies of Bank Statement from ANZ had been supplied to Mr. Krishna well before the trial and he cross-examined at length both the witness from ANZ and the deceased's accountant called on behalf of the plaintiff. The accountant Mr. Abdul Hafiz was called and he testified and was cross-examined by Mr. Krishna.

Counsel further said that the deceased did not have to tender his Income Tax Returns about which Mr. Krishna complains. If he wanted then he should have served "Notice to Produce" specific documents at the trial as the Plaintiff is not expected to know what documents or particulars the Defendant may require at the trial. It is significant to note, he said, that Tax Returns "of certain self-employed persons afford little reliable guidance to the actual profit being made" (Scott J in Shiu Ram v Gordon Jai Narayan & Moti Chand Civ. App. No. 11/91).

I see no merit in Mr. Krishna's argument and I shall now proceed to consider this claim for special damages which is in fact loss of earnings and the plaintiff is entitled to that.

The plaintiff has pleaded 'special damages' in the Writ of Summons. He is entitled to loss of income or earnings arising out of injuries sustained from the accident because he has been prevented "from fulfilling a contract of service or earning wages or, if a professional man, earning fees from clients or, if a trader, from dealing with customers" (vide case of Gourley, infra, Lord Goddard at 207).

Actually, in this case before it was decided to deal with the issue of liability first, a good deal of evidence on the deceased's business dealings and earnings was adduced through him when he was alive. The evidence that has been adduced after his death is a continuation of that evidence on the aspect of the loss of income.

The dates to be remembered are the date of accident which is 15.10.91; deceased suffered stroke in June 1995 (i.e. 4 years after the accident). He died on 20.3.96 which is 4 years 5 months after the accident. On the evidence I am not satisfied that he died as a result of the injuries suffered in the accident.

I have considered the evidence adduced in this case in relation to his business and also the evidence in connection with his expected profit arising as a result of the injuries referred to hereabove.

He was a successful businessman; he was an exporter. He also had a sugar cane farm. The deceased also owned a number of vehicles for use in his business.

In 1989 his net profit was $26,348.62; 1990 profit was $14,732.60 (deceased was away overseas for 6 months in 1990); the 1991 profit was $23,748.32.

On these figures Mr. Maharaj suggested a figure of $25,000 loss of profit per year for 4 years until the date of trial. It will be noticed that he suffered from stroke in June 1995.

The tax position ought to be taken into account in assessing damages under this head as held by the House of Lords in British Transport Commission and Gourley [1955] UKHL 4; [1956] A.C. 185. Earl of Jowitt at p.203 said: ".... no sensible person any longer regards the net earnings from his trade or profession as the equivalent of his available income."

As to how damages is to be assessed in a situation such as the present while assessing tax liability, the following passage from the judgment of Lord Jowitt in Gourley (supra) at 203-204 is pertinent:

"It would, I think, be unfortunate if, as the result of our decision, the fixation of damages in a running-down case were to involve an elaborate assessment of tax liability. It will no doubt become necessary for the tribunal assessing damages to form an estimate of what the tax would have been if the money had been earned, but such an estimate will be none the worse if it is formed on broad lines, even though it may be described as rough and ready. It is impossible to assess with mathematical accuracy what reduction should be made by reason of the tax position, just as it is impossible to assess with mathematical accuracy the amount of damages which should be awarded for the injury itself and for the pain and suffering endured."

On tax Lord Goddard in Gourley (supra) at 207 said:

"In either case to say that a taxpayer has the benefit of his full income is, in my opinion, to be "out of touch with reality," to use the words of Lord Sorn in M'Daid's case. As he said, when income tax was 10s in the £ to award him damages without regard to tax would give him, subject to statutory allowances, just double the amount of his loss. The simplest case to take, no doubt, is that of a person assessed under Schedule E. A certain salary is attached to the office, but that which he will receive is, at the present rate of taxation, the salary less a very substantial percentage, which is deducted for tax before payment. If, therefore, he is disabled by an accident from earning his salary, I cannot see on what principle of justice the defendants should be called upon to pay him more than he would have received if he had remained able to carry out his duties."

On the plaintiff's own evidence in the year of the accident his net profit was about $24,000. Working on that basis alone for four years i.e. from 'date of accident to time he suffered the stroke in June 1995 the net loss would be $96,000.00. The loss which he would have suffered for the subsequent 9 months before he died based on this figure of $24,000 would not be entirely due to the accident but due to the stroke as well. I would therefore apportion the loss at 50-50 which comes to $9000 net. The total loss which I would allow is $105,000.00 ($96,000 + $9000). From this is to be deducted the tax at the estimated rate of 35% which amounts to $36,750.00.

Therefore the total loss of profit which I would allow is $68250.00.

Loss of property (motor vehicle AN967)

The deceased's vehicle Regd. No. AN967 which was involved in the accident had to be repaired which cost $550.

I am satisfied with this claim of $550 and I allow it.

Police Report and Travelling Expenses

The claim for Police Report in the sum of $22.00 and $500 for travelling expenses I allow as reasonable expenses although no receipts have been produced to Court.

Economic loss

I have considered Mr. Maharaj's arguments on this aspect of the claim. He is claiming the sum of $49,378.00 as at 31.3.94 being the amount owed to ANZ under a Mortgage.

A demand was made about two months after the accident. The Bank also sent a bankruptcy notice.

I find that this claim is too remote. The deceased owed ANZ at the time of the accident. The debt did not accumulate because of the accident. This was already due at the time of the accident.

If the deceased was not able to carry on his business he should have closed it straightaway. He should have mitigated his loss. He did not do that. It is not clear whether he had any partners in the business or not. If he himself was not able to run around he could have left the business to his partner to run. But evidently he took no steps in this regard and continued to plod along until his death.

I dismiss this claim.

Loss on sale of assets

The Plaintiff's claim of $6,222.00 being loss on sale of assets is disallowed for the same reasons as for economic loss. Why did the deceased not organise himself in such a way to mitigate loss by selling the assets himself. When he knew very well that he will not be able to carry on his business in the same way as before the accident.

Apart from loss on sale of assets and economic loss the plaintiff is claiming loss of profit from business. She cannot have both under any circumstances in this case.

I am not satisfied that the economic loss and loss on sale of assets came overnight. The debts were there before the accident. It cannot be said that those two amounts sprung up as a result of the accident or as a consequence of the injuries received from the accident.

This claim is dismissed as it is devoid of merits and too remote.

Interest

The plaintiff has pleaded interest; she is therefore entitled to it.

Under s.3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27 it is in the discretion of the Court to award interest at such rate as it thinks fit or 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 judgment.

In regard to the award of interest in this case, the following passage from the judgment of Court of Appeal in THE ATTORNEY-GENERAL OF FIJI, KINIJOJI KATONIVERE v JAINENDRA PRASAD SINGH (Civ. App. No. ABU0001 of 1998S):

"There was also a challenge to the award of interest on the general damages from the date of the accident, the appellant submitting that it should run only from the date of the writ was issued - namely 20 May 1994. Such a matter is in the Judge's discretion, and we said in Attorney-General v Valentine that we were not prepared to interfere with a similar decision. Nevertheless we think it appropriate to reconsider this question of interest in claims for damages for personal injuries caused by negligence. Interest is awarded to compensate the plaintiff for being wrongfully kept out of the money to which he or she was entitled. But unlike most claims for simple debt, in these claims for damages the defendant may not know until the writ is issued (or at least until a letter of claim is sent) the basis on which general damages should be calculated and paid. Therefore it can hardly be said that the defendant is wrongfully retaining the plaintiff's money before then and on principle interest should not start to run in respect of non-economic loss in personal injury cases until the action is commenced. (See Lord Diplock's comments in Wright v British Railways Board [1983] 2 All ER 698 at 70). Such an approach would also have the advantage of encouraging the prompt issue of proceedings, helping to avoid the delays prevalent in this area of litigation. We hasten to add that this criticism cannot be made here, as the writ was issued within a year of the accident.

For these reasons we think His Lordship should have taken the same approach as he did with the damaged van, and have awarded interest only from the date of issue of the writ."

Also in Pradeep Raj (supra) at p7 the Court of Appeal said that in line with the Court's ruling on Attorney-General v Singh (C.A. 1/98; 18.5.99) that interest on general damages for personal injury should be awarded from the date of writ to date of judgment on damages.

On the authorities on general damages I would allow interest at the rate of $6.00% p.a. from the date of writ, namely 8 March 1994 to date of judgment in assessment of damages which is 19 November 1999. Also interest on special damages will be from date of trial, namely 16 October 1995 to date of judgment on assessment of damages, which is 19 November 1999 at half the rate, namely $3.00% per annum.

Summary of damages awarded

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

General damages

For pain and suffering past and future,

loss of amenities and enjoyment of life 45,000.00

Interest at the rate of $6.00% p.a.

from date of writ of (8.3.94) to date

of assessment of damages judgment

(19.11.99) 15,300.00

Special Damages

(a) Loss of income/profit 68,250.00

(b) Damage to van 550.00

(c) Police Report 20.00

(d) Travelling expenses 500.00

Interest thereon at $3.00% p.a.

from date of trial (16.10.95)

to date of assessment of damages 604.00

(19.11.99)

$ 138,332.00

There will therefore be judgment for the Plaintiff in the sum of $138,332.00 with costs to the Plaintiff to be taxed if not agreed.

D. Pathik
Judge

At Suva
19 November 1999

HBC0401J.93S