IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL APPEAL JURISDICTION

CIVIL APPEAL NO. HBC 284 of 1996

BETWEEN:

MATEO RAISALAWAKE
Appellant

AND:

JOVILISI KAMEA
THE ATTORNEY GENERAL OF FIJI
Respondent

Counsel: Mr R I Kapadia for the Appellant
Mr E Walker for the Respondent

Hearing: 23rd August 1999
Decision: 30th August 1999

JUDGMENT

This is an action by the Plaintiff for damages for personal injuries sustained by him in a motor vehicle accident involving an army truck driven by the first Defendant.

At the time of the accident the Plaintiff was a nine (9) year old schoolboy. At the pre-trial conference, it was agreed that the first Defendant was employed by the Fiji Military Forces and that at the material time was acting in the course of his employment. It was also agreed that the Government of Fiji owned the Army truck registration number GL 027, and that on 10th April 1995, the first Defendant driving the truck knocked down the plaintiff on Khalsa Road, Nasinu.

Finally, it was agreed that the first Defendant had been prosecuted and convicted for careless driving by the Suva Magistrate's Court on 20th October 1995, and fined $30.00 in respect of the incident.
Negligence was denied by the Defendants and it was alleged that there was contributory negligence on the part of the Plaintiff.

At the hearing on 23rd and 24th August 1999, the Plaintiff called 8 witnesses. PW1 was Constable Parmesh Dutt Krishna of Valelevu Police Station who investigated the accident scene on 10th April 1999. He tendered the sketch plan he drew of the road after the accident. This plan (Exhibit 8) is significant because, broken glass and a pool of blood are marked inside the bus bay where the Plaintiff says the collision took place.

PW2 was Tokasa Laleiwcaca, an eye-witness who watched the accident from the opposite side of the road. He said that the accident took place between 5.30 and 6p.m on the 10th of April 1995, that the Plaintiff had earlier run across the road to the bus bay but that when the truck hit him, he had already crossed the road and was standing in the bus bay. He said the truck did not stop although he shouted at the driver to stop. He said that the driver had hit the boy whilst overtaking a white Carpenters van on the wrong side of the road. He took the Plaintiff to the Valelevu Health Centre then to the Police Station, and then to the CWM Hospital. The Plaintiff was unconscious and bleeding heavily. 

PW3 was Sakuisa Rokodi, a passenger in a Tacirua Bus coming from the Kings Road of Khalsa Road. He saw the Plaintiff standing in the bus bay and he saw the army truck hitting him as he stood there. He said the truck overtook another vehicle at a very fast speed forcing the bus driver to brake suddenly to avoid a collision as the bus approached the bus bay. The truck did not stop. PW3 accompanied the Plaintiff and PW2 to the hospital. PW3 also gave evidence of the effect of the accident on the Plaintiffs health as did PW4, Ratu Simione Rakura. The Plaintiff's grandfather, 

PW5, Bai Waiqabalu, court officer tendered the court record of Traffic Case 6041/95. 

PW6, Dr Armogam Goundar gave evidence of the Plaintiff's condition and prognosis on initial examination.

PW7, Dr Abdul Wahid Khan, gave evidence of the Plaintiff's mental condition since the accident.

The Defendant called three witnesses including the 1st Defendant. DW1, Tuiselia Kinisamere and DW2 Fesaitu Fatiaki Bibi gave evidence that the Plaintiff had suddenly run onto the road and that the collision took place on the road. The first Defendant gave evidence that he was driving at approximately 50k/m ph, that he would not avoid the collision, that he was not overtaking at the time and that the collision took place on the road and not in the bus bay. 

When Mr Walker addressed the court at the close of his case, he conceded, in my opinion quite rightly, the negligence of the first Defendant and the vicarious liability of the 2nd Defendant. Indeed it is clear on a perusal of the sketch plan Exhibit P8, that the version of the accident as related by PW1 and PW2 is the only acceptable version. Furthermore, the first Defendant pleaded guilty to careless Driving in relation to the accident.

Counsel for the Defendant however asked the court to consider the issue of the contributory negligence of the Plaintiff. The onus of proving contributory negligence is on the Defendants.

There is no doubt in my mind that the Plaintiff had run across the road before the accident. However, I accept the evidence of PW1 and PW2 who in my view were forthright and honest witnesses, that when the accident occurred, the Plaintiff had crossed the road and was standing in the bus bay. Having accepted their evidence, I find no basis for a finding that the Plaintiff was negligent and I am satisfied that there is no contributory negligence on the part of the Plaintiff.

I therefore find that the first and second defendants are liable for the injuries caused by the accident, to the Plaintiff. I now turn to the issue of quantum of damages. 

Mr Walker, for the Defendants conceded the damages pleaded in the plaintiff's statement of claim. He conceded that damages were due on past and future pain and suffering but submitted that there was no guarantee that the Plaintiff would have been employed in the future. He suggested that 18 years should be accepted as the appropriate multiplier. He submitted that no evidence had been led as to the type of care the Plaintiff would require and that the court should therefore award a nominal sum. Finally, he suggested the appropriate interest rate should be 6%.

Mr R I Kapadia for the Plaintiff, submitted that the Plaintiff should be awarded $85,000.00 as general damages for pain and suffering and loss of amenities, $93,600 (at $100 per week for 18 years) for future economic loss and interest at 6% from 10/04/1995 to 23/08/1999 at $22,286.30.

The evidence before the court is that the Plaintiff was nine (9) years old at the time of the accident. He is now 13 years old. He suffered head injuries as a result of the accident and was admitted in the Intensive Care Unit of the CWM Hospital. According to Dr Goundar, he had multiple lacerations on his scalp and bruises on his face with injuries to his right hip. He suffered a fracture of the right frontal bone with cerebral contusion. He was an in-patient for 32 days after being kept on a ventilator for 2 days. He was administered fluids, antibiotics and analgesics. Dr Goundar found that the Plaintiff had suffered permanent brain damage.

The Plaintiff now suffers from headaches and body aches. He has a permanent limp. He has been examined by Dr Wahid Khan (PW8) who diagnosed his condition as one of an organic personality disorder. As a result of the injury to his brain, he is mentally and emotionally unstable. As a result he will be unable to achieve goals. There was evidence from PW5, the Plaintiff's grandfather that the Plaintiff refuses to go to school, has frequent outbursts of anger and does not follow commands and instructions. He does not play with other children. He is unlikely to find any employment. According to Dr Wahid Khan, the Plaintiff's condition is likely to worsen. His prognosis is very poor.

Whilst counsel for the Plaintiff has referred to a number of decisions in England and New 
South Wales which may be comparable to the present one, I am mindful of the Court of Appeal's remarks in Marika Lawanisari & Anr v. Pesamino Kapieni, Civil Appeal No. ABU 0049/98s that, "the assessment of damages for personal injury in Fiji should generally be done on the basis of local experiences". In particular the Court of Appeal referred to the following comments of the Privy Council in Clan Wai Tong v. Li Ping (1985) HKLR 176:

"Their Lordships consider that reference to guidelines is proper and useful and is to be encouraged. It turns to produce consistency in awards, and it assists practitioners to negotiate settlements of the many claims which are settled either at the early stages of proceedings before going to trial, or which never reach the courts at all. But the use of guidelines cannot do away with the need to compare the facts of the particular case under consideration with the facts of reported cases in which damages have been awarded by the courts. If attention is concentrated entirely on the description of categories of injuries contained in the guidelines, without regard to the facts of actual decided cases, there is a risk that the description may be treated as if it had been contained in a statute, and may divert attention from proper comparisons".

I therefore, turn to local decisions on general damages In Lowane Salaitoga v. Kylie Jane Anderson, Civil Appeal No. ABU 0026 of 1994, a 22 year old victim of a motor vehicle accident who was semi-conscious on admission and had suffered severe head injuries resulting in evacuation to Australia, a High Court award of$85,000for pain and suffering and loss of amenities was upheld by the Court of Appeal. 

In Attorney-General v. Paul Praveen Sharma, CA No. 41/1993, a 19 year old boy who was injured in a soccer match, and who was left without a leg was awarded AUS $50,000 for pain and suffering and loss of amenities. 

In A-G & Anr v. Jainendra Prasad Singh, Civil Appeal No. ABU 0001 of 1998, a 28 year old man with multiple fractures who was pulled out of the wreckage of his van following a motor vehicle accident with no permanent disability barring frequent body aches was awarded $60,000 for pain and suffering and loss of amenities.

However, the case which most closely resembles the present one is Tevita Waqabaca v A-G, Civil Action No. 60/93. That was a case of medical negligence involving a child who was two years old at the time of admission in hospital, and who was left permanently brain-damaged as a result of the treatment he received in that case, a normal healthy child came out of hospital suffering from cerebral palsy as a result of oxygen deprivation. In that case however, the award of $85,000 was upheld by the Court of Appeal on the basis that the child needed constant care and attention, could not feed himself, suffered from involuntary unwanted movements and needed supervision 24 hours a day.

Although Mr Walker suggests that the court is guided by this case, I note that the Court of Appeal said at page 6 of the judgment:

"It needs to be emphasized, . that the case is a very special one. One would hope that one would not encounter injuries of this magnitude in any other case. It would be unwise of those charged with the task of assessing damages in other cases or in advising victims of other accidents to take any guidance from this case unless the facts and circumstances with which they are concerned have a substantial similarity to those of this one."

Turning therefore to the facts of this case I find that the Plaintiff was a normal healthy 9 year old boy before the accident. He is now permanently brain-damaged with a personality disorder. He was an in-patient at hospital for 32 days. He was on a ventilator for 2 days. He was either unconscious or semi-conscious for a week after admission. He now suffers from headaches and body aches. He is now mentally unstable. He does not wish to go to school. He cannot respond to commands. He does not play with other children. He walks with a limp and as his grandfather said, "walks like a girl." His prognosis is poor. His condition is likely to deteriorate. He is unlikely to hold regular employment. There is no evidence of the degree of dependence he will have on his family although PW4 said in evidence that the Plaintiff could not look after himself. 

PW9, Dr Shish Ram Narayan, Medical Officer at the St Giles Hospital gave evidence that the Plaintiff, on an examination in 1999 was liable to epileptic fits and that his condition was likely to deteriorate.

Taking all these matters into account I am of the view that the Plaintiff should be awarded $70,000 as general damages for pain and suffering and loss of amenities and enjoyment of life.

For future economic loss, I note that the evidence of PW4, the Plaintiff's grandfather that the Plaintiff will never find a job, went undisputed by the Defendants. As such I accept the national average mean (gross) salary of a construction worker as submitted in Exhibit P7 as being $108 per week. It is fair to assume that the Plaintiff would, like his uncle PW3, grow up to be a construction worker. There is certainly insufficient evidence that the Plaintiff would necessarily have gone to University. As such I calculate future economic loss at $100 per week, with a multiplier of 18, given the Plaintiff's age. The total is $93,600.

I now turn to interest. In Marika Lawanisavi & Anr v. Pesamno Kapieni (supra), the Court of Appeal said in the light of current economic condition in Fiji, a rate of between 4% and 6% is appropriate. Interest is to be calculated from the date of the issue of the writ to the date of Judgment (30th August 1999). I fix interest at 6% on general damages accordingly.

In his submission counsel for the Plaintiff said that he had not claimed for special damages. I therefore, make no award for special damages.

In summary, quantum of damages awarded is as follows:-

General Damages
	$70,000	
Future Economic Loss
	$93,600	
Interest at 6% on $70,000
from 10th June 1996 to 30th August 1999
	$13,300	
Total	$176,900	

This sum is to be paid into court to be invested by the Chief Registrar and paid to the Plaintiff when he turns 21.

The Defendants are to pay the plaintiffs costs to be taxed if not agreed.

[Nazhat Shameem]
JUDGE

At Suva
27th August 1999