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Leba v Prasad [2003] FJHC 17; Hbc0207j.1997s (31 July 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 207 OF 1997S

Between:

SERA LEBA
Plaintiff

and

SURESH PRASAD
(f/n Ganga Prasad)
1st Defendant

and

SHORE BUSES LIMITED
2nd Defendant

D. Singh for the Plaintiff
F. Haniff for the Defendants

JUDGMENT

The Plaintiff was a passenger in a bus owned by the second Defendant and driven by the first Defendant which was involved in a collision as a result of which she suffered serious injury to her left arm and elbow resulting in the amputation of the forearm a little below the elbow.

The prosecution of the action was much delayed by unsuccessful third party proceedings details of which are set out in my written Decision herein dated 3 September 2002. It is most disappointing that a a relatively straightforward action such as this should have taken just under six years to come on for hearing, particularly as Judgment in default of Defence was entered on 12 March 1998.

On 28 January 2003 I heard the Plaintiff. She showed me her arm. She explained that she is a married woman with four children ranging from seventeen to five years old. She told me how the accident happened and how her arm was extremely painfully crushed under the side of the overturned but still moving bus. She was admitted to the CWM Hospital and her arm was amputated that day. She remained in hospital for two weeks recovering from the operation, the loss of blood and the shock she had sustained. For about six months after her discharge she continued to experience considerable pain in her arm and while this pain has diminished somewhat she is still troubled, particularly during cold weather.

The Plaintiff told me that her life had been much affected by the loss of her left hand. She used to weave bags and sold them. She used to play volleyball and netball. She used to go fishing. Now she has difficulty with her house work and finds social gatherings a problem. Her relationship with her husband has been to some extent affected.

Astonishingly, the Plaintiff told me that she had never been to see a specialist with a view to a prosthesis being fitted. Mr. Singh told me that no attempt had been made to obtain a quotation for a prosthesis. This was “an oversight”. Mr. Nagin pointed out that only $115 worth of special damages had been pleaded but realistically conceded that the cost of obtaining and fitting a prosthesis was clearly recoverable. I adjourned the hearing for estimates to be obtained.

In February 2003 a medical opinion was obtained from Dr. J.C. Maharaj. It recommended the fitting of an upper limb prosthesis and annexed a quotation from the Appliance and Limb Centre of Redfern in Australia. According to the quotation two prostheses would be required every three years at a cost of over A$6,000 per annum.

On 22 April a further quotation was obtained from the Artificial Limb Centre in Auckland, New Zealand. This quotation was for NZ$3,000 for the fitting and completion of a prosthesis, however the Plaintiff would have to attend the centre for a four weeks adjustment period.

Both counsel referred me to a number of local authorities on the quantum of general damages. Taking these into account together with the very helpful guide to the assessment of general damages for personal injuries published by the English Judicial Studies Board in 1992 (Blackstone Press) and being particularly guided by Flour Mills of Fiji Ltd v. Jai Raj (ABU 56/99) I award general damages of $55,000.00. I think that I should record that Defence counsel’s description of the Plaintiff’s current condition as set out in paragraph 2.08 of his otherwise excellent written submission does not accord with my notes of her evidence.

The fitting of a satisfactory prosthesis is obviously a very important matter. Were one not available the general damages would be higher. The quotation from Australia with its recurring expenditure seems to me to be unrealistic. The New Zealand solution would, I am sure, greatly improve the Plaintiff’s condition. To the cost of this prosthesis must be added the cost of travel to New Zealand and the cost of living there for the four weeks required to fit the limb. Counsel for the Plaintiff did not find any reason to assist me with figures for these costs but I think I am entitled to use my own knowledge to estimate the cost of travel to New Zealand at $1,000 and the cost of putting up in Auckland for about one month at a further $1,000. Taking this amount into account I award $5,000 for the cost of a prosthesis.

The very small sum of special damages was not disputed and I award the sum claimed.

There remain interest and costs. No objection to the 7% interest claimed in the Statement of Claim was raised and the rate seems reasonable. I award the amount of interest as claimed to be calculated by counsel.

I also award the Plaintiff her costs on the standard basis to be taxed if not agreed.

M.D. Scott
Judge

31 July 2003