IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC372 OF 2000

BETWEEN:

SURUJ KUMARI
PLAINTIFF

AND:

DR. TAOI, MEDICAL PRACTITIONER
1ST DEFENDANT

ATTORNEY GENERAL OF FIJI
2ND DEFENDANT

Mr V Mishra for the Plaintiff
Ms S. Tabaiwalu for the Defendants

Dates of Hearing: 20 & 21 June 2005
Dates of Submissions: 1 July, 11 July and 18 July 2005
Date of Judgment: 19 October 2005

JUDGMENT OF FINNIGAN J

This is a claim by a mother arising from the death of her 15 year old son. She claims that the Defendants, being the Chief Medical Officer at Lautoka Hospital and the State Health Authorities who employed him are liable to her in negligence.

The Facts Generally

Her son was aged 15 on 20 October 1998 when he fell from his bicycle and received a head injuries and a laceration on his forehead. His brothers met him walking back home with a blood-stained cloth held to his head. He spoke normally at that time and said he did not want to go to hospital. They took him to Lautoka hospital where he was seen in the outpatients department. While waiting he had to sit down and at one stage he fainted. His forehead laceration was sutured by a nurse and he was to be admitted. This is in the evidence and the hospital notes (p.1). First he was taken to the x-ray department on a stretcher. There he was x-rayed (one x-ray) and while waiting for the x-ray report he began to groan and cry and appeared to be in pain. His brothers were advised that he was not to be admitted. He was taken to outpatients where he was injected with 10mg of Diazepam by a nurse and was sent home. He was seen by a duty doctor while in outpatients.

During the night his mother sat with him and he became distressed and was shaking. Next morning he was taken back to the hospital and was admitted. His intra-cranial pressure had increased. The 1st Defendant, Dr. Taoi operated on him drilling two burr holes in his skull. No blood or fluid was recovered. The holes were drilled not through the skin at the sutured site but further away beyond the hair line. The doctor used an L – shape implement which he called a “dura depresser” through the burr holes to depress the brain and prospect for 4cm in a full circle around each hole and the diameter of the (8cm) circle came near the sutured site.

The doctor had available to him the one x-ray taken the previous evening. Both he and the Registrar attending the patient commented that it was normal. This was recorded by the Registrar in the hospital notes (p.1). Dr. Taoi had not discussed this with the radiologist. He said it gave him no indication that the skull was fractured beneath the sutured site. He said he had first contemplated sending the patient to CWM hospital for a CT scan but had been informed that the scanner was out of service for repair. 

From that time on the patient continued to deteriorate until 4 November 1998 which was 14 days after the operation. On that day he was taken to CWM hospital where a CT scan was done and two more burr holes were drilled. Clots and old blood were removed. Approximately 70mls was removed from each hole. 

By then the patient was comatose and to all intents and purposes moribund. He could move his eyes and there were some movements of his legs but he could not speak or otherwise move his body. He was fed by a nasal tube. He was sent back to Lautoka hospital and about a month before he died he was discharged for care at home. He died on 10 March 1999. The stated cause of his death was “non haemorrhagic fronto parietal brain infarction” and “bilateral hypostatic pneumonia”.

The Lautoka hospital patient folder was produced in evidence. It includes some nursing notes made at CWM Hospital. By its nature the material in it is largely hearsay but Dr. Taoi identified and commented on some of his own notes and refreshed his memory from some of the others. I have read through it but have to be cautious.

The Claim:

The statement of claim alleges 6 heads of negligence as follows:

(a)	Failure to conduct an adequate x-ray on Sushil Kumar and thus failure to detect the depressed skull fracture;

(b)	The failure to keep Sushil Kumar Singh for observation and instead sending him home despite Sushil Kumar Singh was still shaking and had fainted in GOPD;

(c)	The operation performed on Sushil Kumar’s head was not done using such reasonable skill and due care and the operation was thus performed on the wrong sites of the skull;

(d)	Failure to immediately send Sushil Kumar to Suva so that a CT scan be conducted and a proper diagnosis be made despite numerous requests by Sushil Kumar Singh’s family;

(e)	Failure to recommend overseas treatment despite numerous requests from Sushil Kumar’s family and solicitor;

(f)	Failure to provide adequate medical attention to Sushil Kumar when he was bed ridden which caused him to develop horrible large bed sores.

A further head became apparent during the hearing and was addressed as such by both Counsel in their submissions. I state it as follows:

(g)	Administering the sedative Diazepam at maximum dose when good medical practice required that Sushil Kumar be allowed to respond normally to his head injury so that his reactions could be observed.

Further Facts In The Evidence:

For the Plaintiff expert evidence was given by Dr. P S Goundar and from his qualifications I accept him as an expert witness. He had the added qualification that he was Medical Superintendent of Lautoka hospital from 1984 until 1988. He is not a Surgeon he is a Pathologist and General Physician at the Bayly Clinic in Lautoka. It was he who said that once the deceased presented with a head injury he should have been admitted and closely monitored because patients with head injury are at risk of slipping into a coma or into seizures. It was he also who said that good medical practice dictates that a patient presenting with a head injury should not be given a sedative because if there are serious complications the sedative will dampen the symptoms. He said that 10mg of Diazepam was the maximum dose. In his opinion once there was clinical measurement of raised intra-cranial pressure this should have been followed up with CT scan or a carotid arteriogram to ascertain the cause, which was likely to be serious.

Dr. Goundar attended the post mortem examination of the deceased as a representative of the Plaintiff. He says he saw the depressed skull fracture and it was measured by the Medical officer making the post mortem examination as 20 by 10mm. He said it could be seen without x-ray . He demonstrated the size with his hand. In his opinion it should have been detected by x-ray. It was directly under the sutured wound on the forehead. The burr holes drilled by Dr. Taoi were in his opinion a long way from the site of the depressed skull fracture. In his opinion the burr hole operation done by Dr. Taoi would have been sufficient for the patient’s recovery had the holes been drilled at the site of the fracture. I note here that the holes later drilled at CWM Hospital were not at the site of the fracture.

The report of the post-mortem examination states that “only (the) anterior portion shows about 2mm inward depression”. In my opinion it may not have been readily visible under the wound when it was fresh.

Dr. Taoi gave evidence. Dr. Taoi agreed if he had done the operation at the sites which were drilled at CWM hospital it was very likely that the patient would have recovered. He said he would have drilled through the fracture if he had known it was there. Dr. Taoi also said that it is normal to make two x-rays of a head injury, but that after satisfying himself from the one picture that there was no skull fracture he did not consult the Lautoka hospital radiologist. He said an X-ray will show a blood clot if it is putting pressure on the brain. No x-ray was made after the diagnosis of increased intra-cranial pressure.

He said he called CWM hospital on the evening of the operation, before the operation. He said they told him the CT scanner was out of order. When asked why he decided to operate he referred to the hospital notes (p. 6) and said it was because of the clinical finding recorded there. The patient was semi-conscious and disoriented. The left side was weaker than the right, he was generally spastic and his left pupil was dilated. He had raised intracranial pressure. Consequently the surgeon had to operate urgently. 

He said he went first to the left side. It was quite a confusing case he said with weakness on the left but pupil dilation on the left. He concluded that he should operate on the left side “where we thought the pathology was”. He found the whole brain tissue was swollen like a balloon protruding through the hole. He used the dura depresser to explore a 4cm radius but could not get any free blood flow at all. He then went to the right side because he concluded the injury (the blood collection) could have been on the opposite side from the swelling which caused the tissue to protrude through the hole he had made. This he said is called a “contra-coup”. He had no better result on that side. 

He made the point that the surgery in CWM hospital located the blood because its location had by then been established in a CT scan. He agreed that CT scan should have been done earlier than it was after the operation. 

Something was made of the fact that the duty doctor and /or nurse in outpatients had taken the matter as being less serious because the deceased was “a known epileptic”. There is apparently no record remaining in the hospital but when the Plaintiff herself gave evidence she said he had been checked a long time before and no epilepsy was established but he had been kept on monthly check ups for about a year until they tore up his card and told him he need not come again. It seems that the outpatients diagnosis on 20 October 1998 was that he had possibly suffered a seizure while riding his bicycle. One is at a loss when trying to see how that might have made his head injury less serious.

Plaintiff’s Counsel submits that the absence of a CT scan before Dr. Taoi’s operation is crucial to this case. Dr. Taoi wanted one and his clinical notes made on 21 October show that he phoned CWM hospital. He read the notes and said they showed the dates the scanner was under repair were 6 October to 17 October. There is a conflict of evidence. Dr. Taoi said he had received a Memorandum from CWM hospital saying the CT scanner would be under repair until 17 October 1998. He said that he phoned on the evening of 21 October 1998 to see if the scanner was working yet and was told it was not. He may have been right about the date because he had not been at the hospital the previous evening and had not seen the deceased. He did the operation at 4.30pm till 5.30pm on 21 October 1998. When I questioned him about the time of the operation in relation to the time of the phone call he said he had called before the operation. From this evidence and evidence I have heard in other cases I accept that 4.00pm onwards is called “evening”. 

In contrast to this one of the brothers of the deceased gave evidence that on 4 November 1998 upon arrival at CWM hospital he asked one of the nurses about the scanner. He says she replied that it was operating and had been operating on 20 October and that the only time it would have been out of operation was for an hour or so while its computer was re-booted. This evidence carries less probative weight. However, it clearly was open to the Defendants to establish the dates if any that the scanner was not working. These proceedings were commenced in November 2000 but the X-ray has not been kept and perhaps the CWM hospital office records were not kept either. For whatever reason the Defendants did not consult or produce their records and did not clarify this crucial issue when it was in their power to do so. This has to be construed against them.

Dr. Goundar suggested a carotid arteriogram but from the evidence I understand these have not been done here since about 1984, there is no evidentiary basis for holding that the necessary dye is available and I put this suggestion to one side. 

Dr. Goundar also gave evidence that it has been the practice for doctors at Lautoka hospital to maintain contact with other doctors including specialists overseas upon whom they can call for assistance with difficult cases. Dr Taoi said in cross-examination that there is at least one Australian neurosurgeon who visits Fiji every year to perform operations that local doctors are unable to perform. This was at CWM Hospital he said, he had no memory of one coming to Lautoka. He seemed non-plussed by the suggestion he should have sought advice when the burr holes had failed and the patient’s condition continued to decline. In my opinion this is the crucial area in which the Defendants must explain themselves. There was no explanation in the evidence about what if anything was done for the patient between 21 October and 4 November 1998 or why it was on that date particularly that he was transferred rather then much sooner. I have read the hospital notes. They seem to be either out of order, or are two sets combined. They are a little lacking in dates. It seems he was constantly monitored and was given constant nursing care. The care is evident in the notes. Clinically however, it seems he was simply maintained while his condition grew worse. On 2 November the notes show that Dr. Taoi did a tracheostomy, but he did not mention that in his evidence. Clearly by the time he was operated on at CWM hospital his brain had largely ceased to function.

From the evidence of Dr. Goundar, I understand that the non-haemorrhagic brain infarction that caused the death was an accumulation of blood outside the brain which put pressure on that part of the brain where it was (the fronto parietal part) and thus starved the brain tissue below it. The result was death of the brain tissue in that part. 

The Plaintiff claims that the Defendants were negligent in delaying her attempt to have her son transferred for medical treatment overseas. From what little evidence there is the Defendants indeed showed no signs of urgency about this application by her but by then the deceased was already near death and it was too late. The Plaintiff likewise relies upon the physical condition of the deceased at the time he came home for care and at the time of death. One brother took some photos which were produced in evidence. They are distressing in their impact. Before he died the deceased was little more than skin stretched over bone and there were horrifying gaping bed sores on both hips. Dr Taoi at first claimed the bed sores occurred after discharge from Lautoka hospital but soon acknowledged the reality that they had started while he was in hospital (after return from CWM). Dr Goundar said that two-hourly turning and/or a water bed would have prevented the bed sores, or reduced them. 

About all that my conclusions are as follows. From the notes, it seems he was turned sometimes while at Lautoka hospital. The notes for 2 November 1998 actually record “no bed sores”. By the time he left CWM however this patient had shown very little brain function for over 4 months. He had been fed by tube through his nose. He had scarcely moved voluntarily in all that time. Horrible though the emaciation is to behold, wasting of muscle and tissue must be inevitable and it is difficult to see how the two hospitals could have maintained body condition on liquid foods. The pictures of the bed sores likewise are horrible to behold. I note however that they seem to be only on the hips and on no other pressure points such as shoulders, elbows or ankles. I can only conclude that the emaciation and the bed sores were natural consequences of the loss of brain function. There must have been some careful turning to avoid bed sores on other pressure points. In my opinion they are an additional factor to take into account if and when remedies are being considered. They are not however by themselves additional evidence of further neglect, and I put these claims of negligence aside. They are not made out. 

Negligence:

It is common ground that the Defendants had a duty of care to the deceased. Both Counsel cited authorities for that. I have read the authorities they supplied and need not set them out here. I accept the proposition. 

The issue between Counsel is whether the duty of care was breached.

Counsel for the Plaintiff relies on two cases only in submitting there was a clear breach of the duty of care. The first is Waqabaca –v- Vudiniabola (1996) FJHC91, HBC0060 of 1993 Judgment 31 January 1996. Counsel informs this judgment of the High Court was upheld by the Court of Appeal in Attorney-General –v- Waqbaca Civil Appeal No ABU0018 of 1993 Judgment 13 November 1998. Certain dicta from the High Court Judgment were cited in the submissions but these are not much use without their context and regrettably I do not have the judgments. The second authority is Wilsher –v- Essex Area Health Authority (1986) 3 All ER 801. This case needs to be kept in mind but it relates specifically to the duty of care in a specialist unit within a hospital. There is no element of Specialist Unit care in the present case, but the case was in the English Court of Appeal and a majority held that the standard of care in a specialist unit was to be judged in the context of the work done in the unit rather than in the context of the people doing the work because the duty ought to be judged according to the acts which the particular doctor had elected to perform rather than by the doctor himself. The majority held that inexperience was no defence to an action for medical negligence. One of the three judges in the Court was of the opinion that an inexperienced doctor who set out to exercise a specialist skill and made a mistake could avoid breach of the necessary standard of care if he had sought advice and help from a superior when necessary. The same Judge (Glidewell L J) held that the correct test to apply in that case was the test in the Bolam –v- Friern Hospital Management Committee (1957) 2 All ER 118 at 121. The test by that standard is the standard of the ordinary skilled person exercising the special skill required. It is sufficient if he exercises the ordinary skill of an ordinary competent person exercising that particular art.

The dicta cited from Waqabaca (above) are a useful indicator of the authorities upon which the Court relied in that case. These were Barnett –v- Chelsea & Kingston Hospital Management Committee (1969) 1 QB 428 and Cassidy –v- Ministry of Health (1951) 2 KB 343.

Counsel for the Defendants opened her submissions with a clear statement (for which she cited 3 authorities) that the Defendants do not contest the point that they owed a duty of care to the Plaintiff when he presented at the hospital on 20 October 1998 and again on his admission on 21 October 1998. She relied on Bolam (above) and the principle which I have summarized above to submit that Doctor Taoi exercised the ordinary skill of an ordinary competent person exercising the particular art which he exercised and sufficiently met the standard of care. Counsel then cited Hunter –v- Hanley 1955 S.C. 200. The citation I imagine has been taken from Michael Jones Medical Negligence Sweet & Maxwell London 3rd Ed. 2003 at page 191. In that text from page 190 onwards there is a useful discussion of the peer test for the “reasonable doctor” as laid down in Bolam and Hunter. There may be a slight distinction between a standard based on the standard of the ordinary skilled person and one based on the reasonably competent person. The first emphasizes peer standard, ie. the standards actually adopted by the Medical Profession while the other measures by reference to the hypothetical “reasonable doctor”. In the latter case it is the Court that will determine what the reasonable doctor would have done while in the former the Court hears what the profession does in a given situation. Ultimately that latter evidence must be considered either way and in the present case the evidence is that of Doctor Taoi and of Doctor Gounder.

Counsel cited three other cases which are all adequately discussed in Medical Negligence (above) at page 193. I have found those cases and that discussion very helpful. I accept that the Plaintiff must show that the death was attributable to want of a reasonable level of skill and that I am not to infer it. It is particularly necessary that I have regard to the different kinds of circumstances that may present themselves for urgent attention. I am bound to hold that every person who enters into the medical profession undertakes to bring to the exercise of it a reasonable degree of care and skill, that is a fair reasonable and competent degree of skill. I take reasonable skill to be skill that is reasonable according to the standards of what the profession does in a given situation. The course I believe I must adopt, so long as there is evidence, is to consider what the profession does in a given situation and then determine for myself what the reasonable doctor would have done. I am not to require that Doctor Taoi and the other medical staff at the Lautoka hospital attain and practice the highest degree of skill and competence and caring for a patient who presents with a head injury.

Counsel for the Defendant pointed out, and I accept, that in order to evaluate and rely on expert evidence I must be satisfied that the expert evidence represents a responsible body of medical opinion (Sidaway –v- Board of Governors of the Bethlem Royal Hospital (1985 AC871). Assuming the Court accepts the expert evidence, it will only be guided and assisted because the evidence should not dictate the finding. It is for the Court to say whether there was a duty owed and whether it was breached (F –v- R (1983) 33 SASR 189 (SC S) (Aust)]. 

Findings:

Counsel for the Defendants directly addressed only the patient’s admission on 21 October 1998. I shall return to that. But first as required by Counsel for the Plaintiff I should apply the standards to the events of the first visit on 20 October. What occurred then I think was below the standard of reasonable care required of hospital staff when a patient presents with a head injury. Clearly the injury was more than superficial. The patient’s condition upon clinical examination warranted sending him for x-ray examination. Only one x-ray was made when even by the evidence of Dr. Taoi normal procedure was to make two. So far as the evidence reveals the radiologist was not consulted for his opinion. There was a depressed fracture which at post mortem was visible to the naked eye. I can speculate (and the notes suggest) that it was disguised by swelling when the laceration was sutured by the Nurse. Whether or not the second x-ray should have been taken and whether or not the radiologist might have detected the fracture it seems to me even without expert evidence that a patient presenting with a head injury who has fainted while awaiting examination and whose examination indicates the need for extra care as shown by the request for x-ray should have been kept for observation and kept without sedation. The notes show he was to be “admitted to Recovery” but somebody changed that and made it worse by ordering maximum sedation. Even in lay terms and by what I think is common knowledge this patient was not adequately cared for on his first visit. There was a breach of duty of care. The expert evidence of Dr. Goundar confirms this. Bolam (above) alone is sufficient authority for this, but the other authorities also lead me to this conclusion.

Thereafter, the patient was observed at home by his mother throughout the night and he was soon returned to the hospital. At that point his intra-cranial pressure was measured. It was at this time that the need for intervention became obvious. It was at this time that the need arose a second time for the exercise of a reasonable standard of care. A burr hole operation to relieve the pressure was urgently required. Dr. Taoi did the operation. He chose to proceed without a fresh x-ray or the opinion of the radiologist. He said that if he thought blood was collecting under the site he would have drilled directly through the site. His impression from the confused clinical signs was that the left side was the cause of the pressure. What he did do was to drill for the blood in the area where he expected to find it, and rotating the L-shaped instrument which from the burr holes was able to reach the site. He found no blood. Thereafter he observed the patient. He did little else. He did little else for 14 days. He performed a tracheostomy after 12 days. He offered no explanation. To me his inactivity is inexplicable.

The absence of a CT scan before the Lautoka operation can be excused because I think Dr. Taoi was right. He did not need a CT scan to tell him that he needed to operate. In my judgment from the evidence I heard he made a reasonable choice on the indications which presented themselves to him about where to make the burr holes. Clearly he was not going to get a CT scan that day. I am not in a position to dictate where the burr holes should have been drilled. I note the evidence of Dr. Goundar that a reasonably competent doctor would have drilled at or close to the sutured injury site. Dr. Taoi however had only the confused clinical indications to go on. In respect of this one operation he passes the Bolam and Hunter tests.

It is the failure to move for an X-ray or a CT scan thereafter that was negligent. For this finding I do not need the evidence of Dr. Gounder, the 14 day delay is entirely unexplained. It was during this time that the patient passed beyond medical help and beyond recall.

Adopting an objective stance I am unable to avoid the conclusion that as a head injury patient the deceased did not get much clinical attention at all after the burr-holes operation. He was kept comfortable, monitored and treated for what he was, a patient in a deep coma. I believe the evidence of Dr. Goundar is objective and should be a guide to me. By the standard which he put forward clearly Dr. Taoi and the Lautoka Hospital authorities generally, in taking no action to find the cause of the brain swelling and the coma, acted at a level of practical competence below that of a reasonable surgeon and physician, after the operation. In reaching this conclusion I have fully considered the fact that Dr. Taoi was initially faced with an emergency situation and so far as I know does not hold himself out to be any sort of expert in surgery for head injuries. Nonetheless even as a General Practitioner he was faced with increased intra-cranial pressure. By his own evidence if that was caused by a blood clot, a fresh x-ray might have shown it. He tried once to find blood by surgery after which he seems to have abandoned further clinical effort.

The CT scan situation is a further factor, for which both Defendants must take responsibility. The true facts were not put before the Court by the Defendants. I think they could have been. On balance I think the machine probably was out of service for a period at around this time but no explanation was offered for the 14 day delay in sending the patient to where the scanner was. He was immediately scanned on arrival at CWM Hospital, according to the notes, and the witnesses. It is the unexplained delay that seems to me to fall below any reasonable standard of medical care. 

Negligence – Summary

I find the Defendant’s negligent in:-

1(a) 	making only one x-ray;
1(b) 	not keeping the patient for observation;
1(c) 	sedating him.

-	all on 20 October 1998.

I find the Defendants negligent in:-

2(a)	not making a second x-ray or moving more quickly for a CT scan after the diagnosis of increased intra-cranial pressure.

2(b)	doing nothing after the burr-holes operation to investigate and treat the patient’s raised intra-cranial pressure for 14 days.

-	between 21 October and 4 November 1998.

Damages:

Plaintiff’s Counsel seeks damages and interest on the damages to a total of $163,973.45. After reading the authorities upon which Counsel relies and after reading the submissions of Counsel for the Defendants I think these claims are reasonable as to quantum. However the basis on which the claims are made has been challenged by Counsel for the Defendants. Some of these claims are quite unheralded in the pleadings. The Statement of Claim, though wordy and detailed, makes only passing reference to the pain suffering and death of the deceased (at para. 12). It pleads (at para. 14) considerable grief caused to the family by the delay said to have been caused by delay in the post-mortem. Beyond that it pleads no injuries or losses to anyone as a basis for its claim in damages and it seeks only general damages plus interest under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act along with further or other relief. In the submissions however, damages are sought for pain and suffering and loss of amenities of the deceased, as a benefit due to his estate along with another payment for “lost years” again presumably for the benefit of the estate. There is then a claim for $14,295.00 for seven items one of which are proved and all of which are speculative, together with interest thereon at 4%. Interest at 6 ½ % is sought on the damages awarded for pain, suffering and loss of amenities. 

Defendants’ Counsel submits that no award should be made which amounts to damages for the relatives of the deceased either under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27 or under Compensation to Relatives Act, Cap 29 and that there should be no award of special damages. She submits also that any claim for loss of earning capacity is outside the scope of the pleadings and should not be granted. I do not think any claims under Cap 29 for relatives are included in the submissions.

On consideration, Plaintiff’s Counsel’s claims generally avoid straying into Cap 29, though with a proper pleading one might have expected them to do so. I think Plaintiff’s Counsel has stayed within the scope of the pleaded claim in the claims for pain, suffering and loss of amenities and interest thereon and in the claim for compensation for lost years, without interest. This seems to me to be within the scope of Cap 27. The claim of $80,000.00 for pain, suffering and loss of amenities seems to me to be adequately supported by the authorities such as Salaitoga -v- Kylie Jane Anderson Civil Action No. 353 of 1989S and (in the Court of Appeal) Action No. ABU0026 of 1994 and Yanuca Island Limited –v- Elsworth & Anr. Appeal No. ABU0085 of 2000 and the other authorities upon which Counsel relied. Likewise the claim for interest upon that at 6 ½ % for six years and eight months. The claim for lost years likewise is warranted by the authorities, as is the amount sought.

The claim for “other miscellaneous damages” which is a claim in special damages was not pleaded. Counsel for the Defendants rightly objects. With the possible exception of a taxi fare of $15.00 however each item was proved in evidence and I accept the evidence of the brothers of the deceased about their own earnings, for both this claim and the general damages claim, about what the deceased might have earned had he finished his education and started work. A further minor expense of $5.00 for a medical report was proved but not claimed. By the same token the mentioned expenses of having Dr. Goundar attend the port-mortem, prepare a report and appear at the hearing could have been claimed as special damages but no evidence was produced. Plaintiffs’ Counsel accepts that these expenses must be covered by the general damages. I accept that for the “miscellaneous” expenses claimed there is no documentary evidence, but these claims in my experience of similar cases are both genuine and reasonable, so in all these circumstances I will allow them.

In any event, it would be proper to allow this head of damage under the pleaded claim for further or other relief. 

I therefore award damages to the Plaintiff as representative of the estate of the deceased in the following amounts;

(a)	Pain and suffering and loss of amenities	:		$80,000.00
(b)	Interest at 6 ½% thereon for 6 years and eight months:	$34,666.66
(c)	Lost years					:		$31,199.99
(d)	Misc. Other Damages				:		$14,295.00
(e)	Interest on other items at 4%			:		$ 3, 811.80
							TOTAL:	$163,973.45
									======== 

Costs follow the event and are awarded to the Plaintiff. I assess them summarily at $5,000.00 together with all court costs and disbursements up to and including sealing of the order herein which I am sure can be readily agreed between Counsel, otherwise settled by the Registrar.

D.D. Finnigan
JUDGE

At Lautoka
19 October 2005