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Devi v Nand [2005] FJHC 530; HBC0087.1997 (16 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0087 OF 1997

BETWEEN:

LILA DEVI
PLAINTIFF

AND:

VISHWA NAND
DEFENDANT

Mr M S Sahu Khan for the Plaintiff
No appearance for the Defendant

Date of Hearing: 17 August 2005
Date of Judgment: 16 September 2005

JUDGMENT OF FINNIGAN J

This is a claim for damages by a woman who was assaulted on 29 March 1994. The injury for which she claims damages is injury to her eyes and partial loss of sight.

The Action was filed on 27 March 1997 and is thus within the limitation period. On 14 April 1997 the Defendant filed an Acknowledgement of Service. Thereafter the matter lay in the Registry until it came before me on 13 April 2005 in a General Callover. Notices had been sent to solicitors for the Plaintiff and the solicitor who was apparently the successor of the solicitor who had filed the Acknowledgement of Service but is no longer in practice. No appearance was entered before by the Defendant or any person on his behalf, but Counsel for the Plaintiff advised me that the parties had had matrimonial proceedings in the Magistrate’s Court at Ba, which were by then finalized. I set the matter down for formal proof on 17 August 2005.

On that day the Plaintiff appeared and she alone gave evidence. By her evidence she proved to my satisfaction that on 29 March 1994 the Defendant assaulted her with fists and kicks and in the process damaged her eyes. I am satisfied that she was treated at Lautoka hospital and that she had two eye operations on 11 April and 9 May 1994. I am satisfied that after the operations she could see with her left eye only dim light and with her right eye can see objects but only when they are near to her and even then not clearly. She can see hand movements but can count figures only by holding them. I am satisfied that she lives with and depends upon her mother for her living since her discharge from hospital and as a result of her blindness. I am satisfied that she has “suffered pain and suffering as they result of (the) injuries received and has not being able to live her normal life as the result of (the) injuries received”, although the Plaintiff did not specify.

The medical evidence of her condition is a report dated 27 December 1996 by the Doctor who was then the Ophthalmologist at Lautoka Hospital;

“To Whom it May Concern

RE: LILA DEVI F/N RAM SUDH R/N 212488

Medical History: Above named patient is a known case of open angle glacecoma (sic) since March 1994.

Ocular Finding: Visual acuity on the left eye is hand-movement perception and the right eye is 6/60.

Fundoscopic examination revealed 95% cupping (optic atrophy) on the left eye and 80% on the right eye.

Intra-ocular pressure on the both eyes were high 31.44mm Hq on the right and 41.5mm Hq on the left) and unable to control with maximum glaucoma medical therapy.

Operative History: Drainage operation (Trabecu Lectomy) on the left eye was done on the 11^th April 1994 and on the right eye was on the9th May 1994.

Final Ocular examination was done on the 14^th May 1996. Right eye can see hand movements and left eye can see light. Intra Ocular pressures were moderately controlled with maximum glaucoma medical therapy.

Patient did not seek any form of treatment for the assault for her eyes.

Signed

Dr. Than Tun OO
For: Medical Superintendent

LAUTOKA HOSPITAL”

It is clear the Plaintiff’s condition is glaucoma. Counsel was not able offer any evidence relating the glaucoma to the assault other than the reference to assault in the last line of the report. I told Counsel I would need to satisfy myself of the connection before proceeding and that I would consult a medical dictionary. I have consulted Dorland’s Illustrated Medical Dictionary 28^th Edition W.B. Sonders Company Philadelphia 1994. The definition of open angle glaucoma does not help much, that condition being “any glaucoma in which the angle of the anterior chamber remains open, but filtration (being) gradually diminished because of the tissues of the angle” (p.698). There is however another form of the disease also defined, that is “traumatic glaucoma, an increase in intraocular pressure due to a non-perforating injury of the globe, resulting in vascular congestion” (p.698).

From that definition and the report I am satisfied on the balance of probabilities that the Plaintiff’s condition is the result of a nonperforating injury to her eye, caused in the assault on 29 March 1994. I am satisfied that as a result her almost complete blindness is caused by 95% optic atrophy in her left eye and 80% optic atrophy in her right eye. I have been given no measure of what that represents as a percentage of total disability. I am sure that for employment purposes her disability is at or close to 100%. In the schedule to the Workmen’s Compensation Act Cap 94 the loss of sight of one eye except for perception of light is rated at 40% and total loss of sight is rated at 100%. Presumably for the purposes of that Act her disability is 80%.

Damages:

On the above findings I have no hesitation in entering judgment for the Plaintiff in liability. I hold that her disability was caused by the Defendant’s unlawful assault upon her. I have no doubt that the loss of useful sight of two eyes is greater then a mere doubling of the percentage of disability for one eye. The 60% ability remaining after the loss of useful sight in one eye contemplates a normal life reduced only to the extent that the person has monocular vision instead of binocular. With the loss of the second eye, albeit some light perception remaining, the disability is increased to the point where ocular function is reduced to mere perception of the difference between night and day. For practical purposes the blindness is total and for employment purposes I would rate the Plaintiff’s disability at 100%.

She makes no claim in respect of lost employment or employment opportunities and seeks only general damages. For the purposes of that assessment I rate her disability at 95%.

For assessment of general damages Counsel referred to three authorities. The first is Fletcher -v- Autocar Transporters Ltd (1968) 2 QB 322, particularly a dictum of Salmon LJ at pp. 363-64. I accept that the amount I award should be what a sensible man would see as not mean or extravagant but a sensible amount in the circumstances. For the matters which I should take into account he referred me to Crouch –v- Hudson (1968) 89 WN (Part. 1) NSW 35, at 38-39.

To the like effect is a dictum of Upjohn LJ Wise –v- Kaye [1961] EWCA Civ 2; (1962) 1 QB 638. I must particularly remain aware of the extent to which the Plaintiff’s disability prevent her enjoying the good things of an active and normal life. Even with the ups and down of a normal life there is a comparison to be made with the life which she has now.

In all of these there is still no guidance as to quantum. In Karan –v- Naranjans Autoparts Ltd HBC0330 of 1997S, Judgment 3 November 2000. A Plaintiff suffering head injuries a fractured nose and left angle fracture was left with occasional headaches, a stuffed nose, chest pain, a painful swollen left ankle at times and reduced sexual function. He was awarded in general damages $50,000.00. In 1993 the Court of Appeal took special care to assess personal injury general damages and related them to what might be appropriate at that time. That was a case of at least 8 bone fractures plus cuts and lacerations of the head and neck which were all repaired (eventually) but there was considerable pain and suffering past, present and future together with loss of amenities and the loss of expectations of a happy life (with little evidence about that). The Court fixed general damages at $60,000.00. That was the amount awarded by the Court of Appeal also in Maka and Attorney-General –v- Broadbridge Civil Appeal No.ABU0063 of 2001S, Judgment 30 May 2003. In that case the Court was aware that apart from paraplegia the highest award for pain and suffering had being at $85,000.00. In my opinion 95% disability from blindness would not attract the same level of general damages as 95% disability from paraplegia and clearly this case falls somewhere in the region of awards that are under $85,000.00. That is the amount which this Court awarded in Jai Raj –v- Flour Mills of Fiji Ltd HBC0624 of 1998S, Judgment 9 November 1999. There the Plaintiff was 39 years old and the time of trial which was just over a year after his accident. He had suffered extreme pain and had lost an arm. From being a keen sportsman he had become largely inactive and continue to suffer pain, embarrassment and reduced sexual drive. The Court considered Rothmans Pall Mall (Fiji) (Ltd) –v- Narayan FCA 51/93 in which a 25 year old man whose injuries were equivalent to amputation and severe disability of an arm had been awarded $60,000.00 by the Court of Appeal, and Attorney-General –v- Sharma FCA41/93 in which the Court of Appeal awarded $AU50,000.00 to a man whose leg was amputated after he had developed gangrene.

I have read several other cases. I am aware that ultimately my assessment is subjective and that I am trying to equate almost total blindness and the loss of enjoyment of life entailed by that with a sum of money. My conclusion is that I should fix general damages $70,000.00.

The Plaintiff claimed special damages of $580.00 “being the cost of her traveling from Ba to Lautoka Hospital and medical treatment”. Her evidence amounted to little more than that statement. She had kept no receipts and offered no details. The principle is that for an award for special damages the Plaintiff must first claim and then prove. I accept she had travel expenses and although she says these amounted along with costs of medical treatment to $580.00, she produced no evidence and I can make no orders.

The pleaded claims for exemplary punitive and aggravated damages were not pursued either in evidence or in submissions and I will make no order.

These are the orders that I make;

1. Judgment in liability for the Plaintiff.
2. An award to the Plaintiff of general damages in the sum of $70,000.00.
3. Interest on that amount from the issue of writ (27 March 1997) until the date of judgment (7 years 5 months) at 6% per annum simple, - $31,150.00.
4. Costs to the Plaintiff $500.00.
   

D.D. Finnigan
JUDGE

At Lautoka
16 September 2005