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Nand v Samy [2005] FJHC 606; HBC0248.1992 (18 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0248 OF 1992

BETWEEN:

SATYA NAND
PLAINTIFF

AND:

RAM SAMY
DEFENDANT

Ms A. Watkins for the Plaintiff
No appearance for the Defendant

Date of Hearing: 01 August 2005
Date of Judgment: 18 August 2005

JUDGMENT OF FINNIGAN J

This is a claim for serious personal injuries that were suffered in 1991. It finally got its hearing on 1 August 2005. The solicitors for the Defendant had been given leave to withdraw on 7 September 1998. There was no appearance for the Defendant.

The Defendant initially was charged with attempted murder over this incident. The charge was reduced to performing an act intended to cause grievous bodily harm and upon his plea of guilty he was imprisoned on 30 April 1993 for 3 years. Upon his appeal the Court of Appeal predictably held there can be no justification for interfering in that sentence. The Court of Appeal accepted for its purposes that there had been an element of serious provocation. This was built into its finding that the sentence still was not excessive. That element does not exist in the case before me because there has been no evidence in either the criminal proceedings or the present proceedings. The provocation alleged by Defendant was that the Plaintiff made sexual advances to his wife.

The Defendant came to the Plaintiff on 12 February 1991 while they were cutting cane at Tavua and attacked him viciously with his cane knife. The scars from the injuries he inflicted are clearly visible 14 years later and the Plaintiff will carry them to his grave. He has a cleft from front to back on the left top of his skull, a scar down the left side of his cheek and jaw bone and neck and his left ear has gone. He has other scars as well. He was unconscious for 11 days and in hospital for more than a month. He has given up his cane farm to his older son. He is unable to work. He is unable to drive a motor vehicle. He has continuing pain and from the brain injury caused he seems to exhibit reduced cerebral and intellectual function.

For the purpose of objective assessment of damages I set out here the last medical assessment of his injuries. It was issued on 28 August 1998 by Dr. Viliame Taoi the Acting Consultant Surgeon at that time in Lautoka hospital.

RE: SATYA NAND – MEDICAL REPORT – FINAL REPORT

History

This man was knifed over the head and face on 12/2/91. He sustained the following injuries on admission.

(1) 35cm long incise wound the left side of the skull also dividing the parietal skull
(2) 45cm wound across the right cheek dividing muscles
(3) 4cm laceration left side of neck
(4) 4cm laceration left supraclavicular region
(5) Linear fracture on the skull with brain tissue oozing through the wound.

Treatment

(1) Wound cleansing
(2) Wound repair
(3) IV Antibiotics
(4) Conservative head injury management
(5) Hospitalised for thirty six (36) days.

Final Surgical Review

The following were noted today during his clinical review.

(1) 35cm long antero-postero scar over the scalp on the left side
(2) 34cm scar across the left cheek
(3) 4cm scar on left side of the neck
(4) 2cm scar over the left shoulder
(5) Left sided ptosis due to weak left eye lid
(6) Left facial palsy due to divided facial nerve
(7) Weakness on the right side of the body.

Prognosis

(1) Permanent scarring
(2) Left facial palsy
(3) Left hemiparesis (weakness).
(4) Likely injury to left eye.

Assessment of Damages

There are other medical reports presented and there is some more evidence by the Plaintiff about the subjective results of all of this for him. I have been given no disability percentage assessment. For employment purposes it seems to me to be 100%. The reduction in his quality of life is clearly well above 50%. His wife has died and he is dependent on his sons. It is impossible to achieve a balance in monetary damages, I can only follow the guidance of other cases decided in Fiji.

Counsel has put several cases before me. First is the well known case of Elsworth ABU0085.2000 (CA). There the Plaintiff suffered head injury was unconscious for 2 weeks and in hospital and was awarded $50,000.00 in general damages for loss of amenity of life.

The next case is Mateo Raisalawaki -v- Jovilisi Kamea & A-G Civil Appeal HBC0284 of 1996, judgment 30 August 1999. In that case the Plaintiff was 9 years old at the time of his accident and for him there was apparently a permanent personality disorder, but otherwise the injuries were not dissimilar and in general damages the Court awarded $70,000.00.

I was given also Gafoor, Jahan and Shafil –v- Kasami HBC0361J of 1995L, judgment 17 March 2000. In that case one of the Plaintiffs Tabassum Jahan was a female child whose injury was a prominent stomach scar and the general damages award for her was $20,000.00.

In Markham –v- Yanuca Island Resort Ltd HBC0153 of 1997L, judgment 9 August 2004 the injuries suffered by the Plaintiff and their consequences were not dissimilar from those before me. There was however a very large amount of evidence produced in a trial that lasted 16 days. The award in general damages was $70,000.00. At page 45 of that judgment the Judge refers to Selai Toga –v- Anderson Civil Appeal No ABU0026 of 1994, judgment 17 October 1995. In that case the Court of Appeal upheld an award in general damages of $85,000.00. The Plaintiff in that case actually ended up with a better prognosis in my opinion then the present Plaintiff but she was a young women whose injuries were described as horrific and whose future prospects appear to have been rather greater then those of the present Plaintiff. The descriptions of her injuries are set out on pages 19, 20 and 21 of the Court of Appeal judgment which at that point described them as “but a preliminary overview”. Thereafter the evidence continued on pages 22 to 25 and beyond.

Against all that background I must weigh the evidence of the present case. I was not told the age of the Plaintiff but from observation assess him to be about 55 years. The incident occurred 14 ½ years ago. His life and work expectancy might be another 15 years. His injuries are in the same general category as those referred to above. I must in the end make a subjective assessment. I assess general damages at $60,000.00, of which half is related to pain, suffering and loss of amenities before trial and half is in the future. I assess interest on that for the past portion at 6% per annum simple, from date of injury till date of judgment (14 years).

I turn to his loss of earning capacity. From the evidence I am satisfied it is total incapacity. He gave evidence that he had earned $100.00 every 3 weeks from driving his tractor which I assess at $33.00 per week. With a realistic multiplier of 45 this amounts to $1,485.00 per year. In addition he said he harvested over 120 tonnes of cane per season but the figures which he produced in a record kept by Fiji Sugar Corporation showed that the production in 1991 was 102.36 tonnes which steadily decreased except for a year in 1994 until 1998 when the production was nil. In 1989 it was 188.26 tonnes and in 1990 it was 156.35 tonnes. From all of the 10 years in that list [1988 to 1998] I assess his average production in a good year to be as he said, 120 tonnes. I assume a season equates to 1 year. I had no evidence of his earnings from this tonnage but I adopt the evidence from another case I heard recently and assess it at $25.00 per tonne nett. The calculation $25.00 by 120 yields an income of $3,000.00 per year nett. Added, the two produce an annual income figure of $4,485.00. Using a multiplier of 15 for the seasons between the incident and the trial yields a total of $67,275.00 for lost income until trial. Taking his future earning prospects to be a further 15 years loss of future earnings is the same amount. The total for 30 years is $134,550.00. For the first 15 years, the period until trial I assess interest at 4% per annum simple, from the date of the writ (August 1992) till judgment (13 years).

In summary therefore I make the following assessment:

General damages for pain, suffering and loss

of amenities of life [Past]: $30,000.00

General damages [future]: $30,000.00

Interest on $30,000.00 at 6% per annum

for 15 years: $25,200.00

Loss of earnings [past]: $67,275.00

Interest on $67,275.00 at 4% per annum simple: $34,983.00

Loss of earning [future]: $67,275.00

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TOTAL : $254,733.00

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In addition I assess costs for the Plaintiff at $1,500.00.

D.D. Finnigan
JUDGE

At Lautoka
18 August 2005