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Vakatawa v Wise [2008] FJHC 169; HBC302.2002 (13 August 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 302 OF 2002

BETWEEN:

LUCA VAKATAWA
Plaintiff

AND:

JOSEPH WISE
First Defendant

SEMI LUVUWAI
Second Defendant

Mr. Sevuloni Valenitabua with Mr. S. Valenitabua for Plaintiff
Mr. D. Prasad for First Defendant

Date of Hearing: 15th & 16th July 2008
Date of Judgment: 13th August 2008

JUDGMENT

[1] Luca Vakatawa was injured in a road accident on Delainavesi Road, Lami on 13th November 1999. A vehicle registration number CQ 130 driven by the first defendant and owned by the second defendant collided with Luca Vakatawa, the plaintiff in this case. Luca was injured and he was rushed to the CWM Hospital in Suva where he was admitted on 13th November 1999. He was discharged on 22nd November 1999.

[2] A default judgment had been entered against the second defendant. The first defendant elected to defend but at the commencement of the trial, his counsel told the court that the first defendant was no longer disputing liability. The plaintiff began his case. The brief of evidence of two witnesses was filed which formed part of their evidence in chief with some details being added on orally. The only issue before me is assessment of damages. The plaintiff claimed special damages, a schedule of special damages was filed on 4th February 2008 on my insistence. He also claimed general damages for pain and suffering, damages for past economic loss, future economic loss and costs of future care. To consider these I have to look at the injuries suffered by him.

Injuries:

[3] According to the plaintiff on impact he was rendered unconscious and he was told of these injuries afterwards. He told in his brief of evidence that he suffered from multiple injuries to his head, face, chest, stomach, penis area and pelvis. The medical report from the CWM Hospital dated 5th April 2000 being document 5 in agreed bundle confirms what the plaintiff says. It too states that he suffered multiple injuries to his head, face, chest, abdomen, suprapabic region and pelvis. Further intro-abdominal bleeding was diagnosed.

[4] He was also upon operation found to have a bleeding liver. His medical report states that upon admission "he was once resuscitated and admitted to intensive care unit. Despite all this his condition remained unstable and a diagnosis of intro-abdominal bleeding was made and he was taken to operating theatre for laparoscopy. At operation he was found to have injured his liver which was bleeding". A lucid diagram on page 8 of the agreed bundle drawn by Doctor Kumar shows a vertical incision over the abdomen done for purposes of clearing the internal bleeding. That operation required thirty two stitches.

[5] The injuries are multiple and serious. His wife told the court that the plaintiff was very confused in hospital. He was in pain. Even on the day of discharge, he could not walk and he had to be wheeled on a trolley and put in a waiting taxi for him to be taken home.

[6] I accept that he suffered all these injuries borne out as they are by a medical certificate and diagrams drawn by the doctor.

[7] The plaintiff also alleged that he had a damaged bladder. There is no mention of a damaged bladder in the plaintiff’s medical report. He also claimed to have an impaired sex life. Again there is no mention of this in his report. Those who claim damages for personal injuries must appreciate the value of medical evidence to support their allegations. It would be rare for a claimant in a personal injury case not to call a doctor. A record keeper is not a substitute for a doctor. I cannot therefore accept that the plaintiff suffered damaged bladder or his sex life was impaired.

[8] The plaintiff told the court that physically he has still not recovered from his injury. This assertion is hard to believe in light of two medical reports on which he relies. These two reports are issued by two different doctors from two different institutions. Doctor Kumar in his medical report dated 5th April 2000 stated that the follow up clinic on 23rd December 1999 showed that the plaintiff "had recovered well". Doctor Eddie McCaig examined him on 25th April 2000. His report is dated 17th July 2000. He found no measurable functional disability. He was of the view that the plaintiff could not return to work for any manual work for about six months but would be able to do less strenuous work.

[9] The gaping hole in the action is lack of any recent medical report which would have assisted the court about his current state of health. In the absence of any recent medical report I conclude that the plaintiff had physically recovered from his injuries by December 2000.

[10] However, that is not the end of the matter. There is evidence before me that after the accident the plaintiff became irritable and also could not sleep well. He began to worry about financial support for his family. He had thoughts of committing suicide. His family took him to St. Giles Psychiatric Hospital on 14th March 2001. The medical report stated that the plaintiff suffered from major depressing disorder with psychotic features. Dr Agnes Chang told the court that such disorder could be the result of a motor vehicle accident. I accept the evidence of Doctor Chang and find that as a result of the accident the plaintiff suffered from depressive disorder. According to the doctor the last time the plaintiff was seen at St. Giles Hospital was in October 2001. At the time he was recovering. She could not confirm if he had recovered fully because at times patients do not turn up even though they have not fully recovered.

[11] I would expect the plaintiff to take care of himself and if he felt unwell he should have continued going to St. Giles Hospital for continued medication and treatment. He had a duty to mitigate his losses. Accordingly, doing the best I can, consider that I shall fix his recovery from his depressive disorder as at December 2001. Given his depressed state and also hallucinations referred to in his medical report, I would not expect him to return to work till December 2001 that is for a period of 111 weeks from the date of accident. With his nett earnings of $53.19 his loss of wages for this period comes to $5,904.09. His loss of FNPF on this sum would be the employer’s contribution of 8% that is a sum of $738.00.

Loss of Insurance Policies:

[12] The plaintiff is claiming for loss of insurance policies around $10,000.00. The premium was being deducted from wages and sent to the insurer. Since he was unemployed after the accident he lost out on the policies. I had verbally asked counsels to address the issue of remoteness of damage in respect of the insurance policies. They apparently overlooked it. The concept of remoteness of damage is a device used by the common law to limit damages. The object of damages is to restore a party to whom a wrong has been done or been in the same position as if no wrong had been done – restituo ad integrum. If this principle was relentlessly pursued, it would provide an injured person with complete indemnity from all resulting loss however, remote or unforeseen or improbable it may have been. To ameliorate the harsh consequences the courts have developed the doctrine to remoteness of damage. Foreseeability governs remoteness for claims in tort. I am of the view that this loss of policy is caught by remoteness of damage. Would a victim of accident whose property was mortgaged and who failed to make payments with the resulting sale be able to recover the value of the property from the tort feasor. I think not.

Pain and Suffering:

[13] I have no doubt the plaintiff was hit with great force. His liver was bleeding. This is extremely serious injury. He was rendered unconscious. He went through some personality changes albeit temporarily. He had to undergo a large operation under anaesthetic, an extremely unpleasant experience. I award him $25,000.00 for his pain and suffering. The parties agree that the plaintiff be paid special damages of $537.00 being for transport costs, costs of court records, medical certificates and police records, I award this sum.

Interest:

[14] Interest is generally awarded at 3% per annum on special damages and at 6% per annum on past pain and suffering. I allow interest at above rates from the date of the filing of the writ to the date of judgment (roughly 6 years 1 month).

Conclusion:

[15] I order damages as follows:

I therefore enter judgment for the plaintiff against the defendant in the sum of $40,789.25 together with costs summarily in the sum of $2,500.00.

[Jiten Singh]
JUDGE