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Narayan v Native Land Trust Board [2008] FJHC 291; HBC275.2004L (20 June 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL ACTION NO. HBC 275 OF 2004L

BETWEEN

RITESH NARAYAN
f/n Shiu Narayan
Plaintiff

AND

NATIVE LAND TRUST BOARD and JOELI DAKUNIMATA
Defendants

Appearances: Krishna & Co. for the plaintiff
Vuataki Qoro & Associates for the defendant

JUDGMENT
[ASSESSMENT OF DAMAGES]

[1] On 29 June 2004 the plaintiff was a passenger in motor vehicle registration number CS363 when the vehicle he was traveling in collided with motor vehicle EH172 along Kings Road, Raviravi, Ba. The latter vehicle was owned by the 1st defendant and driven by the 2nd defendant at the time of the accident. A writ was issued on 2 September 2004 alleging negligence and claiming damages for injuries the plaintiff received in the accident. No defence was filed by either defendant, resulting in an interlocutory judgment by default on liability being entered on 19 October 2004. An application by the defendants to set aside the default judgment was dismissed by Justice Connors on 3 October 2006.

[2] An assessment of damages is to be made of general damages and also of special damages suffered by the plaintiff. The plaintiff is 31 years old. At the time of the accident he was employed as a Salesman/Delivery Boy for Motibhai Group of Companies. He is still employed by Motibhai as a Salesman/Delivery Boy. Whilst he was returning to his home in Ba on 29 June 2004 he suffered personal injuries when the vehicle he was traveling in collided with the defendant’s vehicle. He testified that he lost consciousness immediately after the accident and regained consciousness at the Ba Mission Hospital where he was taken to after the accident. He was seen and treated by a doctor on or about 5.00 pm before being discharged on the same day.

[3] Doctor Medel Labuguen’s report noted that the plaintiff, on admission on 29 June 2004 had:

(i) a lacerated wound about 4 cm x 1 cm on the left lateral malleolus

(ii) orientation intact

He was treated for the laceration by suturing of the wound and administered a Tetox injection. He was given Paracetamol tablets for pain relief. The plaintiff was reviewed on 30 June 2004. His medical records noted that an X-ray film was suggestive of a fracture to his left lateral malleolus (his left ankle). The plaintiff had complained of chest and back pains. Superficial facial injuries were noted. He was treated with a Plaster of Paris on his left leg and prescribed Brufen and Flucloxacillin tablets.

[4] Doctor Samuela Korovou testified that on 29 June 2004 the plaintiff was seen in the Outpatient Department of the hospital, treated for injuries on his left lower limb and discharged the same day. Although the X-ray film was not produced, Dr. Korovou stated that the plaintiff’s medical records documented a fracture on his left lower limb and that a Plaster of Paris had been applied. The extent of the fracture was not documented. When Dr. Korovou examined the plaintiff on 29 June he did not record whether the plaintiff was in pain. He noted however that movement at the ankle joint, where the plaintiff had sustained the injury, was intact. He testified that the upward and downward movement of the ankle joint was intact and that the fracture could only have been a hairline fracture given that the joint could still be moved. He stated that although he didn’t record that the plaintiff was in pain at the time he was seen, it was normal for a person to experience pain after sustaining injuries in a motor-vehicle accident. Dr. Korovou did not have records which would have recorded how long follow-up reviews took or information on the plaintiff’s healing process. He said however that from experience, the place of the wound would tend to indicate that delay would have been a factor in the healing process.

[5] Dr. Korovou saw the plaintiff on the morning of the hearing. He testified that there was no deformity or disfigurement in the area of the injury. He only saw some scar tissue. He testified that there had not been an assessment made as to whether the plaintiff carried any permanent disability as a result of the injuries. There was no evidence led of any residual symptoms or permanent impairment resulting from the plaintiff’s injuries.

[6] The plaintiff testified that he could not work for three months after the accident. He said that he was in a lot of pain for the first two weeks following the accident and relied on his brothers to assist him getting about. He said he was on crutches and was prescribed paracetamol for pain relief. When he returned to work he was put on light duties. His brother, Mr. Rohit Narayan was called as a witness. He testified that the plaintiff could not walk for two months and had to be helped everywhere. I found his testimony regarding the extent of the plaintiff’s incapacity following the accident to have been somewhat exaggerated. Nevertheless the evidence has established that the plaintiff would have experienced pain and discomfort for at least two weeks following the accident.

[7] The plaintiff claimed special damages in the sum of $942.00 and general damages. At the commencement of the hearing learned counsel for the plaintiff submitted that the plaintiff was not pursuing damages for any residual effects of injuries or any compensation for loss of amenities of life.

General Damages

[8] In written submissions, the plaintiff claimed the sum of $10,000.00 in relation to general damages as being the reasonable amount fixed by various authorities in Fiji and in relation to pain and suffering, the amount sought was $15,000.00 bringing a total of $25,000.00 claimed for general damages. The submission is misconceived to the extent that damages for pain and suffering is a component of general damages in which an assessment is made to determine the overall general damages award. Bearing in mind the need for consistency in the level of general damages awarded in similar cases and that a comparison between the sums awarded in individual cases is only of value if it takes into account the consequences, past, present and future, I consider the authorities submitted by the plaintiff as unsuitable for guideline purposes in the instant case. In Suragni Chand v Eddie Nauchi and Thomas Cook (Fiji) Ltd.[1], general damages was assessed on a number of injuries including disfigurement, fracture of femur which was treated with open reduction and plate and screw fixation, motion of knee reduced to 70%, injury to an eye, the possibility of developing osteoarthritis, sex life affected, continuing pain and discomfort and a limp which was still present when the assessment of $25,000.00 for general damages was made. In this case, loss of amenities is not a factor. Neither is permanent incapacity. In Suragni Chand there were multiple injuries including injury to an eye whilst in this case the plaintiff’s injuries are best described as falling within the category of a miscellaneous minor injury. The other case relied on by the plaintiff namely Rakesh Chand v Mohammed Shahim[2] is also unsuitable for use as a comparison. In Rakesh Chand, the plaintiff was admitted to the Lautoka Hospital. The injuries he sustained were described as head injuries with laceration, right foot injury and left leg injury. His left leg was broken in two places and he had a cracked right toe. His leg was plastered. He was in hospital for two weeks where he received injections for pain. After being discharged, he was wheelchair bound for two weeks following which he was able to use crutches for seven or eight months. His permanent disability was assessed between 12% and 30%. The award for general damages was $65,000.00 which included loss of earning capacity. In the two cases relied on by the plaintiff, the injuries were far more serious and in each case the plaintiffs were assessed as having permanent incapacities as a result of those injuries.

[9] In Anisa Tuberi v Simon Gopal and Michael Gopal[3] the Court commented that the category of miscellaneous minor injury is not an easy area in which to arrive at a fair and just award. The Court however has to do its best. Justice Gates awarded the plaintiff $6,000.00 for general damages made up of $3,000.00 for pain and suffering, $1,000.00 for scarring and $2,000.00 for loss of amenities. Awards under this head of damages for similar injuries are significantly lower than what the plaintiff had submitted he is entitled to. Where the awards have been higher, as in the following cases, the injuries have been significantly more serious and which have left an element of permanent disability. In Sharda Nand v Vatuwaqa Transport Co. Ltd & Anr.[4] the plaintiff was awarded $15,000.00 for a fractured right hip, lower leg (fractured in four places) and 27-28.8% total permanent incapacity. In Tevita Benico v Ambika Nand[5] an award of $12,500.00 was made to a plaintiff who had a left mandibular fracture, dislocated hip joint, a ruptured left knee, a fractured small toe, a stiff and painful hip, an unstable left knee and who walked with a limp.

[10] Having reviewed the authorities contained in the respective submissions of the parties, I am inclined to accept the submissions by the defendant, that an award between $15,000.00 and $25,000.00 would be excessive. Where the courts have awarded in excess of $10,000.00 for similar injuries, the nature of the injuries have been far more severe with far more serious consequences than the evidence heard in this case has established. In Pillay v Chand[6] the Court of Appeal held that:

"General Damages must provide (1) for pain and suffering past, present and future; (2) for loss of amenities of life as a result of any residual disabilities; (3) for loss of expectation of life that would have been enjoyed but for the accident and (4) for any future economic loss attributable to his diminished earning capacity arising from the permanent nature of the residual injuries."

[11] Items (2), (3) and (4) above are not relevant in the instant case. The only relevant item is for past pain and suffering. There was no evidence led that the plaintiff continues to suffer any adverse effects from his injuries. The plaintiff’s injuries were on the lower scale of seriousness. Dr. Korovou testified that only in the case of a hairline fracture could a joint still be moved. In this case the upward and downward movement of the plaintiff’s ankle was intact when he was first seen to by Dr. Korovou immediately after the accident. The plaintiff’s injuries did not require surgical treatment. He was not admitted to hospital. He was treated immediately following the accident and released on the same day. However I accept that the plaintiff would have experienced some pain after the accident and in the initial stages of healing. The plaintiff and his brother’s assessment of a period of two to three months required for healing and recuperation, I have found as exaggerated particularly in the absence of any medical evidence supporting this contention. Taking into account the totality of the evidence and the authorities, I have arrived at an award for past pain and suffering in the sum of $5,000.00.

Special damages

[12] Counsel for the defendant submitted that the plaintiff did not adequately prove any loss of earnings or traveling expenses allegedly incurred that had been claimed. That is a reasonable submission. The plaintiff was still in the same employment as he was prior to the accident and ought to have obtained from his employer written confirmation of his weekly wages at the time of the accident. He ought to have subpoenaed an officer from his employer’s organization to testify in this regard and why he was supposedly sent back home after two months to recuperate for a further month. Of note there was no medical evidence supporting the plaintiff’s own assessment of the period required for healing and recuperation. I also found the plaintiff’s assessment of the number of days he attended the Ba Mission Hospital for dressing to have been exaggerated. As submitted by Mr. Qoro, on the plaintiff’s own evidence he would have visited the hospital everyday for 31 days to have his dressing changed. For such a minor injury, I am compelled to say that he exaggerated these attendances and associated travel expenses. The special damages claimed have not been strictly proved and I cannot award him such damages but have taken into account what he did say in evidence and have made allowance for these expenses in the award of damages. I have also upheld the plaintiff’s submissions on the late application for amendment to include a claim for interest. Interest is a factor which I have also taken into account to offset his unproved losses of special damages.

Summary

[13] I award the plaintiff the following:

[14] There will be judgment for the plaintiff against the defendants in the sum of $6,170.00 plus costs to the plaintiff assessed in the sum of $550.00. Costs awarded to the plaintiff are assessed on the lowest scale because these proceedings should have been instituted in the Magistrates’ Court.

Order

Defendants to pay plaintiff the sum of $6,750.00 inclusive of costs.

Gwen Phillips
Judge

At Lautoka
20 June 2008

^[1] High Court Civil Action No. HBC 302 of 1995 per Pathik J
^[2] High Court Civil Action No. HBC 300 of 2001L
^[3] High Court Civil Action No. 273 of 2000L at page 7
^[4] High Court Civil Action No. 159 of 1995 (1997 High Court Judgments Suva, Vol. 7 p127)
^[5] High Court Civil Action No. 163 of 1990L per Lyons J
^[6] [1998] FJCA 35; ABU 0064.96S (28 August 1998) at pp 12 & 13