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Mahotra v Dr Rege [2010] FJHC 278; HBC7.2006 (28 May 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION HBC NO. 7 OF 2006

BETWEEN:

SUDEN MAHOTRA
Plaintiff

AND:

DR REGE
First Defendant

AND:

THE GENERAL MANAGER HOSPITAL
SERVICES OF LABASA HOSPITAL
Second Defendant

AND:

THE CHIEF EXECUTIVE OFFICER
MINISTRY OF HEALTH
Third Defendant

AND:

THE ATTORNEY-GENERAL
Fourth defendant

Mr S Prasad for the Plaintiff
Mr J Mainavolau for Defendants

JUDGMENT

This is a medical negligence claim. The Plaintiff claims damages for injuries arising out of a Hysterectomy procedure performed in February 2004 by the First Defendant who was employed by the Third Defendant and under the supervision of the Second Defendant at the Labasa Hospital.

Hysterectomy is defined in Black’s Medical Dictionary (40th Edition) as the surgical removal of the uterus.

The Plaintiff claims that the procedure was performed negligently or recklessly and as a result she claims to have suffered loss and damage.

The hearing of the action took place between 27 and 29 January 2010. At the conclusion of the evidence Counsel sought and were granted leave to file written closing submissions. The Plaintiff filed submissions on 23 February 2010. The Defendants filed answering submissions on 11 March and the Plaintiff filed a brief reply submission on 13 April 2010.

At the commencement of the trial a number of preliminary issues were raised. First, the parties informed the Court that liability was admitted by the Defendants and the matter would proceed on the question of quantum only.

The second issue concerned the name of the First Defendant. Upon the application of Counsel for the Defendants and there being no objection by Counsel for the Plaintiff, the name of the First Defendant was amended so that instead of Dr Rani (whose name appeared as First Defendant on the Writ) there would be substituted the name of Dr Rege.

Counsel for the Plaintiff informed the Court that the Schedule of Special Damages dated 27 November 2009 and filed on 3 December 2009 represented the Plaintiff’s up to date claim for special damages.

The parties consented to an amendment to the Minutes of the Pre-Trial Conference dated 1 July 2008. The Minutes shall be referred to in detail later in this judgment.

Although the Defendants filed a counterclaim with their Defence, Counsel indicated during the course of the trial that the counterclaim was not being pursued and was withdrawn.

During the course of the evidence Counsel for the Defendants sought leave to retract the admission of liability so that both liability and quantum would be in issue. The application was refused.

At the conclusion of the evidence, Counsel for the Plaintiff urged the Court to make an order compelling the Defendants to produce the out-patient records of the Labasa Hospital. This application was a late application made necessary by the failure of Counsel for the Plaintiff to properly turn his mind to the issue of discovery of documents during the interlocutory stage of these proceedings. There was no material before the Court to indicate why the Plaintiff had not made this application earlier. This application was also refused.

The allegation of negligence or reckless conduct was set out in paragraph 7 (as amended) of the Statement of Claim and stated:

“During the said operation the Plaintiff’s ureter left side was severed and had to be re-implanted.”

It was claimed in paragraph 8 of the Statement of Claim that the severing of the left side ureter was caused by the following particulars of negligence:

“(a) Failing to conduct the operation with due care and or attention.

(b) Failing to follow proper procedures while conducting the operation.

(c) Failing to take special precautions while conducting the operation.

(d) Failing to take full care of the Plaintiff.

(e) Being negligent and or reckless under all circumstances of the case.”

It is those allegations of negligence arising out of the hysterectomy procedure for which the Defendants have admitted liability.

During the course of the hearing the Plaintiff at various times attempted to lead evidence on unrelated issues such as whether there was any damage to the right side ureter, whether a diagnosis of cancer was negligent and whether the Plaintiff had given proper consent for the procedure. None of these matters were pleaded in the Statement of Claim and nor did they have any relevance to the allegation of negligence concerning the manner in which the hysterectomy procedure was performed by the First Defendant.

Towards the end of the hearing Counsel for the Plaintiff sought leave to amend the Statement of Claim so as to claim that both the left ureter and the right ureter were severed and/or damaged as a result of the negligence of the First Defendant. This application was also refused. Furthermore, during the course of the evidence Counsel for the Plaintiff sought to amend the agreed facts in the Minutes of the Pre-Trial Conference by deleting the reference to a kinking injury and inserting a claim that the left ureter had been severed. This application was also refused.

In her Statement of Claim the Plaintiff pleaded that since her discharge from hospital and up to the present she has experienced severe pain and discomfort that has required her to attend the medical clinic on a regular basis.

The Plaintiff also pleaded that since her discharge from hospital she has been “unable to provide conjugal rights to her husband’s satisfaction”. It was claimed that this resulted from a condition referred to as “dyspareunia”. Black’s Medical Dictionary (40th Edition) defines “dyspareunia” as painful or difficult sexual intercourse.

Finally and somewhat surprisingly the Plaintiff claimed in paragraph 12 of her claim that she was no longer able to have children. There are two comments that need to be made concerning this claim. first, it was not at any stage disputed that one of the consequences of any hysterectomy procedure, whether it is performed routinely or negligently, is that the patient cannot have any more children. Secondly, on the evidence before me I find that the Plaintiff was informed by a doctor before the procedure was performed that this was a consequence of the hysterectomy and that she subsequently conveyed her consent to her husband for the hysterectomy procedure to be performed. He conveyed that consent to the Defendants. In her evidence the Plaintiff described the procedure as the removal of her baby bag.

Some relevant facts were agreed by the parties and were set out in paragraphs 5 to 10 of the Minutes of the Pre-Trial Conference:

“5 The Plaintiff was at all material time admitted to Labasa hospital diagnosed with dysfunctional uterine bleeding.

6 The First Defendant carried out a total abdominal Hysterectomy with left sided salpingo-oophorectomy on the Plaintiff on 18.2.2004 and removed the Plaintiff’s uterus.

7 During the surgery on 18.2.2004 the Plaintiff’s ureter left side suffered a kinking injury when the First Defendant sutured the ureter. (This is the form of the paragraph following amendments made by consent).

8 Twenty four hours after the surgery the Plaintiff developed distension of abdomen, fever, restlessness and developed shortness of breath.

9 On 22 February 2004 the Plaintiff was again taken to the theatre for exploratory laparotomy where it was discovered that the Plaintiff’s left ureter was dilated due to obstruction and hence T-Tube drain was applied on the left side to drain the urine.

10 The ureter was re-planted in April 2004 and the T-Tube drain removed.”

These are the facts to which the parties have agreed and for which the Defendants have admitted liability. Liability is admitted in respect of the negligence of the First Defendant when the left ureter was sutured during the course of the hysterectomy procedure on 18 February 2004. Liability is admitted for the resulting kinking injury to the Plaintiff’s left ureter. Liability is admitted for the resulting pain and suffering. Liability is admitted for the subsequent surgical procedures on 22 February 2004 and in April 2004 that were necessary to repair the damage caused by the suturing of the left ureter. Liability is admitted for the pain and suffering that the Plaintiff experienced between those two procedures and following the last procedure.

At the time of the hysterectomy procedure the Plaintiff was aged 33 years and at the time of the trial of the action she was 39 years old. She was married and had two children, both boys. As previously noted she was informed that if the hysterectomy was performed she could not have any more children. After discussing the matter with her husband, the Plaintiff consented to the procedure.

Her evidence may be summarised as follows and in doing so no reference has been made to irrelevant material.

She regained consciousness in the evening of the day on which the procedure was performed. She was placed on a drip and ate her first meal some three days later. From the outset she began to experience fever and pain in her stomach area. After eating her meal, the pain became more severe and the stomach area became hard. Her condition deteriorated further and late on Saturday 21 February 2004 she was placed on an oxygen mask due to severe shortage of breath.

She was examined by doctors early in the morning of Sunday 22 February 2004. She was sent for X-Ray testing. Her condition continued to deteriorate and on Sunday afternoon the Plaintiff asked for her relatives. She was told by her treating doctor that she needed to go back to surgery to see what was the problem. Her husband signed a consent form with her agreement.

Her evidence was that she regained consciousness on the following Thursday, some four days after the procedure on Sunday 22 February 2004.

When she regained consciousness the Plaintiff saw that there were what she described as two plastic bags. One was attached to a urine tube from her vagina. The other was attached to a tube coming from the kidney area of the left side of her stomach.

Her evidence was that following this procedure, the doctors informed her that her urine tube had been cut in the first procedure. As a result a T joint had been inserted that enabled the urine to come to an outside bag.

On gaining consciousness she experienced pain, inflammation and a burning sensation.

She stated that following the second procedure, the hardness in her stomach area had disappeared as urine was now being removed from her body through the tubes.

She was discharged on 6 March 2004. Upon discharge the ureter-kidney tube remained attached to her but the second tube was removed. That tube remained until after a third procedure was performed on 20 April 2004 (the third procedure).

The third procedure lasted about five hours according to the Plaintiff. She was discharged from hospital on 10 May 2004. Whilst an in-patient in that period the Plaintiff again was implanted with tubes, one of which was removed shortly before discharge and two others at various times following discharge. The Plaintiff experienced pain and discomfort whilst in hospital and discomfort following discharge as an in-patient.

A photograph put into evidence showed that the Plaintiff was left with noticeable scaring on the lower part of her stomach following the third procedure. The photograph was taken by the Plaintiff’s husband some two or three years after the procedures, according to the Plaintiff’s evidence. However scarring was not pleaded, is not referred to in the Pre-Trial Conference Minutes and nor is there any reference to scarring in any of the medical reports before the Court.

The Plaintiff stated in her evidence that since these procedures she is no longer able to have sex with her husband as it is too painful and as a consequence of that pain she has lost all interest in having sex. Although she was not specific she stated that she fears that this may have an effect on her marriage.

The Plaintiff stated under cross-examination that she has frequently visited the out-patients clinic at the Labasa Hospital. She stated that she did not at any time discuss with any doctor the problem of experiencing pain during sexual intercourse.

She stated that she went to the clinic whenever an infection occurred. She experiences a burning feeling on occasions when urinating. She stated that she is given tablets when she goes to the hospital. When asked about her hospital card she stated that it was lost.

The Plaintiff stated that as a result of the procedures she experiences pain in her lower back if she stands up straight. She also experiences pain in her back if she sits down in an upright position for any length of time.

She stated that as a result of the pain she was not able to do housework such as cleaning the house or doing the washing of the family’s clothes. She stated that it was necessary to engage help and her mother now does some of the heavier domestic work for $30.00 per week. She also helps to care for the Plaintiff.

The Plaintiff also stated that she was now no longer able to engage in her tailor business which she conducted from her home. She stated that she could no longer operate the sewing machine and as a result was forced to discontinue her business and lost her source of income. She claims $70.00 per week as loss of income.

The Plaintiff’s husband and the Plaintiff’s mother gave evidence in support of the Plaintiff’s claims. A Ms Emele Saufaasi gave evidence concerning the Plaintiff’s business activities as a tailor. She was a neighbour who had known the Plaintiff for about seven years.

At the hearing, medical evidence in support of the Plaintiff’s claim was given by Doctor Sachida Mudaliar. In addition three reports were introduced into evidence. Two of the reports were from Dr Mudaliar and both were dated 20 January 2010. The first report was in relation to his examination of the Plaintiff in his rooms on 11 January 2010. The second report was requested by the Plaintiff’s Solicitors in a letter dated 4 January 2010. The purpose of the second report was to comment on a report provided by Dr James Fong. So far as they are relevant to the question of damages these reports will be discussed later in the judgment. Dr Fong’s report was not dated.

It should be noted that a Bundle of Documents was filed on 18 August 2008. This bundle consisted of (a) a medical report dated 22 December 2004 from the Labasa Hospital, (b) a medical report dated 19 January 2005 from the Labasa Hospital and (c) the hospital medical folder containing results, examination and file notes together with reports and records. This material was by consent admitted into evidence at the commencement of the hearing.

The first of those two reports is brief and, it must be noted, appears to be inaccurate in places. The report states that the ureter right side was severed. This is not consistent with the thrust of the medical evidence.

The second report is comprehensive and appears to have been prepared with more care and attention to detail. For the purpose of these proceedings, the following extract is relevant:

“Hence, total Abdominal Hysterectomy with left sided salpingo oophorectomy was done on 18.2.04. The operation was uneventful. She was treated with I V fluids, antibiotics and was given 1 unit of blood.

Post-operatively, patient’s vitals were maintained but she started having fever. On 4th post-operative day on 22 February, she developed distension of abdomen, fever and was seen to have signs of obstructive uropathy. She was immediately taken up for exploratory Laparotomy when left ureters was seen dilated (due to obstruction). Hence ureterostomy – T-tube drain kept on the left side.

After exploratory Laparotomy patient was kept under observation in the recovery. She was given I V fluids, blood and antibiotics Inj. Ciprofloxacin and Metronidayole. Inj. Lasex and renal dose of dipanine were given to flush her kidneys – 24 hours after the operation, patient developed shortness of breath and was restless, hence she was put on ventilator. She was co-managed by the Anaesthetists, Surgeons and Medical team. Patient developed high temperature and signs of septicaemia on 2nd post-operative day. She was given blood and platelets – in total 6 bottles of blood and 10 packs of plalelets were transfused post operatively. Her blood parameters were regularly monitored. She was also seen by the Physiotherapists and Dietician. On 3rd post-operative day, patient showed signs of improvement – her vitals were normal and she was off dipamine and ventilator. On 5th post-operative day she was transferred to the Ward. Her vitals were maintained, urine output was adequate and her blood reports were normal with minimally raised renal parameter. She further showed signs of improvement and was discharged on 6.3.04 with the advice for regular follow up.

Patient was re-admitted on 19.4.04 for re-implantation of the left ureter which was done on 20.4.04 and she was discharged on 10.5.04 in a good condition.

She was followed up in both Gynae and Surgical clinic. The operative wound was healthy. Follow up IVP and blood renal parameters done on 16.6.04 were normal. Her last follow up was on 20.9.04 when patient had no complaints and her kidney functions were within normal limits.”

This report was signed by Dr Jayante Rege who has been subsequently named by an amendment to the Writ and Statement of Claim as First Defendant.

It can be inferred that, having heard the Plaintiff’s evidence at the trial, the reference in the report to “her last follow up was on 20.9.04” was a reference to follow up by the Gynae and Surgical clinic. It does not necessarily follow that the Plaintiff did not subsequently attend the out-patients clinic after that date. It would have assisted the Plaintiff’s case if the out-patient file had been obtained during the interlocutory stage of the proceedings.

The medical evidence adduced by the Defendants was given by Dr James Fong and Dr F Chipongian. Dr Fong is the Head of Department and Specialist Consultant in Obstetrics and Gynaecology at the Colonial War Memorial Hospital. Dr Chipongian is an Obstetrician and Gynaecologist at the Labasa Hospital.

In his evidence Dr Mudaliar stated that he had been informed that there were court proceedings pending and that his report would be used in those proceedings. He stated that he expected that the Plaintiff would experience infection on an on-going basis. She would also continue to experience pain. He indicated that in his opinion the multiple procedures could cause pain during sexual intercourse. He indicated that sitting for long hours may cause discomfort but sitting for shorter bursts could be managed.

He also stated that in the case of a routine hysterectomy procedure there would not usually be any clinical problem with sexual activity.

In his evidence Dr Fong stated that he could not identify any clinical reason why the Plaintiff should experience pain whilst she was sitting or standing up.

Dr Fong stated that the presence of scar tissue caused the lowering of mass that is presently located in the left pelvic region close to the upper part of the vagina. It is this occurrence that causes pain to be experienced by the Plaintiff on the left side of her vagina.

The scar tissue inflames when stretched. He also stated that scar tissue is present as a result of any hysterectomy procedure. He also stated that any infection in the Plaintiff’s bladder is not related to the scar tissue. He was firmly of the view that physiotherapy was essential after a prolonged hospital or surgical experience. There was no material to suggest that the Plaintiff had undergone physiotherapy treatment.

Under cross-examination Dr Fong admitted that in this case some part of the Plaintiff’s vagina would have been removed and that as a result she was at risk of developing long-term dyspareunia (both physical and psychological). She is also at risk of long term on-going bladder infection requiring anti-biotic treatment.

He confirmed that although local stretching may aggravate scar tissue, sitting and standing are not local stretching forces. He stated that the Plaintiff’s problem is due to loss of muscle – hence the need for physiotherapy. The scar tissue was the result of the bladder having been opened and then resealed. It is the scar tissue inside the bladder that causes infection in the bladder and this is the reason why it is on-going.

In his evidence, Dr Chipongian stated that he recognised the Plaintiff as he had assisted at the initial hysterectomy procedure. He stated that the Plaintiff appeared to be in pain following the procedure. He stated that to his knowledge the Plaintiff had not attended the hospital for complaints arising from the procedures after September 2004.

He appeared to accept that the Plaintiff’s vagina was slightly shortened as a result of the hysterectomy procedure.

He said that in his view dyspareunia is an unlikely consequence of a hysterectomy procedure and if such a condition is present it is usually psychological as a result of the operation. He accepted that a shortening of the vagina for any reason may cause the condition known as dyspareunia.

His attention was directed to a procedure conducted in the surgical clinic on 16 June 2004. The procedure was called Intra Venous Pylography (IVP) whereby a dye is put into the blood vein and its movement to the kidneys is observed. The hospital notes indicated that no abnormalities were detected.

He accepted that the Plaintiff’s multiple procedures could contribute to her complaint of experiencing pain during sexual intercourse and also that the procedures are likely to be the cause of her urinary tract infections.

On the question of damages, the Schedule filed by the Plaintiff represents her claim for special damages from the date of the hysterectomy procedure on 18 February 2004 up to 3 December 2009. There was no application by the Plaintiff to amend the Schedule beyond that date.

The Defendants submitted that the Plaintiff’s claim for special damages should be limited to the period 18 February 2004 to 20 September 2004. The basis of the submission was that the medical folder from the hospital indicated that 20 September 2004 was the last date on which the Plaintiff had attended for follow-up treatment. However I accept the Plaintiff’s evidence that she has attended at the Labasa Hospital as an out-patient since September 2004 from time to time for further treatment required as a result of the admitted negligent performance of the hysterectomy procedure.

However, it must be said at the outset that it is difficult for the Court to fix figures for special damages considering both the lack of supporting documents and the nature of the evidence given by the Plaintiff and her witnesses at the hearing.

Counsel for the Plaintiff relies upon Practice Direction No. 1 of 1987 issued by the then Chief Registrar. Whatever may be the status of that Practice Direction following the introduction of the High Court Rules 1988, it is clear that the consequences of non-compliance are limited to the question of costs. There still exists a requirement for the Plaintiff to provide full particulars of all special damages claimed.

The amount of $300.00 is claimed as travelling expenses for the Plaintiff’s attendance at the Labasa Hospital for approximately 50 visits at $6.00 per visit. The evidence given by the Plaintiff’s husband was that the Plaintiff travelled to the hospital and return by taxi. There were no documents to support the claim for $300.00 for transport expenses. I accept that taxi drivers in Fiji generally and in Labasa in particular are not in the habit of issuing receipts. There was no evidence in the form of hospital records to support the Plaintiff’s claims of at least 50 visits.

However, as previously stated I am satisfied that the Plaintiff did attend at the Labasa Hospital from time to time after 2004 and incurred travelling expenses in doing so.

It would have assisted the Court if Counsel for the Plaintiff had prepared a schedule of dates and occasions when these expenses were incurred.

I accept that in attending at the hospital on a number of occasion which I cannot accurately determine, the Plaintiff incurred expenses and is entitled to claim them as special damages. I am prepared to award $200.00 as an approximation under the circumstances. The Plaintiff should not be deprived of compensation under this head altogether because of the inadequacy of the supporting material.

The Plaintiff claims the sum of $9450.00 being the cost of employing assistance to look after her and assist in house-keeping at the rate of $30.00 per week for 315.00 weeks. The assistance is provided in the form of the Plaintiff’s mother who gave evidence to that effect.

I do not accept the Plaintiff’s assertion that this claim was not challenged by the Defendants. The Plaintiff and the Plaintiff’s husband were both cross-examined on this aspect of the Plaintiff’s claim. There was no material in the pleadings to suggest otherwise and it is clear from the minutes of the pre-trial conference that the quantum of special damages had not been agreed.

There was no evidence to suggest that the Plaintiff’s mother had given up any employment to help the Plaintiff with house-keeping. At the time of the trial of this action, the Plaintiff’s two sons were aged 23 and 18 years respectively. The Plaintiff’s husband is a casual labourer with Fiji Sugar Corporation and is employed in the crushing season. He also does renovation work as a carpenter when it is available.

There is no doubt that extra or increased living expenses resulting from an injury are recoverable expenses. What this means in the present case is that the Plaintiff is required to establish on the balance of probabilities that she was entitled to claim damages for services provided by her mother which were reasonably required by the Plaintiff because of her physical needs directly attributable to the injury she suffered as a result of the negligent performance of the hysterectomy procedure. There is authority for the proposition that whether she was under a moral or contractual obligation to pay her mother for the services provided is irrelevant. The Plaintiff’s loss is the need for the services and the value of which for the purpose of determining the amount of her loss, is the proper and reasonable cost of supplying the Plaintiff’s needs. (See Donnelly –v- Jones [1973] EWCA Civ 2; [1973] 3 All ER 475).

I am satisfied that the sum of $30.00 per week is a reasonable cost for supplying the Plaintiff’s needs in this case. However I am by no means satisfied that this assistance was or is reasonably required by the Plaintiff as a result of her condition after it had stabilised following her discharge from hospital. In such circumstances the courts have been vigilant to ensure that the arrangement is not a sham. In Housecroft v Burnett [1985] EWCA Civ 18; [1986] 1 All ER 332, a decision of the English Court of Appeal, O’Connor LJ at page 343 stated:

“For the reasons given ... in Donnellys case (supra), I am very anxious that there should be no resurrection of the practice of Plaintiffs making contractual agreements with relatives to pay for what are in fact gratuitous services rendered out of love. Now that it is established that an award can be made in the absence of such an agreement, I would regard an agreement made for the purposes of trying to increase the award as a sham.”

The evidence given by the Plaintiff about her condition since 2004 was not convincing. She stated that when she attends the Labasa Hospital it is usually when there is an infection. She stated that the doctor gives her tablets which she believes are for the treatment of pain. She says that the pain is so severe that it prevents her from doing house keeping activities and washing of clothes, sheets, bed covers and the like.

Although it was conceded by Dr Mudaliar in his evidence that the Plaintiff was likely to experience pain on an on-going basis, he acknowledged that it was not possible for him to say what she could or could not be able to do in terms of her housework or her tailor business.

There was no material in Dr Mudaliar’s reports that indicated a clinical basis that would prevent the Plaintiff from performing everyday house-keeping activities.

On the question of pain he noted in his second report that:

“Suden has recovered from her ordeal but suffers chronic urinary tract infection and loss of her “normal” relationship with her husband and weakness and “abdominal pain” for life due to the multiple laparotomies resulting in adhesions that have formed on her left side as a result of the infection and surgical manipulations.”

In the same report Dr Mudaliar’s only reference to house-keeping activities appears at the bottom of page 2 where he notes:

“On further questioning she complained of being unable to do heavy house-hold chores – like carrying a bucket of water from the well to her house, etc.”

An ultra sound scan showed that her abdominal organs were normal.

Dr Fong’s report was unfortunately more concerned with the question of negligence rather than the Plaintiff’s condition since the procedures. However his evidence at the hearing was to the effect that there was no clinical basis for her pain whilst standing up or sitting down.

The Court has some difficulty in accepting as bona fide a claim whereby the Plaintiff engages for $30.00 a week her considerably older mother to undertake heavy household chores when there are at least two if not three male members of the family who could normally be expected to assist with such activities in any event.

There was evidence before me to suggest that the Plaintiff was quite capable of looking after herself. There was no physical impediment to her performing normal household activities. Pain when it occurs was treated and relieved with medication for which the Plaintiff would be entitled to special damages. Although the Plaintiff’s husband admitted he was aware of the existence of a physiotherapy unit at the Labasa Hospital, the Plaintiff had not at any stage sought any opinion as to whether physiotherapy would assist and certainly the Plaintiff had never attended the physiotherapy unit at the hospital.

The Court is prepared to accept that following her discharge from hospital in May 2004, the Plaintiff may have needed some additional assistance to help her return to something like her normal routine. For that purpose the Plaintiff should be awarded a reasonable amount. One year of assistance would be more than adequate to compensate the Plaintiff for her loss. Therefore an amount of $1500.00 is awarded as special damages for acquiring the assistance of her mother. It was not unreasonable for the Plaintiff to compensate her mother in the sum of $30.00 per week for giving up her time and assisting the Plaintiff as she recovered from the procedures that had resulted in a far longer and a far more painful period of hospitalisation and convalescence.

In his written submissions Counsel for the Plaintiff referred the Court to the decision of Loraina Dre –v- Ministry of Health and Another (unreported Civil Action No. 20 of 2007 delivered on 24 June 2009 per Inoke J). However the facts of that case can be distinguished from this case. In that case the Plaintiff was permanently partially incapacitated by virtue of the amputation of her right arm below the elbow as a result of the Defendant’s negligence.

The Plaintiff also claims by way of special damages loss of income from her business as a tailor for the period from 18 February 2004 up to the date of trial. This amount was calculated as being for a period of 315 weeks at $70.00 per week for a total of $22050.00. The Plaintiff stated in her evidence that she was a qualified tailor and operated the business from her home. She claimed that she earned about $100 per week on average. There were no books of accounts, no records and no duplicate receipts in respect of the business. That is not in itself either surprising or fatal to her claim.

The Plaintiff claims that since her discharge from hospital in May 2004 she has been unable to carry on this business at all. This is because she experiences pain if she sits for long periods. Under cross-examination the Plaintiff admitted that she used to operate the sewing machine with her hands and legs and that her hands and leg were functioning. She maintained that it was the sitting in an upright position that caused her pain. She also stated that she owned a sewing machine.

The Plaintiff’s husband gave evidence that the Plaintiff can sit down on a chair and his evidence was no stronger than to the effect that she has not been able to do the work since 2004. A neighbour by the name of Emele Saufaasi gave evidence that she was staying about 15 metres from the Plaintiff’s home and had known her for about seven years. She stated that before her hospitalisation, the Plaintiff would make about $110 a week based on her observations of money in the house. She also stated that the Plaintiff had told her after her discharge from hospital that she could not do the work any more.

There was no reference to the business nor her inability to continue to carry on her business in any of the medical reports put into evidence. Dr Mudaliar stated he was not in a position to determine what she could or could not do.

Once again the Court is not satisfied that this claim has been established. I did not find the evidence of the witness Ms Saufaasi to be convincing as she appeared to be relying only on what the Plaintiff had told her. The evidence given by the Plaintiff’s husband on this issue could only be described as equivocal. I am not satisfied that the Plaintiff’s condition has prevented her from continuing to carry on this business.

Accepting that there was such a business earning on average the amount claimed prior to February 2004, the Plaintiff should be awarded an amount for a period which she might reasonably be expected to require in order to return to her normal routine. For that reason, as for the previous head, I am prepared to award an amount to compensate the Plaintiff for the loss over that period which I fix at 12 months at $70.00 per week being a total of $3640.00.

In his closing submissions, Counsel for the Plaintiff referred the Court to the Fiji Court of Appeal decision in Parmend Singh –v- Meibui (unreported Civil Appeal No. 112 of 2005 delivered 9 March 2007). In the submission Counsel for the Plaintiff quoted only part of a paragraph from the Court’s judgment. The full paragraph on page 7 states:

“We are of the view that Pathik J was entitled to make what was essentially an informed guess as to the deceased’s income, after he had seen and heard the witnesses. We do not wish to be seen as encouraging failure to provide the business records of deceased persons in cases in this category. However, the reality of the situation seems to be that for self-employed traditional farmers, growers and fishers, in a lower socio-economic group, niches of commerce, such as accurate book-keeping, are often not observed.”

The critical point from the above paragraph is that this Court’s findings about loss of income have been made after seeing and hearing all the witnesses and assessing the weight to be given to that evidence.

I now turn to consider the question of general damages. I accept that the Plaintiff underwent two further surgical procedures as a result of negligence during the hysterectomy procedure. I also accept that the Plaintiff was discharged from hospital on 10 May 2004 with at least one if not more tubes implanted as a result of the negligence.

I accept also that the Plaintiff experienced severe pain and discomfort whilst an in-patient and that she continues to experience pain requiring pain relieving tablets since hospitalisation. I also accept that the Plaintiff suffers from urinary tract infections from time to time which also require out-patient visits and medication.

However, I have concluded that there has been what is sometimes referred to as a massaging of the evidence by and on behalf of the Plaintiff in relation to the extent of the pain in so far as it affects or prevents her activities in the home and her loss of income as a tailor.

In relation to the claim for Dyspareunia it is noted that the Plaintiff has never sought any medical treatment, advice or counseling.

However in his evidence Dr Chipongian acknowledged that multiple operations such as was experienced by the Plaintiff can cause discomfort or pain during sexual intercourse. Furthermore Dr Mudaliar in his report referred to a mass felt at the left vaginal vault and tenderness. She did complain to Dr Mudaliar about experiencing pain during intercourse and he accepted that this was consistent with his examination of the Plaintiff.

There was however no medical evidence as to whether such pain could have been relieved by medication, whether counseling could have assisted the acknowledged psychological issues that follow any hysterectomy procedure let alone the exacerbated issues arising from the Plaintiff’s multiple procedures and whether such condition was long term or permanent. It is not sufficient for the Plaintiff to come to Court and say I experience pain during sexual intercourse and have done so since being discharged from hospital in 2004, without ever having sought advice, treatment or assistance.

It cannot be ignored that the Plaintiff has not complained about this problem to any doctor at any time between the date she was discharged from hospital in 2004 and when she saw Dr Mudaliar in January 2010. He told the Court that he was expressly asked to examine the Plaintiff and prepare a report for the purpose of Court proceedings. It is fair to infer that the Plaintiff was also aware of the purpose for which she was attending at Dr Mudaliar’s rooms in January 2010.

Whilst the Court accepts that the Plaintiff may experience pain during sexual intercourse as a result of the multiple procedures in 2004, it is the questions of whether such condition was treatable and whether it is long term or permanent that present the Court with a problem.

The Plaintiff has also claimed damages for loss of consortium. The submissions presented by both Counsel on this aspect of the Plaintiff’s claim were of limited assistance to the Court. Consortium is defined in the Oxford Dictionary of Law, (Fifth Edition) as “the right of one spouse to the company, assistance and affection of the other”. At common law a husband could bring an action in tort against anyone who, by a tortuous act against his wife, deprived him of consortium. A wife at common law had no corresponding action. The tort has been abolished in England by the Administration of Justice Act 1982.

However there is no such provision in the statute law of Fiji. These proceedings are not brought by the Plaintiff’s husband and there is no action on foot whereby the Plaintiff’s husband claims damages for loss of consortium.

Whilst the Plaintiff cannot bring a cause of action in tort for loss of consortium, the question remains whether in a case such as the present involving a claim for personal injuries, loss of consortium is a head of damage that is compensable at the suit of the Plaintiff.

In Lampert and Another –v- Eastern National Omnibus Co. Ltd [1954] 1 WLR 1047 Hilbery J at page 1048 stated:

“It is plain that a wife, under English law, has not, and never has had, a claim by way of trespass on the case, merely for loss of consortium. But the Plaintiff is not alleging as a cause of action the loss of consortium, but that she lost her husband, who deserted her as a result of the tortuous negligence of the defendant which caused her injury. She alleges that this is part of the consequential damage which flowed from their negligence. That, I think, is a distinction which can properly be drawn.”

His Lordship then dealt with the facts of the case before him and at page 1049 stated:

“In the present case if the facts showed that the Plaintiff had really lost anything of value in losing her husband - if lose him she did because of the disfigurement she suffered – it might well be that that would be an element in the damages which she could recover, because it would be in the line of consequential damages following from the tortuous act done towards her.”

In that case His Lordship concluded that whatever were the reasons for the estrangement it was clear to him that the disfigurement was not a factor and as a result he declined to award any damages in respect of the claim. In the present case there is no evidence before me to suggest that the Plaintiff and her husband have become estranged. The evidence indicated that he has at all times resided in the family home and that the marriage is alive and well but for the Plaintiff experiencing pain during sexual intercourse. The Plaintiff’s husband has not left the Plaintiff for that reason or for any other reason. The Plaintiff has not suffered any loss in terms of consortium.

In view of the earlier findings in this judgment concerning the claim for household assistance and for loss of income, I decline to award any general damages in respect of future household expenses or for future loss of earnings.

In summary I am satisfied that the Plaintiff is entitled to general damages for past pain and suffering brought about by the negligence of the Defendants in the performance of the initial hysterectomy procedure. Two further surgical procedures were required to rectify the problems caused by the negligent performance of the first procedure. In addition the Plaintiff has experienced pain, inflammation and infection as a result of the corrective surgical procedures. I am also satisfied that the Plaintiff is entitled to general damages for past loss of amenities in that she is no longer able to enjoy sexual intercourse with her husband without experiencing pain to the extent that she has now lost all interest in sexual activity. The extent of this problem was not addressed in the evidence of the medical witnesses.

I am satisfied that the Plaintiff will continue to experience pain in the future although I am also satisfied that the pain can be alleviated to some extent by medication. I also consider that the pain could have been and could be in the future alleviated by physiotherapy treatment. I am satisfied that the Plaintiff will continue to experience inflammation and infection as a result of the corrective procedures and in particular the procedures that involved the Plaintiff’s bladder. There is however no abnormality in her abdominal organs.

Under the circumstances I consider an award of $55,000.00 to be appropriate for general damages. Although both Counsel referred me to a number of decisions to assist the Court in arriving at an appropriate figure, most of those decisions were at least some ten years old and none of the decisions involved injuries similar to those experienced by the Plaintiff in this case.

Before concluding the judgment, it is necessary to comment briefly on the submissions filed by Counsel for both parties.

In general terms the submissions were couched in language that can only be described as exaggerated and misleading. Counsel for the Plaintiff continued to assert that the Defendants should be held liable for wrongful diagnosis, the Plaintiff’s inability to have children following the hysterectomy procedure and for the scarring. None of these matters were live issues so far as liability was concerned when the hearing commenced. The pleadings in any action identify the issues in dispute and determine the parameters of relevancy for the purpose of determining admissible evidence. A subsequent statement of agreed facts may further narrow the issues in dispute.

The submissions of Counsel for the Defendants quite illogically urged the Court not to consider any aspect of the Plaintiff’s claim beyond September 2004. It was submitted that that date represented the last time the Plaintiff attended at the Labasa Hospital in relation to her post-operative problems. However, the medical evidence adduced by both parties indicated that the Plaintiff’s medical condition was an on-going issue with particular reference to the problems associated with intermittent bladder infection.

Counsel have not cited authorities correctly. If an authority has been reported, the authorized report citation should be given. If the decision is unreported, it should be cited in full as such. Internet and computer references are not acceptable.

It should also be noted that the Plaintiff did not claim aggravated or exemplary damages in the Statement of Claim.

Interest, however, was pleaded and in accordance with section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27, the court considers it appropriate to award interest in this case.

Interest on special damages is awarded from the date on which the cause of action arose (the date of the hysterectomy procedure) to the date of trial. The procedure was performed on 18 February 2004 and the trial commenced in January 2010. I consider that the rate should be 4% for the period of six (6) years.

Interest on general damages for pain and suffering and loss of amenities is awarded from the date of service of the writ (15 September 2006) to the date of trial (January 2010) at the appropriate rate. The period is fixed at 3 years and 4 months at the rate of 3%.

Interest has been fixed in accordance with the decision of the Fiji Court of Appeal in Attorney-General –v- Charles Valentine (unreported Civil Appeal No. 19 of 1998 delivered 28 August 1998).

In summary, the Court awards the Plaintiff:

(a) $55,000 as general damages.
(b) Interest on general damages at 3% for 3 years.

(c) $5140 as special damages.

(d) Interest on special damages at 4% for 6 years.

Costs are awarded to the Plaintiff on a party-party basis to be agreed and if no agreement to be taxed.

W D Calanchini
JUDGE

28 May 2010
At Suva