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Muakalou v Minstry of Health [2011] FJHC 220; HBC481.2006 (8 April 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CASE NUMBER: HBC 481 of 2006

BETWEEN:

RATU MELI SERU
suing through his next best friend
JOSUA MUAKALOU
Plaintiff

AND:

THE MINISTRY OF HEALTH
1st Defendant

AND:

THE ATTORNEY GENERAL OF FIJI
2nd Defendant

AND:

SULIASI DAUMEKE
3rd Defendant

Appearances: Mr. R. Chand for the plaintiff.
Mr. Prasad, N. and Ms. Naidu, K. for the defendants.
Date/Place of Judgment: Friday, 08th April, 2011 at Suva
Judgment of: The Hon. Madam Justice Anjala Wati.

JUDGMENT

TORT - MEDICAL NEGLIGENCE – Circumcision conducted on plaintiff by Public Hospital
after which the plaintiff suffered injuries to penis and thus deformation of penis-later the penis

was reconstructed for voiding purposes – sexual dysfunction and consequent harm- issue of
causation, liability and damages.

Cases Referred To

1. Joseva Rokobutabutaki & Attorney-General v. Lusiana Rokodovu [unreported] Civil Appeal No. ABU 0088/1998.
2. Permanent Secretary for Health v. Attorney General of Fiji and Arvind Kumar & Kamni Devi [unreported] Court of Appeal, Fiji Islands Civil Appeal No. ABU 0084 of 2006S.
3. Kralj v. McGrath [1986] 1 All ER 54.
4. AB v. Southern Water Services [1993] QB 507.
   

Courts Caveat

1. I have been bestowed with the formidable task of continuing the proceeding from my predecessor judge, when his lordship heard the matter, but, through no fault of his own could not deliver a verdict.
   
2. All the counsels concerned in this matter had pleaded that a judgment be delivered based on the transcribed records, as it would be very expensive and an impossible task to try the matter de novo. With their consent, the records were located and compiled after some painstaking effort. However the evidence of the plaintiff and his father could not be located and so I had to rehear their evidence.
   
3. Apart from the evidence, demeanour and deportment of the plaintiff and his father, I have had no opportunity of seeing and assessing the demeanour and deportment of the other witnesses which is very essential when it comes to placing weight on any given evidence and making a finding of fact. This court is bereft of that advantage. Be that as it may, this judgment has been possible because the proceedings were recorded and transcribed.
   
4. I have on many occasions carefully read the evidence of every witness to be able to determine the matter at hand.
   
5. In an ordinary circumstance, I would not have delivered a verdict from a fellow judges trial notes, but, this case is special in the sense that there would be difficulty in getting back the expert witnesses and the plaintiff has had suffered enough embarrassment going through the court process and hearing about his physical impairment and sexual dysfunction. Bearing that in mind and with the consent of the parties, I have proceeded to completion of this judgment.
   

The Claim

6. The plaintiff pleaded that on the 26th day of August, 2005 he underwent circumcision at Vunidawa Rural Hospital. The process of circumcision was conducted by one Mr. Suliasi Daumeke.
   
7. Mr. Suliasi Daumeke carried out the process by injecting the plaintiff's penis, circumcising and then bandaging the same. The plaintiff was sent home with his father. He was given some panadol to take for the pain. It was realized afterwards that Suliasi Daumeke was not a qualified medical personnel. His scope of duties was to attend to patients dressing and cleaning of the wounds.
   
8. When the plaintiff went home, he experienced considerable pain and found difficulty in passing urine. He could not relieve himself. He was taken back to the Vunidawa Hospital the next morning being the 27th day of August, 2005 when he was admitted. His difficulty to pass urine continued. He was taken to the cloak room every 15 minutes because he found difficulty in emptying his bladder comprehensively.
   
9. After two days, the doctor inserted into the plaintiff's bladder a tube without any anaesthetic. The plaintiff's wound bled profusely and he suffered agonizing and unbearable pain.
   
10. After 9 days of admission at Vunidawa Rural Hospital, the plaintiff was transferred to the Colonial War Memorial Hospital, hereafter referred to as the "CWM Hospital". The transfer was done on the 5th day of September, 2005.
    
11. At Vunidawa Hospital, the plaintiff's penis had started rotting and turning into a greenish black color. It got swollen. The lower parts of the abdomen also swell because the discharge of urine was not full and complete. The plaintiff suffered agonizing pain. He could not sleep or walk. He cried of pain during the 9 days of hospitalization.
    
12. The medical attendants at the CWM Hospital got the plaintiff, through his father, to soak the penis in a saline solution until he was taken to the theatre on the 12th day of September, 2005 for debridement of wound.
    
13. The plaintiff was discharged on the 28th day of September, 2005. When he went home he again suffered difficulty and pain in passing urine as the normal urinary passage had been blocked and he had to pass urine through another opening half way down of the penis.
    
14. On the 30th day of January, 2006, the plaintiff was readmitted for another operation because the new opening was also almost blocked. He was discharged on the 06th day of February, 2006.
    
15. The plaintiff's penis has shrunken inwards. There is hardly any glans penis in existence. The plaintiff could not feel or have any erection at all.
    
16. The plaintiff urinates in dribs and has to relieve himself at an interval of every 30 minutes. The plaintiff still suffers pain.
    
17. The medical report states that there was evidence of black dead scab and necrotic tissue on glans with damage and loss of about 70-80% of the glans. The wound healed after debridement under antibiotic cover and daily dressing. The report further states that the plaintiff is voiding through a narrow opening of urethra half way between mid shaft and coronal margin. The plaintiff was advised to insert a tubing devise constantly on a permanent basis in order to maintain the opening. The plaintiff was also advised to use xyloclaine jelly as lubricant during insertion of the tube to maintain cleanliness and clearance of the new passage. The report further states that the plaintiff may have difficulty to achieve normal penile erections and sexual intercourse.
    
18. The plaintiff claims that the first defendants through its doctors, nurses, servants, attendants, agents or other persons engaged by the first defendant have treated, attended, advised the plaintiff as aforesaid and each of them or alternatively one of them was guilty of negligence and failed to take reasonable care, skill and diligence in and about the circumcision, the treatment and attendance of the plaintiff.
    
19. The particulars of negligence has been pleaded to be:-
    
    • Failure to conduct the circumcision properly with due care and negligence.
      
    • Failure to attend to the circumcision medically and professionally so as not to damage or affect the penis.
      
    • Failure to attend or detect that the plaintiff was developing or has developed abscess and further deterioration of the glans penis after circumcision.
      
    • Failure to attend to or take appropriate care or advice or to give proper post operative treatment to the plaintiff.
      
    • Failure to observe or to heed or to take reasonable steps to investigate into complaints of the plaintiff as to his condition at an early stage to prevent infection.
      
    • Failure to detect or investigate properly or at all the post operative result and reactions of the penis.
      
    • Failure to maintain or conduct circumcision by a qualified medical practitioner and failing by allowing the dressing boy to conduct the act of circumcision on the plaintiff.
      
20. It is claimed that due to the aforesaid negligence, the plaintiff suffered great pain and has lost the amenities of his life. He feels very much disturbed at school as he is being teased for not having a penis. The plaintiff feels dejected, demoralized and is affected psychologically and emotionally. He has turned to have a desolate and a solitary life because of the abnormality. He is unable to live and enjoy a proper and full sexual life and faces the likelihood of not getting married and having a normal life.
    
21. The plaintiff pleaded that it will rely on the doctrine of res ipsa loquitor.
    
22. The plaintiff claimed damages for pain and suffering and for loss of amenities of life, special damages, interest at the rate of 5% from the date of circumcision and costs of the action. At the close of its case, the plaintiff had sought to amend its claim to include aggravated damages and the amendment was allowed by the trial judge.
    

The Defence

23. The defendants filed a joint defence through which they averred as follows:-
    
    • The plaintiff was circumcised on the 27th day of August, 2005 and admitted on the 29th day of August, 2005 and transferred to CWM Hospital on the 5th day of September, 2005. The plaintiff had developed dry gangrene of glans penis.
      
    • The wound needed to be kept clean and wet with regular change of dressing with saline soaked gauze pieces and that the change of dressing was done by the nurses in the hospital. The plaintiff's wound was healing remarkably well and he was passing urine without any discomfort through his new meatus. His residual glans was looking healthy and he was therefore discharged on 28th September, 2005. Over a period of time, during the healing process, the plaintiff's urethral opening on the shaft of the penis became narrow (not blocked) and was operated for meatal reconstruction to make urethral opening wide enough to ensure free passage of urine.
      
    • The plaintiff's father was advised to administer caliberation which requires inserting of a small tube under aseptic precautions with adequate lubrication and xyloclaine jelly. This is a common practice which was needed for few months to prevent re stenosis at the site of the urethral opening.
      
    • The defendants further stated that the plaintiff is a child and so no comments can be made on the penis erectile.
      
    • The plaintiff was last seen on the 26th day of June, 2006. He was voiding well and the newly constructed meatus was well healed. The plaintiff had only complained of pain on the 30th August, 2005 when he was given 2 panadols after which he had no complains.
      
    • All proper and adequate measures were taken in the care and post operative treatment of the plaintiff and therefore the defendants must not be made liable for the plaintiff's current condition or at all.
      

The Agreed Facts

24. The parties have agreed to the following facts:-
    
    • The Plaintiff is a child born on the 9th day of December 1995 and is suing through his father as his next best friend.
      
    • The Ministry of Health employed doctors, medical attendants, nurses, servants and agents and one of them conducted the act of circumcision onto the penis of the plaintiff.
      
    • The Attorney General is sued as the nominal Defendant.
      
    • The Third Defendant is an employee of the First Defendant.
      
    • The Plaintiff, Ratu Meli Seru got his penis circumcised at the Vunidawa Rural Hospital on the 27th day of August 2005 and was sent home.
      
    • The Plaintiff had problems in passing urine and suffered pain. He was brought to Vunidawa Rural Hospital by the father, his next best friend, on or about the 28th day of August 2005 when he was admitted.
      
    • The Plaintiff was admitted at the Vunidawa Rural Hospital until the 5th day of September 2005 and got transferred to the Colonial War Memorial Hospital, where he was admitted.
      
    • The Plaintiff's penis was operated under general anesthetic on the 12th day of September 2005 for debridement of the wound.
      
    • During debridement at the CWM Hospital, it was evident that the Plaintiff had gangrene of glans penis with evidence of black dead scab/tissues which had to be taken off.
      
    • The Plaintiff's normal urinary outlet had become narrow and he had difficulty in passing urine. A new urethral opening had to be reconstructed below the glans penis area to ensure passage of urine.
      
    • The father was advised to do self caliberation (that is to insert a small tube under all aseptic precaution and under adequate lubrication with xylocaine jelly). That the Plaintiff was thereafter discharged from the Colonial War Memorial Hospital on the 28th day of September 2005.
      
    • The Plaintiff had to be readmitted at CWM Hospital and underwent surgery on 30th day of January 2006 for widening of the fistulous opening for he had difficulty in free and normal passage of urine.
      

Facts in Dispute

25. The facts in dispute are:-
    
    • Whether the circumcision was conducted by a non qualified medical practitioner or surgical attendant at the Vunidawa Rural Hospital?
      
    • Whether the Plaintiff did undergo pain and suffering which is not normally expected from such operations resulting from the circumcision?
      
    • Whether the Plaintiff's penis has shrunk and glans penis damaged to the extent of 70 -80%?
      
    • Whether the Plaintiff has developed a permanent disability and deformity as to his penis?
      
    • Whether the Plaintiff is able to achieve normal penile erections and able to have sexual intercourse?
      
    • Whether the Plaintiff's passage of urine is in any way affected or has become abnormal resulting from the circumcision?
      

Issues for Consideration

26. The parties have agreed that the court must consider the following issues:-
    
    • Whether the Defendants through the doctors, nurses, servants, attendants, agents or other persons have treated, attended, advised the Plaintiff and each of them or alternatively one of them was guilty of negligence and failed to take reasonable care, skill and diligence in and about the circumcision, treatment, or attendance of the Plaintiff?
      
    • Whether the Plaintiff's life is and/or will be affected in any way sexually, physically, emotionally and psychologically?
      
    • Whether the Plaintiff has suffered and/or will suffer from loss of amenities of life?
      
    • Whether the Defendants are liable to pay any damages to the Plaintiff?
      
    • What quantum of damages is payable to the plaintiff (if any)?
      

The Evidence

Plaintiffs Evidence

27. The plaintiff's first witness was Dr. Andre Westernberg, an Urologist Consultant of Auckland. I propose to summarize the doctors evidence:-
    
    • Dr. Westernberg first privately examined Ratu Meli on the 28th day of November 2007. He was accompanied by his father Josua Muakalou.
      
    • During the examination, the plaintiff underwent urethrogram and an ultra sound scan. The processes revealed no abnormality.
      
    • He examined Ratu Meli, again, for the second time, a day before the trial, and his second examination re-confirmed his earlier findings as contained in his report which was tendered in evidence.
      
    • From the specialized notes of Dr. Dhaval and Dr. Uzzal and through his personal examination, he stated that the circumcision technique used was unclear; the plaintiff Ratu Meli was unable to void and was catheterized; the plaintiff was transferred to Colonial War Memorial Hospital on or about the 5th day of September 2005, when it was noted that the glans was necrotic and a fistulous opening of the urethra onto the shaft of the penis; the necrotic tissue was debrided and left to heal by secondary intention; the fistulous opening gradually stenosed (closed up) and a meatoplasty operation had to be done in January 2006 upon second admission at CWM Hospital; Ratu Meli voids with a spraying pattern now; the penis is obviously abnormal; only a small amount of normal glanular tissue remaining dorsally; the tip of the penis is scarred; and there is a widely open urethral fistula about two thirds up the penile shaft ventrally.
      
    • Whatever method of circumcision was employed it has resulted in a severe amputation injury to the distal penis. That was likely to have profound ramifications on the young plaintiff's future.
      
    • The normal urethra exists at the tip of the penis; it is configured in such a way that during normal micturition the urinary flow is "rifled" thus allowing a straight, narrow and directable urinary stream. With the fistula and subsequent meatoplasty the normal rifling action of the urethra has been lost resulting in a non-directable spraying stream. This makes it difficult to void in a standing position without wetting ones clothes and most patients with this condition sit down to void. This condition is difficult, if not impossible to correct surgically and it is likely that this will be a life-long problem.
      
    • Erectile function depends, in part, on the integrity of the corporal bodies. There has been no direct injury to these structures. The plaintiff should therefore be able to achieve an erection. The erection will, or course, be shorter due to the absence of most of the glans and it is possible that with the scarring around the tip of the penis and the urethral opening that his penis may curve ventrally with erection (chordate). The plaintiff was not questioned directly about this. The length of the penis cannot be surgically improved; if he does develop a chordate, this can usually be satisfactorily corrected.
      
    • Normal fertility requires the semen to be deposited at the entrance of the cervix in the vagina. This is most efficiently accomplished with the ejaculate being emitted from the tip of the penis. When the urethral meatus is on the shaft of the penis the ejaculate necessarily emits from the shaft also thus making it more difficult for the sperm to reach the cervix. It is difficult to know at this stage if in the future Ratu Meli Seru will have trouble with normal fertility, but it is certainly possible given the position of the urethral meatus. This, as with the voiding difficulties he is going to have, is very difficult, if not impossible to correct surgical.
      
    • The glans penis is the sensory end organ for sexual reflexes. The normal glans penis is richly supplied with sensory nerve fibres which are not only related to orgasm but also to contraction of the bulbocavernosus muscle which is the predominant force for expelling semen from the bulbar urethra. Glans sensation is also thought to be important in maintaining erection and initiating ejaculation. The glanular nerves arise from the dorsal nerve of the penis and are evenly distributed throughout the glans. The plaintiff lost about 80% of the glans penis and as such it is likely that he will have problems with orgasm, maintaining an erection and initiating ejaculation. The doctor considered that this would significantly affect his future sexual performance and enjoyment.
      
    • The aspect of psychological trauma was also discussed by the doctor as follows:
      

"I did not directly discuss this issue with Ratu Meli Seru but his father indicated that he was being teased at school due to his injury. I am not an expert in this field, but I think it would be naïve to imagine that this injury is not going to have psychological repercussions. At the least this injury is going to affect his self esteem and his future relationships with members of the opposite sex".

• The plaintiff has had an amputation injury of a significant portion of the glans penis. If has left him with major cosmetic and functional deficiencies which are going to affect both his urinary and future sexual function with likely psychological repercussions also. The options for surgical correction of any of these deficiencies are extremely limited.
  
• In Ratu Meli's case there is nothing much that can be done. Even if he reaches puberty the damage that has been done to him will not improve. The doctor further stated that the preventative measures in his case would have been to remove the bandage and basically keep the wound clean. The risk of infection is very low if this was undertaken properly.
  
• In Ratu Meli's case, the problem could have been the result that the top part of the glans penis had been cut off or there was a loss of blood supply to the glans penis areas due to tight bandaging after circumcision or both of these factors combined resulting in the complication.
  
• He said that a re-transplant of the glans can be done but it will only be cosmetic because the transplant portion will be insensitive as it will not develop any sensory nerve. Besides, it will be an obstruction during sex as the transplanted portion will remain and will be just dangling in front. Such operations will be merely cosmetic and highly expensive. It can create further complications. He would not recommend it on the plaintiff. There are only about 10 surgeons in the world who probably could do such operations.
  

28. The plaintiff Ratu Meli Seru and his father gave evidence before me in court. In his evidence in chief Ratu Meli stated that he went to Vunidawa Hospital in August 2005 for a circumcision with 3 other boys. He was the second one who was circumcised. The doctor got him onto the bed, got his clothes off and made him lie on the table. The doctor did not say or tell him anything as to what was going to happen to him. He held the foreskin of the penis with one hand and cut off the top part of his penis. He cried and yelled out for his father. The cut performed by the doctor hurt him. It was one sharp cut. The father came into the room when he yelled but the doctor sent him out again. After that, the doctor tied a plaster around the top part of his penis tightly. He gave some tablets and he came out crying. After that he went home by a van. At home he felt the pain. He could not pass urine. His penis got swollen and his stomach bloated. He did not sleep. The next morning his father brought him back to the hospital. He was carried in a blanket whilst 4 people held each of the 4 corners forming a stretcher. At Vunidawa Hospital the nurses tried to put him on a table. It hurt very much. The doctor came and he pushed the tube inside the penis. Four nurses held and pressed him tightly when the doctor pushed the tube inside. He said at that time "I yelled father it is better for me to die. I could not bear the pain". The urine came out of the tube with some pieces of blood. He stayed at the hospital for about 9 days. "Whilst at the hospital every day I was suffering in pain and could not rest during those days I was in the hospital in Vunidawa". From Vunidawa he was transferred to CWM Hospital. The tube remained inserted in the penis when he came to CWM Hospital. When he got admitted at the CWM Hospital, there the doctor took the plaster bandage off the penis. At CWM Hospital, his penis was soaked and kept wet. After 2 days, the doctors performed operation on the penis.
    
29. The plaintiff testified that because of the operation his penis is small and not like before. A hole was made in the middle, underneath the penis. Before he used to stand and urinate like other boys, now he urinates like a girl, sits down and urinates. He has to sit down and urinate otherwise his clothes gets wet. The look of the penis is abnormal. It erects but after a short while it goes down. It pains a lot, and it really hurts when the penis erects.
    
30. The plaintiff further testified that he has to visit the toilet 2 to 3 times a day due to the bladder not getting fully and completely discharged on each occasion. He has to visit the toilet and has to go outside the house due to lack of proper toilet facility.
    
31. The plaintiff was admitted at the CWM Hospital the second time when the doctors opened the hole up further.
    
32. The shape of the penis has changed altogether. The plaintiff does not play any games with children because they tease him by saying that he is not a boy but a girl because he voids like girls. The plaintiff always feels very ashamed. He feels very angry and also feels like assaulting them. He therefore does not like the boys nor do they like him. He does not want to be with any other boy or girl because all of them tease him. He prefers to be alone. He feels he will not get better and he cannot understand why all that had to happen to him.
    
33. In cross examination the plaintiff stated that:-
    
    • He did not know the person who circumcised him. He said his father had the whole say. His mother was closer to him but she did not have a say.
      
    • He wanted to be circumcised. He did not know what circumcision was and what was going to happen.
      
    • In the hospital, when he was to be circumcised, he took off his pants. The doctor just held the tip of his penis and cut it. He did not inject the penis. He told the doctor to stop the cutting as it was hurting.
      
    • After cutting the penis, the doctor put the plaster around the penis tightly. At that time he did not tell the doctor to stop.
      
    • When he came out of the examination room he was crying. He told his father that the circumcision was hurting him.
      
    • He saw the process of circumcision as he was lying down and could see what was happening. He went home in a pajero, sitting down. When he reached home his penis started to pain. He kept that to himself until nearly midnight when he called his dad as the pain was immense.
      
    • When he reached the hospital the second time, the doctor did not see him. His wound was not washed or cleaned. No recording was taken nor was any medicine given. Diet or the food was not maintained either. Only the nurses were seeing him daily, but not the doctors.
      
    • He did not tell the teachers that he was being teased at school. He did not tell his dad or anyone else that he was having the problem at school.
      
34. The third witness for the plaintiff was Josua Muakalou, the father of the child. His evidence in chief was:-
    
    • He took his son for circumcision at Vunidawa Hospital. They circumcised him but it did not go well. His private part has been damaged by Mr. Daumeke. It was in August 2005 when he took 4 children including his son for circumcision. He agreed and wanted the child to be circumcised because it was in his culture and religion.
      
    • After discussion with a doctor, he was sent to Mr. Daumeke. No formal consent was taken. The circumcision was done in a private room. Only his son and Mr. Daumeke were inside the room. No other doctor or nurse was present.
      
    • The son and Mr. Daumeke were in the room for about 1-2 minutes when he heard his son yelling and calling out at him. He went inside but Mr. Daumeke told him to go outside. He did not see what Mr. Daumeke did.
      
    • When his son came out, he was walking slowly. He was very weak, crying and could not walk properly. He made the son to sit down. Mr. Daumeke gave them some pain killers. At home, his son complained of pain. He could not urinate properly. In the morning his stomach was swollen. He did not sleep well whole night. Due to the swollen stomach and the pain, they carried him back to Vunidawa Hospital lying down in a blanket.
      
    • At the Vunidawa Hospital the medical people tried to insert a tube inside his penis but the child was wailing out loudly and crying. The child said "Its better for me to die. It hurts". They did not manage to insert the tube the first time. He was allowed in when they inserted the tube in the penis. The swelling of the stomach went down as the urine came out and got collected in a plastic bag attached to the tube. The urine was mixed with blood.
      
    • His son was in Vunidawa Hospital for 9 to 10 days. At Vunidawa Hospital, he noticed that the penis had swollen up, the colour changed and there was foul small. The tip of the penis had turned black. He could not see the rest as it was bandaged. He smelt the problem. Normally the stitch is taken out after 4 days and the wound closes up. In Ratu Meli's case the bandage was still there and they did not even bath him. He discussed with the doctors and stayed all through out with his son. Mr. Daumeke never came to see him finally.
      
    • The child was transferred to CWM Hospital. The doctors saw him. The penis was kept soaked in saline solution for 2 to 3 days. After that a nurse took off the bandage and washed his penis. That was the first time when he saw the state of the penis. The whole head of the penis was black and hard. Dr. Dhaval explained to him what had happened and what they wanted to do. They did further operation on him. He gave his formal consent. After the operation he saw the penis again. The whole state of the penis had changed, it had gone smaller in size, the penis was deformed, and the head of the penis was bent.
      
    • His son does not urinate in the normal way but he urinates from under the penis. He had to bring the child to CWM Hospital again because his urine started to block. Dr. Dhaval operated on him again in about January 2006.
      
    • His son's behavioural pattern and life style has changed. Before he was very talkative and active but now he is a lot shy; very quiet; prefers to be alone; is getting aggressive; at night he goes out to the toilet about 3 times; sometimes he has nightmares like he sees something; and he urinates like a woman.
      
    • The son is growing up now and does not allow the father to see his penis. What has happened to him will affect him throughout his life. His son is frightened and ashamed of woman. It is his belief as a father that his son will not get married and get children. All this happened because the circumcision was done by an unqualified person.
      
    • His son was also seen by Ms. Selina Kuruleca. She gave the son some advise and also made a report.
      
35. Under cross-examination, the witness basically confirmed what he had said during the examination in chief.
    
36. The plaintiff's fourth witness was Ms. Selina Kuruleca, Clinician, Suva Private Hospital. Her evidence centered around her report, and I quote the relevant excerpts:-
    

"On Thursday September 25th 2008, the client Ratu Meli presented with his biological father Mr. Josua Muakalou – secondary informant. The informant requested a psychological assessment and evaluation. The "initial assessment" form for diagnosis was used to determine if there are and were any psychological effects associated with the circumcision that had been performed on 27th August, 2005. The post circumcision according to Ratu Meli and speaking in his Naitasiri dialect was "tata maleka kama meu mate, warai niu taura rawa na kena vutu," translated "father it is better off that I die, I can't take this pain and hurt." Informant reported that Ratu Meli had been circumcised by a dresser at the Vunidawa rural hospital before returning to their home in Navutu village, Naitasiri.

The informant reported that circumcision is a well received, regular practice and routine part of their cultural and religious belief. Ratu Meli stated that he had been well briefed prior to the trip to Vunidawa rural hospital for the circumcision. Villagers in Navutu and the surrounding areas (tikina) were circumcised and that the circumcision was much anticipated for Ratu Meli as he is the youngest member of their family as well as of chiefly status in their village. Ratu Meli's circumcision would mark for them his readiness to take on the identity of a young man and the resulting responsibility.

Documents relating to his circumcision have also been reviewed and taken under advisement.

Upon completing the assessment it is my professional opinion that Ratu Meli DOES currently exhibit symptoms of that traumatic experience. It is important to consider that an individual subjected to the physical intrusion of the surgery and its subsequent complications may and could possibly experience posttraumatic stress disorder (PTSD).

An individual may suffer from or exhibit symptoms of PTSD if according to the DSM IV – TR – the following criterion are qualified:

The first (A1) requires that "the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others."

The second (A2) requires that "that person's response involved intense fear, helplessness, or horror."

Symptoms can include general restlessness, insomnia, aggressiveness, depression, dissociation, emotional detachment, and nightmares. A potential symptom is memory loss about an aspect of the traumatic event. Amplification of other underlying psychological conditions may also occur.

Other possible symptoms

Intrusion – Since the sufferer is unable to process the extreme emotions brought about by the trauma, they are plagued by recurrent nightmares or daytime flashbacks, during which they graphically re-experience the trauma. These re-experiences are characterized by high anxiety levels and make up one part of the PTSD symptom cluster triad called intrusive symptoms.

Hyper arousal- PTSD is also characterized by a state of nervousness with the patient being prepared for "fight or flight". The typical hyperactive startle reaction, characterized by"jumpiness" in connection with high sounds or fast motions, is typical for another part of the PTSD cluster called hyper arousal symptoms and could also be secondary to an incomplete processing.

Avoidance – The hyper arousal and the intrusive symptoms are eventually so distressing that the individual strives to avoid contact with everything and everyone, even their own thoughts, which may arouse memories of the trauma and thus provoke the intrusive and hyper arousal states. The sufferer isolates themselves, becoming detached in their feelings with a restricted range of emotional response and can experience so-called emotional detachment ("numbing"). This avoidance behavior is the third part of the symptom triad that makes up the PTSD criteria.

Dissociation – Dissociation is another "defence" that includes a variety of symptoms including feelings of depersonalization and de-realisation, disconnection between memory and affect so that the person is "in another world," and in extreme forms can involve apparent multiple personalities and acting without any memory ("losing time").

PTSD may be triggered by an external factor or factors.

PTSD has three sub forms: Acute, Chronic and delayed onset PTSD. Acute PTSD is when symptoms are present immediately after the traumatic experience and subsides after duration of three months. If the symptoms persist, the diagnosis is changed to chronic PTSD. The third sub form is referred to as delayed onset PTSD which may occur months, years, or even decades after the event.

Informant reported that they have seen marked changes in Ratu Meli. "dou gone vosa levu ka yavavala. Ia ni mai oti na curu I bure, sa mai gone galugalu, mamadua ka sega ni marau. Era dau vakalelei koya na gone." Translated: "he used to be an active and cheeky boy, but after the circumcision, he has become quiet, withdrawn, self isolating, sad and also embarrassed as the other kids tease and taunt him." It is my professional opinion that the marked behavior change is directly attributed to the circumcision. The withdrawal symptoms is also indicative of depressive symptoms and the early onset of depression.

Informant also reported that on the designated day, "au kauta na levuqu e vale ni bula, e dua na drau na pasede and nona bulabula, ka noqu I nuinui, e sega na mosi se tauvimate. Ia keitou lesu mai sa mosi, ka sega ni vakacegu rawa ni sa sega ni rawa ni suasua." Translated: "I took my son that day, he was 100% fit, no pain, no hurt, cheeky, smiley and happy. That night he was in pain, had great difficulty in relieving himself." It is my professional opinion that the events of that day has left permanent physical and emotional scars on the child Ratu Meli.

Ratu Meli reported that since that day "era sa vakalelei au na gone e koronivuli, era kay vei au qauri; tu oqo e mi tu vakayalewa; teve vakaca; qala lekaleka." Translated: "here he is the boy that squats and pisses like a female; he is a faggot; badly circumcised boy and short penis boy." As Ratu Meli recalled the numerous incidents of taunting, bullying and teasing, he had tears in his eyes, was speaking in a very low whisper tone and looked away from me. This is clearly indicative of an individual who had been subjected to humiliation, embarrassment and bullying. A child that is vulnerable and afraid through no action of his own.

Ratu Meli presented as very quiet and withdrawn and had great difficulty communicating with the clinician. Upon enquiring, client stated to his father – the informant, the he was embarrassed as the clinician is female. It is my professional opinion and supported by literature facts that a 13 year old, within normal limits (WNL) is able to converse and engage in conversations with adults and others outside of his or her own primary setting. This boy – Ratu Meli has demonstrated an inability to actively engage with others outside of his home, nor is he able to actively interact with members of the opposite sex due to his extreme conscious and embarrassment of his physical disability brought on by the circumcision.

The possible long term psychological effects of this circumcision include but not limited to:

1. Inability and lack of desire to socialize with the opposite sex on physical, social, emotional level.
   
2. Possibility of gender identity crisis.
   
3. Suicidal thoughts and tendencies.
   
4. Depression.
   
5. Culturally ostrichsized leading to inability and or fear to assume his rightful birthright as a leader in his village.
   
6. Anger, frustration, fear and disbelief in the medical and helping profession which may hinder his ability to get appropriate medical assistance in future when he may need to for other medical needs.
   

Corrective surgery may be a slim option, but the psychological effects of the past circumcision will be more permanent and affect all aspects of his life".

Defendants Evidence

37. The defendant's first witness was Mr. Suliasi Daumeke of Vusiya Village, Naitasiri. Mr. Daumeke said that he was the person who did the circumcision on the Plaintiff. He stated that he had 49 years of civil service as a dresser in Vunidawa Hospital. His job description is one of a dresser. At the hospital he does circumcision, dressing and stitching of wounds. He did circumcision for more than 20 years and did more than 1000 circumcisions without any problem to the males in the neighboring villages. He knows the child and the father and he circumcised them both. He received training from one Dr. Jona Nasome.
    
38. On the 27th day of August 2005, he did 3 circumcisions. He used lignocaine chemical in injecting the penis and he cut it with scissors. The dressing is cut after 4 days but he admitted that he did not know whether Ratu Meli came on the fourth day or not. His father was present during circumcision and there was no complaint.
    
39. Upon Cross Examination Mr. Suliasi Daumeke stated that:-
    
    • He had no qualification in medicine. He had not attended any training courses in medicine. He said one Dr. Jona Nasome trained him how to use a syringe and how to do circumcision. Dr. Jona was there in Vunidawa Hospital for about 3 years when he received training to conduct circumcision. He used lignocaine medicine to inject the penis, 10 cc for adults and 5cc for children.
      
    • The child and him were the only two persons inside the room when he conducted the circumcision. The father was outside. He got the child to put off his clothes and lie down on a table. He took some spirit and swiped the outside of the penis and injected twice. He used 5cc of lignocaine medicine to inject. He waited for 1 to 2 minutes then he held the foreskin of the penis with a "tong" and cut it off with a pair of scissors. Ratu Meli did not say anything or react when his penis was injected and cut.
      
    • After cutting he did stitching, applied medicine and bandaged it tightly. He applied plaster around the wound to stop bleeding. He gave antibiotic pills and some panadol afterwards to take home. He did not cut the top part of the glans penis. He denied that the child called out for his father who came in at that time but he sent him away. He denied that he applied the bandage tightly to prevent the bleeding.
      
    • When dressed he looked like a doctor. He used the same clothes the doctors used to wear when conducting operation.
      
    • The operation took 10 to 15 minutes to complete. The wound was bleeding profusely. He conducted the operation alone. There were no nurses and no doctors in attendance with him whilst he did circumcision on Ratu Meli. There were 2 doctors available on that day being Dr. Raibevu and Dr. Eliki Nanovu. They were both out for lunch.
      
    • He used his lunch hour to do the circumcision. He did not get the child's consent as Dr. Raibevu saw him with 3 other boys and sent Ratu Meli to him. Consent was obtained through the father. He did not talk or reassure the child as to what he was going to do to him before circumcision. He was not worried or concerned as to whether the child was frightened or what was going in his mind before circumcision as he got the father's consent. He knew he was dealing with a very special and a private part of Ratu Meli but still did not care to talk to him or reassure him as to what he was going to do on him. He did not prepare any post operative notes. Only he alone knows what he did to Ratu Meli on the day of the operation. He did not know or see Ratu Meli being admitted at the Vunidawa Hospital. No doctors or nurses asked him as to what he did to Ratu Meli. He did not hear anything about Ratu Melu or when he was admitted at Vunidawa Hospital. He was still in the hospital at that time and retired in December 2007. He worked as a Pharmacist before he retired. He did not know when Ratu Meli was transferred to CWM Hospital. The first time he came to know about what had happened to Ratu Meli was when he got the Writ of Summons.
      
40. The defendant's second witness was Dr. Raibevu. He stated that he was a doctor at Nafi Clinic. He qualified through Fiji School of Medicine as a primary health physician in 1979. He has 29 years of service. He practiced mainly in rural areas. He came to know Mr. Daumeke in 1979 – 1980 when he was at Vunidawa Hospital. He sees outpatients on a day to day basis. He was informed by Mr. Daumeke that the Plaintiff came in for circumcision. The child's father brought him and he sent him to Mr. Daumeke. Mr. Daumeke's job description is that of a dresser. He said during colonial days local doctors trained people to do circumcision and even tooth extraction. He said he knows of one Rusiate Vosavakadua who is also a dresser and does circumcision. He said that this practice is approved by the Ministry of Health. In his opinion, the circumcision conducted by Mr. Daumeke is within the normal medical practice.
    
41. Upon cross examination Dr. Raibevu stated that:-
    
    • He had the opportunity of listening to the evidence of Mr. Daumeke, Dr. Westernberg, the expert urologist from Auckland, and Madam Selina Kuruleca, a psychotherapist. He agreed with what Dr. Westernberg had said in Court as to what had happened to Ratu Meli resulting from the circumcision.
      
    • He has seen the photos of Ratu Meli's penis after the circumcision. Circumcision on Ratu Meli has gone wrong. There is a marked deformity of the glans penis and the penis as a whole. The damage on Ratu Meli is irreversible and permanent. He had heard of the new urinating pattern that Ratu Meli has developed now. It is shameful. If he had circumcised Ratu Meli, the result could have been the same. Ratu Meli was the unlucky one. However such operation does not depend on luck but requires skill.
      
    • There was no formal consent obtained from the child or his parents. Circumcision acts are traditional and religious and the plaintiff's father approved of it.
      
    • Mr. Daumeke conducted the operation alone and he need not have any assistance. The presence of a nurse or a doctor would have helped but both were not present at the time of the operation as it was lunch time. There are 2 doctors and 20 nurses at the Vunidawa Hospital.
      
    • He did not know how Mr. Daumeke conducted the whole operation from the beginning to the end. He did not get any help or any information as there were no operative or post operative notes made by Mr. Daumeke on Ratu Meli's circumcision. There was no investigation done and no report made concerning Ratu Meli's operation at all.
      
    • To his knowledge Mr. Daumeke has no qualification to conduct acts of circumcision. He did not have any formal or academic training except as he said he was trained by Dr. Nasome. Nobody knows what sort of training he received, if any at all.
      
    • The inside of the foreskin does not have to be cleaned before the circumcision as it gets cleaned after the foreskin is removed.
      
    • Any patient or child is reassured and pacified before and after operation is done but he heard that Mr. Daumeke did not do any of those in Ratu Meli's case.
      
    • It was Dr. Nanovu who attended to Ratu Meli and he himself attended to Ratu Meli only once. He followed up from the nurses notes. Ratu Meli could not pass urine properly, his stomach was swollen, he had severe pain, there was blood coming in his urine and it continued to do so even when he was transferred to the CWM Hospital.
      
    • The glans penis is severely damaged. The operations for surgical correction is extremely limited and if done will be only cosmetic in nature. Circumcision was done by a non qualified person which is not approved by the Ministry. This is contrary to his earlier assertion.
      
    • Ratu Meli was transferred to CWM Hospital because the wound was deteriorating after 9 to 10 days of admission at Vunidawa Hospital.
      
42. Upon re-examination Dr. Raibevu stated that Mr. Daumeke could not have made a mistake. The operation done by Mr. Daumeke was within the reasonable practice of the medical profession. Many factors could have led to the complication but he could not comment much as he was not a urologist.
    
43. The defendant's third witness was Dr. Dhaval Rasal, a consultant Urologist at CWM Hospital. He stated after outlining his qualification and expertise that he did some 100 circumcisions throughout his practice. There are different techniques used. The preventative measures that has to be taken is basic wound care. Complications can occur and there could be various factors leading to complication, such as the amputation injury to the distal penis and pain. He said he noticed that the operation was done on Ratu Meli on the 27th day of August 2005. Four days passed by and the child suffered "excruciating pain". In such a case one has to "take immediate action for medical treatment". The child had lost 70 to 80 per cent of glans penis. He explained that the penis is the extension of corpora spongeiosa which carries urethra to the opening of glans penis. He said the glans penis is the organ which has several nerves ending which gives sexual pleasure. The erected bodies are not damaged and Ratu Meli will be able to achieve erection. It appeared that Ratu Meli had post circumcision complication. The notes from Vunidawa Hospital does indicate that basic wound care was done.
    

44. Upon cross examination the doctor stated that:-

• He could not state clearly what happened during the operation conducted by Mr. Daumeke as there were no notes.
  
• The glans penis had developed gangrene, that is, infection of the glans after circumcision. He had fluid retention and was passing urine through a tube placed inside the bladder. There was blood in the urine. The wound had a foul smell. He was transferred from Vunidawa Hospital to CWM Hospital after 10 days. Ratu Meli's problems would not have reached this far if he had been referred to the CWM Hospital at the earlier stages of his complications.
  
• There was no formal consent obtained prior to the circumcision. There was no reassurance or explanation given to Ratu Meli. All these are procedurally required.
  
• The operation was done by an unqualified person.
  
• The glans penis is damaged to the extent of 70 to 80 percent. He took the post operative measures at CWM Hospital. He reconstructed to renew urethral fistula with a new opening for passing of urine which is unnatural and not normal as urination is now sprayed. The plaintiff now has to squat or sit down to void. His penis is deformed and defaced. There are scars at the head part of the penis. All this has an ugly appearance and is permanent and irreversible in nature. The child has suffered pain. The child will have an erection but he will have problems in maintaining the erection. The child has lost his sexual amenity of life to the extent of 70 to 80 percent and that is forever. Any form of surgical correction if done will be cosmetic. He gave a written opinion as an urologist on the 19th day of April 2006 and he does not differ from his findings in his report which is self explanatory.
  

The Determination

45. My first obligation is to determine the question of liability.
    

Liability

46. The plaintiff was by circumcised by Mr. Daumeke, who was a dresser and employed by the Ministry of Health under that job description. Mr. Daumeke was unqualified and did not possess any academic or professional training to carry out the act of circumcision on the plaintiff. His self professed experience and training is flabbergasting when it comes to dealing with an important matter like circumcision which involves a procedure to one the most important organs of a person's body.
    
47. Mr. Daumeke had some training through one Dr. Jona Nasome to use syringe, inject, anaesthetise and remove the foreskin and bandage the wound. All this training was received on the jobsite and was practical by watching what his senior doctor did. Mr. Daumeke undertook the task because it was the practice that he does it and he was experienced by carrying out some more than 1000 circumcisions.
    
48. One may think like Mr. Daumeke that circumcision is a simple procedure and only a matter of removing the foreskin but this case will clearly demonstrate that this is a painstaking task that requires skill, care, competence and qualification.
    
49. In my judgment this practice was improper for Mr. Daumeke to undertake. His previous acts of circumcision and the fact that he was permitted by the doctors to conduct the procedure on the plaintiff is meaningless and does not conclude that it was within his job description to conduct such a task. The court was not given any indication by the Ministry of Health that such an important process was within the job description of Mr. Daumeke.
    
50. Further, on the day in question, the doctors and staffing nurses were present at the hospital. One of the doctors permitted Mr. Daumeke to circumcise the plaintiff when one of them could have undertaken the task. I assume, the doctors must have thought that practice makes it perfect, but the truth of the medical profession is that even the most experienced doctors go wrong when they intervene surgically. It should therefore have been obvious or prudent for the doctors to conduct such an important task on the plaintiff themselves or under supervision, at the very least.
    
51. Mr. Daumeke's unprofessionalism and negligence is apparent from his actions. Firstly, he started the process without obtaining a formal consent of the parent. Indisputably oral consent was provided but that does not diminish the need for a written one. Secondly, Mr. Daumeke failed to keep any operative or post operative notes to indicate the process administered on the plaintiff. This act is very crucial in any treatment of a patient, ranging from a small treatment to a big one. There is no need for me to state the reasons for keeping medical notes of a patient. I believe, even a layman would understand the basic reason why such a principle needs to be adhered to.
    
52. The medical notes would have been of assistance to the patient and the subsequent medical practitioners in providing a better treatment based on the initial notes. It would have become easy to deduce the cause of the problem. Given that the notes were not kept at all shows sheer unprofessionalism and negligence with which the matter was handled.
    
53. The consequential effects of the circumcision are indisputably what Dr. Westernberg has given in his evidence.
    
54. The issue is the cause of the problem suffered by the plaintiff.
    
55. Having heard and perused the evidence of the witnesses and further having heard and seen the consequences of the circumcisions via the photographs, I have no reason to reject the evidence of Dr. Westernberg that the child has suffered amputation injury. I can as Dr. Westernberg has said, draw only two possible inferences and/or conclusions as to how the amputation injury took place.
    
56. The first is that Mr. Daumeke had cut the child's glans penis as a result of which he bleaded profusely and suffered so much pain during and immediately after the process. I have heard the evidence of the father and the child and they appeared very honest, calm, and consistent witnesses to me and as such I do not reject their evidence that the child cried in pain during and after the process and yelled for help. The father, naturally, wanted to go inside to see his son but he was stopped by the disguised doctor. If only the foreskin was removed, the cause for agony and pain would not have existed as the anesthetic is meant for relief and numbness, but, in this case, I am of the judgment that the glans penis was invaded and thus the damage to the glans penis which caused the child so much pain.
    
57. The second inference is that, if the glans penis was not cut off, then the amputation injury caused was due to the tight bandage which resulted in the blood supply to be cut off. The loss of blood supply caused gangrene to be formed at the end of the penis resulting in the damage to the glans penis.
    
58. If the glans penis was cut off, then it is sheer negligence on the part of Mr. Daumeke as glans penis was not to be removed but the foreskin.
    
59. However if the gangrene formed due to tight bandage then it again is sheer negligence on part of Mr. Daumeke to have bandaged the wound so tightly. This happened either because of lack of skill or knowledge or sheer rush on part of Mr. Daumeke. I must mention by reiterating that he was negligent in carrying out the process without qualification, care, skill and knowledge and further after undertaking the said task, be that as it may, he grossly failed to address the wound properly.
    
60. Mr. Daumeke and the other defendants witnesses have failed to explained what caused the loss of glans penis, what caused the gangrene, and how the infection accrued. They have also failed to explain how the penis has deformed and the reasons for other consequences. They wish to defend themselves by saying that what Mr. Daumeke did was accepted practice and reasonable because there are no medical notes to indicate what Mr. Daumeke did. It was his negligence in not keeping the notes and it is safer but not accepted for them to profess that all precautions were taken. If it was, then why all the chaos? The plaintiff had no problems which could have caused the results?
    
61. The defence counsel has very incredibly submitted that the father of the child tried to wet the circumcision area which had caused the gangrene but the Vunidawa Hospital notes indicate that when the child went to the hospital, the circumcision site was dry. Further, and even if the circumcision site was wet, the obligation to control the infection and manage the wound was on the hospital as the child had reported to the hospital the next day. It was the duty of the hospital to manage the wound as they were dealing with a 10 year old child who is not expected to know or appreciate the need and way to maintain the wound. If the circumcision site was wet and the Hospital saw that and knew that it would cause infection, then why did they not care to take out the bandage from the wound? This, according to the evidence could have caused the infection to grow. After about 9 days at Vunidawa Hospital, the condition of the penis got so deteriorated that the plaintiff had to be transferred to the CWM Hospital where post operative treatment was taken. At Vunidawa hospital the child was passing blood in urine, and the penis smelt foul. The Vunidawa Hospital should have arrested the problem immediately. It is to be noted that Ratu Meli was not referred to the CWM Hospital at an early stage, rather when the gangrene formed and set into the glans penis. This improper management and arresting the infection at an early stage, I hold, has additionally or alternatively caused the problem to the plaintiff's penis. Dr. Westernberg observed in his report and submission that the preventative measures in Ratu Meli's case would have been to remove the bandage and basically keep the wound clean. The risk of infection is very low if this was undertaken properly. I accept.
    
62. One can clearly take note, by reviewing the nurses' notes at Vunidawa Hospital that little was done by the doctors during the 9 days of Ratu Meli's hospitalization at Vunidawa. He was visited by Dr. Nanovu on 4 occasions while Dr. Raibevu visited him only once. Dr. Dhaval emphatically expressed in his evidence that in such a case one has to "take immediate action for medical treatment". Dr Dhaval said that preventative measures are to be taken in basic wound care. Dr. Dhaval said complications can occur and there can be various factors leading to complication such as the amputation injury to the distal penis and pain. He also said that Vunidawa Hospital had done basic wound management. I do not accept this evidence because if basic care was given, the condition of the penis and the gangrene and infection would not have developed that far. The risk of infection, I accept, is very low after circumcision as Dr. Westernberg had said, yet, the child's penis has suffered such a disaster after circumcision and whilst he was in care of the medical personnel.
    
63. When the child got admitted, no one in the Vunidawa Hospital cared to look for the child's folder to ascertain the method of circumcision that was employed. To make it worse, no one cared to ask the disguised doctor on what and how he carried the process. This in itself shows ill management of a patient's condition by the doctors.
    
64. On the balance of probability and looking at the evidence in a whole, I find that there was negligence during the circumcision process and/or after the circumcision process and/or the wound management process by virtue of which the third defendant is liable in negligence to the plaintiff. The liability of the first defendant is vicarious in nature. There is no issue of vicarious liability.
    

Damages

65. The next aspect is the assessment of damages. I will take each head in turn, as pleaded, and then make a determination.
    

Pain and Suffering and Loss of Amenities of Life

66. Given the condition of the child during the circumcision and after two operations, it is naïve to say that there was no pain and suffering. I can imagine the agony and horror of three operations, the first which he went through was voluntarily and the second two was to correct the mishap of the first. The notes of the Vunidawa Hospital and the CWM Hopsital also indicate that the child complained of pain, vomited many times, had swollen penis area which hurt him a lot, swollen abdomen which also was painful, and had immense difficulty in voiding.
    
67. The suffering in itself is the worst in its kind. Segregated and tortured by friends and being humiliated is a life long suffering which would be difficult to erase from the memory of a child.
    
68. The pain and suffering of this child will be continuous given the problem. I accept the evidence of the doctors and Ms. Selina Kuruleca on the psychological effects that the plaintiff may suffer.
    
69. On the aspect of loss of amenities of life I accept the evidence of Dr. Westernberg. The child's voiding pattern has changed and he cannot enjoy the expected and natural style of voiding. There is a change in his behavioural pattern as a result of the same. I also accept that the plaintiff can achieve erection. The problem is in maintaining the erection. Comparatively, his erection may be shorter and if he does have erection the penis may become curved ventrally. It is not conclusive that the plaintiff cannot have children. There may or may not be a problem and if there is in future, then the amenity of having and enjoying children would be destroyed. The plaintiff's sexual performance and enjoyment will be affected.
    
70. I bear in mind that the child has lost 70-80 percent of his glans penis and the total permanent incapacity is 18 %. The total 18% permanent disability has not been disputed and in fact the parties had proposed settlement for approval before court based on this 18% permanent disability. The permanent disability was assessed by one Dr. Dhaval Rasal. It is therefore appropriate to make an assessment with the percentage permanent disability and the circumstances of the child in particular.
    
71. In Joseva Rokobutabutaki & Attorney-General v. Lusiana Rokodovu [unreported] Civil Appeal No. ABU 0088/1998, the Court of Appeal stated that in respect of pain and suffering:-
    

"Each case must depend on its circumstances, but pain and suffering and loss of amenities of life are not susceptible of measurement in terms of money and a conventional figure derived from experience and awards in comparable cases must be assessed".

72. The court in the case of Permanent Secretary for Health v. Attorney General of Fiji and Arvind Kumar & Kamni Devi [unreported] Court of Appeal, Fiji Islands Civil Appeal No. ABU 0084 of 2006S made a statement regarding socio-economic conditions of Fiji by saying that the socio-economic condition is a relevant but not the overriding factor to be considered when granting general damages. I agree that the socio economic condition of Fiji must be taken into account.
    
73. With the above comments, it is my duty to now award a quantum of damages for pain and suffering. To make an assessment I have looked at all of the cases where this head of damage was considered. In particular I have considered the cases in Fiji and a wide range of the same submitted by the counsels.
    
74. This is a sad case and a peculiar one and there is no decided case authority on a matter similar to this in Fiji. Looking at the child's circumstances and his permanent disability, I fix a sum of $70,000 for pain and suffering and loss of amenities of life.
    

Aggravated Damages

75. This case does not qualify for aggravated damages. It has been held in the cases of Kralj v. McGrath [1986] 1 All ER 54 and AB v. Southern Water Services [1993] QB 507 that aggravated damages are inappropriate to negligence cases.
    
76. I have, when awarding the damages for pain and suffering considered the plaintiff's feeling during and post circumcision and made an award. The award thus is compensatory and appropriate.
    
77. Any award under this head is refused.
    

Special Damages

78. Under special damages, I only allow the following:-
    
    • (a) Payment of $600.00 made to Dr. Uzal K. Dhar. The Suva Private Hospital has given an indication in its letter head dated the 27th day of November, 2008 that the plaintiff had undergone various radiology and pathology tests but the hospital was unable to retrieve the invoices and receipt numbers due to multiple system upgrades and data errors. The letter indicated that the hospital had received payments. The amount, however, was not mentioned. Radiology and pathology tests are not cheap expenses and the claim for $600.00 is reasonable.
      
    • (b) Payment to Dr. Westernberg in the sums of NZ $750.00 which Mr. Chand equated in FJD as $883.00. This was paid by Westpac Bank Draft dated 17/07/2008 and numbered 27104122.
      
    • (c) Payment to Dr. Westerberg in the sum of NZ $4,425.50 equated by Mr. Ram Chand to be FJ $ 5,000. The payment was made via a Westpac Bank Draft number 27104141 and dated 28/02/2008.
      

The above two payments to Dr. Westernberg was for examination of the plaintiff privately in Fiji and for preparation of the medical reports.

(d) Payment of $170.00 to Ms. Selina Kuruleca. She was paid for psychological assessment of the plaintiff and providing a report. She was paid on 28/11/2008. She has signed an acknowledgment of receipt of the said sum of $170.00.

(e) I allow a further sum of $1000. This was incurred by plaintiff and his father in attending the Vunidawa and CWM Hospital. The expenses are for travel and meal allowance. Generally receipts are not kept and given for fares and meal purchases and so I do allow this amount. The child was hospitalized for about a total of 40 days and a claim of $25.00 per day is reasonable in my view.

79. The total for special damages that I allow is in the sum of $7, 653.
    
80. Mr. Chand has asked for more awards under special damages and I refuse the same on the following basis:-
    
    • (a) I refuse the payment of $5,000 paid to Dr. Westernberg for coming to Fiji and testifying. This sum can be claimed in costs and appropriately reflected under the said head.
      
    • (f) I do not allow the sum of $390.00 which was charged by Ms. Selina Kuruleca for giving evidence in court and preparing a testimonial report. These are costs which should be claimed in costs.
      
    • (g) I disallow the sum of $4,480 which is needed as future bills for Ms. Selina Kuruleca which as per her testimony is needed for future treatment of the child. This was never pleaded for properly and there is no evidence that Ms. Kuruleca has apart from the one advise and assessment, provided any assistance to the child. There is no basis for this award.
      
81. The next aspect is the interest.
    

Interest

82. The plaintiff has pleaded for interest at the rate of 5% from the date of the injury, that is, the 27th day of August, 2005.
    
83. The entitlement for interest arises under section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act which provides:-
    

"In any proceedings tried in the High Court for the recovery of debt or damages the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date on which the cause of action arose and the date of judgment..."

84. I propose to give interest on general damages at 5% as claimed from the 27th day of August, 2005 to the date of judgment which is the 08th day of April, 2011.
    
85. The calculation of interest on general damages is as follows:-
    

86. The total interest comes to $19,584.77. I make the award accordingly.
    

Total Award of Damages and Interest

87. The total amount of damages and interest comes to a sum of $97, 237.77. I make an award for a sum of $97, 237.77 accordingly.
    

Costs

88. It appears that a lot of costs have been incurred in this matter and it is inappropriate for me to fix an amount without hearing the counsels on the same aspect. I intend to hear the parties on the issue of costs at a time to be appointed in consultation with the counsels.
    

Apportionment and Payment of the Damages.

89. It is improper to make an apportionment of the damages, for payment of costs and for life saving of the child without hearing the plaintiff's counsel, as his submission and knowledge on investment and payment out, is of utmost importance and in the interest of the plaintiff child.
    

Final Orders

90. There shall be judgment for the plaintiff in the sum of $97, 237.77 to be paid by the defendants in the manner to be determined by the court after hearing parties on apportionment and payment.
    
91. There shall be costs in favour of the plaintiff to be determined after hearing the parties.
    
92. The parties are at liberty to apply for clarification on calculation of any portion of the damages.
    
93. Orders accordingly.
    

ANJALA WATI
Judge
08.04.2011