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Manu v McCaig [2011] FJHC 49; HBC344.2002L (16 February 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 344 of 2002L

BETWEEN:

ABHI MANU
Plaintiff

AND:

EDDIE McCAIG
Defendant

FINAL JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr C B Young for the Plaintiff
Mr R Green and Ms Prasad for the Defendant

Solicitors: Young & Associates for the Plaintiff
Attorney General’s Chambers for the Defendant

Date of Hearing: 10 May, 23, 24, 25 August and 8 October 2010
Date of Judgment: 16 February 2011

INTRODUCTION

[1] The surgeon’s scalpel cuts away bad and good flesh. When it cuts away bad flesh it is a miracle. When it cuts good flesh, it becomes a curse. And when the curse is for life, the patient prays for a miracle. Unfortunately, all that this Court can do is to do its best to compensate the patient justly according to law.

[2] This case highlights the need to change the law in two areas. The first is the immunity from personal liability of doctors, and for that matter lawyers and other professionals, who are employed by government to practice their professions. Their negligent practices should not be at the expense of the public purse. I do not think it is right that a doctor should be allowed to practice with such impunity over many years and then move into private practice and take advantage of the seniority and experience that he gained under indemnity by the public purse. The second is the amount and extent of the compensation which the Court should award to a patient who has suffered at the hands of the negligent doctor.

[3] On 7 September 2001, Abhi Manu, on the recommendation of the orthopedic surgeon Eddie McCaig, admitted himself to the CWM Hospital in Suva to be operated on his bad back by the surgeon. He was discharged some 7 months later with permanent loss of bladder, bowel and sexual function. He sued the surgeon for damages for negligence and his employer, the Government of Fiji, is now liable to compensate Abhi Manu for the damage and loss caused to him.

CASE HISTORY

[4] This unfortunate case has been to all levels of the superior courts in this country. After the original 2 day trial before a different Judge on 2 and 3 May 2005 in which Abhi Manu lost on liability, he appealed to the Court of Appeal[1] successfully. That judgment was delivered on 24 March 2006. In order to get a better understanding of the history and the constraints under which the hearing before me took place, it is necessary to refer to that decision reported in Manu v McCaig [2006] FJCA 8; ABU0048.2005S (24 March 2006) and I reproduce the whole judgment:

[1] This is an unfortunate case. The appellant, Abhi Manu, awoke from an operation for a slipped disc with spinal cord damage which totally disabled him in urinary, bowel and sexual operation. He sued the respondent, Eddie McCaig, for damages for negligence, breach of fiduciary duty and a breach of section 54 of the Fair Trading Decree 1992. He was unsuccessful on all of his causes of action and Finnigan J. entered a judgment for the defendant.

The Facts

[2] The appellant had met the respondent socially. He suffered persistent back pain. The respondent told him that it could be cured by an operation he could perform in Fiji. The pain worsened and the appellant was hospitalised in Lautoka. There he was visited by the respondent and a group of doctors and students. One morning the appellant awoke in severe pain and could not move. He was transferred by ambulance to CWM Hospital, a public hospital in Suva.

[3] Following his arrival a myelogram was performed. He was apparently asked to sign a consent form, which he did although in great pain. The form has been lost. The appellant was taken to the operating theatre the next morning. The respondent a surgeon, told the appellant he would do the operation.

[4] As we have said, following the operation the appellant was unable to urinate or express faeces because of damage to his spinal cord.

[5] The respondent gave evidence of the operation. He said that he was the senior surgeon present at the operation on the appellant’s L4 and L5 vertebrae. There were two other surgeons who performed the operation with him but he was supervising them and took responsibility. It was an agreed fact that the respondent conducted the operation. He explained the operative procedure, in particular how the surgeon moves the nerve root aside to get through to the disc and the front of the vertebra. If the nerves leading to the pelvic region are damaged or cut then that affects the urinary, bowel and sexual function. In a discectomy the surgeon removes only the part of the disc which is pressing on the nerve and causing the trouble.

[6] Covering the spinal cord is the dura. This was torn in the operation. The tear was 1-1.5cm long. The respondent said that this was a complication which was rectified by a fascia patch which he applied. Tearing of the dura is one of the risks in the operation. Results of a torn dura can include fluid leaking into the spinal canal and bleeding from around the spinal cord.

[7] The respondent said that the nerves to the pelvic organs come from the lumbrosacral plexus of nerves. In relative terms they were operating far away from the plexus of nerves. Using a metaphor, he said one was at Suva and the other at Nadi.

[8] The respondent further said that the complication suffered by the appellant was totally unexpected and if there had been nerve damage during the operation they would have recognised it. The operation was straightforward and he was surprised when he returned from overseas to hear of the appellant’s condition. Finnigan J. said that the respondent’s evidence was that the appellant’s condition can be caused by "a cut too far" but was adamant that this had been ruled out by a MRI scan subsequently performed in New Zealand.

[9] In evidence were reports from the New Zealand specialists. Mr Howie, an orthopedic specialist, gave several reports. He said that the appellant’s persistent bladder, bowel and sexual dysfunction was likely to have been caused by an injury to one or more sacral nerves. This injury was likely to have been sustained at the time of the discectomy. Damage was likely to be permanent.

[10] A pre-hearing medical assessment in April 2005 revealed that the appellant was still unable to urinate spontaneously, was still evacuating his bowels manually and was still impotent.

[11] The appellant and his wife gave evidence of the serious impact of his continuing disabilities on his work, family and social life.

The Judgment

[12] His Lordship said that the cause of the appellant’s condition was the sacral nerve injury. He noted that Mr Howie’s opinion was that it occurred during the operation. He asked rhetorically how did it occur? His answer was that there was absolutely no evidence.

[13] Finnigan J. noted the causes of action including the claim that negligence had been proved. He noted that the appellant relied in the alternative on the doctrine of res ipsa loquitur placing the onus on the respondent of proving that what occurred was not negligent. His Lordship rejected the appellant’s claims of breach of fiduciary duty and under the Fair Trading Decree.

[14] The learned judge said that this was not a case for the application of the doctrine of res ipsa loquitur. In explaining why he so found he said that he had no doubt that the appellant’s condition occurred during the operation. This is an important finding and one based in the evidence.

[15] The Judge then said:

"What then occurred during the operation? Some nerves supplying the pelvic region were damaged. How did that occur? The defendant agreed that if they had been cut or damaged, then the surgeon had gone too far. He said the MRI proved that there was no cut. The evidence (mercifully) is of damage only. The Defendant said in evidence and in the letter cited above that what occurred was totally unexpected, it is certainly a complication that is recognized, but that the operation in this case was straightforward and he was surprised to learn of what had occurred when he returned from overseas. What evidence is there of negligence for the Defendant to rebut?"

[16] His Lordship continued that before the doctrine can be applied it is necessary that there be a finding that the event would not ordinarily have occurred unless there had been negligence. He said "Put... quite simply there must be a prima facie case before the defendant is required to explain."

[17] His Lordship concluded this part of his judgment by saying:-

"The step I am asked by Counsel to take is to infer from the fact of nerve damage a conclusion that, more probably than not, to damage nerves during this operation was negligent. All the evidence I have about this, such as it is, was given the Defendant. There is nothing in any of the specialists’ reports upon which I can base a finding that the intra-operative damage to one or more sacral nerves arose out of negligence or lack of due care. The Defendant himself spoke of the risks of the operation as being numerous and he mentioned death from anaesthesia (one in ten thousand), infection, pain, scarring, tearing of the dura and recurrence of the prolapse. Naturally he said nothing about any risk of negligence on the surgeon’s part. He said that the Plaintiff’s condition was a known risk of the operation. When that risk turns to reality is it because of negligence on the surgeon’s part? Or is it because of rare and unavoidable misadventure? I cannot say, there is no evidence. Unless I can take that step, I cannot apply the doctrine of res ipsa loquitur."

[18] ...

[19] The Judge concluded by saying that the evidence did not establish that the damage to the sacral nerves during the operation ordinarily would not occur absent negligence.

Appellant’s Case

[20] The appellant submits that this is a case where there must be an inference of negligence given the accepted facts.

[21] The appellant further submits that the doctrine of res ipsa loquitur can be applied to the circumstances since there was negligence proved by inferential reasoning Schellenberg v. Tunnel Holdings Pty Ltd. [2000] HCA 18 at 37. It is submitted that his Lordship was in error in the application of the doctrine when he thought that the appellant had to prove by evidence that the damage to the nerves was not the result of rare and unavoidable misadventure. The appellant submits that his Lordship misapplied Cassidy v. Ministry of Health [1951] 1 All ER 574 at 588. In effect, Finnigan J. reversed the need for an explanation.

Respondent’s Case

[22] The respondent submits that the trial judge was correct in finding that negligence was not established and there was no occasion to apply the doctrine of res ipsa loquitur. The respondent asserts that it is necessary that the appellant establish that lack of due care on the part of the respondent led to the damage. This was not done. The respondent submits that he did not admit that damage, cut or otherwise, had occurred, nor did he say that it would have constituted negligence.

[23] The respondent says that at most one may infer that a complication may have arisen from the surgery, but there is no evidence that this occurred due to the negligence of the respondent.

[24] A mere unfavourable result (even a fatality) from a disc operation is not synonymous with negligence. The trial judge was correct in not inferring a prima facie case of negligence.

[25] The respondent submits that the judge was correct to find that there was insufficient evidence to find misleading and deceptive conduct. As to the claim for breach of fiduciary duty, the respondent submits that this was an emergency operation and thus no fiduciary obligation arose.

Liability in Negligence

[26] One thing is clear on the evidence, the appellant was not suffering from a damaged nerve before the operation. There would have been numbness in his limbs but he reported no such symptoms.

[27] The crucial fact which was found by the court was that damage done to the pelvic or sacral nerve(s) occurred during the operation. This was the evidence of the New Zealand expert Mr Howie. The MRI in New Zealand mentions ‘heavy scarring’ to the nerve. The respondent said the sacral nerves were beyond where the operation was taking place. He said "we did not touch the nerve, the covering only and that was repaired." He explained that the disc prolapse was to the side of and beside the nerve. The nerve root is moved to one side. He said, "we work round to the side of it." If there was nerve damage it would have been recognised.

[28] Importantly the respondent said that the appellant’s condition can be caused by "a cut too far." He also said that a nerve can be damaged without being severed.

[29] It is plain that during the operation the sacral nerve(s) was damaged causing the appellant’s condition. The respondent conducted the operation although he did not personally do the closure. He said it was a straightforward operation.

[30] The respondent explained to the court the risks of the operation. For example, one in 10,000 patients die from anaesthesia. Also infection, pain, a tear in the dura which causes a leak of fluid into the spinal canal. There were other risks which he did not specify. Significantly, as the judge noted, he did not include the risk of the sacral nerves being cut or damaged, nor negligence by the surgeon.

[31] There is of course no direct evidence that the respondent cut or damaged the sacral nerve. Indeed, he denied it although he gave no explanation as to how the nerve became damaged. However, we must consider what inferences can properly be drawn. Can the appellant rely on inferential reasoning to prove negligence? Negligence in the respondent may be proved inferentially if there is no explanation of how the nerve was damaged in the operation other than under the hand of the surgeon not displaying reasonable care. Here there is no other possibility on the evidence other than want of care on the part of the respondent. On the probabilities it is likely that there was "a cut too far" by the respondent which damaged the nerve causing the appellant’s condition. There is no evidence that the nerve was damaged by some rare or unavoidable misadventure. Indeed, the respondent gave no explanation of what might constitute a rare or unavoidable misadventure.

[32] In these circumstances it is not necessary to invoke the doctrine of res ipsa loquitur.

[33] We find liability in negligence established on the evidence. The parties are agreed that the action should be remitted to the High Court to assess the damages to be awarded.

Orders

[34] Accordingly the following orders are made:-

(1) The judgment entered for the defendant/respondent should be set aside and in lieu thereof there be substituted a finding on liability for negligence in favour of the plaintiff/appellant.

(2) The appeal is allowed and the respondent is ordered to pay the appellant’s costs in the sum of $1,000.00.

(3) The matter is remitted to Finnigan J. to assess the damages to be awarded to the appellant.

[5] The State as the employer of Eddie McCaig then appealed to the Supreme Court. The Supreme Court[2] found that the appeal did not raise any important question of law or that the Court of Appeal was wrong and refused leave to appeal. The Court’s decision is reported in McCaig v Manu [2008] FJSC 4; CBV0004.2006S (22 July 2008) and I reproduce the following relevant passages:

[3] The Court of Appeal observed that the trial Judge had found that the respondent’s disabilities had been caused by damage to his sacral nerve. The Court of Appeal found, as had the trial Judge, that the damage to the sacral nerve occurred during the operation. On the petition to this Court there was no challenge to this concurrent finding of fact.

[4] The Court of Appeal regarded the evidence given by the petitioner himself as important. In particular, he had said that the sacral nerves were beyond the site of the operation and that he had not touched the nerve in the course of the operation. The petitioner had asserted that, if there had been damage to the sacral nerve, it would have been recognised during the operation. Moreover, the petitioner had acknowledged that the respondent’s condition could be caused by "a cut too far" and that a nerve can be damaged without necessarily being severed.

[5] The petitioner had explained at the trial the risks of the operation, such as an adverse response to anaesthesia, infection and a tear in the dura causing a leak of fluid into the spinal canal. The Court of Appeal considered it significant that, as the trial Judge had noted, the petitioner did not specifically include the risk of the sacral nerves being severed or damaged, nor did he advert to the risk of negligence by the surgeon.

[6] The Court of Appeal’s reasoning is, in essence, contain a single paragraph, as follows:

"There is of course no direct evidence that the [petitioner] cut or damaged the sacral nerve. Indeed, he denied it although he gave no explanation as to how the nerve became damaged. However, we must consider what inferences can properly be drawn. Can the [respondent] rely on inferential reasoning to prove negligence? Negligence in the [petitioner] may be proved inferentially if there is no explanation of how the nerve was damaged in the operation other than under the hand of the surgeon not displaying reasonable care. Here there is no other possibility on the evidence other than want of care on the part of the [petitioner]. On the probabilities it is likely that there was "a cut too far" by the [petitioner] which damaged the nerve causing the [respondent’s] conditions. There is no evidence that the nerve was damaged by some rare or unavoidable misadventure. Indeed, the [petitioner] gave no explanation of what might constitute a rare or unavoidable misadventure."

[7] The petitioner’s submissions recognised that he must persuade the Court that one or more of the matters specified in s. 7 (3) of the Supreme Court Act 1998 are present if he is to succeed on his application for special leave to appeal. The petitioner’s contention is that the subject matter of the case raises issues of substantial general interest to the administration of civil justice and that it is necessary "to settle the law [relating to] medical negligence in cases in Fiji".

[8] As became apparent in the course of oral argument on the petition, the outcome of the appeal in the Court of Appeal depended not on any contentious principle of law, but on the application of established principles to the specific facts of the case. In substance, the Court of Appeal drew inferences from the findings of the primary facts made by the trial Judge and from the undisputed evidence to reach a different conclusion from that the trial Judge. This led their Lordships to the conclusion that the trial Judge had erred in failing to make a finding of want of reasonable care on the part of the petitioner. While the reasoning of the Court of Appeal is economical and might well have been spelled out in more detail, its conclusion rests upon the inferences to be drawn from evidence that was not in dispute in the appeal to that Court.

[9] It is true that, as the petitioner contends, there was no independent expert evidence adduced on behalf of the respondent at the trial. It is also true that, in general, it is necessary for a plaintiff who is seeking to establish a failure on the part of a surgeon to take reasonable care to ensure the safety and well being of the patient, to adduce expert evidence as to the standard of care reasonably to be expected in the circumstances.

[10] However, in this case the Court of Appeal relied upon the evidence given by the petitioner himself to support the inferences it drew as to the want of reasonable care on his part. The nature of that evidence is important:

• The petitioner maintained that he was not operating close to the sacral nerve. As he explained in evidence:

"the nerve to the bladder is at Suva, we were operating at Nadi".

• If there was damage to the sacral nerve, the petitioner would have recognised the damage during the operation. He did not suggest that he had in fact recognised any such damage.

• The petitioner accepted that, for the sacral nerve to have been damaged during the operation, he would have had to go "too far."

• The petitioner did not specifically claim that damage to the sacral nerve was a recognised complication of a discectomy without any negligence on the part of the surgeon.

• The petitioner offered no explanation in his evidence as to how the sacral nerve could have been damaged without negligence on his part.

[11] As we have noted, it was common ground on the petition for leave to appeal that the damage to the respondent’s sacral nerve occurred in the course of the operation. Given this fact, in our opinion the petitioner’s own evidence justified the Court of Appeal in inferring that, on the balance of probabilities, the damage to the sacral nerve had occurred because the petitioner went "too far" in the course of the operation and did so without exercising that degree of care reasonably to be expected of a surgeon undertaking an operation of this kind.

[12] It follows from what we have said that special leave to appeal should be refused on two grounds. First, the petition does not present any matter of substantial general interest to the administration of justice. Secondly, we see no error in the conclusion reached (by) the Court of Appeal.

[6] When the matter was remitted back, Finnigan J, without hearing further evidence or submissions from the parties, on 12 May 2006 delivered a supplementary judgment awarding damages totalling $701,000.00 plus costs of $6,000.00. In July 2008, an interim payment of $250,000 was made to Abhi Manu on behalf of the surgeon. The State then appealed that judgment to the Court of Appeal[3]. That judgment is reported in McCaig v Manu [2008] FJCA 76; AAU0054.2007S (7 November 2008) and I reproduce the following relevant passages from it:

[6] It is quite apparent from the record of the original hearing before the trial judge in May 2005 that only brief evidence was called relating to the assessment of damages suffered by the respondent. Whilst it is true that two witnesses called to give evidence by the plaintiff (Mrs Khan and Mr Chandra) at the original hearing before the trial judge did give brief evidence relating to the respondent’s loss of earnings, the focus of that hearing was on liability rather than quantum.

[7] We are of the view that in remitting the matter back to the trial judge for the assessment of damages, the Court of Appeal expected there to be a fresh hearing before him for that purpose. In our view that is implicit in the Court’s order.

[8] Given the passage of time from the handing down of the judgment of the trial judge on liability to the time of the assessment of damages we feel justice demands a fresh hearing to properly assess the quantum of damages to be awarded to the respondent. Had the Court of Appeal which remitted the matter back to the trial judge been of any other view then the Court itself could have made its own assessment based on the record and exhibits from the lower court which material it undoubtedly had before it. There is also strength in the appellant’s submission that when assessing damages it is important to base that assessment on the facts and circumstances of the plaintiff as known at the time of the assessment. In the circumstances of this case this concern could only be addressed by a fresh hearing taking place. At the very least an updated medical report would be needed to properly assess the damages to be awarded to the respondent.

[9] Given our view that the Court of Appeal must have intended there to be a fresh hearing before the trial judge we are prepared to remit the matter back to the High Court for the purpose of a hearing into the assessment of damages. We do not feel this Court could adequately assess damages on the material contained in our appeal books. Witnesses will no doubt need to be called and issues of credit and weight addressed by a judge in the High Court.

[10] Obviously we have concerns about the emotional, physical and financial burden to be carried by the respondent in having to attend a further hearing, but to do justice to both parties there is simply no other alternative but to hold a further hearing. But given what has taken place is not the fault of the respondent we can allay some of his fears with appropriate cost orders.

[11] The orders we propose to make in the disposition of this appeal obviate the need for us to consider grounds 2 to 5 (inclusive) of the grounds of appeal contained in the appellant’s Amended Notice of Appeal, the Respondent’s Notice dated 7 October 2008 and the respondent’s Notice of Motion dated 27 October 2008. The issues raised in the Respondent’s Notice will no doubt be raised afresh at the hearing into the assessment of damages. Likewise, the great body of law dealing with the appropriate method of assessing loss of earnings (including future economic loss) referred to by both parties in their written submissions will be considered and debated before the High Court Justice presiding at the hearing into the assessment of damages.

[12] Given that the trial judge is no longer sitting on the High Court of Fiji the matter will have to be dealt with by another Justice of the High Court.

Orders

[13] The orders of the Court are:

(1) The appeal be allowed;

(2) The whole of the judgment of Finnigan J dated 12 May 2006 be set aside;

(3) The order of the High Court sealed on 15 June 2006 be revoked;

(4) The matter be remitted to a Justice of the High Court to conduct a hearing into the assessment of damages to be awarded to the respondent in accordance with the High Court Rules;

(5) Each party to pay their own costs of this appeal;

[7] It was under these circumstances that this matter came before me for hearing on 10 May 2010 and subsequently for assessment of damages.

THE HEARING ON ASSESSMENT OF DAMAGES

The Documentary Evidence

[8] The Plaintiff relied on the Supreme Court Record and other documents tendered during the trial. Mr Young directed me to various pages of the Record in his opening statement in which he relied upon. The Defendant filed a separate Bundle of Documents on which it relied on.

The Plaintiff’s Evidence
PW1

[9] The Plaintiff’s first witness was the current team leader for Human Resources and Payroll of FEA. He confirmed that FEA does currently employ persons over 55 years despite Government and FEA policy of retirement at age 55. One of these employees is over 65 years old. Such employment is subject to several factors such as medical fitness, good track record, competency and a clean disciplinary record.

[10] He was aware of Abhi Manu’s “medical misadventure” and that he was admitted into hospital for quite some time. He was on full pay during the period he was in hospital. He had a serious medical condition - urine discharge. He did not think FEA management would have re-employed Abhi Manu after age 55.

[11] In cross examination he said there was a restructure of FEA in 2002 and a redundancy policy was put in place. That policy is continued up to now. It is voluntary and not compulsory. Abhi Manu left voluntarily and not retired by FEA.

[12] He worked with Abhi Manu from 2001 to 2008. He had an “unblemished record”. The phrase “unblemished record” referred to his disciplinary record and did not mean that the employee was performing. There was no issue about Abhi Manu’s attendance or about his performance. He was doing a good job.

[13] In re-examination the witness said that Abhi Manu’s position was one of two positions that were merged into one. His unblemished record referred to lack of disciplinary actions during his 29 years and 4 months service, such as failing to turn up at work on time, absence without leave or unexplained. He wrote a letter on 4 April 2008[4] confirming that Abhi Manu left on 22 February 2008 on grounds of voluntary redundancy and that he had an unblemished record during his time of service.

PW2

[14] The Plaintiff, Abhi Manu, gave evidence next. He is currently unemployed. His first trial was in May 2005. He was employed by the Fiji Electricity Authority (FEA) at the time. He worked with great pain. He forced himself to carry on. He was team leader till 2008 when he opted for redundancy on 22 February 2008. He had been team leader since 1996. He started with FEA in 1978 as a meter reader, later promoted to accounts clerk then team leader in 1996 and finally to the position of coordinator, who is the person that monitors the team leader. The team leader’s salary is $30,000 and the coordinator’s is $50,000. Above the coordinator is the Manager on a salary of $60,000. The person holding the current position of team leader in the West has served the FEA for the same number of years as him. The person now holding the coordinator position was senior to him. He took the redundancy package which was $40,000 gross out of which he paid $13,000 in tax. Abhi Manu said his bosses were aware of his injuries and tolerated him.

[15] After he was discharged from hospital, he went back to work, but he suffered pain. He forced himself. He usually left home at 7.00 am. Before he did that he would empty his bowels and bladder. He would do that again when he got to work so that he did not embarrass himself in front of his co-workers. He had a permanent catheter inserted. The tube was inserted into his penis then into his bladder; he then blew into the tube so that it would not come out of the bladder and the other end inserted into a bag. He has no sensation. He could not feel when his bladder was full so he had to empty the bag every now and then. He had to go monthly to have the catheter changed at the Lautoka hospital. The nurses and sometimes trainees did that. He would be asked to lie down and take his pants down, the catheter would be pulled out and cleared, a lubricating gel was rubbed on the tube and the tube reinserted into his penis. He said it was very embarrassing for him but he had no choice. This was what he had to endure up to 2006.

[16] It would take about an hour to have the catheter changed. He got infection from the use of the catheter and pain and burning sensation up to his hips. He convinced the doctors to stop using the catheter. He forced himself to pass urine all by himself; in small quantities; about half a glass at a time. He fought with the local doctors, 3 months here in Lautoka and 3 months in Suva, to get them to give him a letter for his insurance company to take him to New Zealand. His insurer Fiji Care arranged in 2002 for him to see an urologist in New Zealand, Christopher Howie. He also saw a spine specialist.

[17] Abhi Manu cannot pass faeces without assistance. He showed how he extricated his faeces. He carried plastic gloves with him; in his pocket; in his car and in his desk at work. He would put the glove on his right hand. He could not use his left hand. He would poke his finger into his anus and “pull the poo” out. He still does this today. He carries gloves every where now. He would have to do this three or four times a day and sometimes at night. After he would finish he would use toilet paper to clean the glove if he needed to reuse it. When he got a sensation of coldness or that he was getting wet then he knew he had to go to the toilet. He kept all this private. He did not want his co-workers and FEA to know. He feared that if FEA knew they would have to put up special facilities for him and he might lose his job.

[18] Abhi Manu has three adult children in New Zealand. One is a mechanic, the second an aircraft engineer and the youngest daughter a nurse. He went to visit them in 2008 and later they sponsored him as a permanent resident. His children bought a four bedroom house in Auckland for $420,000 in which they all live in; Abu Manu and his wife, their eldest son and his wife, their middle son and his wife and their daughter. He was granted permanent residency on 6 November 2008.

[19] He had been looking for employment in New Zealand through the news papers and web sites. He gave evidence of a seminar which he attended for potential employment and various job applications which were unsuccessful because of his back injury.

[20] Abhi Manu goes regularly to his GP at East Tamaki Healthcare surgery about the pain. The surgery gave him a letter dated 24 March 2010 that confirmed that Abhi Manu was regularly seen by the urologist who found him to be suffering from Cauda Equina Syndrome. He was also referred to a visiting urologist at the Middlemore Hospital, Vianney McGirr. The urologist provided a report in which he said Abhi Manu’s injury was permanent. The report dated 7 January 2010 was objected to by Mr Green on the grounds that the neurologist was not being called to give evidence. Copies of both documents were provided to Mr Green’s office on 19 April 2010 under cover of a letter which notified counsel that the Plaintiff intended to admit into evidence the two reports under s 4(1) of the Civil Evidence Act 2002. In the circumstances, I exercised my discretion under the provisions of ss 3 to 8 of the Act and admitted the reports into evidence. Both doctors could not come to Fiji to give evidence. Mr McGirr had retired and was not willing to come to Fiji.

[21] Mr McGirr then referred Abhi Manu to the consultant urologist Jonathan Masters who provided a report dated 11 August 2010. A copy of that report was also provided to Mr Green’s chambers on 16 August 2010. The postscript to that report sated that the consultant had read Chris Hawke’s evaluation and urodynamic study and did not think that it needed repeating as the situation had not changed significantly since that assessment.

[22] The interim payment of $250,000 was ordered by the Court. He took the money to New Zealand. His bank arranged for the electronic transfer.

[23] He stays at home New Zealand because of his situation. He has to ask his friends to come home. He feels embarrassed with his urine “leakages and smells”. He cannot take part in his Hindu prayers because he cannot sit down on the floor.

[24] He suffers from sexual dysfunction. Dr Hawke prescribed him Viagra tablets but they did not work. He was then prescribed injections. They were painful and inconvenient. They worked but not like before he said.

[25] Abhi Manu was examined by the Government doctors in Suva in 2010. He went to the Colonial War Memorial Hospital in Suva. On the morning of the medical examination, he got up early emptied his bowels and bladder as usual, showered, got dressed and got a taxi to the hospital. He did not eat breakfast or drink too much except a cup of tea. He got to the hospital at 10.00 am. He was examined by 4 doctors. He sat a table and was asked questions for about half an hour which he answered. He was then examined and tested. He was also examined by a doctor in the scanning room.

[26] Abhi Manu said he was a very active person before his operation. He attended at the temple, meetings, ran with Hash members with Eddie McCaig and played soccer. His relationship with his wife has changed drastically. They were in very good terms before. Now, there is a lot of stress. He cannot go shopping, and constant thoughts about his future and life made him get angry at his wife quickly. They had regular sex before but not now. He feels very ashamed that he cannot perform. His wife tolerates him. He still has problems with his bowels and his bladder. He has to put toilet paper in his underpants to soak up the urine leakage. His wife sometimes has to clean up. Their house has a toilet specially built for them. Their children do not want to use it because of their father’s condition.

[27] In cross examination Abhi Manu said he continued to walk and socialise with the Hash members, including Eddie McCaig, after his operation. He also continued to work till 2008.

[28] Abhi Manu was educated to Form 5. He left DAV College in 1978. He has no tertiary qualifications. He started work as a meter reader. After he had his operation on 7 September 2001 he was hospitalised for seven months. A doctor gave him a medical certificate that he could resume work. He cannot remember the doctor’s name. It was pointed out to him and he acknowledged that Dr Christopher Hawke wrote a letter[5] to the CEO of FEA dated 4 September 2002 saying that Abhi Manu would be in Auckland from 22 August until 6 September for investigation and management of complications following spinal surgery in 2001 and would be fit to resume work on his return to Fiji. He said he had requested for that letter. He continued to get COLA and merit payments from 2001 to 2006. There was no award for 2007. He was cross examined at length on these payments and his work performance and it seemed to me that Abhi Manu’s performance at work and benefits did not suffer as a result of his operation.

[29] Abhi Manu applied for redundancy when the position of team leader meter reading which he was holding became merged with the position of team leader credit control in a restructure of FEA. He sent an email to management on 22 January 2008 saying that he had applied for a voluntary redundancy package in early 2005 due to medical reasons and had not received any written reply. He also said in the email that he had been verbally advised on numerous occasions by HR West and Head Office that his application was being considered and that he would be advised in the near future but none had been forthcoming and would appreciate a prompt reply. It was crucial for the personal and family decisions which he had to make, he said in his email. He finally left FEA a month later on 22 February 2008. He agreed in cross examination that FEA did not force him to take the redundancy package. He took it voluntarily.

[30] As to the extent of his disabilities now Abhi Manu does not use a catheter now and does not use diapers except at home because he still wets his bed. His wife makes his bed for him because it was the culturally acceptable thing for her to do. His insurance company paid for his medical expenses between 2001 and 2007.

[31] He did not agree with the conclusions of the four doctors that examined him in Suva that he did not suffer the injuries which he had alleged.

[32] In re-examination he said the merged positions were advertised internally which he applied. He heard from others that he did not get the job.

PW3

[33] The second witness for the Plaintiff was Sashi Madhu Lata, the Plaintiff’s wife. They have been married for 29 years. The have three children aged 28 (Male), 26 (Male) and 23 (Female). Their sons are married and they have two grandchildren from their first son. They all live together in the same home in New Zealand. She said her husband was a normal person before his operation. They were happy together. He played soccer, went fishing, went out with friends for drinks and worked at FEA every day. He liked with his job. She went with her husband on the first trip to New Zealand in 2001. Her husband had a catheter implant; he could not urinate well and used a glove to remove faeces; he could not do sex; his body below his hips were numb. Her husband was wet from urine and smelt of urine. The catheter sometimes opened and urine spilt. They were living in Tavarau in Ba then. She would have to change his bed sheets once or twice a night. She has to wipe the toilet floor and the pan of urine and use air fresheners. But that was not enough to get rid of the smell. She has to use detergent. Her husband often urinates in bed because he cannot feel anything; urine spills when he slept on his side. He did not have this problem before. She had to wash their bedding everyday; the mattress and bed sheets had to be washed and put to sun to dry and get rid of the urine and faeces smell. Their house then had 3 bedrooms with only one bathroom. Their three children lived with them then. They only left for New Zealand two or three years after his operation. She bought extra bed sheets. She washed his clothes separately because of the smells. She hand washed. The smell remained even after washing with detergent and disinfectant; she used stain removers and fabric softeners. It took her for to five hours a day to wash and clean the bathroom and house, and if her husband soiled again, she would have to clean it all over again. She had her own blanket to avoid it being soiled by her husband. She slept with him because he is her husband.

[34] Her husband used the toilet three times daily. She would have to remind him to go and urinate so that the bag would not leak and smell. After they returned from New Zealand, her husband still had the catheter on, so most of the time they stayed at home because it was difficult to go out.

[35] Her husband was not well mentally after the operation. He would get angry regularly. He blamed her for his disability. They stopped going out. They decided to go to New Zealand because of his disability and their children in New Zealand asked them to come over and stay with them in 2008.

[36] They had a normal sexual relationship before. After the operation the New Zealand doctor gave him tablets and injections but they did not work. Her husband told her that the tablets made him see everything green and he could not get an erection. He saw her husband’s suffering and disappointment; he tried his best but he could not get a normal erection; even up to this date.

[37] She and her husband lived with their children in 2008 in New Zealand. Their sons had already bought the house for them. They told them to buy a house with three bedrooms and a master bedroom. They had their own separate bathroom shower and toilet. She has to use carpet shampoo because the house is carpeted. She looked after her husband in New Zealand as she did in Ba. She never thought of employing someone because he is her husband and she wanted to look after him. In winter despite the cold weather she has to open the windows to air the house. She has to take his laundry to the public laundry to dry. She still hand washes his clothes separately. They do not socialise with their friends in New Zealand because of his disability. He blames her and gets angry. He cannot sit for long because of his back bone and urine leakages. He cannot perform his special prayers. He sometimes screams in his sleep and tells her he prayed to be taken away from this world. She has to console him. Before his operation her husband was gentle and active. Afterwards he changed completely. She cannot take him sight seeing in New Zealand because he gets angry very quickly. She has to remind him to take his tablets otherwise her day is ruined. Their conversations are strained because he blames her for his state in life. She confirms that her husband fills in job applications and on the internet, looks for jobs in the papers and asks his friends. She admits to saying to him that he is not a real man many times, and even told him that she would divorce him. She is sometimes afraid of her husband becoming violent because of his anger and frustrations.

[38] She accompanied her husband to Suva for his medical examination on 2 May 2010. They got there at about 10.00 am and left at about 12.00 pm. She was allowed to sit in on her husband’s medical examination but not when the CT scan was taken. There were four doctors present. She sat behind a curtain but could see that one doctor checked his eyesight; another checked for responses to pin pricks, leg manipulation and so on.

[39] In cross examination she repeated what she had said in examination in chief that her husband was numb from the hip down to his feet after the operation; he could not feel anything. She accompanied her husband on his visits to the doctors in New Zealand when she was not busy with housework. She has complained about her husband’s mental health to his GP. But admits that no psychiatric assessment has been done on him and no tests have been done on his sexual dysfunction. Her husband can shower and eat on his own. He is not bed ridden. He sometimes goes for walks for exercise on his doctor’s advice. She used soap and toilet cleaners before his operation.

[40] In re-examination she said she had to buy extra soap and cleaners and has to separate his things after the operation.

PW4

[41] The third witness for the Plaintiff was Abhi Manu’s daughter. She is a registered nurse in New Zealand. She is the youngest of the siblings. She lived with her parents in Tavarau Ba before migrating to New Zealand in 2005 after Form 7. Before his operation in 2000, her father was a very happy go lucky man; he spent a lot of time with her; she was 14 years old then; they went for walks and played games together; she would sneak into his parents bed sometimes. After his operation there were vast changes. She does not have the chance to do what they did together before; her father wants his privacy now; he does not want to talk to them. Her father had issues with urine spillage and going to the toilet. Sometimes he would come to the dining table with wet pants. She corroborated her mother’s evidence on the day to day running of the household and her father’s condition. She has had to clean the toilet too after her father had been. Sometimes her mother got sick so she had to do the cleaning too. Her father had mood swings from manic to depression. By “manic” she meant that he was too agitated, violent, loud and angry. By “depression” she meant he became quiet and isolated himself and would not talk to them. She could not remember her father being like that before.

[42] After she passed seventh form she applied to Manikau Institute in New Zealand and got in to do a three year nursing course. She worked part time as well as a health care assistant whilst doing her studies. She graduated as a nurse in 2008. She was renting with her two brothers whilst studying. They lived in a three bedroom house with one toilet and bathroom. Later on her brothers bought a home for their dad for $420,000. That was before their parents came to New Zealand. It was a four bedroom house with two bathrooms and two toilets. They bought the house because of their father’s condition. He needed special facilities because visitors could not use the same toilet. The ensuite with a separate entrance was for their parents. They had a separate wash basin in the garage for washing her father’s clothes. His clothes are washed separately from the rest of the family’s because of the baby in the house. She gave evidence of the various properties which they searched for in the vicinity ranging from about $300,000 to $550,000.

[43] She does shift work and she gets home at noon. She dedicates her time, two to three hours a day, to looking after her father; she reminds him to take his medication. She too has to help with the cleaning of the toilets and the beddings. She corroborates her mother’s evidence on how much extra cleaning she had to do because of her father’s disability.

[44] Her father does not have a social life in New Zealand. And her mother does not have a social life either because of her father’s condition. So does the whole family. Friends visit because her father cannot go for long distances; he cannot sit for long because he has no control over his urine; they cannot go to restaurants; there has been an embarrassing incident because of her father’s lack of bladder control. Her mother could get a job as a health care assistant because she is doing at home what is required for the job; all she had to do was to study for 3 months to get a certificate.

[45] She corroborates her mother’s evidence on her father’s mental health. Her father has lost his memory quite a lot; he sometimes forgets to flush the toilet; leaves gloves; asks things over and over again. He was not like this before.

[46] In cross examination Abhi Manu’s daughter admitted that she had not taken her father to a psychiatrist or a specialist; he is not a mental patient; he has not seen a doctor for his depression; he cannot see a doctor for his memory issues; but he had seen his GP and the urologist.

The Defendant’s Case
DW1

[47] The Defendant’s first witness was unit leader of the Human Resources section of the FEA, Abhi Manu’s former employer. She started with FEA in 1990 in Lautoka and became a HR officer in 2002, then left for Suva in March 2010 where she is now the unit leader. She remembers Abhi Manu and confirmed his employment history and payments of wages and redundancy. The highest in the merit points system was 37 steps and Abhi Manu reached 30. He was a good performer. She was aware of his medical conditions because she was in HR at the time. Abhi Manu underwent surgery then returned to work in 2001. She did not think his medical condition was an impediment to his work because he was achieving two to three out of four possible steps. He requested and left on voluntary redundancy. The two positions team leader meter reader and team leader credit control were merged into one position, team leader revenue services. The position was advertised internally, and after interview the position was given to someone else. Abhi Manu’s position became redundant; he applied for redundancy and was approved. There was no compulsory redundancy and he would not have been forced to retire. He could not have got redundancy because of his special circumstances. It did not meet the criteria for redundancy. Management would have offered him another position with no loss in benefits had he not taken voluntary redundancy. The retirement age was 55 but some employees have been re-engaged because of their special skills. It was most unlikely that Abhi Manu would have been re-engaged had he worked to age 55 then retired. His position was not a special one; others were able to do his job when Abhi Manu was in hospital or on leave. FEA practice was if an employee did not perform, he would be asked to undergo a thorough medical examination and depending on the doctor’s recommendation, FEA would decide whether to retire the employee on medical grounds or not. The same process is followed if an employee wants to retire on medical grounds. FEA did not see Abhi Manu as medically unfit.

[48] Abhi Manu’s employment record showed that he did not take any sick leave. He was an out-patient. He took in-patient inpatient for 35 days in 2001 and 2002 and 30 days in 2005, one day out-patient sick leave in 2005, four days out-patient sick leave in 2006, his full entitlement of 18 days in 2007 and 4 days in 2008. All such leave days were paid days.

[49] He was given a letter dated 4 April 2008 by FEA certifying that he left employment on 22 February 2008 on the grounds of voluntary redundancy as his position no longer existed in the organisation. He had an unblemished record during his 29 years and four months of service.

[50] In cross examination she said she occupied the office next to Abhi Manu’s. She knew he had a problem with his urine. It was common knowledge that Abhi Manu had a catheter but he did not smell of urine nor was she aware of him suffering any other medical condition. FEA had only 3 employees re-employed who were over 60 years old on 3 year contracts. In 2008, Government policy was that employees were to retire at age 55 years. For an employee to be re-employed on contract he would have to undergo a medical examination. It would depend on the nature of the work whether an employee with a medical condition would be re-employed. She also gave examples of other employees whose positions have been made redundant but moved to other positions or different offices of the FEA. From 2002 onwards, FEA policy was to reduce the number of employees from over 1,000 to the current number of 656. She cannot recall when the new positions were advertised but she knew that Abhi Manu had applied for it. The person that got the position had been with FEA for more than 10 years but not as long as Abhi Manu’s 29 years. She was not part of the panel that made the decision. Abhi Manu had an unblemished record which meant that he had not been disciplined and had been performing well.

DW2

[51] The second witness for the Defendant was one of the doctors that examined Abhi Manu in 2010. He is a surgeon. He graduated from the Fiji School of Medicine in 2002 and was a junior medical trainee in 2006; he completed his post graduate diploma in surgery in 2007. He has completed a Masters of Surgery and is currently the Senior Registrar, Acting Surgical Officer. He has a special interest in neuro-surgery. He says there is no qualified neuro-surgeon or in training in Fiji and he is the only doctor that has been earmarked for such training and he has been performing beyond general surgery. He is the chair of the neurological task force and has held various other similar positions and has attended several conferences and published several medical papers.

[52] The doctor examined Abhi Manu on 4 May 2010. It was a combined examination by two surgeons and two physicians. He was not one or their patients. His old medical reports from Lautoka hospital were not available to them because they could not get them. They relied on the overseas reports and those from the CWM when Abhi Manu was admitted there. They took his history, the events leading up to the complaint, then those before and after surgery. His history was recorded in the Christopher Hawke 11 December 2001 report[6].

[53] In the course of Mr Green’s examination I had to stop counsel from asking questions which were directed to showing that Abhi Manu did not suffer any injuries. That would be inconsistent with the findings of the Court of Appeal and the Supreme Court. Counsel informed me that all he was doing was to establish that the injuries had all gone so I allowed the doctor’s evidence and the combined report into evidence limited for that purpose.

[54] The doctor said that the bottom line was that as at the day of examination 11 May 2010 they were of the opinion that, apart from the subjective symptoms, the objective and other evidence did not show that Abhi Manu was still suffering; what he said he was suffering did not match up with their observations. There was no evidence of urinary or bowel dysfunction; they did not test for this because they had no way of testing for it. The tests for impotency was not done by the overseas doctors; it is quite complex.

[55] The doctor was referred to the medical report of the consultant urologist, Jonathan Masters dated 11 August 2010[7]. The report said:

Today there was no palpable bladder and in fact his anal tone on anal wink was surprisingly good for somebody whose most likely pathology would be nerve damage and a paralysed bladder. This needs to be proved on urodynamics, if it has not already been done.

He said the phrase “palpable bladder” meant that the bladder could not be felt because it was empty. It could have been emptied if catheterised. With regards to the Jonathan Master’s observation that the “anal tone on anal wink was surprisingly good”, the doctor said it echoed their findings. The same nerves supplied the bladder.

[56] Mr Young objected to this evidence under the rule in Browne v Dunne in that these questions were not put to Abhi Manu. I ruled that some of the evidence was expert but some of it was non-expert directed at Abhi Manu and therefore should have been put to Abhi Manu in cross examination. I therefore allowed Mr Green to continue examination in chief on that basis.

[57] The doctor was also referred to the urodynamic report of Christopher Hawke dated 28 August 2002[8] and he said that the report said the bladder was normal. I had to remind Mr Green of my earlier ruling that he was not allowed to ask questions that suggested that there was no injury or disability at all. Counsel did not agree with my ruling and I noted his objection accordingly.

[58] In any event, the doctor’s opinion seems to contradict the urologist’s opinion that:

CLINICAL FINDINGS

Preliminary attempts at voiding were unsuccessful. The bladder was emptied by catheterization.

On examination inserting the rectal pressure line it was noted that anal tone was lax, he has weak volitional anal contraction which is poorly sustained. Insertion of the urethral catheters suggested reduced urethral sensation.

.

.

SUMMARY

Findings were consistent with his clinical diagnosis. He has impaired bladder sensation and reduced compliance, bladder remains stable on filling however. His bladder is acontractile. He has a low abdominal leak point pressure consistent with a LMN lesion of the pelvic floor causing poor sphinctric competence”.

[59] In cross examination the doctor said he was the one taking the notes throughout the examination and the other three doctors did the actual examination. He observed that there was no wetness. The bladder would have to be emptied immediately before the examination to show no signs of wetness.

[60] At the end of evidence counsel asked for time to file written submissions which I gave directions on and asked for specific submissions on whether I could take into account the suffering of Abhi Manu’s family in assessing damages. Counsels asked for more time on 8 October 2010 to file submissions which I granted and reserved judgment.

CONSIDERATION OF THE EVIDENCE AND FINDINGS ON THE PLAINTIFF’S DISABILITIES

[61] The Defendant did not seem to fully appreciate that this trial was limited to hearing evidence from the parties directed at proving or disproving that Abhi Manu’s injuries/disabilities did not improve. I agree with Mr Young’s submission that as at the date of the judgment[9] of Finnigan J, 10 June 2005, or more precisely, as at the date of the hearing, that is to say, 2 and 3 May 2005, the evidence taken then established that the Abhi Manu did suffer those disabilities. To proceed otherwise would be inconsistent with the findings of the Court of Appeal and the Supreme Court. That was why I had to stop the Defendant’s expert witness from adducing evidence to show that Abhi Manu suffered no disabilities at all.

[62] Specifically, I refer to his Lordship’s findings at page 6 of the judgment[10] that:

On returning home with his wife, the Plaintiff continued to leak urine and self administer his catheter, and remove his faeces by hand. In both of these processes his wife has remained intimately involved. Even though she finds them distasteful, they are tasks to which she has dedicated herself. It quickly dawned on them both that his sexual function had ceased entirely as well.

And at page 38[11], after accepting the unchallenged evidence of the Plaintiff’s experts and his witnesses, his Lordship concluded that:

The Plaintiff has tried to resume his former life. The hoped for improvements had not occurred at the time of the hearing. He still attends the walking/running group at which he met the Defendant, but he largely restricts himself to walking. He says he loves this activity and continues with it but it is the only social event that he attends. His wife gave evidence that their social life has practically ceased because of the uncertainty and the smell of urine spillage and because of the need to for manual bowel evacuation.

[63] In short, I am constrained by the findings of the trial Judge and the Court of Appeal that Abhi Manu was totally disabled in urinary, bowel and sexual operation and I take that finding to be as at the date of the first hearing, namely, 2 and 3 May 2005.

[64] However, out of caution, I have considered the evidence given in this trial on the question. The 2001 reports of the urologists and the evidence of Abhi Manu, his wife and daughter, which were largely uncontested and not discredited in cross examination, were to the effect that Abhi Manu suffered severe disabilities in his urinal and bowel functions after the operation.

[65] The medical term used is Cauda Equina Syndrome which Wikipedia describes as “a serious neurologic condition in which there is acute loss of function of the lumbar plexus, neurologic elements (nerve roots) of the spinal canal below the termination (conus) of the spinal cord” with the prognosis that “Damage can be so severe and/or prolonged that nerve regrowth is impossible. In such cases the nerve damage will be permanent”.

[66] In contrast to the Plaintiff’s evidence, the State produced a report that was compiled some 9 years later. The methodology and compilation of that report leaves me with grave doubts as to its conclusions to the effect that Abhi Manu could not have suffered any such disabilities and even if he did he had completely recovered. The report is the assessment and interpretation by four local doctors of earlier expert medical reports which seem to contradict those experts’ opinions. Secondly, the joint examination seems to me to have been rather casual and unprofessional. Thirdly, the doctor who gave evidence was simply the note taker. He had no expertise in urology and even if his limited expertise in neurology would have qualified him to provide an opinion, he did not conduct any examination himself. Fourthly, it is rather unlikely that such junior doctors would write a report that was likely to discredit a more senior colleague of theirs, a colleague which Finnigan J made a point of noting that he was a Professor.

[67] For these reasons I would prefer the Plaintiff’s evidence and hold that he has proven that he suffered severe urinal and bowel dysfunction to the extent that he needed a catheter to empty his bladder and to manually extricate his faeces. I also find that his normal sexual function was similarly impaired after his operation.

[68] Have these disabilities improved? Again, the lack of a credible expert report from the State leaves me with no option but to accept the Plaintiff’s evidence that there has been some minor improvement in terms of urinal function but his bowel and sexual functions have not and are permanently disabled.

CONSIDERATION OF QUANTUM FOR PAIN AND SUFFERING

[69] In assessing damages under this head I apply the formula used by the Court of Appeal in Plantation Village Ltd v Anderson [2003] FJCA 34; ABU0007.2003S (14 August 2003) that:

The award for this head of damage is to compensate the plaintiff for pain and suffering suffered from the time of the accident ... for the balance of his life. In pain and suffering we include inconvenience, loss of enjoyment of life and, of course, the pain and restriction of movement he suffered in the past, suffers now and will suffer in the future

[70] The submissions of counsel for the Plaintiff focused mainly on the loss of earning capacity component of general damages but he submitted that an award of $150,000 under this head is justified. No case authority was cited other than the Privy Council decision in Seepersad v Persad (Trinidad and Tobago) [2004] UKPC 19, per Lord Carswell, as allowing extrapolation of past awards:

Their Lordships entertain some reservations about the usefulness of resort to awards of damages in cases decided a number of years ago, with the accompanying need to extrapolate the amounts awarded into modern values. It is an inexact science and one which should be exercised with some caution, the more so when it is important to ensure that in comparing awards of damages for physical injuries one is comparing like with like. The methodology of using comparisons is sound, but when they are of some antiquity such comparisons can do no more than demonstrate a trend in very rough and general terms.

[71] I have looked at the case authorities considered by Finnigan J in coming to his conclusion that $60,000 was adequate for pain and suffering and loss of amenities of life, which conclusion and cases Mr Green also adopted, namely, Namino v Attorney General HBC 34 of 1995 (17 February 2000) – partial paralysis, $40,000 award; Waqabaca v Attorney General HBC 23 of 1997 and 60 of 1993S – two year old suffered irreversible brain damage after surgery – cerebral palsy, $85,000 general damages upheld on appeal in Attorney-General v Waqabaca [1998] FJCA 43; Abu0018u.98s (13 November 1998); Salaitoga v Anderson Civil Appeal ABU 26 of 2004 – whole body permanent impairment of 50 to 55%, $85,000; Singh v Rentokil Laboratories Ltd [1993] FJCA 26; Abu0073u.91s (20 August 1993) – severe hip, leg, arm and facial injuries with some permanent effects and likelihood of further surgery, $60,000; Plantation Village Ltd v Anderson [2003] FJCA 34; ABU0007.2003S (14 August 2003) – injury to jaw, $27,500; Maka v Broadbridge [2003] FJCA 31; ABU0063.2001S (30 May 2003) – fracture leg, arm and hip with permanent limp and 32% total disability suffered in a motor vehicle accident in 1991, $60,000; Yanuca Island Ltd v Elsworth [2002] FJCA 65; ABU0085U.2000S (16 August 2002) – serious head injury from a fall, $50,000.

[72] I find these cases, with respect, not helpful except for Waqabaca (supra). The effects of the injuries in that case are the closest to the present case and I take guidance from the award in that case taking note of the following observations by the Court of Appeal:

The second ground of appeal challenges the amount awarded in respect of general damages. It was submitted that the amount of $85,000.00 was far too high. It was suggested that the amount should be reduced to $60,000.00. We are quite unable to conclude that the amount awarded for general damages was outside the range of what might be regarded as reasonable compensation for the shocking consequences of the insult to the respondent’s body which he had suffered. As his Lordship said, the respondent, as a result of the injury he sustained, has suffered enormous disabilities which have resulted in his being kept under constant care and supervision. He has no control over his muscles and suffers from a combination of involuntary, unwanted and uncontrolled movements. He is liable to fall. The respondent needs to be watched 24 hours a day. It is difficult for one person to attend to him. When the respondent is being fed two people are needed because of his involuntary movements. One has to pin him down while the other feeds him. His Lordship also found that the respondent had "multiple dependant ulcers" on his back, elbows and shoulder blades. He cannot look after himself. He is completely dependant on someone to look after him. He has no voice pattern and no control over his bowel or urine movements.

There was discussion in his Lordship’s reasons of awards made in other cases, many of them in cases outside this jurisdiction. There were attempts made to compare this case with cases in which injuries, although serious were quite different. In one case decided in Fiji an amount of $85,000.00 for general damages was awarded in respect of serious scarring and disfigurement. That was said to be the highest award made for general damages in Fiji’s history. That was the amount which his Lordship in fact selected in the present case.

In the end the learned primary Judge had to make a value judgment about the appropriate amount to award for general damages. He took into account the whole of the evidence and reached the figure of $85,000.00. As we have said, we are not persuaded that it is so high as to warrant the interference of this court. It needs to be emphasised, however, that the case is a very special one. One would hope that one would not encounter injuries of this magnitude in any other case. It would be unwise of those charged with the task of assessing damages in other cases or in advising victims of other accidents to take any guidance from this case unless the facts and circumstances with which they are concerned have a substantial similarity to those of this one. In the result the second ground of appeal is rejected.

[73] Also of assistance is the Court of Appeal judgment in Rokobutabutaki v Rokodovu [2000] FJCA 9; ABU0088U.98S (11 February 2000), cited in Elsworth (supra). In that case the Court reduced the trial judge’s award of $200,000 to $150,000 under this head. The injuries which the Plaintiff suffered when the truck she was travelling in went off the road were almost as severe as those in this case – she became a paraplegic from the chest down and had no control over her bladder but limited control over her bowel movements – in so far as the inconvenience and enjoyment of life component is concerned. The Court of Appeal said:

It is obvious from this catalogue of the injuries and disability suffered by the respondent that the general damages for pain, suffering and loss of amenities (excluding any element of economic loss which was separately claimed) must be substantial. However, Mr Singh submitted that $200,000 under this heading is so far beyond recent awards in Fiji for serious injuries as to lead to the conclusion that the learned Judge erred, and that this Court should fix these damages at a more realistic level. It is obvious from his judgment that Pathik J. gave earnest consideration to this question, and he quoted at length from various authorities prescribing how the Court should approach the task. His difficulty was compounded by the surprising fact that neither he nor counsel could find any other case in Fiji where damages for paraplegia have been assessed by the Court; and, more surprisingly, by the failure of counsel then acting for the defendants to make any closing submissions.

Each case must depend on its own 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. This Court said in Attorney-General v. Jainendra Prasad Singh (CA 1/98; 21 May 1999) that the Judge’s task is to fix general damages for personal injury at a proper figure in current Fiji dollars, referring to other awards as no more than broad guidelines to ensure that he or she is on the right track. The use of such guidelines is encouraged as tending to secure fairness and consistency between awards. However, as there are no reports of damages awarded in Fiji for paraplegia, the Court should aim at a level which bears a reasonable proportion to awards made in other cases, in the light of the relative severity of the injuries and of the pain, suffering and loss of amenities. The assessment should also be made in the light of local experience: Marika Lawanisavi v. Pesamino Kapieni (CA 49/98;13 August 1999), adopting the warning by the Judicial Committee against paying regard to awards in other jurisdictions unless similar social and economic conditions exist (Li Ping Sun v. Chan Nai Tong [1985] 1 Loyd’s Rep. 87). Inflation should be taken into account when considering the present worth of past awards used for comparison.

[74] The award of $85,000 in 1998 in Waqabaca (supra) was for injuries suffered in 1985 and the $150,000 awarded in 2000 in Rokodovu (supra) was for injuries suffered in 1994, which is roughly double over ten years. I therefore think an award nearly ten years on for Abhi Manu’s disabilities suffered in 2001 extrapolated by the same factor leads me to an award of $300,000.

[75] I have arrived at this sum based on the law that binds this Court. Had I been allowed a free hand I would have awarded a much larger sum because I think there is nothing more humiliating and degrading than having to self extricate your own body wastes. I would have had no hesitation in following what Mr Justice Byrne, as he then was, said in Iowane Salaitoga v Kylie Jane Anderson (CA 26/94; 17 October 1995) that it is “high time the awards of damages in Fiji for personal injuries threw off its swaddling clothes and faced the reality of the real world”.

INTEREST ON DAMAGES

[76] Mr Justice Finnigan used an interest rate of 4% and I seen no reason why I should deviate from it. However, I think the period for which interest is to be calculated is to be from the time of the injury, 2001, to the time of the first trial, 2005, because subsequent delays could not be solely attributed to the Defendant. I therefore award interest on damages for pain and suffering and loss of amenities of life calculated as follows: $300,000 x 4yrs x 4% = $48,000.

LOSS OF EARNING CAPACITY

[77] Abhi Manu left FEA voluntarily. He did not want to continue employment in another position. I think it was convenient for him to take the lump sum to help with the migration of his family to New Zealand. He is therefore not entitled to claim that he could and would have continued employment until age 55 and possibly thereafter.

[78] It seems to me that Abhi made these decisions because they were more convenient and advantageous to him and his family rather than because of his disabilities.

[79] Further, he migrated voluntarily to New Zealand and therefore took upon himself the risk of not being able to get employment there. His evidence fell short of showing that he was employable in New Zealand but for his disabilities. In any event, even if I accept that he was employable and did apply for various jobs, I am not convinced that the real reason he was unsuccessful was his disabilities.

[80] For these reasons I think he has failed to show, on the balance of probabilities, the causal connection between his disabilities and his inability to obtain employment. I therefore refuse to grant an award for loss of earning capacity.

SPECIAL DAMAGES

[81] I do not accept Mr Young’s submission that I should accept the evidence on special damages given at the first trial was uncontested and find accordingly. The amount claimed by the Plaintiff under this head was $10,000. I have perused the judgment and cannot find reference to such evidence and because of his Lordship’s conclusion that liability had not been proven it was unnecessary for his Lordship to consider quantum

[82] This action was started in 2002 when Abhi Manu was still living and working in Fiji. He took voluntary redundancy and migrated. In the circumstances I do not think that the Defendant should be made to pay for his expenses to come back to Fiji to fight his case. He chose to live overseas; it was not forced upon him and his family. Further, his other expenses should be calculated according to conditions in Fiji and not New Zealand.

EXTRA CLEANING EXPENSES

[83] I do accept that Abhi Manu would have to spend more on cleaning and other sanitary items. Mrs Abhi Manu produced a receipt for cleaning items bought here in Fiji for $68.46 which I accepted into evidence without objection. Mr Young submitted that this was the amount that I should take as a weekly expense for the 23 years that Abhi Manu was expected to live to the statistical average for males in Fiji of 64 years. The family used similar items before Abhi Manu’s operation but no attempt was made to show what proportion of this expense was attributable to the extra cleaning that was made necessary.

[84] In Attorney-General of Fiji v Cama [2004] FJCA 31; ABU0021.2004S (26 November 2004) the Court of Appeal said this of the approach that I should take:

[14] The essence of the submissions on behalf of the Ministry was that Eagle had failed to discharge the burden of proving damages. It was submitted that the measure of damages to which Eagle was entitled was the market value of the goods together with any special loss which flowed naturally and directly from the wrong. Market value means the value for which the goods can be sold, not what they cost. The Ministry submitted that the schedule of items lost was unreliable as no invoices to support the values were produced. The Ministry challenged Scott J's finding that there was no reason to doubt the authenticity or accuracy of the schedules.

[15] The Ministry submitted that in the absence of better evidence of the value of the chattels, the award should have been for a nominal amount.

[16] We accept that the evidence called by Eagle did not establish, in precise dollar terms, the value of the chattels and therefore the extent of its loss. We also note the Judge's findings that at least some of the items had been lent to Eagle and that there was some doubt of the ownership of items such as the boats. But we do not accept that in these circumstances, the damages should have been nominal.

[17] In Newbrook v Marshall [2001] NZCA 332; [2002] 2 NZLR 606, the Court of Appeal in New Zealand considered the proper approach where damages, in that case for loss of profits, could not be accurately assessed. Richardson P, delivering the judgment of the Court said at 614:

"Where there are variables involved, as usually occurs in assessments of business profits or losses, if precise figures had to be proved few plaintiffs could succeed. Where, as here, it is established that a particular factor was causative but its precise contribution to the loss could not be correctly calculated in precise dollar terms, a more robust approach is required of the Courts. It is not a matter of whether an expert could give a reasoned assessment and could defend the number he or she came up with. As Lord Mustill said in Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1996] UKHL 3; [1997] AC 254 at p 269 "The assessment of damages often involves so many unquantifiable contingencies and unverifiable assumptions that in many cases realism demands a rough and ready approach to the facts"

[18] Richardson P referred to an earlier decision of the Court of Appeal in Walsh v Kerr [1989] 1 NZLR. It concerned the value of a guarantee, where its actual value had not been established. It was held that the Court should do its best to arrive at a figure, if satisfied there had been some real damage. Cooke P, delivering the judgment of the Court said at 494:

"There are cases where, although the assessment can only be largely speculative and the evidence is exiguous, the Court will do the best it can to arrive at a figure if satisfied that there has been some real damage. Cases on the value of a chance are well known. But perhaps the most instructive precedent is the Privy Council decision cited by Tipping J himself, Tai Hing Cotton Mill Ltd v Kamsing Knitting Factory [1979] AC 91, where, having held that the true measure of damages was one to which neither the evidence nor the judgments in the Courts below had been directed, their Lordships came to "the conclusion that the ends of justice would be best served if they were to fix a new figure of damages as best they can upon the available evidence, such as it is". See the judgment delivered by Lord Keith of Kinkel at p 106."

[85] I do not think that in this case I should award more than $10 a week as the extra cost and take 20 years as the likely period of such expenses which calculates to 20 x 52 x $10 = $10,400. This covers both past and future expenses.

[86] I make no award for interest on this component because the Plaintiff gets that amount in advance.

NURSING CARE

[87] As for nursing care, Abhi Manu's wife gave evidence that she took care of him because she felt it was her duty to do so. His daughter too relieved her mother of some of that care. It is a separate head of damage. I therefore respectfully deviate from the approach taken by Finnigan J that this is to be taken up in the award for pain and suffering and loss of amenities of life.

[88] In Dre v Ministry of Health [2009] FJHC 129; HBC020.2007 (24 June 2009), I said this in respect of special care provided by family members:

(The Plaintiff) said in evidence that she can bath herself and feed herself now but she is unable to cook. Her daughter now has to do that for her. I think she is entitled to compensation for this future care. I think the days when family members care for each other for free are long gone. Times have changed. The Plaintiff's daughter is entitled to live her own life and if she has been put in a situation where she has to care for her mother as well, especially in a village environment where no alternative care is available, she should be paid for it. I think $30 a week is reasonable.

[89] In Abhi Manu's case, his wife said she would spend 4 to 5 hours a day cleaning. She said this was for the extra cleaning. This seems to me to be on the high side but, in any event, I think the sum payable under this head must be commensurate with what one would pay for a live out house keeper in Fiji. I think $50 per week is an appropriate amount and I calculate the total sum as follows: $50 x 20 years x 52 weeks = $52,000. This amount includes past and future care.

[90] It is to be received in advance so I make no award on interest on this component.

SPECIAL HOUSING COSTS

[91] As for the special housing head of claim, consistent with the approach that I have taken that Abhi Manu chose to migrate to New Zealand and it was voluntary and convenient for him and his family, I do not think that the Defendant should be paying for it. He had a house in Fiji. Had he stayed in Fiji he might have been entitled to the extra cost of building a special bathroom and toilet facility. He did not attempt to prove his claim in that way and I am left with no evidence or guidance as to how I am to calculate it.

COSTS

[92] The Plaintiff is entitled to his costs for this trial. His counsel asks for costs of $15,000. The trial should have taken no more than two full days. I make no allowances for the travelling and accommodation expenses of Plaintiff and his family. Finnigan J made no award for costs in the first trial in 2005. The Court of Appeal in 2006 ordered the Defendant to pay the Plaintiff's costs of $1,000. The matter was remitted back to Finnigan J and his Lordship assessed damages and awarded costs of $6,000 on 12 May 2006 based on the two day hearing that took place in 2005. On appeal, the Supreme Court ordered costs against the Defendant in July 2008 but did not specify the amount. When the Finnigan J's judgment on damages was appealed to the Court of Appeal, the Court, in September 2008, ordered each party to pay their own costs of the appeal.

[93] The costs that I am considering are the costs for this trial. The $6,000 costs awarded by Finnigan J must be taken to have been set aside on appeal although it was not made expressly clear. His Lordship's assessment of those costs was based on the two day trial in 2005. This trial on quantum alone should not have taken more than two days. I therefore think costs of $3,000 is a fair amount and award it accordingly.

ORDERS

[94] The final orders are therefore as follows:

1. Judgment is entered for the Plaintiff in the sum of $410,400 made up as follows:
   

2. The Defendant shall pay the Plaintiff's costs of $3,000.
   

Sosefo Inoke
Judge

^[1] Scott, Stein and Ford, JJA
^[2] Hon Justice Keith Mason, Hon Justice Kenneth Handley and Hon Justice Ronald Sackville,
Judges of the Supreme Court
^[3] Pathik, Powell and Lloyd, JJA
^[4] Exhibit D1
^[5] Supreme Court Record p 205.
^[6] Supreme Court Record p 196.
^[7] Exhibit P6.
^[8] Supreme Court Record p 202.
^[9] Supreme Court Record pp 27-48.
^[10] Ibid, p 32.
^[11] Ibid, p 38.