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Ali v Radruta [2011] FJHC 70; Civil Action 403.2009 (17 February 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. 403 of 2009

BETWEEN:

MOHEEZ NOSHEEN ALI
(f/n Nasir Ali) of Lot 27 Mana Place, Nadawa, Nasinu,
in the Republic of Fiji Islands Manager but currently unemployed.
Plaintiff

AND:

KAVAIA SAVOU RADRUTA
aka KAVAIA S RAIDRUTA of Lot 2, Mana Place, Nadawa,
Nasinu in the Republic of Fiji Islands, Farmer.
Defendant

Before: Master Anare Tuilevuka
Solicitors: Naidu Law for the Plaintiff
Siwatibau & Sloan for the Defendant

Date of Ruling: 17th February 2011

RULING

[1]. Before me is a summons for interim payment filed on 28th May 2010 by Naidu Law for the plaintiff pursuant to Order 29 Rule 10 of the High Court Rules 1988 seeking an order for interim payment of the sum of $10,000.00 (ten thousand dollars) on account of damages for injuries suffered as a result of a motor-vehicle accident. The application is supported by the plaintiff's affidavit.

[2]. Liability is admitted in this case. The only issue to be determined is quantum.

[3]. The plaintiff sustained injuries as a result of a motor vehicle accident which occurred on 27th June 2009. He was driving DU 949 along the Suva-Nausori highway at 8 miles when his car collided with DE 899 travelling from the opposite direction and driven by the defendant. The injuries he sustained are well documented[1]. At the time of the accident, he was just 22 years of age with a very young family to look after.

[4]. I need not go further into the details of his employment status at the time of the accident and the amount in pay he was receiving – or what his lost earnings were – or what his special damages were. These are triable issues best reserved for the hearing on assessment of damages.

[5]. Suffice to say that the plaintiff alleges that he continues to suffer and am unable to enjoy life.

[6]. He suffers severe pain which aggravates during rainy or cold weather. He cannot sleep well because of this pain. He cannot play sports (soccer which he used to play during for leisure). He cannot spend time with his friends as he is confined indoors due to the discomfort and constant pain. He cannot take his wife shopping. He cannot spend time with his two little children outdoors. He cannot take them to picnic or children's park. His sex life has been affected to some extent. He cannot run, walk or sit properly. He cannot fold his legs. He is limping. He cannot shower or visit toilet by himself. He has to seek assistance from his wife. He constantly uses pain killers. His social domestic and leisure pursuits have been gravely affected and he feels handicapped.

[7]. He explains just how dependent his wife and children were on his income and that - on the date of the accident - the defendant was insured with Sun Insurance Company Limited. The defendant therefore vide his insurers has the means and resources to make the interim payment that he seeks.

[8]. Peter Fimone, Claim Consultant of Sun Insurance Company Ltd has filed an affidavit in opposition. First, he acknowledges that the defendant is insured by Sun Insurance Company Limited against the plaintiff's claim herein. He says that the medical report relied on by the plaintiff only explains his condition at the time of the accident. Fimone says the plaintiff is still recovering and no permanent disability has yet been determined. He also asserts that the plaintiff is not making any serious attempt at rehabilitation. Fimone opines that - on the current evidence before this Court, there is unlikely to be a substantial award to the plaintiff.

[9]. Ali's affidavit in reply filed on 22nd July 2010 deposes as follows:

• (a) he has suffered a fracture to his right femur and right tibia/fibula.
  
• (b) he continues to suffer from severe pain. Under legal advice, damages award for such injuries are quite substantial.
  
• (c) he has been trying hard to rehabilitate himself and has been attending physiotherapy. He refutes Dr E.D. Taloga's report in so far as it alleges that he is not making any serious attempt at rehabilitation. Dr. Talonga did not tell him this when they last met during a consultation. He was not given any medical advice as to what else (if anything) he should do apart from attending physiotherapy. He hopes to get back to normal very soon as he has a young family to take care of.
  
• (d) he reiterates that he was employed by Cresent Holiday prior to the accident.
  

[10]. There are three grounds for an interim payment in respect of damages under Order 29 Rule 11 of the High Court Rules. These are (i) where the defendant has admitted liability, or (ii) where the plaintiff has obtained judgement against the defendant with damages to be assessed, or (iii) if the action proceeded to trial, the plaintiff would obtain judgement for substantial damages against the defendant or against any one of the defendants (where there are two or more defendants).

[11]. In a personal injury case, an order for interim payment will only be made if, in addition to the Court being satisfied of the existence of any of the above (see paragraph [5] (i) to (iii)), the Court is satisfied that the defendant is either:

• (a) insured in respect of the plaintiff's claim.
  
• (b) a public authority - or
  

(c) a person whose means and resources are such as to enable him to make the interim payment.

(see Order 29, Rule 11 (2))

[12]. In this case, the defendant has admitted liability through his insurers. The issue raised is whether or not, this Court can make an Order now for interim payment given that the plaintiff is still recovering from the injuries.

[13]. I am satisfied from the medical report dated 24th August 2009 from the CWM Hospital exhibited to the plaintiff's affidavit and also from the medical report from the Suva Private Hospital annexed to Fimone's affidavit that if the action proceeded to trial, he would obtain judgment for substantial damages against the defendant.

[14]. The plaintiff sustained facial abrasions as well as a closed segmental fracture of his right femur and right tibia/fibula.

[15]. Mr. Naidu cites the cases of Satish Chand v Padarath Bros & Sons Ltd and Others [2005] FJHC 542, Raghubir v Abid Hussein and Others, Civil Action no. HBC 023 of 2006 and Aklesh Narayan v Vicki Narayan and Anor, Lautoka High Court Civil Action No. 22 of 2003 where substantial damages was awarded concerning similar injuries.

[16]. In this case, I can conveniently say that – even if the plaintiff is to receive an award on the lowest scale – the amount will surely be much more than the meager $10,000-00 he now seeks in interim payment. In any event - I believe the plaintiff will be entitled to substantial damages considering the extent of injuries suffered and the fact the he was only 22 years of age at the time of the accident. In Aklesh Narayan v Vivki Narayan – Mr. Justice Inoke reviewed various awards on similar personal injury claims such as the one in this case. The trend for the award for pain and suffering alone far exceeds what the plaintiff is here seeks for interim payment.

[17]. The plaintiff is still recovering from his injuries and that no permanent disability has yet been determined. Mr. Naidu submits that although permanent disability has not been determined, the injuries the plaintiff received are serious and as is evident from both medical reports. Mr. Naidu cites the case of Rajesh Naidu v Form Scaff (Fiji) Limited, Suva High Court Civil Action No. HBC 341 of 2008, as an instance where the court has made an order for interim payment although the present medical condition of the plaintiff had not been assessed. I accept that submission.

[18]. Fimone also appears to doubt that the plaintiff was working for Cresent Holiday Entertainment Fiji Limited prior to the accident and was earning $115.00 weekly. As stated, this is a triable issue to be considered during the hearing on assessment of damages. It has no bearing on anything at this stage.

[19]. In the end, I grant order in terms of the plaintiff's application for interim payment of the sum of $10,000-00 (ten thousand dollars) to be paid in 28 days of the date of this Ruling plus costs in favour of the plaintiff in the sum of $350-00 (three hundred and fifty dollars)

[20]. The hearing date on assessment of damages is to be fixed by Master Amaratunga before His Mastership.

Anare Tuilevuka
Master

At Suva
17th February 2011.

^[1] “Facial abrasions as well as a closed segmental fracture of my right femur and right tibia/fibula. There is now produced and shown to me and exhibited herewith marked “MNA 1” a copy of a medical report dated 24/08/09 prepared by Doctor Vaigalo E. McCaig of Colonial War Memorial Hospital on which I rely in support of my claim. I also intend to obtain a detailed medical report on my present medical condition from Suva Private Hospital but I do not have the financial means to do so”.