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High Court of Fiji |
AT LABASA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 39 OF 2015
BETWEEN : CHANDAR BHAN SINGH of Nasarawaqa, Bua, Labourer
PLAINTIFF
AND : CHINA RAILWAY GROUP (FIJI) COMPANY LIMITEDa limited liability having its registered Office of 16 Crompton Street, Tamavua, Suva
DEFENDANT
Appearances: Mr Sharma of Samusamuvodre& Sharma, Solicitors for the Plaintiff
No appearance for the Defendant
ASSESSMENT OF DAMAGES
Introduction
[1] The plaintiff by writ of summons dated the 4th December 2015 claimed from the defendant damages for injuries suffered by him whilst he was employed by the defendant company. The injuries were suffered by the plaintiffon the 26 of August 2014 at Nasarawaqa in Bua. He alleges that three bags of cement fell on his right lower limb from which he suffered injuries.
[2] The writ was served on the defendant on the 23 December 2015 at the defendant’s registered office at Tamavua by one Sailesh Sharda Nand law clerk of Korotari Labasa. There being no acknowledgement of service or defence filed by the 1st February 2016 the plaintiff obtained judgement by default with damages to be assessed.
[3] The Summons for the assessment of damages was served by the same person who served the writ on the 8 day of February 2016 and the matter came before the Master on the 22 February 2016. The assessment of damages was adjourned on the 22 February and set down for hearing on 29 March. This is the ruling on the assessment of damages.
Background
[4] The plaintiff is a 44 year old man of Nasarawaqa in Bua and was a farmer before he was employed by the defendant company. He has been separated from his wife for the last sixteen years. He was in employment for approximately three months before his injury. His net weekly pay was $513:00.
[5] He states in his evidence that his mother now looks after him and that he is unable to do any more farming or heavy work.
[6] He states that the defendant company offered to settle the matter with him but he refused as the amount of money being offered was not enough.
The Damages
Special Damages
[7] The plaintiff claims $2,000:00 for special damages. These were particularised on the writ as consisting of $1,500:00 for transport costs and $500:00 for medication.
[8] The plaintiff’s medical report of 5 May 2015 states that he had follow up treatment at the Labasa Hospital Outpatient Department on six occasions, so there are transport costs from Nasarawaqa to Labasa. He states that it costs $120:00 for each trip on a van. Although buses do run between Nasarawaqa and Labasa and that no receipts were tendered I will accept that there are transport costs incurred by him for each trip to the hospital’s outpatient’s department. But I am not certain though that the total costs of the six trips amounts to $1,500:00 as prayed for and I therefore grant him transport costs of $800:00.
[9] In respect of the medication costs of $500:00 and of which there were no receipts I accept that are medication costs. The medical report states that:
“Uponadmission he was duly given analgesia (paracetamol and Ibuprofen) single doses of antibiotics (Flagyl,Gentamicin and Cloxacillin) and regular thromboembolic prophylaxis (heparin)”.I am therefore of the view that the plaintiff’s prayer for medication costs be granted but not to the sum prayed for but for a sum of $100:00.
[10] Therefore the total special damages awarded is$900:00.
General Damages
[11] The Court of Appeal in Nasese Bus Company –v- Muni Chand (Appeal No. 40 of 2011 stated the guiding principles in calculating pain and suffering and loss of amenities as follows:-
“There are three guiding principles in measuring the quantum of compensation for pain and suffering and loss of amenities. First and foremost, the amount of compensation awarded must be fair and should compensate the victim of the injury in the fullest possible manner, bearing in mind that damages for any cause of action are awarded once and for all, and cannot be varied due to subsequent eventualities, some of which could not even be anticipated at the stage a court makes an award. Hence an award of damages should not only be fair, but also assessed with moderation, even though scientific accuracy is impossible. The second principle is that the sum awarded must to a considerable extent be conventional and consistent. Thirdly, regard must be had to awards made in comparable cases in the jurisdiction in which the award is made. However, it is open for a court to take into consideration a comparable award made in a foreign jurisdiction, particularly in cases where the type of injury is not very common, provided that the court takes into consideration differences in socio-economic and other relevant conditions that might exists between the two jurisdictions.”
[12] Put briefly the three principles are firstly that the amount must be fair and that the compensation must take into account that it cannot be varied, it is once and for all, and that scientific accuracy is not ensured. The second and third principles are intertwined in that the award must be consistent and comparable to those awarded in the jurisdiction.
[13] Part of the exercise in achieving this is to compare the injuries to those in which awards have previously been made and with judicial discretion find the best which could be awarded under the circumstances.
[14] The plaintiff was 44 years of age at the time of the accident. The doctor’s report states that he was first seen through the A & E department at the hospital on the 26/8/15. This was two days after the accident. He was first treated at the Lekutu Health Centre and the Seaqaqa Hospital. The doctor’s report states that:-
“His right lower limb was visibly deformed and he was generally in discomfort due to pain. He showed right knee effusion and closed fracture to his proximal tibia. Symptoms wise he continues to have an antalgic gait and notes that it is worse in cooler climate”.
[15] It is unclear from the report what treatment was given to him at Lekutu and Seaqaqa. However his whole person impairment is calculated at 5% (12% lower extremity disability). The doctor states in his evidence that the plaintiff would suffer pain throughout life and likely to have premature arthritis.
[16] The plaintiff’s counsel submitted that his client should be awarded the sum of $65,000:00 under this head because it is comparable to the Parbhu Lal -v- ParmodInterprises Limited CA HBC No. 25 of 2014matter. In my view there are however a few differences in the two matters which may make this exercise more consistent. The first is that in the Parbhu Lal matter the plaintiff was 62 years of age and suffered injuries which are more severe. In that case the bus on which he was travelling collided with a locomotive. The injuries were a broken tibia and fibular bone and his total permanent incapacity was 14%. In this matter the whole person impairment is calculated at 5% which is less than half of that of the Parbhu Lal matter.
[17] If we take the above as a comparable figure as is suggested then if 14% is $65,000:00 then 5% is $23,214:30. For the sake of consistency if the Nasese Bus Company -v- Muni Chandwas compared one would see that the injuries also differ. Muni Chand was a young woman who may later need surgical cosmetic procedure. Her injuries are therefore considered more serious her total incapacity was also calculated at 14%. She was awarded a sum of $90,000:00 for pain and suffering and loss of amenities. If we conduct the same mathematical exercise as we did before, the amount would differ, it would now become $32,143:00.
[18] The difference becomes more obvious because of the inherent character of each of the matters and for that reason it would be safe to say that in my view the most appropriate amount to be awarded would be $24,000:00 under this head. I therefore award the sum of $24,000:00 for pain and suffering.
Loss of Earnings and Future Earnings
[19] The plaintiff’s counsel correctly submits that there is a discretion available to the courts in deciding how to calculate loss of earnings and future earnings this is because there are two ways of calculating loss of future earnings, by the use of multiplier and multiplicand method or by a global award. Most text books on negligence refer to this method of calculating the loss of future earnings and the loss of contingencies of life. As submitted by the plaintiff’s counsel the method of calculation is described in McGregor on Damages (17th Edition 2003) of paragraph 35-05):
“The amount is calculated by taking the figure of the claimant’s present annual earnings less the amountif any, which he can now earn annually, and multiplying this by a figure which, while based upon the number of years during which the loss of earning power will last, is discounted to allow for the fact that a lump sum is being given now instead of periodical payments over the years. This latter figure has long been called the multiplier, the former figure has come to be referred to as the multiplicand. Further adjustments, however, may or may not have to be made to multiplicand or multiplier on account of a variety of factors, namely the probability of future increases or decrease in the annual earnings, the so-called contingencies of life, and the incidence of inflation and taxation.”
[20] An important consideration in this matter is the calculation of the multiplier, that is, the number of years the loss represented by the multiplicand is likely to last. Counsel for the plaintiff submitted that the multiplier or the number of years the loss is incurred should be until the age of retirement for the plaintiff. He then calculates the future loss of income to be approximately $450 X 52 X 10 = $234,000:00. The multiplier is submitted to be a period of 10 years.
[21] The assumption in the submission is that the plaintiff will remain employed by the defendant company until he reaches retirement age. However this court has judicial notice of the fact that those who come to this country to build our infrastructure including roads and bridges do so on a contractual basis, that is, until the work is completed. As I understand it the Dreketi to Nabouwalu Road was completed and opened by the Prime Minister on the 12 January 2016. It follows that the plaintiff would work for the defendant until the completion of the Dreketi to Nabouwalu Highway on the 12 January 2016.
[22] Therefore the calculation of his loss of future earnings can be done in two ways, the first is the loss of future earnings until the completion of the road and secondly the loss of future income outside of the period of employment with the defendant company. The first part of the calculation for his loss of future income for the period until the highway opens is from the date of injury 26 August 2014 to 12 January 16. This multiplier would be 16 months and two weeks with a multiplicand of $450:00 as suggested by his counsel. That makes the immediate loss of income for that period be $450 x 4 x 16 = $28,800:00. To this sum would be added the loss of income for the remaining two weeks that is $900:00 making it $29,700:00.
[23] I therefore award this amount for this part of the future loss of income for the plaintiff
[24] The second part of calculating the future loss of income is slightly complicated because there was no evidence provided to show what income was received by the plaintiff prior to his being employed by the defendant company. There is no doubt that he has suffered an injury which now limits his ability to carry out any hard work in the farm as he did before. The only indication from the evidence is that he was a vegetable farmer whose income is $200:00 per week. Due to the lack of evidence specific to his income from farming the Court will consider the option exercised by the Court of Appeal inNasese Bus Ltd -v- Chand (2013) FJCA9. In overturning the decision in the first instance the Court of Appeal stated:
“... I think that the risk justifies an award of damages, "speculative though it must be." I accept that there are some forms of employment that can be performed by the Respondent. At the date of trial she was only 24 and there was no suggestion that her life expectancy had been reduced as a result of her injuries. Under the circumstances she can reasonably be expected to be in and out of the workforce for at least 30 years. Although "there can only be a broad approach to this problem" the justice of the case requires some award for future loss and I would assess that amount at $25,000.00.”
[25] Doing the best we can with the approach taken in the Chand matter in which the sum of $25,000:00 was awarded for a 24 four year old who still has 30 years of working life left, I am of the view that the sum of $8,500:00 is sufficient. This is so because the plaintiff who was 44 at the time of the accident still has approximately 10 years of working life left.
[26] This would make the total loss of future income or earnings to $38,200:00.
Interest
[27] The Plaintiff is asking for interest on the damages awarded. An award of interests is at the discretion of the court and are often given and are payable on the past losses and special damages under section 3 of the Law Reform (Miscellaneous Provisions) Death and Interest Act. In this action I would allow interest to be payable as follows.
[28] The total amount on special damages is $900:00. The plaintiff is entitled to interest of 3% from the filing of the writ which is from 4 December 2014 to 29 March 2016 a period of some 16 months.
[29] The total interest would then be: 3% of $900:00 per year is $36:00 making the total awarded for special damages to $936:00.
[30] I would allow 6% interest on general damages. The total damages under both this head is $62,200:00. The interest calculated at @ 6% per year for 16 months $4,976:00. This would make the total awarded for general damages to be $67,176:00.
[31] I therefore award the sum of $67,176:00 for general damages inclusive of interest.
[32] This would make the total awarded for damages both special and general to $68,112:00.
Costs
[33] The plaintiff’s Counsel submits that a costs of $4,000:00 be awarded. As the matter did not proceed to a hearing but to the default judgment and thereafter assessment of damages stage I am of the view that the more appropriate costs would be $3000:00. I therefore award this sum for costs against the defendant.
[34] The total damages and interest and costs awarded to the plaintiff for the action is therefore $70,176:00.
H Robinson
Master
High Court, Labasa
27 May 2016
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URL: http://www.paclii.org/fj/cases/FJHC/2016/495.html