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Nisha v Chand [2018] FJHC 630; HBC38.2016 (18 July 2018)

In the High Court of Fiji
at Labasa
Civil Jurisdiction

Civil Action no. HBC 38 of 2016

Mairul Nisha

Plaintiff

v

Suresh Chand

First defendant

And

Bhawan Singh

Second defendant

Counsel: Mr A. Sen for the plaintiff

Mr A. Kohli for the first and second defendants
Date of hearing: 13^th June 2018 and 9^th July 2018

Date of Judgment: 18^th July,2018

Judgment

1. The plaintiff claims damages for injuries sustained by her, as a result of the negligent driving of taxi bearing registration no.LT 505 by the first defendant on 23^rd December 2014. The particulars of negligence are pleaded. The plaintiff, in her statement of claim states that the impact caused her to be thrown onto the drain on the side of the road. The first defendant was charged and convicted of the offence of dangerous driving. The plaintiff claims damages.
   

The accident

2. The plaintiff, in her testimony said that she was walking on the gravel area beside the tar sealed Korotari Road, when she was hit by the first defendant’s vehicle. The vehicle was travelling behind her, on the left side of the road. It was put to her in cross-examination that she was walking on the wrong side of the road and not facing the vehicle that hit her. In re-examination, the plaintiff reiterated that she was walking on the gravel area outside the main road, when the vehicle hit her.
   
3. PW2,(Miriama Malo, Police Constable 4271) said that she took the measurements and interviewed the first defendant and witnesses at the scene of the accident with other Police Officers. She said that the point of impact was outside the marking on the main road. At the scene of the accident, the first driver agreed to the point of impact and admitted that he went outside the line. He was charged with dangerous driving. He pleaded guilty. He was convicted and fined. The distance between the point of impact and where the taxi stopped was 17.6 metres. She produced the Rough Sketch, Fair Sketch and the Police Medical Examination Form.
   
4. It transpired in PW2’s cross-examination that a bus on the opposite side of the road had stopped and passengers had alighted from the bus. There was a walkway only on the left side of the road for pedestrians. In re-examination, she said that the duty of a driver, when he sees passengers disembarking from an omnibus, is to drive slow. She agreed that it does not give a driver a license to run down passengers. At this stage, Ms Kohli, counsel for the defendants conceded liability.
   
5. DW1,(the first defendant) in evidence in chief said that when he was proceeding towards Labasa town, he bumped the plaintiff while trying to save three children who were crossing the road from the other side.
   

The determination

6. In the light of Mr Kohli conceding liability, I have to assess the plaintiff’s claim for damages.
   
7. The plaintiff testified that when she was knocked down, she fainted. She regained consciousness at the Labasa hospital. She felt severe pain in her head, shoulder and back. A collar was put on her. Subsequently, she was put on a drip. She was taken to the theatre the next day. Eight stitches were sutured on her head under general anaesthesia. The pain remained severe. She could not sleep. She spent 4 to 5 nights in hospital. She was discharged and given painkillers and panadol. She returned to the clinic for reviews on 3 or 4 occasions.She could not return to work. Four years after the accident, she continues to feel pain. She cannot sit on the floor and pray. She produced her Medical Report, as given by Dr Maloni Bulanauca,(General Surgeon-Labasa hospital).
   
8. In cross-examination, she said that she told the Doctors that she cannot bend. She did not tell the Doctor that she cannot sit and pray. It emerged that she last went to hospital for treatment, four years ago. She said that she was still in pain.In answer to Mr Kohli, she said that she does not go to hospital, as they give panadol and painkillers, which she could take herself.
   
9. PW3,(Dr Maloni Bulanauca) testified on 9^th July 2018. In evidence in chief, he said that the plaintiff suffered a mild head injury and a wedge compression of the thoraicic spine at level T2. She was in severe pain, in a category of 5 out of 5. She was an in-patient at the hospital from 23^rd to 26^th December 2014, and continued to be followed up as an out patient. She was sutured. There were no indications for surgical intervention. She was stable and discharged on 26^th December 2014. She was given paracetamol. In 2016 too, she was given paracetamol. She was reviewed by Dr Alan Biribo, Neurosurgeon, CWM hospital on 14^th April,2016. Dr Biribo found that she had reduction in rotation and abduction, ie to move from shoulder to shoulder. She had complained of upper thoracic back pain and unable to sit and stand for long.PW3 said that when he examined the plaintiff four years later, she did not complain of pain when moving her head, but had pain when bending from side to side. The pain was located on her upper back. The pain may be exacerbated, if she does hard work all the time. She would still complain of pain for certain activities.
   
10. In cross-examination, PW3 reiterated that the plaintiff had suffered extreme pain. On admission to the Labasa hospital, she was given morphine intravenously and panadol tablets. She would have been cleared of dangerous complications associated with her injury, before she was discharged. She was reviewed on 2^nd January 2015. It was found that the scalp wound laceration was clean and healed. She had pain on her upper back. On 15^th January 2015, she still complained of upper back pain and was given Ibrufen. PW3 agreed that the plaintiff would not be able to stand for long. It transpired that she had not returned to hospital after 14^th April 2016. He could not quantify her pain when she sits. In re-examination, PW3 said that any pain she experiences may be related to the injury.
    
11. The plaintiff’s Medical Report reads as follows:

This lady is known to this facility being an in-patient over the period 23-26/12/14 under the care of the surgical service.

She was admitted through the Accident and Emergency Unit on 23/12/14..

She was assessed as having suffered Mild Head Injury secondary to the event described above. She was cleared of any major surgically correctable pathology. She had suffered a wedge compression fracture of the thoraicic spine at level T2 but fortunately did not present with neurology. She did sustain a right frontal scalp laceration which was washed and closed under anesthesia in the operating theatre on 24/12/14.

Treatment-wise she was accorded analgesia (Panadol), antibiotics (Flucloxacillin and Gentamicin), physiotherapy sessions, IVF, standard neuro-observation and trauma observation.

She was ably discharged and reviewed on 15/01/15 with occasional upper back pain due to her skeletal pathology. She continued on NSAID’s (Ibuprofen) and planned for neurosurgical follow-up.

She was reviewed by Dr Alan Biribo (Neurosurgeon – CWMH) at this facility on 14/04/16 showing some discomfort with standing long periods and on extending backwards or to her right side. She was reassured of expected improvement in time with plans to continue physical therapy. She is not expected to have any invasive surgical management.

Her wound has healed satisfactorily and she does not show any obvious post traumatic psychosomatic tendencies.

12. Mr Sen, counsel for the plaintiff in his closing submissions claims $75,000 for pain and suffering and $30,000 for loss of future earnings. Mr Kohli, in his closing submissions, suggests a sum of $ 25,000 for pain and suffering and $ 3,000 for loss of future earnings.
    
13. Mr Sen has cited the case of Eta Naqeletia v Kumar, [2012] FJHC 29, Nasese Bus Co Ltd v Chand, (2013) FJCA 9 and subsequent decisions of the Court of Appeal.
    
14. In assessing damages, past awards are useful guides, provided the pain and injuries are comparable. The Supreme Court in Permanent Secretary for Health and Another v Kumar,(Civil Appeal CBV 6 0f 2008 delivered on 3^rd May 2012) stated:

..regard must be had to awards made in comparable cases in the jurisdiction in which the award is made. However, it is also open for a court to take into consideration a comparable award made in a foreign jurisdiction,..(emphasis added, underlining mine)

15. In Eta Naqeletia v Kumar,(supra) a sum of $ 70,000 was awarded as general damages, as the plaintiff had lost the use of her dominant right hand. Wati J found that she had “gone through excruciating pain with permanent disability of 19%”.
    
16. In Nasese Bus Cov ChandChand, (supra) the Court of Appeal increased the damages of $65,000 awarded for pain and suffering to $ 9, as it was found that sufficient regard had not been given by the High Court to the futureuture pain and suffering that the respondent would suffer due to progressive arthritis.
    
17. Neither can the pain suffered by the appellant in Mere Labaivalu v Pacific Transport Co. Ltd, (Civil Appeal No. ABU 0059 of 2014) be comparable to that of the plaintiff in the instant case. The appellant had a "traumatic penetrating injury involving den object which hich had pierced her left hip and extended through the pelvis..(and) protruded through the anterior abdominal wall”, as provided in the medical report. She had 68 stitches across her body, a big scar of a patched hole in her thigh and extensive scars on her lower abdomen. The Court of Appeal enhanced the damages of $60,000 awarded by the High Court for pain and suffering to $90,000. Basnayake JA stated that “Although it is not evident, I would like to mention..some of the crucial pain that the plaintiff would have gone through”, which was set out.
    
18. Nor can there be a comparison with a plaintiff who had 18% whole person impairment, had to walk in crutches and was rendered permanently unfit for any further employment, as in Ch Amin,(Civi(Civil Appeal No: ABU 0031 of 2012) where the award of $85,000 for pain and suffering and $52,000 for loss of future wages was upheld on appeal.
    
19. Finally, Mr Sen cites the case of Vimla Wati v Permanent Secretary of Health, [2016] FJCA 72 where the appellant was not assessed with any permanent disability. In that case, the appellant had undergone a defective surgery for the removal of his gallbladder. The Court of Appeal increased the damages from $15,000 to $70,000, as the High Court had awarded damages for pain only till the date of the second corrective surgery and not for the period of 71 days, until he was finally discharged.
    
20. Returning to the case before me, the plaintiff was in severe pain, medically categorized as 5 out of 5. She was in hospital for 3 days. After she was discharged, she continued to visit the clinic. Her medical report provides that on 14^th April 2016, Dr Alan Biribo, Neurosurgeon at CWMH found that she showed discomfort in standing for long periods and extending backwards on to her right side. PW3 said that when he examined the plaintiff four years after the accident, she complained of pain when bending from side to side. The pain was located on her upper back. She would not be able to stand for long. She could not return to work.
    
21. I find the plaintiff’s present complaint of pain is consistent with the medical evidence.
    
22. In the light of the severe pain the plaintiff underwent in the aftermath of the accident, I award her a sum of $ 45,000 as general damages.
    
23. In Nasese Bus Co Ltd v Chand,(supra) Calanchini AP(as he then was) cited Lawton LJ in Cunnigham v Harrison, [1973] QB 942 at page 956 as follows:

“..if judges do not t their awards to changing ging conditions and rising standards of living, their assessments of damages will have even less contact with reality than they have had in the recent past or at the present time.”

24. The plaintiff claims loss of future earnings.
    
25. In AG v Suruj Narayan,(ABU 0057 of 2008) Calanchini JA( as he then was) cited the following passage from the decision of the House of Lords in Wells v Wells, [1998] UKHL 27; [1999] 1 AC 345 at paragraph 66:

A plaintiff who has been deprived of earning capacity, whether in whole or in part,has lost the chance of exploiting that capacity to the full. .... In most instances, the chance of so exploiting the capacity is high and this is reflected in the approach taken by the courts, which is usually to assume that it would have been exploited to the full, at least to the normal retirement age. That one hundred per cent probability is then discounted by the chances of its not being exploited due to the normal contingencies of life

26. In Eta Naqeletia v Kumar,(supra) Wati J stated that a 46 year old fish seller “ did not have to retire at the age of 55 years”. A multiplier of 8 years was applied.
    
27. In Mere Labaivalu v Pacific Transport Co. Ltd, (supra) the Court of Appeal awarded $30,000 as future earnings to the plaintiff who complained that she could not go to school, as she could not sit and had to get ready half an hour earlier than before. Basnayake JA at paragraphs 24 to 25 said:

The chairs that the school provides may not have been as comfortable as the ones found in an air-conditioned court house. Although healed she may not be the same person as before. I am not surprised that she took longer time now to get ready to go to school. At the end it may be the mental trauma that discouraged her from going to school...

She had said in evidence that she took medicine seven months till before. It does not mean that she is completely out of danger or that she could live as before.

28. In the recent judgment of Fiji Forest Industries Ltd v Rajendra Mani Naidu, (Civil Appeal No: ABU 0019 of 2014) as referred to by Mr Sen, Jameel, JA at paragraphs 72 to 77 said that “the court is willing to assume that (a casual labourer) could reasonably expect to work .. until the age of 65..(and)...considers it reasonable to use the multiplier of 11”, where the appellant was 41 years.
    
29. The plaintiff said that she harvested cane as well as worked as a labourer on a sugar cane farm. She said “ganna katat raha aur kaam karta raha majuri”(emphasis added). She said that she was paid $15 day. She also planted vegetables at her house for her family. Her evidence on these matters were not challenged.
    
30. The plaintiff was 55 years, when she befell the accident. The medical evidence provides that she cannot bend nor stand for long. She can no longer work as a labourer. In the circumstances, a multiplier of 6 is appropriate.
    
31. I award the plaintiff, a sum of $28,080[$15 x 6 (days) x 52 weeks x 6] as loss of future earnings.
    
32. The plaintiff claims special damages as follows:

Transport and medication $1,500.00

Nursing care for 4 months $2,000.00

TOTAL $3,500.00

33. The evidence disclosed that the plaintiff made visits to Labasa hospital from her home in Korowiri for treatment. She had purchased medication for her pain.
    
34. The plaintiff testified that her niece and daughter in law nursed her at home for 6 to 7 months and cooked for her. In evidence in chief, she said that she claims $ 2500 to give them.
    
35. In Griffiths v Kerkemeyer, [1977] HCA 45 it was held that a plaintiff should receive damages representing the value of gratuitous services provided by his parents, as was necessitated by the injury done to him by a negligent defendant. Griffiths v Kerkemeyer, was followed by Pathik J in Rokodovu v Rokobutabutaki [1998] FJHC 151.
    
36. In my judgment, the plaintiff is entitled to special damages in a total sum of $2400 for expenses reasonably incurred in respect of transport and medication in a sum of $ 400, and for past gratuitous care for a period of 4 months, in a sum of $ 2000, as claimed.
    
37. The plaintiff has claimed interest. In the exercise of my discretion under section 3 of the Law Reform (Miscellaneous) (Interest) Act, I award interest at 6% per annum on general damages of $ 45,000.00 from the date of service of writ,(15^th September 2016) to date of trial,(13 June 2018) and 3% per annum on special damages of $2400 from 23^rd December 2014,(date of accident) to date of trial.
    
38. Orders

The total sum awarded to the plaintiff as damages, is $80,385.00.00 made up as follows:

There will therefore be judgment for the plaintiff against the defendants in the sum of $80,385.00.00 together with a sum of $3000 payable by the first and second defendants to the plaintiff, as costs summarily assessed.

A.L.B. Brito-Mutunayagam

Judge
18^th July,2018