Broadbridge v Maka [2001] FJLawRp 97; [2001] 1 FLR 389 (7 November 2001)

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23-27 April, 17 August, 7 November, 2001

HBC 0201/93S

Assessment of damages for personal injuries – D1 drove army truck negligently, resulting in accident with the Plaintiff – loss of future earnings – other expenses consequent upon an accident – loss of future medical and like expenses – appropriate multiplier – use of actuarial tables – whether Plaintiff contributorily negligent in driving or interfering with medical treatment – reduction in interest period due to inordinate delay in bringing action to trial - Evidence Act s9; Civil Evidence Decree 23/00 ss17, 25(1)

The Plaintiff claimed an award of damages for personal injuries caused when his car collided with an army truck driven by D1, and as a result of negligence medical treatment the Plaintiff received at the Colonial War Memorial Hospital (CWMH). The Court discussed D1's evidence and was unable to accept that he was on the correct side of the road, given his admission of lying about numerous traffic infringments. The Court rejected the Defendants' suggestion that the Plaintiff was contributorily negligence because he had drunk a glass of beer one and a half hours before the accident, he had not worn his seat belt, he was speeding, on the incorrect side of the road, and that he interfered with his traction while at hospital. The Court discussed evidence of the hospital's actions in formulating a finding that the hospital was guilty of medical negligence. The Court discussed the use of actuarial tables and multipliers in computing future economic loss, which the Defendants did not challenge. The Court pointed out the Defendants never challenged the Plaintiff's life expectancy in calculating future economic loss. The court applied a multiplicand of 20, allowing for principal contingencies of unemployment and illness in calculating future medical expenses. The Court reduced the interest period, recognising an inordinate and inexcusable 5.25 year delay in bringing this action to trial.

Held–(1) D1's driving was negligent. There was no contributory negligence by the Plaintiff's driving, resulting in an accident. The CWMH failed to diagnose early the Plaintiff as having a dislocated hip until Dr McCaig saw the Plaintiff, and failed to treat his injuries correctly which impaired what chance there was of success in the operation performed by Mr. Krause to reconstruct the acetabulum and relocate the femoral head. Once the Plaintiff proved on the balance of probabilities the hospital's negligent failure to diagnose and treat his injuries promptly had materially contributed to the development of avascular necrosis or possibly requiring an artifical hip replacement, D2 was not entitled to a discount from the full measure of damages to reflect the chance that, even given prompt treatment avascular necrosis might still have developed or possibly requiring the Plaintiff to undergo hip replacement. The election by the Plaintiff of a hip replacement was not unreasonable in the circumstances of the Plaintiff wishing to fulfil his ambition to become a jet pilot and to minimize his damages should the hip replacement operation be successful.

(2) The use of actuarial tables can be of much assistance to a Court in arriving at the proper estimate of damages, especially about expenses and losses which a Plaintiff will incur, sometimes well into the future. There was no uncertainty as to estimation of future earnings, and the Plaintiff had embarked on a course to become a jet pilot, thus the actuarial table can be used to calculate future earnings to a level that the Plaintiff would invest those funds in an index-linked government securities. The Court must review the discount incorporated in all multipliers used in Fiji to ensure that any reduction more than 1% will result in the dollar value falling behind the rate of inflation and result in a reduction of living standards. The Court will use a discount of 1% and a multiplicand of 20 to calculate future medical expenses.

Obiter dictum – no Decree, such as the Civil Evidence Decree 2000 23/00 can amend an Act of Parliament. It would be good for the law if the Decree were submitted to the new Parliament.

Award of $75,000 for pain, suffering and loss of amenitites, a lump sum of $80,000 for loss future economic loss, $1.424m for loss of future earnings less $80,000 for future insurance premiums, $61,560 for future medical expenses, together with interest at 5% between 9 July 1998 to date of judgment and costs at $3,000. The total award = $1.48m.

[Note: on appeal, the Court of Appeal reduced general damages award for pain and suffering to $60K; using a discounted present value method to calculate future earning capacity, but discounted by 30%, after taking into account contingencies, and using an objective common sense approach, to $855.6K, and with interest allowable only on pain and suffering at 4%: ABU0063/01 30 May 2003. On further appeal, the Supreme Court upheld the use by the Court of Appeal of the discounted present value method as consistent with developments in common law, that there was no rule at common law requiring the trial Judge to adopt the multiplicand/multiplier method, and no other, to assess future earnings, that the trial Judge was entitled to adopt the use of acturial tables, in the circumstances, and that the amount awarded by the Court of Appeal was substantial, because of the particular circumstances, but not excessive: CBV 0005/03 8 April 2005. CBV 0005/03 affrm in George Transport Limited & Shaukat Ali v Laisa Vosawale [2005] ABU 0035/04 (apf HBC 169/03S) Judgment 11 November 2005 per Scott, Wood & Ford, JJA: Broadbridge is the leading Fiji authority on the general approach to assessment of damages for personal injuries.

Emosi Vunisa v The Director of Lands and Others (2001) HBC 4114/00 4 October 2001

Robert Smith with Feizal Haniff for the Plaintiff
William Calanchini with Iliesa M Tuiloma for the Defendants

This is a claim for personal injuries suffered by the Plaintiff allegedly as the result first of a motor accident which occurred on the of April 1991 when a motor car driven by the Plaintiff was involved in an accident with an army truck driven by the First Defendant and secondly as a result of negligent medical treatment which the Plaintiff claims he received at the Colonial War Memorial Hospital (CWM) following the accident

The case raises some important questions about the current method of assessment of damages for personal injuries in Fiji and loss of future earnings and other expenses consequent upon an accident, the discount to be applied to the payment of a lump sum in respect of damages for loss of future medical and like expenses, the appropriate multiplier to be used in cases and the use to be made of actuarial tables in the assessment of damages.

The Plaintiff was born on 11th September 1968 and is 32 years old. He is an Aircraft Maintenance Engineer and works for Air Pacific as a licensed Aircraft Maintenance Engineer earning a salary of $26,000.00 per annum. His employer makes a FNPF contribution equal to 8 per cent of his salary. He gave evidence that on Saturday morning, 20th April 1991, he went to his parents' home in Delainavesi from his own home in Lami, intending to go into Suva with his brother Richard and his half- sister, Elizabeth, in his step mother's car. This was a Honda Civic registered No. AQ538. Among other things, they intended to buy some produce from the Suva Market and get videos from a shop in Toorak.

They went first to the China Club to cash a cheque and the Plaintiff drank one glass of beer. They then went to a fish and chips shop named Bentleys and then drove on to the Suva City Market. From there, they went straight to Edinburgh Drive which they drove up to Waimanu Road where they turned right to go to Toorak. In 1991, part of Waimanu Road below Borron House, was narrow and tortuous and used to bend sharply to the left. Since then, that part of Waimanu Road has been widened and straightened.

The Plaintiff stated that as he rounded the bend his car was involved in a collision with a Renault 7 tonne army truck driven by the First Defendant. The Plaintiff was knocked senseless by the impact in which the front right of his car struck the truck's rear wheels which then ran partly over the front right side of the car.

The Plaintiff stated that he had no personal recollection of these events because of the injuries he received. His next recollection was in being helped into the CWM Hospital by two Indian men who were either at the scene of the accident when it occurred or shortly afterwards.

In cross-examination, the Plaintiff said that he was familiar with his step-mother's vehicle having driven it a number of times previously. He was also familiar with the part of Waimanu Road where the collision occurred. He stated that although he did not go to bed early the previous night he was not tired on the morning of the accident and denied that this could have been due to any consumption of alcohol. The surgeon who treated him at the CWM Hospital, Dr. Wilson, had given him a certificate for his insurance company that when he was admitted he had no alcohol in his blood. He said he could not remember taking any evasive action to avoid the collision but was traveling up hill at the time of the accident at a moderate speed. He said he could not remember whether he was wearing a seat belt at the time but could not dispute any evidence by the First Defendant that he was not wearing a seat belt. He said the vehicle he was driving was a relatively small sedan which was more maneuverable than an army truck. There was enough room for the truck and the car to pass. There was a soap stone cliff on his left but to the left of the truck there was a drop.

The Plaintiff's half-brother, Edward Richard Maxwell Broadbridge, testified that in 1991 he was in the Sixth Form at the Marist Brothers' High School and was residing with his parents in Delainavesi. At about 10.00am the Plaintiff called at the house to borrow his mother's car No. AQ538. With his sister, Elizabeth, he then accompanied the Plaintiff in the car and confirmed the Plaintiff's evidence as to where they had been before the accident.

He said that he clearly remembered that in 1991 just before one came to the road leading up to Borron House there was a blind bend where neither the traffic going up the hill towards Toorak nor down towards Samabula could see what was on the other side. Within months of the accident, the Public Works Department did a lot of work on the bend cutting part of the soap stone wall away. He said that now much more of the wall has been cut away.

As they came towards the bend he clearly remembered a much larger vehicle than their car, namely a truck, coming towards them at a rather high speed on its wrong side of the road. It cut the corner. The witness reached instinctively for the steering wheel of the car hoping to avoid an accident. However, he said, things happened too fast. He said the truck was coming down the hill at a fast speed and cut on to the other side of the road along which the Plaintiff and his passengers were traveling. One half of the right side of the car and the back right tyres of the truck hit and as a result of the accident the car ended up facing the Edinburgh Drive side at an angle of 90 degrees from their original positions.

The truck ended up on the Plaintiff's side of the road, 15 metres away from the car and facing towards the Borron House side of the road.

The car was close to the middle of the road after the accident when the truck stopped it was very close to the drain on the Plaintiff's side of the road.

After the accident he saw the Plaintiff was unconscious and had blood streaming down his face. An ambulance arrived and the Plaintiff, the witness and his sister were taken to the CWM Hospital.

In cross-examination, Mr. Broadbridge said that when he first saw the truck before the collision it was approximately 15 metres away. He said that because he was sitting next to the driver and the bend was to the left the driver would have had an opportunity to see the truck before Mr. Broadbridge. He could not dispute any evidence Jone Maka might give that he was doing 45 kph immediately before the accident. He said that he could not remember whether the truck driver took any evasive action before the accident. He saw the truck driver pulling hard down with his right hand so as to round the corner. The truck driver was able to allow the cab of his truck to break out to his left so that the truck was obliquely across the path of the car. He agreed that in the two statements he made to the Police on the 12th of May and 11th of September 1991, he did not mention that the truck driver was pulling hard to the right. He then said that he could not remember making any statements to the Police but agreed that in a statement dated the 11th of September 1991 which he signed he said:

"We were coming up to the other vehicle who was travelling on our opposite side towards Samabula."

He had no idea of the speed at which the car was travelling but said that it was going up hill. He did not remember whether the Plaintiff was wearing a seat belt at the time of the accident but could not dispute any evidence the truck driver might give that the Plaintiff was not wearing a seat belt.

The First Defendant later gave evidence. He said that he had been employed by the Public Works Department as a driver since 1994.

On the 20th of April 1991 he was a member of the Fiji Military Forces with the rank of Lance Corporal and held an army heavy vehicle licence which allowed him to drive any heavy vehicle but not to tow a trailer. He had held that licence for three years. On the day of the accident, he was driving a 7 tonne load capacity Renault truck which on that day was empty. There were no passengers. He had driven this truck and others like it previously on average three times a week.

He was familiar with Waimanu Road and had driven along it in army trucks in both directions. He had been ordered to pick up the army rugby team but when he arrived there the team had already left in another truck. He said that before taking the truck out he checked it and found the brakes were working property. He also checked the drive shaft and other items including battery, petrol, oil, traffic indicators, wind screen wipers and tyres.

He said that when he was proceeding along Waimanu Road towards Samabula he was travelling in his left lane at about 45 kph. He started to round the bend which went to the right in his direction. As he was rounding the bend he saw another vehicle coming from the opposite direction towards his truck and partly on his side of the road. It was about 10 metres away and travelling at a high speed. He managed to avoid a head-on collision by pulling the steering wheel to the left, but the other vehicle hit the rear tyre of the truck.

As a result of the impact the drive shaft was forced off and the brake cylinder attached to the rear axle also fell off. Thus he could not properly control the vehicle and as he tried to apply the brake it did not work. As there was no other vehicle coming towards him he pulled his truck to the right-hand side of the road towards the soap stone cliff as to stop the truck. After the accident he helped the passengers out of the car. He made a statement to the Police and was later charged with dangerous driving. He pleaded not guilty to this charge but before the case started in the Magistrates' Court in Suva he agreed to plead guilty to a charge of careless driving although he said he did not want to plead guilty because he did not think his driving was careless or dangerous. He was not represented by a lawyer. He was found guilty.

In his statement of claim the Plaintiff relied on the First Defendant's conviction under Section 9 of the Evidence Act Cap. 41 which states:

"That in any civil proceedings the fact that a person has been convicted of an offence before any court in Fiji shall be admissible evidence for the purpose of proving that he committed that offences".

Both parties, surprisingly in my view, relied on Section 17 of the Civil Evidence Decree No. 23 of 2000 purportedly signed into law by the President of the Republic of Fiji on the 17th of August 2000.

Admirable though I find much of the purported amendments to the Civil Evidence Act claimed to be made by the Decree, for the reasons which I gave in my judgment in Vunisa v The Director of Lands and Others on the 4th of October last and for similar reasons given in other cases by Shameem J., Gates J. and myself which are referred to at page 5 of my judgment, I cannot accept those submissions. Put simply, no Decree can amend an Act of Parliament. That said however I consider it would be good for the law in Fiji if most if not all the Civil Evidence Decree were submitted to the new Parliament in the form of a Bill so that eventually the changes in the law which the Decree asserts it makes but does not and cannot become part of the laws of Fiji.

Nevertheless, both parties agree that the effect of Section 9 of the Evidence Act is to place on the defence the burden of proving that the First Defendant was not negligent. To do that, the defence has to satisfy the Court that on the balance of probabilities the First Defendant drove safely. The evidence he gave in cross-examination persuades me that he did not do so and that the Magistrates' Court was correct in finding him guilty of careless driving which, in this context on the evidence, I find amounts to negligence.

On the First Defendant's evidence that when he first saw the car approaching it was 10 metres distant, I conclude that that could only mean that the First Defendant was so far on the wrong side of the road that the car remained hidden by the topography until it was within 10 metres of him - that is that he must have cut the corner. It also means in my judgment that the car must have been on its own side of the road - had it been where the First Defendant said it was it could not have remained hidden so long no matter where the First Defendant was.

The defence in its submissions say that in neither of the two written statements which the Plaintiff made to the Police did he assert that the truck was travelling on its incorrect side of the road. The defence also relied on the statement to the Police of the Plaintiff's brother on the 11th of September 1991: "As we were coming up the other vehicle who was travelling on our opposite side towards Samabula".

I take that statement to mean only that when Richard Broadbridge saw the truck it was in a general sense travelling on the side of the road opposite the car towards Samabula or, simply, that the truck was travelling in the opposite direction.

The Defendant admitted giving false evidence about his previous driving record while in the army. It emerged that he had been charged with a number of traffic offences while in the army so that when it comes to the question of credibility as to how the accident occurred I accept the version given by the Plaintiff's brother Richard Broadbridge. I do not consider speed contributed to this accident but that it was caused, as the Plaintiff alleges, by the First Defendant cutting the corner.

The defence makes an allegation of contributory negligence against the Plaintiff in that he conceded that he was not wearing a seat belt at the time of the collision. This is incorrect. What the Plaintiff said was that he could not remember. He also said that if the First Defendant was to say that he was not wearing a seat belt he could not dispute that. To my mind there is nothing strange in that; if he could not remember, of course he could not dispute the assertion. Moreover there is no evidence that the First Defendant ever said any such thing. I therefore reject this submission.

Finally, there was an allegation by the defence that there was alcohol in the Plaintiff's blood for a period after he had drunk a glass of beer about one and a half hours before the collision and that, and only by implication because it was not alleged specifically, that the Plaintiff's consumption of alcohol had contributed to the accident I have no hesitation in rejecting any inference that alcohol contributed to the accident. The defence here is indulging in mere speculation. For these reasons I find the First Defendant was negligent and there was no contributory negligence by the Plaintiff.

Following the accident the Plaintiff was admitted to the CWM Hospital where he was examined by the hospital's medical staff on duty and x-ray photographs were taken. Initially the Plaintiff's injuries were not considered serious and it was suggested that he return home. Fortunately it was soon realised that the Plaintiff had suffered injuries requiring his admission to the hospital. He stated that he remembered the clothes being cut from his body, being in extreme pain and pleading for something to ease the pain in his hip which had swollen to a grotesque proportion which seemed to him to be perhaps twice its ordinary size. The pain was staggering and unceasing. He does not remember things in detail from that point on except for lying outside the emergency operation unit until he came round on a bed in traction in the casualty ward. He was put in a plaster cast from chest to leg and kept at the hospital for some two months during which he said he suffered excruciating pain.

On the 20th of April he was diagnosed as having a closed fracture of the right ulna or forearm bone and a fractured bone in the right acetabulum. For this he was placed in traction.

Mr. Eddie McCaig, an Orthopaedic Surgeon who saw the Plaintiff for the first time on the 28th of May 1991 said that this would have been the standard treatment for someone who the hospital thought had suffered a fracture of the hip joint. It was not until Mr. McCaig examined the Plaintiff that he was diagnosed as having a dislocated right hip.

"I was in frightful pain right from the outset I frequently disturbed the whole ward by screaming in pain. It was an experience of unutterable horror. I know now that the pain was being caused as a result of the use of the traction device on a hip that could not click back into place because the acetabulum was shattered. There was no solid socket in which the ball on my right thigh bone (femur) could re-engage.

I remained in traction for more than three weeks during most of which time the pain I suffered was almost unbearable. The hospital had still not detected the extent of the damage to my hip and was treating me as though I suffered only a dislocation. The situation was not improved by an incident concerning the traction device. There was a pin through my leg immediately below the knee, which was roped from both sides over a pulley below which a weight applied the traction. One evening the rope broke, the weight fell and the muscles of my upper leg contracted and drove the femur back into the shattered socket the pain was staggering. The staff simply came back and reattached a new or better rope and re-engaged the traction system. I was in severe pain during the whole of that period but shortly after the traction was re-engaged the pain re-established itself at an unbearable intensity. I was screaming in pain.

At no stage was free of severe pain but on many and lengthy occasions it became excruciating. I did not know what the real problem was. All I was told was that I had a dislocated hip. I had been telling the staff all along and my family had been complaining all along that I had medical assurance and that I should be taken abroad to facilities better able to deal with my problem but the hospital insisted that it could deal with it Doctor Wilson in particular said all along that it was a just a dislocated hip. I knew of the reputation of Eddie McCaig. A nun who used to come and visit me at hospital had told me that his was the advice I needed and I asked for that advice continuously but was told that at that stage he was on annual leave and was uncontactable.

After something like three and a half weeks of traction Dr. Wilson, the Consultant who saw me continuously, said that I could be taken out of traction. He said he was going to remove the pin. I asked him if he was going to use a local anesthetic. He said that was not necessary and proceeded to knock the pin out of my leg. The pain was excruciating. I complained at the pain of his first attempts to remove the pin and as a result he applied some local anesthetic but still proceeded to knock it out without giving the local anesthetic time to work. The pain was blinding. I have lived as most boys do in Fiji and have had my share of accidents. I know that my ability to bear pain is at least up to average. Although I am nowadays in a state of low to moderate intensity pain the recollection of my time in CWM still gives me horrors.

After the pin was out I stayed in the men's paying ward. Once the traction was removed I was able to get out of bed and attempt to move around on crutches. On the first occasion I did that I detected that my right leg was significantly shorter than my left. I reported this to Doctor Wilson and asked him why it was shorter. He said that it was a normal occurrence and plenty of people were born with one leg shorter than the other. I told him that my leg had never been shorter in the past. He just passed it off. I was in continuous pain and the debilitating effect of the pain robbed me of the assertiveness to press my case. I now know that the leg was shorter because the head of the femur was projecting past or through the acetabuluin - the socket in which it is meant to engage. I was in complete despair."

After being taken out of traction the Plaintiff said he was told he could go home although he was aware of the fact that his right leg was now significantly shorter than his left. He said that by then he was in less pain due to the pain killing drugs administered to him but was also in great despair. By this stage his pain-killing medication had been switched from Pethedine to Fortrell. The Fortrell had a side effect which was that the Plaintiff was able to pass urine only when he was under a shower.

On the day he was to be discharged he happened to meet the Physiotherapist who had been treating him. She gave him some physiotherapy but while doing this noticed that the Plaintiff could not lift his right leg backwards while lying on his stomach because of the pain.

The Physiotherapist said she could still feel the projecting head of the femur and that there was obviously something seriously wrong. She told him that she thought he should be re-admitted and arranged for an x-ray to be taken of his hip. After this the Plaintiff was re-admitted to the ward.

Some two days later Mr. McCaig returned from leave and resumed his rounds at the hospital. He looked at the recent x-rays of his hip and then diagnosed the Plaintiff as having a fracture dislocation of the right hip which had been complicated by partial sciatie nerve palsy. Mr. McCaig suggested to the Plaintiff that he have an operation which would mean keeping him in bed for some weeks if not months and he declined surgery. The treatment would have been relocation of the hip joint after which the Plaintiff would have been placed in traction.

Although the Plaintiff had heard that Mr. McCaig was a very skilled Orthopaedic Surgeon, perhaps not unnaturally he refused to have surgery in the CWM but instead elected to go to New Zealand where he was treated by Mr. Brett L. Krause a Fellow of the Royal Australasian College of Surgeons and a Fellow of the Royal College of Surgeons at Edinburgh in Orthopaedic Surgery.

Before referring to the medical reports tendered by Mr. Krause it is instructive to refer to some of the Nurses Notes during the time the Plaintiff was a patient in the CWM Hospital. Throughout this time there are frequent references to the Plaintiff complaining of pain and being given pain-killing drugs. Thus in the evening of the 23rd of April 1991 a nurse records this:

At 1.15 p.m. on the 24th of April complaining of pain. Reviewed by Dr. Pan.Valium 10 mg given as chartered.

At 1.30 a.m. on the 25th of April again complaining of pain. Patient yelling and moaning away - disturbing the patients. Informed Surgical Intern and later Dr. Pan who ordered some more pain killing drugs.

The entry for 4 a.m. reads: "Patient kept on yelling on and off and screaming away for operating theatre today."

After the Plaintiff had returned from theatre an entry for 10.45 reads: "Patient yelling with pain - re-assured and given Pethedine 50 mg and Phenergan 25 mgs."

There are similar entries which I shall not set out here for much of the Plaintiff's stay in the hospital but the note for what appears to be 10.30 p.m. on the 8th of May is as follows:

"This boy was yelling on top of his voice and pressing the buzzer. Sister Sai went to talk to him and he stopped for a while.

1.30 a.m. - yelling on top of his voice again and disturbing the other patients (a few woke up) so I had to call Dr. Vijendra for sedation. He settled after that."

The reason why I have quoted from the nurses notes is that any one who has been a patient in a hospital, particularly at night, and hears the cries of another patient may well consider how vulnerable and dependent on nursing care he or she is.

The Plaintiff refers to this in paragraph 9 in his statement of the 24th of April 2001.

The Plaintiff chose to go to New Zealand for further treatment with the approval of the Second Defendant through the CWM Hospital and the Ministry of Health. This is established by two letters dated the 29th of May 1991 from the CWM Hospital and 3rd of June 1991 from the Ministry of Health to Alexander Stenhouse Insurance Company Suva with whom the Plaintiff had insurance cover up to $80,000.00. I set out these letters which to my mind amount to an admission by the Second Defendant that the Plaintiff could not be adequately treated in Fiji. First the letter from the CWM Hospital dated 29 May 1991.

The patient is insured by your company. He was involved in a motor vehicle accident on 20/4/91. He suffered a posterior dislocation of the right hip with a fracture of the lip of the acetabuhim. He also had a fracture of the right ulna. This bone has been plated and causing no problems. The right hip will not stay in the acetabulum and he needs major surgery. In this operation there is a 40-50% chance of necrosis of the femoral head and this would have to be replaced by prosthesis. There is not the facilities for this to be done in Fiji and I have advised the patient that in his best interests he should be sent to an Orthopaedic Centre in Auckland. He can use a seat but would have to be accompanied on the aeroplane.

NOTE: Consultant Orthopaedic Surgeon is on Leave.
Replacement by Prosthesis is not done in Fiji.

Mr. Wilson sent a letter of referral to Mr. G. Farr a Consultant Orthopaedic Surgeon in Auckland but instead, for reasons which I have not been told, the Plaintiff went to Mr. Brett L. Krause an Orthopaedic Surgeon in Wellington. On arrival in Wellington the Plaintiff was admitted to Wakefield Hospital where he was seen and later treated by Mr. Krause. He said that he was in severe general pain during the time he was in the hospital up to operation on the 1st of June 1991 having arrived at the hospital on the 9th of June. During this time he was continuously on Morphine injections and regular pain killers.

Mr. Krause's treatment is recorded in detail in a letter he wrote to Dr. Wilson in Suva on 1st of July 1991. Among other things he said that in addition to a shortened internally rotated and adducted right leg with partial sciatic nerve palsy the hip was dislocated. He then says this:

"He was fairly uncomfortable throughout this period and indeed on his transfer over had to stop at Middlemore Hospital for a narcotic injection. He was difficult to manage from the pain relief point of view for the first few days but we resorted to giving him narcotic pain relief interspersed with non-narcotic oral pain relief to keep this to a minimum."

He operated on the Plaintiff on the 18th of June 1991 and describes his findings and the surgery he performed. He then says, significantly in my judgment, this:

"The femoral head was completely dislocated from its normal position and there were large fragments of bone heavily encased in sear tissue around the posterior superior aspect of the acetabulum. These were eventually freed but due to the duration following the injury would not fit anatomically."

The operation took four hours after which he was treated with traction. Later in the letter he says this:

"The prognosis for this hip is extremely poor. One of a number of scenarios are likely to follow and it is entirely likely that further surgery will need to be undertaken. It maybe that the ectopic bone that was noted prior to operation will now go ahead and form in copious amounts, in which case he will lose movement of the hip but this may well function as a very satisfactory arthrodesis and not give him too much in the way of discomfort. Otherwise the hip is sure to go on to avascular necrosis and this will then become painful and require further surgery and this should either be an arthrodesis considering his age, or a total hip replacement. The longevity of a total hip replacement is questionable in somebody of his age who will require normal mobilisation and wish to return to normal activity."

I need only add here that when Mr. Eddie McCaig gave evidence he agreed with Mr. Krause's views.

After a few days of post operative care the Plaintiff was transferred to the Hut Hospital where he was placed in a hip spica or cast for three months. The spica, significantly restricted his movement. It necessitated even the use of a special toilet seat which he was given in the Wakefield Hospital. Mr. Krause anticipated further surgery and saw the Plaintiff again in Fiji in late 1991 in which he discussed the appropriate treatment for the hip with the Plaintiff. These were either an arthrodesis or hip replacement Mr. Krause felt the appropriate treatment was arthrodesis. If the Plaintiff had an arthrodesis it would have frozen his hip in position which would have made it impossible for him to do his job which he was concerned about retaining and perhaps even being able to continue with his flying. For this reason he chose to have an artificial hip inserted and an operation for this was performed by Mr. Krause in the Wakefield Hospital on the 17th of March 1992.

In a letter dated 14th May 1992 from Mr. Krause to Mr. Ian Broadbridge he describes the treatment he gave to the Plaintiff and on page 1 says:

"Unfortunately the dislocation was not diagnosed and when he was referred to me in Wellington some two months later the hip was still dislocated. This presented a very severe situation with the opportunity of complete correction being zero."

This man's x-rays show an alarming fracture dislocation of the hip initially which was openly reduced as mentioned, followed secondarily on the most recent film by a Harris Galante hip replacement with bone graft to the acetabuluin. The x-ray done prior to his most recent consultation reveals that everything remains in order.

While I can appreciate this mans desire to remain as active as possible, he is fully aware of the restrictions that I have placed upon him in terms of physical activity. This is in order to give the artificial hip the best chance of providing good long function and he is also aware of the consequences of loosening of the joint as a complication.

At the conclusion of Mr. McCaig's evidence I asked him two questions to which he responded. I quote from the transcript of the 25th of April 2001:

"JUDGE: Q.: Mr. McCaig, look at 7.1, would you please. You've already mentioned under the heading 'History.' "Unfortunately, the dislocation was not diagnosed." I ask you, in your experience, should it have been?

This evidence convinces me that the Plaintiff was wrongly diagnosed at the CWM Hospital and that the failure to diagnose correctly impaired what chance there was of success in the operation performed by Mr. Krause to reconstruct the acetabulum and relocate the femoral head.

Later during the trial a Mr. Afolabi the Consultant Surgeon at CWM Hospital and Head of its Department of Surgery said in answer to a question from counsel for the Defendants that "lf the diagnosis is incorrect the treatment is incorrect."

"Q.: Do those records disclose, that this patient was about to be discharged some weeks after the accident, with a hip that was still dislocated?

A.: With the record here, there was something like that on the 24th of May, 1991. This patient was to go home that day.

MR. AFOLABI: There is no inference and we can't make out the conclusion from this record. That question cannot be answered from this record before me, from that date the 24 of May."

As to Mr. Afolabi's last answer I regret that I cannot accept his view that there was not any inference that the hospital would have sent the Plaintiff home with a dislocated hip. The evidence satisfies me that but for the fortunate intervention of the Physiotherapist, he would certainly have been sent home on the 24th of May.

In Hotson v East Berkshire Area Health Authority [1988] UKHL 1; (1987) 1 AC 750 Lord Bridge of Harwich said at pp.782G to 783A:

"There is a superficially attractive analogy between the principle applied in such cases as Chaplin v Hicks [1911] UKLawRpKQB 104; (1911) 2 KB 786 (award of damages for breach of contract assessed by reference to the lost chance of securing valuable employment if the contract had been performed) and Kitchen v Royal Air Force Association (1958) 1 WLR 563 (damages for solicitor negligence assessed by reference to the lost chance of prosecuting a successful civil action) and the principle of awarding damages for the lost chance of avoiding personal injury or, in medical negligence cases, for the lost chance of a better medical result which might have been achieved by prompt diagnosis and correct treatment, I think there are formidable difficulties in the way of accepting the analogy. But I do not see this appeal as a suitable occasion for reaching a settled conclusion as to whether the analogy can ever be applied.

As I have said, there was in this case an inescapable issue of causation first to be resolved. But if the Plaintiff had proved on a balance of probabilities that the authority's negligent failure to diagnose and treat his injury promptly had materially contributed to the development of a vascular necrosis, I know of no principle of English law which would have entitled the authority to a discount from the full measure of damage to reflect the chance that, even given prompt treatment, a vascular necrosis might well still have developed. The decisions of this House in Bonnington Castings Ltd. v Wardlaw [1956] UKHL 1; (1956) AC 613 and McGhee v National Coal Board [1972] UKHL 7; (1973) 1 WLR 1 give no support to such a view."

"Once liability is established, on the balance of probabilities, the loss which the Plaintiff has sustained is payable in full. It is not discounted by reducing his claim by the extent to which he has failed to prove his case with 100 per cent certainty."

I respectfully adopt these passages and, apply them to the facts of this case and hold that the Second Defendant was negligent in its treatment of the Plaintiff and thus aggravated or failed to treat properly the injuries which he had received in the accident.

The defence submits in paragraph 51 of its written submission that it was the combined effect of four elements which has left the Plaintiff with his residual disability. The first, it says, was the Plaintiff's interference with his traction in hospital. The Plaintiff denied this and all the defence did to attempt to prove it was to point to some brief notes which I have already quoted from the nurses' notes referring to it among a mass of other entries in these notes recording the Plaintiff's insufferable pain in a patient described by Mr. McCaig as Astoical. An undated note which appears to be 2815/91 with the initials J.W. which I take to be Dr. Wilson says:

Dr. Wilson was in charge of the Plaintiff yet failed to notice a hip dislocation so obvious that it was apparent to the Physiotherapist who approved the Plaintiff's discharge from the hospital. I find there is no merit in this submission. The second element claimed to constitute contributory negligence is the rejection by the Plaintiff of the offer made by Mr. McCaig to perform surgery at the end of May 1991. The other two are:

"The detailed operation carried out at the Plaintiff's insistence in New Zealand in June 1991 and the Plaintiffs decision to undergo a hip replacement procedure in New Zealand in March 1992 against medical advice."

I consider this submission and these allegations are most unfair to the Plaintiff because he asserted and Mr. McCaig acknowledged, that he elected to have the hip replacement to preserve the chance of fulfilling his ambition to become a jet Pilot - and to thereby minimise his damage should the hip replacement operation happen to have been successful. In my opinion the Plaintiff's decision to have a hip replacement was not unreasonable in the circumstances.

As long ago as 1880 Lord Blackburn said in Livingstone v Raw Yards Coal Co. (1885) App. Cas 25, 39 quoted with approval by Lord Scarman in Lim Poh Choo v Camden and Islington Area Health Authority [1979] UKHL 1; (1980) AC 174 at 187:

"Compensation should as nearly as possible put the party who has suffered in the same position as he would have been in if he had not sustained the wrong."

It has since been approved in numerous other cases since 1980. In British Transport Commission v Gourley [1955] UKHL 4; (1955) 3 All ER 796 at p.808C Lord Reid said:

"A successful Plaintiff is entitled to have awarded to him such a sum as will, so far as possible, make good to him the financial loss which he has suffered, and will probably suffer, as a result of the wrong done to him for which the Defendant is responsible."

Damages are assessed once and for all as compensation not only for what has already been lost but for loss which may develop at a future date. As used to be said frequently by counsel when addressing civil juries in claims for damages in the Courts of Victoria when I was in practice there, 'The Plaintiff cannot have two bites at the cherry' - a perhaps colorful but nevertheless accurate way of stating the principle of law applicable to such claims.

"The loss which he has suffered between the date of the accident and the date of the trial may be certain, but his prospective loss is not. Yet damages must be assessed as a lump sum once and for all, not only in respect of loss accrued before the trial but also in respect of prospective loss. Such damages can only be an estimate, often a very rough estimate, of the present value of his prospective loss."

"The approach to the basic calculation of the lump sum has been explained in many cases, but never better than by Stephen J in the High Court of Australia in Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402, 427 et seq."

"The law entitles these Plaintiffs to compensation for their losses and outgoings. In Barrell (73) I cited those authorities which, more than a hundred years ago, established and have ever since affirmed the cardinal principle of such compensation: that a Plaintiff is entitled to such compensation as will, as nearly as may be, make good the financial loss which he has suffered and will probably suffer in the future. Once liability has been established and the facts relevant to damages have been found it is then for the courts to give effect to that principle in their assessment of damages for economic loss. While there may be no one exclusive method of assessment appropriate to every circumstance, there is but one criterion by which the adequacy of any particular method may be judged; it is whether or not the result of the assessment fairly makes good the financial loss incurred.

The law, by insisting upon this principle, has established the proper measure of compensation for pecuniary loss; the actual process of assessment can then only be matter for reasoned estimation and computation. Rules and practices develop in the process of assessment and no doubt tend, by their judicial adoption in a legal system governed by precedent, to become current orthodoxy. But since the medium of compensation is money, whose purchasing power and income-yielding qualities may change over time, a particular process of assessment, attuned to a particular state of the medium, may come to be no longer appropriate. It follows that, since the sole function of the process of assessment is to attain what the law has fixed as the proper measure of compensation, there can be no place in the process for fixed rules of law; instead the process must be capable of adjustment in the face of changes in the quality of the medium of compensation. The current acceptability at any time of a process of assessment will depend, and depend only, upon whether or not its outcome fairly corresponds to what the law has set as the proper measure of compensation."

Under this heading I heard evidence by the Plaintiff, his brother Richard, Professor of Psychology Keith Petrie, Air Safety Controller, Steve Tizzard, Fiji Airlines Pilots Association Vice President Captain Nitin Hiralal and Air Fiji Manager of Operations and Technical Services Francis Christofferson. All these witnesses stated in one form or another that but for the accident in which the Plaintiff was injured on the morning of Saturday 20th April 1991 the Plaintiff would have gained a Commercial Pilots Licence by the time he was 25 in September 1993 and have been a First Officer on Air Pacific Passenger Jets by the beginning of 1996. I find this evidence both comprehensive and compelling. It is worth quoting the Plaintiff's Supplementary Statement (Exhibit P5) dated 24th April 2001 which he adopted when giving evidence. It reads thus:

1. I would have had my commercial licence by the time I was 25 on 11 September 1993. After two years as a domestic pilot with Air Fiji I would have made Boeing 737 First Officer with Air Pacific by the beginning of 1996 at a starting salary of $40,662.00, FNPF of 12% of my salary paid by Air Pacific, and tax-free allowances of$ 1,000.00 a month.

3. In 1998 I qualified in Gas Turbine Engines and I have been waiting since then to get the chance of taking the course to become an 'Approval Holder' on 737s. This is referred to as 'Group 2 Certification.' I am about to do that course which will leave me bonded to Air Pacific in the sum of $26,000.00.

4. I expect to have that approval by the end of the year. I expect to pass the course, but the granting of the approval is actually a business decision of Air Pacific.

6. There is then, left only 'Group 3 Certification' which would result, subject to Air Pacific's granting me the approval, in my becoming an 'Approval Holder' for 737s and 747s and would take my salary to $46,000.00. I planned to achieve that by the end of 2007."

Captain Hiralal in his evidence tendered a Schedule to his statement of the 26th of April 2001 of what he believed to be the probable career path and earnings of a Fiji born Pilot of ability equal to the average entrant, entering service with Air Pacific at the beginning of 1996 at an age of 27 years. He emphasised that Pilots who started with Air Pacific in 1996 have actually risen faster and earned more than is projected in his Schedule 'NH1.' That Schedule shows that by 2029 when the Plaintiff would have turned 60, the current retiring age, as Captain of a Boeing 767 aircraft he could expect to be earning $136,736 per year. He reiterated this under cross-examination but also stated that the reason why his Schedule stopped at the Captain of 767 aircraft was because of the current economic situation affecting Air Pacific. He said: "At the moment we have enough Captains for the 747 and the 767, but should we go back to the second aircraft option, we would need Pilots again."

Here the witness was referring to the fact that because of world economic downturn Air Pacific had to return one of its two Boeing 747 aircraft to Australia. I may be permitted here a judicial guess that the terrorist bombings in New York in September have now aggravated the current situation but history shows that eventually economies recover. However in calculating the Plaintiff's damages for future economic loss I can only rely on the estimated salary of 767 Pilot from 1996 till 2029. Significantly in my view Captain Hiralal was unchallenged on his Schedule and because of his personal experience and his position as Vice President of the Pilots Association I regard him as a person in a position to swear to this information.

The defence attempted to discredit aspects of Captain Hiralal's evidence by cross-examination insinuating that, were it true, there would be a much greater number of persons seeking entry to the profession. The Plaintiff makes two responses to that. The first relates to cost. He testified that the cost of his flying time alone to date was $6,000.00 which is several years' income for the great majority of Fiji's population. The second is its implication that professional flying is little more than a matter of form. I regard that insinuation as impertinent as I have no doubt anybody who has endured a turbulent flight and landed safely would agree. Captain Steve Tizzard had an extremely high opinion of the Plaintiff's natural ability as a Pilot having flown solo after 8 hours when the normal period is 20.

Captain Tizzard is currently the Controller Air Safety of the Civil Aviation Authority of the Fiji Islands.

Before coming to the last part of this judgment in which I shall calculate the damages which I am satisfied the Plaintiff should receive, I must touch briefly on the evidence of Professor Keith Petrie whom I mentioned earlier and Doctor I.R. Bakani a Suva Physician and Cardiologist which concerns the probable inability of the Plaintiff ever to qualify as a Jet Pilot.

Professor Petrie is the Professor in the Faculty of Medicine and Health Science at the University of Auckland, New Zealand and I-lead of the Department of Health Psychology. He has been employed as a Consultant by International Flight Operations at Air New Zealand for the past 12 years and has assessed all of the Pilots who have been interviewed for employment over that period. He estimated that he had made close to 250 Pilot Assessments for Air New Zealand in that time. He made an assessment of the Plaintiff's potential to be a Commercial Pilot and he summarised his conclusions as follows:

"Mr. Broadbridge is a 29 year old man who suffered extensive right hip injuries following a motor vehicle accident in April 1991. These injuries would preclude him from now pursuing a career in commercial aviation. He developed an interest in flying from an early age and obtained his Private Pilots Licence. He has been employed in the aviation industry working as an Aircraft Engineer in Fiji. He states he had plans to become a commercial pilot and had made some movement towards starting a commercial licence.

From this psychological assessment and my experience I conclude he would have had an excellent chance of both completing this training and being hired by a commercial airline. I base this on four factors; firstly, he has the innate intelligence to cope and complete the commercial pilot course and the necessary examinations. Secondly, he has a demonstrated interest in flying and seems to have considerable natural ability in this area. Thirdly, his personality is stable and similar in make-up to other commercial pilots. Finally, other aspects of his personality and behavior would make him an attractive crew member. He has a pleasant and friendly manner and would work well in a team environment. He intends to stick at problems and is well organised. These attributes would also make him likely to be attractive to a commercial airline."

In cross-examination he was asked about the Plaintiff's education and whether this would be sufficient to qualify him for a position with an International Airline. He replied,

"In terms of the airline to which the Plaintiff would be applying he would meet the basic education standard. In the Plaintiff's case I would be looking at his potential and he certainly has that - that is to pass his exams and do the training necessary for him to qualify He then said that he knew the Plaintiff's education standard and then said, which I consider is very relevant to this case, 'Education qualifications are generally unimportant We only take Pilots who have been flying for lower level airlines for some years."

Finally in this area I mention briefly the evidence of Doctor Bakani who prepared a report on the Plaintiff's potential as a Commercial Airlines Pilot Doctor Bakani testified that he is a Specialist in Aviation Medicine and is a designated Medical Examiner for the Civil Aviation Authority of Fiji, the Australasian Civil Aviation Authority the New Zealand Civil Aviation Authority and the Canadian Civil Aviation Authority. Knowing the Plaintiff's medical history following the accident on the requirements for both a Senior Commercial Pilot Licence and the highest licence obtainable, an Airline Transport Pilots Licence, he was of an opinion that the Plaintiff is physically unfit to meet the requirements of Class I Air Crew medical standard of the Civil Aviation Authority of Fiji Before preparing his report he examined the Plaintiff on the 24th of November 1998 and said the he did not know of any commercial pilots flying with a dislocated hip. Likewise he said in cross-examination that he did not know of anybody who has obtained a commercial Pilot's licence with a replacement hip and that in his 25 years as a designated medical examiner in Fiji he had not passed any one as suitable for a commercial licenced Pilot who had a replacement hip.

I come now to the last part of this judgment and deal with the general damages, the Plaintiff's future expenses and my estimate of loss of future earnings. Here the evidence of Captain Hiralal must be read in conjunction with that of Bruce Geoffrey Sutton who is a Chartered Accountant and a Partner in the international Accounting Firm KPMG. Mr. Sutton graduated Bachelor of Commerce from the University of New South Wales in 1975. He worked for Peat Marwick & Mitchell (KPMG's original name) in Sydney until 1981 and in Fiji from then until 1985 when he returned to Sydney. He came back to Fiji in 1990 and has practised here since. He is a Fellow of the Institute of Chartered Accountants of Australia, and holds a Graduate Diploma in Applied Finance and investment from the Securities institute of Australia of which he is also an Associate. Mr. Sutton had before him for the purpose of giving evidence and making a report Captain Hiralai's estimate of the Plaintiff's projected promotions and earnings of the had qualified as a Jet Pilot with Air Pacific in 1996.

(1) Tax and Inflation Effects for nineteen years from January 1982 on a dollar invested in Fiji Government Stock.

(3) Selected Interest Rates in Fiji from 1975 to 1995 of the Reserve Bank of Fiji Minimum Lending Rate, Commercial Banks' Lending Rate, One Year Deposit Rates, Saving Deposit Rates and Average Government Bon Rates for Five Years.

(4) Money and Capital Market Interest Rates and Yields from 1992 to November 2000 which were obtained from the Reserve Bank of Fiji.

(5) Successive Values of a Dollar Discounted at Various Rates from 2% to 3.5% for a period of 34 years.

In Table 1 of the above Mr. Sutton prepared 18 different headings and estimates for the 19 years from 1981 until 2000 showing the following:

Based on these Tables and the information available to him he concluded that today's dollar is only a third of the value of a 1979 dollar, He said that unless the after-tax return on a year's investment exceeds the year's percentage inflation, an investor has in truth made nothing - notwithstanding how high maybe be the nominal return on his investment. In his Column 5 dealing with Nominal Yield of Average Government Bond Rate he said that he chose Government Stock as the investment medium because those whose disabilities condemn them to absolute reliance on investment income in Fiji could not safely invest in anything but Government Stock. He said that since 1995, no average rates have been published and he has used instead for the years since then the highest yields disclosed by Table 2 of the Reserve Bank's Quarterly Review of December 2000.

In arriving at the After-tax Yields he had listed in Column 6 he assumed the investor to have an income high enough from other sources to bring all his investment income into the top marginal tax rate now applicable which is 34%.

The last column, Column 8 shows what happens to those original 100 cents year by year in inflation, adjusted after-tax terms. He said it demonstrates that invested in Government Stock at the rates available the value of the invested fund, even after paying tax on the yearly income, more than kept pace with inflation over most of the period and was clearly ahead at the end - there having been, on the official CPI figures, a succession of years of low inflation.

On these figures such an investment would now be worth in real terms 16% more than it was when invested.

But, as he said, there was not much in it, and had an original award been reduced by only something in the order of 14 cents in the dollar- which would be produced by discounting by less than 1% p.a. over the 19 year term- the final result would have fallen behind the rate of inflation and a person relying on it would have suffered a reduction in living standards.

Mr. Sutton emphasised that his overall calculations were not presented as precise. They were intended to be a representation or a picture. He said dealing with Column 5, the nominal Yield of Average Government Bond Percentage Rates, that this was, of necessity, arbitrary, there being no way in which one can fairly demonstrate a safe return that might be available on any given investment opportunities. He said the only way to do it is to assume that it is physically possible to continuously invest at the published 'Average Government Rates' and to assume those changing Rates to apply to the investment.

This calls into consideration and reviewing the discount incorporated in all multipliers used in Fiji which has historically been substantially in excess of that figure I seem to recall in one of my own judgments which has temporarily eluded me making a discount of 10% although I think the usual rate based on decisions of the Courts here was of the order of 8%. In times of prosperity and order when interest rates were relatively high such discounts were probably for the last 6-7 years at least. That being so it would seem fairly clear that Plaintiffs who suffered those discounts have been dealt a real injustice - particularly when, as has almost invariably been the case, no evidence at all was presented that it would comprise over-compensation to award them the current dollar amount of their proven future loss.

But it seems also to have been a fact - I cannot recall having received any submissions on this from either Plaintiffs or Defendants in any of the claims for damages in personal injuries which I have heard. Nor, reading the judgments of my colleagues on the bench and those of the Court of Appeal does it seem that any such submissions were ever made.

Again, contrary to the practice of the Courts in England, Australia and New Zealand, being those with whose decisions I am familiar over the years since I began practice, actuarial figures have never been tendered in evidence before Courts here. This may be because when the Courts in England and Australia began to accept evidence of actuaries, it would seem in the mid 1960s, many judges of great eminence disputed their value as evidence. Thus in Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649 at 660 Barwick C.J. said:

"The use of the present value of future regular payments, in my view, is more likely to divert the mind from the elements which should go to affect the judgment of the proper sum than to assist the assessment of the fair compensation to be awarded."

"I have elsewhere referred to the unwisdorn of using actuarial tables to compute or calculate an award for damages."

Diplock L.J. said in Flectcher v Autocar and Transporters Ltd. (1968) 2 QB 322 at 346:

"There is no magic about the actuarial calculation. It is based upon assumptions, each of which is treated as a certainty."

Interestingly also Edmund Davies L J commented in Mitchell v Mulholland (No. 2) (1972) 1 QB 65 at 77:

"For these reasons I am not persuaded that the actuarial method has any advantages over the conventional approach. On the contrary, I think that it may ensnare one into treating as virtual certainties what in truth are mere chances."

Since those days however the attitude of the Courts changed so that in Todorovic and Another v Waller [1981] HCA 72; (1981) 150 CLR 402 at 414 dealing with discounting to which I shall come shortly, Gibbs C.J. and Wilson J. said:

"Different methods of discounting are used in different parts of the world, but they are of course intended to achieve the same result. The method that has been adopted in countless cases in Australia is to use tables, prepared by actuaries, which show the present value of a given amount, (e.g. a dollar) of income receivable periodically over a given number of years."

"Actuarial tables will show the average number of years which will be lived after a certain age by those alive at that age, but will not show that it is probable that the Plaintiff, even if in good health, would have conformed to the average. No evidence can possibly indicate whether the Plaintiff, had he not been injured, would have remained in good health, and continued to be employed at any particular rate of earnings."

In the end the process must always be one of judgment rather than calculation but I venture to say that the use of actuarial tables in my experience can be of much assistance to a Court in arriving at the proper estimate of damages. I shall return to this subject shortly in another context but now turn to the decision of the House of Lords in Wells v Wells, one of a trio of cases concerning the amount by which a lump sum award should be discounted.

Any judge who has had to hear claims for damages for personal injuries will agree that the problem these cases raise is notoriously difficult in that one can never be positive about the expenses and losses which a Plaintiff will incur, sometimes, well into the future.

That problem has now been substantially resolved in the United Kingdom as a result of the availability of 'Index-Linked Government Stock', which, as its name indicates, is stock that pays on maturity a sum then equal to the 'indexed' value of the original par (or face) value.

It was said in Wells v Wells that until the 1990s at least a capital sum awarded if invested in Index-Linked Government Securities would produce an annual net return on capital of 2.5 to 3%. Such a calculation resulted in a significantly greater lump sum payment than would have been produced if it had been made on the conventional basis of an annual return of 4 to 5% that a prudent investor could in England obtain from a mixture of equities and gilts.

In 1980 when Todorovic was decided the High Court referred to the fact that in the various States of Australia until the High Court gave its judgment interest rates were high so that the Courts began to use higher discount rates varying from State to State from 6 to 9% in Victoria down to 5 to 6% in South Australia. The reason for such discounts was that the Courts considered it would be reasonable for a successful Plaintiff to invest the lump sum he received in damages in at least some equity stocks: that to do otherwise would be unfair to Defendants Thus in Brown v Alyta (1970) 44 ALJR 341 at p.344 Barwick C.J. said:

"Whilst of course it is useful when finding out the present value of a sum paid weekly with unremitting regularity over a span of years to resort to tables which calculate that value on the basis of an interest rate of six per cent, it is to my mind quite unrealistic and grossly unfair to a Defendant to award damages on the footing that a Plaintiff could not with security obtain more than six per cent by the use of the money awarded to him by way of damages."

Gradually however and in the decade following Brown v Alyta it was recognised by the High Court of Australia that such discounting was unfair to a successful Plaintiff and the position had to be rectified. This was done in Todorovic when the majority of the Court directed that a discounting rate of 3% in all cases was to be applied to awards of damages throughout Australia. That might be said to have been remarkable judicial anticipation because such a position was not reached in England until Wells v Wells nearly 20 years later. Indeed Stephen J. whose judgment was praised highly by Lord Lloyd in Wells and Murphy J. said that no discount at all should be made His Honour said at p. 434:

"lf anything, economic history would rather point to a 'negative' discount as necessary to ensure that the award of damages will provide the equivalent of the future lost earnings."

The decision in Wells v Wells had been referred to Mr. Sutton by the Plaintiff's solicitors and before continuing with Mr. Sutton's evidence on this aspect I must refer to some comments of Lord Lloyd with which the other members of the House agreed in refuting a long line of cases in which it had been held that a Plaintiff was not entitled to be protected against inflation. Thus Lord Scarman in Lim Poh Choo at p.194 said that to attempt to protect successful Plaintiff's against inflation

"would be to put them into a privileged position at the expense of the tortfeasor, and so to impose upon him an excessive burden, which might go far beyond compensation for loss."

"What then did Lord Scarman mean by saying that this would put the Plaintiff in a privileged position in comparison with others who have to rely on capital for their support? Once the lump sum has been calculated and paid, he is in exactly the same position as others, such as those who have saved or inherited a lump sum. But in calculating the sum his position is in no way comparable. For the Plaintiff is entitled to be protected against future inflation at the expense of the tortfeasor; otherwise he does not receive full compensation. The others are not so entitled. It is only in that sense that the Plaintiff is in a privileged position. I cannot for my part see anything unjust in requiring the Defendant to compensate the Plaintiff in full, however burdensome that may prove."

But Lord Lloyd then added that Lord Scarman had recognised this himself when he said at p.187:

"There is no room here for considering the consequences of a high award upon the wrongdoer or those who finance him. And, if there were room for any such consideration, upon what principle, or by what criterion, is the judge to determine the extent to which he is to diminish upon this ground the compensation payable?"

The importance of both the decisions in Wells v Wells and Todorovic v Waller is that the Courts would not accept that an injured Plaintiff was in a similar position to that of the ordinary investor. Lord Lloyd said at p.335:

"The Plaintiffs are not in the same happy position. They are not 'ordinary investors' in the sense that they can wait for long-term recovery remembering that it was not until 1989 that equity prices regained their old pre- 1972 level in real terms. For they need the income, and a portion of their capital, every year to meet their current cost of care."

"... there is a major structural flaw in the present system. It is the inflexibility of the lump sum system which requires an assessment of damages once and for all of future pecuniary losses."

There is no ILGS available in Fiji and so, recognizing this, Mr. Sutton stated what he considered was the Fiji equivalent for the years 1982 to 2000. In Column 7 of his table he deducts from the after-tax yields the percentage change in CPI recorded in Column 4. As at 2000 that is approximately 2.8% being CPI and tax adjusted yield 3.89% minus percentage change of 1.09 giving 2.80.

In his Supplementary Statement of the 26th of April 2001 Mr. Sutton then applies 2% discount to Captain Hiralal's projected earnings of the Plaintiff from 1996 to 2029 and this gives an amount for loss of future earnings of $1,423,775. I emphasise here that Mr. Sutton's evidence was never challenged in cross-examination and in their submissions the defence state that it is not part of the Defendant's submission that the Plaintiff's life expectancy has been reduced as a result of the injuries.

That in my view is an important concession because usually life expectancy is the major concern when attempting to assess future losses.

In this case the Plaintiff tendered evidence from the Bureau of Census and Statistics which shows that in Fiji both in 1986 and 1996 the average life expectancy of a Fijian male was 42.9 years at the age of 25. Here the Plaintiff does not seek compensation for anything occurring beyond his attaining the age of 60. Captain Hiralal gave evidence of the FALPA Loss of Licence Insurance Scheme 2000/2001 for various covers up to $120,000.00 from the age of 25 to 59 which means attainment of 60. These were in US dollars which is the currency used and amount to $40,354.00 equivalent in Fiji at the moment to approximately $81,000.00. He pointed out that only in the last 4 years group 56-59 years are the premiums reduced for those years by thousands of US dollars. These figures have not been discounted to their present value so that I consider it reasonable to allow the amount of F$80,000.00 for these potential premiums.

In Wells v Wells the House of Lords also approved actuarial evidence as the primary method of assessing of future pecuniary loss. At p.347D Lord Lloyd with whom the other members of the House agreed said:

"The explanation for the different approach of the House in Hunt v Severs may be a continuing hesitation to embrace the actuarial tables. I do not suggest that the judge should be a slave to the tables. There may well be special factors in particular cases. But the tables should now be regarded as the starting-point, rather than a check. A judge should be slow to depart from the relevant actuarial multiplier on impressionistic grounds, or by reference to 'a spread of multipliers in comparable cases' especially when the multipliers were fixed before actuarial tables were widely used. This may be the explanation for the relatively low multiplier chosen by the House in Lim Poh Choo's case."

Whilst I realise that there is normally uncertainty as to the estimation of future earnings, in this case I find no such uncertainty. I am satisfied on the evidence that but for his accident the Plaintiff would have achieved his ambition to be a Pilot in Air Pacific and, that in the normal course of events, he would have at least earned the income predicted by Captain Hiralal by the age of 60. I therefore accept this amount as the Plaintiff's loss of future earnings.

There is no doubt that as a result first of the accident on the 20th of April 1991 and then the Plaintiff's enforced stay in hospital and surgery with all the physical pain and stress which that entailed he continues to suffer pain and will, it seems do so for the rest of his life I regard the amount of $75,000.00 as adequate under this heading. I considered awarding $80,000.00 but in view of the fact that the Plaintiff in his submission suggests the amount of $75,000.00 I am content to award that sum.

The Plaintiff gave evidence that medical and x-ray expenses and shoe and clothing adjustments cost him no less than an amount of $400.00 a year. He was not challenged. He did not claim special damages so that his entitlement from his present age of 32 to the age of 60 is $11,200.00. He will need at least three hip replacement operations during that period. Mr. McCaig said their current cost was more like $30,000.00 than $20,000.00. So arriving at the medium amount I award $75,000.00 for such expenses. If all the future expenses are taken together they amount to $86,200.00 and spread over 28 years until the Plaintiff turns 60 the yearly average is $3,078.00. In this situation it is necessary to apply the multiplicand and multiplier system and accepting that sum as the multiplicand the question is what multiplier should be applied. Here I turn to Kemp & Kemp - The Quantum of Damages, Vol. 1. In Chapter 8 of this well known authority, said by Lord Edmund Davies in his Foreword to the 4th Edition 1974 to be 'admirable and indispensable', there are various actuarial tables and calculations set out. There were prepared by the English Government Actuary's Department and set out the basic deduction to be made for contingencies other than mortality. For these the multiplier given is reduced. The principal contingencies which need to be taken into account are unemployment and illness. In paragraph 8 - 05 Table 5 lists the multiplier for I loss of earnings to pension age 60 for males, and for age at the date of trial with a rate of interest at 2% the multiplier is 20.8. Allowing the basic deduction for contingencies other than mortality at page 8024 paragraph 8-03 the medium reduction for ages 30 is 0.97 and 35 0.96. I reduce this to a round figure of 1% and consequently reduce the multiplier in table 5 for ease of arithmetic to 20.

This then gives an amount to $61, 560.00 for future expenses.
The total award therefore excluding interest on judgment consists of the following amounts:

Pain, suffering and loss of amenities of life		$ 75, 000.00
Future expenses		61,560.00
Loss of future earnings	$1,423,775.00
Less allowance for contingencies	80,000.00
		1,343,775.00
		$1,480,335.00

As to interest on judgment I accept the submission of the Defendants that, as found by Shameem J. in her decision of the 23rd of June 1999 the Plaintiff was guilty of inordinate and inexcusable delay in bringing this action to trial but, as Shameem J. found also such delay has not prejudiced the Defendants.

Accordingly I shall assess interest from the 9th of July 1998 in accordance with Shameem J's finding on page 4 of her decision that the delay in bringing this action to trial between the 22nd of April 1993 and the 9th of July 1998 must be attributed to the Plaintiff. There will therefore be interest at the rate of 5% on the amount of judgment from 9th of July 1998 to the date of judgment - 3¼ years at a rate of 5% = $1,480,335.00 + $240,554.43 = $1,720,889.43 for which latter amount I enter Judgment for the Plaintiff against the Defendants.

In addition I order the Defendants to pay the Plaintiff's costs which I fix at $3,000.00.

Fiji Law Reports

Broadbridge v Maka [2001] FJLawRp 97; [2001] 1 FLR 389 (7 November 2001)