IN THE HIGH COURT OF FIJIAT SUVACIVIL JURISDICTION

Civil Action No. 88 of 2009

BETWEEN : SEMI VOLITI by his next of friend and guardianLITIA VINAKA of Waiqele, Labasa, Domestic Duties.

Plaintiff

AND : THE PERMANENT SECRETARY FOR HEALTH of Suva

1st Defendant

AND : THE ATTORNEY GENERAL OF FIJI

2nd Defendant

Appearance :Mr A Sen of Maqbool and CompanyMr A Pratap with Ms S Ali of the Attorney General’s

Chambers

Date of Judgment: 25th April 2014

JUDGMENT1

1. Writ of Summons was filed with the Statement of Claim by thePlaintiff through his next friend and guardian Litia Vinakaagainst the Defendants and claimed the following reliefs:

i) Special damages in the sum of $2,500.00;

ii) General damages;

iii) Interest under the Law Reform (Miscellaneous Provisions) Act;

iv) Costs of this action;

v) Such other and further reliefs as this court may deem just andexpedient.

2. As stated in the Statement of Claim:

2.1 The Plaintiff was born on 13th December 1988.

2.2 It was stated that all material time, the Plaintiff was apatient at Korovou Hospital and subsequently at CWMHospital.

2.3 The 1st Defendant is the Permanent Secretary for Ministryof Health who is responsible for administration ofvarious other hospitals.

2.4 The 2nd Defendant added under Crown Proceedings Act.

2.5 On 20th October 2007, the Plaintiff was a patient ofKorovou Hospital admitted for an injury to right arm andit was not properly diagnosed, allowing infection to theinjury to develop and the Plaintiff’s condition wasdeteriorated beyond treatment and he was subsequentlytransferred to CWM Hospital where Plaintiff’s right armwas amputated.

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2.6 Due to the negligence of the servants/the agents of theDefendants, the Plaintiff underwent great pain andsufferings, his injuries were greatly aggravated andfurther injuries were suffered by the Plaintiff.Particulars of the injuries and particulars of thepermanent disability were assessed at 70% loss of rightarm at elbow level. Hospital staff at Korovou andsubsequently at CWM Hospital negligently did not treatthe Plaintiff negligently and unsuccessfully.

2.7 Particulars of negligence were detailed in paragraph 11sub paragraph (a) to (k).

2.8 The Plaintiff’s condition was reviewed on severaloccasions and continues to attend clinics and as detailedin the preceding paragraphs the Plaintiff suffered lossand damages and claimed $2,500 as Special Damages fortravelling and medication.

2.9 By reasons of the said injuries aforesaid, the Plaintiffsuffered socially, psychologically, distress with pain,limitation in mobility and negative effect on socialwell-being and his education has been affected andclaimed the relies stated in paragraph 1 of thisJudgment.

3. The Defendants in their Statement of Defence stated:

3.1 The Defendant admitted the Plaintiff’s age, inter alia,that the Plaintiff was a patient at Korovou and CWMHospitals.

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3.2 The Defendants also admitted that they owed duty of careto the Plaintiff but did not admit as to the scope orcontent on the said duty.

3.3 It was admitted that the 1st Defendant employs theemployees are Korovou and CWM Hospitals but denied theemployees were negligent and as such denied the variousliability of the Defendants.

3.4 Further it was stated whilst denying the paragraphs 6, 7and 8 of the Statement of Claim and the Plaintiff wasproperly treated and placed the Plaintiff on strict proofof the allegations.

3.5 The Defendant also stated there was no injury suffered bythe Plaintiff any injury due to the negligence of thePlaintiff.

3.6 The Defendants have further put the Plaintiff to strictproof of all the allegations and further stated that thePlaintiff’s injury was caused or contributed by his ownnegligence.

4. The Minutes of the Pre-Trial Conference, made the followingfacts were agreed in addition to the admissions in theStatement of Defence.

1. On 20th October 2007, the Plaintiff sustained a laceration on theright forearm after he punched a glass door. He was a patientat the Korovou Hospital admitted for treatment for injury to hisright hand whereby his right forearm was heavily bandaged.

2. The Plaintiff was later transferred to CWM Hospital and wasobserved with foul smell from the right forearm.

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3. At CWM Hospital it was noted that the Plaintiff had developedcompartment syndrome to his right arm and cyanosis wasnoted.

4. At CWM Hospital wound exploration and decompression ofPlaintiff’s right forearm was done.

5. On 24th October 2007, at CWM Hospital an above elbowamputation was done on Plaintiff’s right arm.

6. The Plaintiff was discharged on 3rd November 2007.

5. This court has to make determination on the followingissues:

5.1 As to whether the Plaintiff’s health condition wasdeteriorated after admission of the Plaintiff at theKorovou Health Centre due to the negligence of theservants/agents of the 1st Defendant?

5.2 As to whether due to the negligence and/or failing toexercise of duty of care by the 1st Defendant’sservants/agents at Korovou Health resulted in theamputation of the Plaintiff’s right forearm?

5.3 As to whether Plaintiff suffered Compartment Syndrome ofdue to the negligence of the servants/agents of the 1st

Defendant?

If the above issues are answered in affirmative:

5.4 As to whether Plaintiff has contributed to his injuriesresulted in Compartment Syndrome?

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5.5 As to whether the Plaintiff is entitled for GeneralDamages for pain and suffering and other enjoyment oflife and the amenities?

This case concerns the vicarious liability of the 1st

Defendant in medical negligence by the Defendantsservants/agents of CWM Hospital and Korovou Hospital: Aspleaded in the Statement of Claim the negligence was detailedas below:

(a) Failing to properly diagnose or treat the Plaintiff of his ailment.

(b) Applying the said processes or one of the other of them to thePlaintiff’s right hand so to cause the injuries hereafter complained of.

(c) Failing to take any or any adequate or protective precautions whenapplying the said processes to ensure that the Plaintiff’s said righthand would not be harmed or injured.

(d) Failing to observe or heed or take any reasonable steps toinvestigate the complaints of the plaintiff as to his condition.

(e) Failing to observe or to act upon or to investigate properly or at allthe steady and serious and obvious, deterioration of the condition ofthe Plaintiff while under the care of the hospital.

(f) Failing to take all reasonable and necessary measures to avoiddamage/injury to Plaintiff’s right hand.

(g) Failing to review and revise diagnoses or to take any steps to havesuch diagnoses reviewed or revised when the condition of thePlaintiff did not improve but deteriorated.

(h) Failure to properly treat the Plaintiff.

(i) Allowing his right hand to be infected.

(j) Allowing infection to occur.6

(k) Making his right hand non-functional.

The Defendants denied negligence and stated 1st Defendant’sservants and agents took all reasonable care and paid dueattention in operation and treatment of the Plaintiff.

6. The above stated issues should be decided only afteranalyzing the evidence adduced in this case.

Evidence

7. On behalf of the Plaintiff, evidence was given by SemiVoliti, Dr. E D Taloga. On behalf of the Defendants,evidence was given by Ms Miriama Vere and Dr Josese Turagava.

7.1 Plaintiff Semi Voliti in his evidence stated interalia:

7.2 He was born on 13th December 1988 and at the time theinjury was caused (20th October 2007) he was a Form 7 studentof Ratu Kadavulevu School (RKS) in Tailevu. He punched awindow glass and lower part of the right arm was injured.He was right handed. The cut was little more than oneinch. Incident happened around 4.00pm on 20th October2007. He was taken to the Korovou Health Centre afterabout 4 hours of the incident. He was attended by adoctor around 6.00pm. His wound was not cleaned and itwas stitched and put a bandage very tightly on the upperarm. The pain he suffered was more when the bandage wasput. He was kept at the Korovou Hospital for one nightand taken to CWM at 6.00pm on the following day.

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7.3. The witness stated after the wound was stitched andtight bandage was put on the upper arm the bandage wasreleased only on the following day around 7.00am atKorovou Medical Centre. His wounded arm had turned intoa purple in color. After releasing the bandage in themorning, once again the same bandage was put and tiedtightly. The Doctor who stitched the arm saw the witnessafter 7.00am on 21st October 2007. The Doctor came andspoke to him and went away. No examination was done andtold the Plaintiff will be transferred to CWM Hospital inthe afternoon and he was suffering severe pain.

7.4 The witness stated he was transferred to CWM Hospital byan ambulance around 7.00pm on 21st October 2007 and waslying in the waiting room until 10.30pm. By 10.30pm thehand was black in color. Until 10.30pm his bandage wasnot released. At 10.30pm the witness was taken to thetheatre before that the bandage was unwrapped andstitches were removed. When the stitches were removedblack blood was sprouting out. He was told they aretaking him to the theatre to wash his wound and he wasunder anesthesia. When he woke up it was 22nd morning andhe was taken back to the ward. Pain was increasing.

7.5 Dr Josese Turagava told him at the theatre his hand willbe amputated. The witness had told the Doctor he cannotallow the hand to be amputated because it is his dominanthand. Doctor further told the witness’s wound wasinfected and to save his life, hand should be amputated.The Plaintiff’s hand was amputated on 24th October 2007.Consent for amputation was given by the witness’s father.Above elbow hand was amputated witness said. When thewitness came to know his hand was amputated, he felt sadand thinking he was crippled forever.

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7.6 After that he was discharged he didn’t go to school (hewas going to RKS in Korovou) after the incident in 2007 andstarted his schooling in 2008 at Labasa. The witnessstated he is still suffering pain. After the amputationhe went back to Labasa for schooling where his parentswere living and normal errands of the day was done withdifficulty without the right hand. He had to go throughmuch hardship to train himself to use his left hand.Form 7 exam he failed in 2008 because he was handicappedand could not attend classes. He had to quit from thesubject of Technical Drawing due to the disability causedby amputation. His ambition to become an AircraftEngineer was shattered.

7.8 Now the witness is following a degree in Bachelor ofScience and losing his right hand was an impediment forthe studies. He was playing rugby and represented theschool team. After amputation he had to stop all that.He cannot assist his parents in farming activities.Before the trial he was examined by Dr Taloga at SuvaPrivate Hospital and obtained a report. The Plaintifftendered the medical report and medical folder marked P1and P2. He had attended 3 clinics at CWM hospital afterhis discharge from the hospital and travelled in hisuncle’s car for clinics. At Labasa he travelled from hisresidence at Nasekula to Labasa Hospital for clinics 2times per month in 2008. It was $4 return trip. If hegets an artificial hand (Prosthesis), it would costaround $50,000.00. Witness also said he may be awardeddamages for pain and suffering and losing amenities inlife, special damages, cost and interest. Hisexpectation was to become an Aircraft Engineer and tocomplete his studies at the age of 23-24 years which was

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affected by the impediment. Now his parents are spendingall the monies on him.

7.9 Answering in the cross examination, the Plaintiff statedwhilst the students were playing in the hostel he puncheda window glass and the glass broke. When he pulled outhis hand there was a cut, small cut but the cut was deepand blood was coming out. The other students took him tothe matron, wound covered with a white used bed sheet.Matron had inspected the wound and once again covered itwith a different bed sheet and taken him to KorovouHealth Centre. The Doctor at Korovou Hospital said thathe cannot stop the blood and he stitched the wound, nocleaning was done. He was given an injection after thestitching. A tight bandage was put. He also said he wasgiven a drip. After he was admitted one nurse came inthe night, and attended to him at the Korovou Hospital,only one time in the night. He told the nurse that hishand was paining severely. Time to time he was sleeping,but with the pain he was awakened, most of the time.

7.10 He cannot say whether nurse and doctor came andattended to him. In the morning, around 7.00am the nursewashed the wound since there was a blood clot on thesurface, but stitches were still there. She would haveapplied some medicine around the wound. Doctor wouldhave come and seen him around 11.00am, he was not aware.The witness said the Doctor came only on 21st morning not20th night and he had complained to the Doctor about thepain. At the CWM Hospital the witness came to know DrJosese Turagava had told his father his hand should beamputated. Dr Turagava had told the witness that theywere waiting for a Doctor to treat my wound. Dr Turagavahad brought a computer and showed some photographs of my

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hand. In the photos he showed bone was exposed althoughthe fingers were functioning slightly. The photos weretaken when the Plaintiff was in the theatre (Photographswere marked P3, P4 and P5).

7.11 Amputation was done on 24th October 2008. In between,a nurse had attended to him during the night. Hourly hewas visited by the nurse and given medication. Thewitness admitted that at CWM Hospital he was attended bythe Doctors and nurses. During the re-examinationwitness admitted that once the stitches were cut andopened at CWM Hospital he was relieved and feelingbetter. At Korovou Hospital after stitching the wound bythe Doctor, the Doctor visited him only on the followingday morning. Bandage which was put tightly was removedat CWM Hospital on 21st around 10.30pm. Within 3 days ofthe injury, hand was amputated.

Dr. E. D. Taloga’s Evidence

8. Dr Taloga is the Head of the Surgical Department andconsultant at Suva Private Hospital Orthopaedic surgeon. Hehad obtained his M.B.B.S at Fiji School of Medicine in 1988and further qualified in Newcastle in Australia and in NewZealand and a member of Orthopaedic Association of Australia.Dr Taloga stated he examined the Plaintiff Semi Voliti on20th May 2013 and prepared the medical report dated 21st May2013 and explained the repot and stated he was made availablewith the following reports:

1.Dr Josese Turagava’s report dated 21/02/2008 of theCWM Hospital.

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2.Sister Maata Turaga’s report dated 12/01/2008 ofKorovou Hospital.

9. In his report dated 21st May 2013 Dr Taloga stated that thePlaintiff had sustained a lacerated wound over the distalright forearm from glass louver on 30th October 2007. ThePlaintiff was first admitted to Korovou Hospital the limb wasamputated at the CWM Hospital due to severe sepsis.

9.1 Dr Taloga had also stated in his report that thePlaintiff complained pain over the arm stump during coolweather and it was covered in an elasticized bandage toprevent accidently bumping into objects which will resultin pain.

9.2 Dr Taloga had stated the amputated of the arm below thelevel of the deltoid insertion has aruling of 57% impairment of the sole person.

9.3 Dr Josese Turagava’s report dated 21st February 2007was shown to the witness with attached notes and on Page3 of the report which states injury was below the levelof elbow 3cm long and 1cm deep will go through up to themuscle. To reach the artery it should be more than 3cmdeep since there was no threat to the artery or limb it’snot a serious injury. Dr Taloga stated in the report ofthe CWM Hospital at 10:30p.m., it was stated there wascompartment syndrome. Page 19 of the medical report wasshown to the witness and it was stated that wound wassustained by blue surface. The witness stated it’s notgood practice to stitch up to control the bleeding.Pressure should be applied to control the bleeding and

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every one hours time bandage should be released to ensurethe supply of blood. When injury is caused by bluntsurface the wound would be washed before stitched. Ifwashing was not done, infection will set in and sepsiswill develop. If tight bandage is put blood supplybeyond that point will cut off and result in dyingeverything beyond that point.

9.4 Referring to page 21 the witness stated that gangrenedeveloped in the fingers. First the pain will be severedisproportion to the injury and the injured organ willbecome purple and then become black.

9.5 Referring to page 19 of the report Dr Taloga statedCompartment Syndrome and gangrene in right forearm andincreased pressure will compromise the blood supply andmuscles being affected. Tight bandage will cause it. Itwas diagnosed early it could be cured. At the time thePlaintiff was admitted to CWM Hospital it was incurableand amputation was imminent. When the Compartment wasopened, blood will sprout out and wound should not haveclosed. Even if artery was cut after putting pressure,artery would have clipped and put a dressing whichprocess would have taken 15 minutes.

9.6 Page 13 of the Medical Report dated 12th January 2008Sister Maata Turaga had issued a letter stating thatSemi Voliti admitted at Korovou Hospital on 20th October2007 complain of right forearm laceration after beingseeing and examined by medical officer on call Dr Vishaland physical examination was done. The arm amputatedwas the dominant arm. If artificial forearm is to befixed, it will cost around $70,000.00. If the scale ofpain is 0-5 it would be 5 the Plaintiff would have

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suffered. That is the maximum pain. After amputationbone and muscles would have recovered around 2 weekstime. The Plaintiff would have affected socially andpsychologically. The medical report dated 21st February2008 and the medical report dated 21st May 2013 weretendered in evidence marked P1 and P2.

Cross Examination

10. Mr Pratap cross-examined Dr Taloga and he stated that heconsidered three Medical Reports before issuing hisMedical Report tendered as P2. He was questioned about thelength of the wound and stated length of the wound will nothave any bearing on damaging the artery what matters is thedeepness of the wound. He further said that he cannot sayhow much pressure was applied by putting the pressurebandage.

10.1 In reply in re-examination Dr. Taloga saidaccording to the diagram wound have been 3cm deep.Report says bleeding which shows wound was profuselybleeding.

Defence Witnesses

11. Before commencing the case it was brought to the notice ofthe court the defence witness was in the court room when thePlaintiff was giving evidence from 9:30 am to 11:20 am and itwas stated by the court will take this matter intoconsideration after hearing the evidence of the witnesses.

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Evidence of Miriama Vere

12. The witness is a nurse by profession qualified in 1985 fromFiji School of Nursing at Tamavua having 28 years experienceas a nurse. She is currently working at Korovou HealthCentre at the time relevance to this case she worked at RatuKadavulevu School (RKS) as a District Nurse in the position ofa Matron. Her duties at the school were to look after thehealth of the students and referring cases to hospitals whichcannot be managed by herself as a nurse. The witness saidshe can remember the date of the incident i.e. 20th October2007. The Plaintiff came to see her around 6:30p.m with acut in his right forearm. Cut was around 7cm but deepnessshe didn’t know.

12.1 Witness said her assessment was that she could not doanything and applied a pressure bandage by some clothes.The Plaintiff’s wound was bleeding. She had no idea whattime the injury happened. The Plaintiff said he puncheda glass door. The witness was told the Plaintiff wasdrunk at the time. She didn’t find any debris and sawonly the cut. It had taken 45 minutes to go to theKorovou Heath Centre. It was stated she went with someother students and it may be after 8.p.m when theyreached the Korovou Health Centre. The Plaintiff wasseen by a doctor immediately. It was Dr Vishal Bhindiwho examined the Plaintiff. The wound was stitched by DrVishal under local anesthesia witness said she was notaware whether any medication was given she was there forone hour.

12.2 In cross-examination the witness said she canrecall the Plaintiff. She was there when the wound was

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stitched one didn’t know what time the medical report waswritten and Dr attended to the Plaintiff before reportwas written. At the time of the admission to theKorovou Health Centre the wound was not infected.

12.3 In re-examination the witness said she cannotremember what time the witness went and left theKorovou Medical Centre.

Dr Josese Turagava’s Evidence

13. The witness studied at Fiji School of Medicine from 1995to 2000. He did his Master’s during the period of 2005 to2010 at Fiji School of Medicine. He had his training in NewZealand. There are four other general surgeons and thewitness is presently the general surgeon and in charge of allaspects of surgery. Witness said he had attended to thePlaintiff on 22nd October 2007. The Plaintiff was referredto Dr. Oteu Bwabwa. Dr Oteu had recovered hospital recordsfrom Korovou Hospitals. The Medical report in the agreedbundle of documents was shown to the witness. The witnessadmitted that page one was his report. Page 3 was not seenby him. Page 19 is the notes written by the nurse at theemergency section. The witness read out notes on page 19“severe pain, large laceration” laceration is around the forearm. The witness stated he cannot say it is deep or not. Heis not in a position to say drawing of the right forearm wasdone by the Doctor or Nurse. Drawings are done differentlyhe stated.

13.1 Page 3 of the Medical Report shows and witness statedit is noted laceration 8cm long and 1cm deep in rightforearm. Witness stated laceration was 5cm from thevicinity of the elbow (demonstrated through court clerks arm).Witness doesn’t know how 1cm deep was measured. If he

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was there he would have taken him to the theatre wash itand explore the wound’s position and then treat thepatient. 1 cm deep wound may injure the veins andnerves.

13.2 The witness stated on an emergency patient is treatedfirst and then the notes are taken. The witness stated itmust be severe bleeding blood pressure was low as 87.The witness stated he met the Plaintiff on 22nd October2007 at CWM Hospital. His wound appears to be very badDr Oteu had opened up the wound and washed. The woundand it was done on 21st night. The witness had taken thepatient to the operating theatre and taken photographsunder anesthesia. It was to confirm Dr Oteu’s findingsand to show to other Doctors. One bone was exposed.Infection was so bad and it was at stage 3. The patientwas having high fever. The photo graphs were tendered inevidence Mark P3, P4 and P5. The witness’s boss Dr.Semesa also came to the theatre. The witness hadinformed the Plaintiff and he had told he was stabbed.The Plaintiff was the witness’s cousin’s nephew. Thewitness found out the body was going through sepsis. Itwas a bacterial infection.

13.3 Respiratory rate was very high and high pulse rate.The infection was to spread out to the whole body system(refer to the medical report) which would have caused death. Thewitness had told the Plaintiff his hand should beamputated and he didn’t agree. His father reluctantlyagreed. It was decided to save the Plaintiff’s life.The Plaintiffs muscle in forearm was decomposed.

13.4 Under cross examination Doctor Josese was shown P3, P4and P5 and witness stated it shows the bone muscles were

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decomposed beyond repair. Page 3 of the Medical Reportshown and witness stated it is noted laceration 8cm longand 1cm deep in right forearm. Witness stated lacerationcould be 5cm from the vicinity of the elbow, (demonstratedthrough court clerks arm) witness doesn’t know how 1cm deep wasmeasured. If he was there he would have taken him to thetheatre wash it and explore the wound’s position and thentreat the patient. 1cm deep wound may injure the veinsand nerves. Page 3 of P2 was shown and he witness statedthe length of the cut although he stated 8cm could be5cm. No note to say wound was cleaned. Blood pressurehad to be taken every 4 hours. The witness stated thathe cannot say whether the wound is a stale injury. Thewitness stated there is difference between a lacerationwound and an incised wound.

13.5 The witness stated exploration is done to find theseverity of the wound and the artery can be clipped. Ifthe witness was treating the Plaintiff he would have doneit. If the bandage is put tight and if it’s not removedtime to time it will affect the blood supply and createcomplication and the witness stated he agrees with thePlaintiff’s witness Dr. Taloga. If the bandage is notreleased, blood supply will be not there and will createcomplications and the compartment syndrome will developin such a situation and it blows up the veins andeverything worn out to be liquid. The witness stated ifcompartment syndrome would have avoided if bandage wasreleased time to time ensuring blood supply and he agreedwith the evidence of Dr. Taloga.

13.6. Answering in re-examination witness stated explorationof the wound will depend on the Doctors training.

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13.7 As I stated in paragraph 11 of this Judgment, thepresence of the Defence witnesses in the court room atthe time of the Plaintiff giving evidence had no bearingon the evidence of other witnesses.

14. Now, I deal with preliminary issues raised by the Defendants’counsel.

15. The Defendants’ counsel pleaded contributory negligence. Inlimine this position of the Defendants does not carry anymerits. The issue is as to whether the Defendants’servants/agents were negligent in the process of treating thePlaintiff medically and as to whether such negligenceresulted in amputation of the Plaintiff’s forearm and not tofind how the injury caused. If so as to whether theDefendants are liable for the negligence of the servantsand/or agents. The Plaintiff who was admitted to thehospital after the injury was caused and the claim by thePlaintiff was that the 1st Defendant was negligent of thetreatment. There is no evidence before this court that thePlaintiff was negligent, subsequent to the admission to thehospital and when he was under the care of the servantsand/or agents of the 1st Defendant. The Plaintiff had notdone any act to contribution to aggravate his injury. TheDefendants’ claim that the Plaintiff’s contributorynegligence fails.

16. 16.1 The Defendants’ counsel also submitted in his writtensubmission Compartment Syndrome suffered by the Plaintiffwas not pleaded in the Statement of Claim and it is in

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contravention of Order 18 Rule 11(1) of the High CourtRules 1988 which states:

“11- (1) Subject to paragraph (2) every pleading must containthe necessary particulars of claim, defence or othermatter pleaded including, without prejudice to thegenerality of the foregoing words –

(a) particulars of anymisrepresentation, fraud, breachof trust, willful default orundue influence on which theparty pleading relies; and

(b) where a party pleading allegesany condition of mind of anyperson whether any disorder ordisability of mind or any malice,fraudulent intention or othercondition of mind exceptknowledge, particulars of thefacts on which the party relies.”

16.2 Considering facts of this case it is important tounderstand what Compartment Syndrome is? As explained byDr Taloga and Dr Jessese the witnesses it is a conditionwhich affects the muscles due to non supply of blood.More precisely Compartment Syndrome is a condition thatoccurs when injury causes generalized painful swellingand increased pressure within a compartment to the pointthat blood cannot supply the muscles and nerves withoxygen and nutrients. If left untreated, muscles andnerves fail and may eventually die. Both Doctors gave

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evidence on behalf of the Plaintiff and the Defendant hadconfirmed this position.

16.3 The Plaintiff had suffered Compartment Syndrome wasundisputed. The witnesses Dr Taloga for the Plaintiffand Dr Jessese for the Defendants who gave evidenceadmitted when the Plaintiff was admitted to the CWMHospital and after exploration of the wound on 22nd

October 2007 it was found Compartment Syndrome wasdeveloped which is noted in page 21 and 22 of the medicalreport marked P2 and amputation was recommended. Thecourt had the opportunity to see the photographs taken bythe Dr Jessese which shows the bone and muscles beingloosen and the color of the forearm had changed to black.The photographs were marked as P3, P4 and P5 in evidence.

16.4 Having observed the above, this court had to decide asto whether there was a necessity to plead CompartmentSyndrome in the pleadings. The Plaintiff’s claim wasthat the Defendants were negligent specifically referringto paragraph 11 under the heading “Particulars of Negligence”,it was stated:

“(c) Failing to take any or any adequate or protectiveprecautions when applying the said processes to ensurethat the Plaintiff’s said right hand would not be harmed orinjured;

(d) Failing to observe or heed or take any reasonable steps toinvestigate the complaints of the Plaintiff as to hiscondition.”

16.5 The above clearly explains the negligence and it’s myview there is no necessity to specifically plead theCompartment Syndrome. I have already described how the

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Compartment Syndrome can occur and the Plaintiff hadpleaded the negligence of the treatment at the hospital.The proposition of the Defendants that the Plaintiffacted in contravention of Order 18 Rule 11(1) carries nomerit as such I conclude the Plaintiff’s pleadings are inline with Order 18 Rule 11(1) and the Defendants’submissions fail.

Analysis of Evidence

17. The evidence in this case establishes the following:

17.1 The Plaintiff was a student at Ratu Kadavulevu Schooland he had punched a glass door which caused him theinjury. The Defendants’ counsel’s position was theinjury cannot be caused by punching a glass. How theinjury was caused is not an issue in this case. Therelevant issue once he was admitted to the hospital atKorovou and CWM whether proper treatment was given andwhether such treatments led to amputate his arm. Furtherthere was no note by the Doctor at Korovou Hospital withregard to the wound neither he gave evidence. The Doctorhad made notes in page 3 of the medical report marked P2:

“patient was playing football in the corridor at RKS Hostel whenaccidently his right forearm got injured with glass of a door.”

Doctor had not made any other observation in the medicalreport or not called to give evidence by the defence.The only evidence before the court is the Plaintiff’sevidence which is undisputed and I believe his evidencethat injury was caused by punching a glass. TheDefendants’ counsel also draws the attention of thiscourt whether the glass or a stab injury. There was

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evidence by Dr Jessese that the Plaintiff had told him hewas stabbed. However, in the cross-examination DrJessese stated he cannot say whether it’s a stab injuryor not. It is also an agreed fact at the pre-trialconference…… “The Plaintiff sustained a laceration on the right forearmafter he punched a glass door…..”. Although, it’s not relevantto decide on this case, I observe the Defendants’ counselcannot raise an issue against the agreed fact. Whatmatters in this case is as to whether the Defendants werenegligent in treating the Plaintiff and whether theDefendants exercised duty of care.

17.2

The Defendants also submitted that there was a delay inseeking medical care and the infection had manifested inthe wound which was beyond control of the 1st Defendantwhich led to amputation of the arm. There is no evidencebefore me for such conclusion. Once the injury wascaused he was taken to the Nurse In-charge Ms MiriamaVere at the school who gave evidence in this case. Therewas a cut which was around 7cm long as she stated anddepth she didn’t know. Medical report says it waslaceration 8cm (Dr Jessese later said it could be 5 cm) long and 1cmdeep (page 3 of Medical Report P2). Laceration (as describe in Black’sMedical Dictionary) is a wound to the skin or surface of anorgan which results in a cut with irregular edges. ThePlaintiff in his evidence stated his wound was around 1inch long which tallies with the Korovou Hospital notesin the Medical Report. In the circumstances the factthat the laceration was caused is established. If it wasa stab injury it is incise wound. The Defendant’scounsel stated that the wound was covered with a dirtybed sheet. There is no evidence of a dirty bed sheet.

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It was a used bed sheet. If there is an accident and ifsomeone is bleeding the people around, they will not lookfor clean clothes to cover it. Whatever is availablewill be used to cover and stop the bleeding once he wastaken to the hospital it will be the duty of the hospitalto clean the wound. As such the argument by theDefendants counsel is unacceptable even if the wound iscovered with dirty clothes, at the hospital it should becleaned by antiseptics. The evidence before this courtis the wound was stitched without cleaning, and noevidence to say antiseptics were used.

17.3

Considering all the evidence led before this court, myfindings are:

1. There is no contributory negligence by the Plaintiff.

2. The evidence establishes there was nonegligence by the CWM Hospital staff whoattended to the Plaintiff and by the time thePlaintiff was admitted to the CWM Hospital,Compartment Syndrome was developed beyondtreatment.

3. At the Korovou Hospital, during the treatment:

(a) No exploration of the wound being done and woundwas not washed. By stitching the wound andapplying the tight bandage and without releasing itat intervals, blood supply to the right forearm wasstopped. As suggested, by both Dr Turagava and DrJessese the proper treatment would have been firstlyto do the exploration of the wound, and if the arterywas cut to clip it and then to apply medication to the

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wound. It was established, in the evidence none ofthe said processes were followed;

(b) If the pressure bandage was applied, no action hadbeen taken to release bandage in intervals to ensurethe supply of the blood to the right forearm. Failureof this had led to tangerine in the fingers anddeveloping sepsis;

(c) By stitching the wound without washing, wound wasinfected and at the time the Plaintiff was admitted toCWM Hospital Compartment Syndrome wasdeveloped beyond treatment. The CWM HospitalMedical staff was left with no alternative other thanto prevent the infection spreading over the bodywhich would have caused death as explained by theDefence Witness, Dr Jessese in his evidence;

(d) If the Korovou Hospital Medical staff were notcompetent enough to treat the patient they wouldhave transferred the Plaintiff to the CWM Hospitalwhich was delayed resulting the CWM HospitalMedical staff leaving with option to amputate theright forearm to avoid the danger to the life of thePlaintiff. As such Korovou Hospital staff had notexercised its duty of care.

18. The Defendants’ counsel cited the case of Bolam v. Friern HospitalManagement Committee [1957] 2 ALL ER 118 to state that thestandard of care given to the Plaintiff was the acceptedstandard which would have been given to any patient undersame or similar circumstances. The Defendants’ counselsubmitted there was delay in seeking care and not revealingthe real cause and circumstances of the injury escalated what

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could have been successfully treated into a tragic event.The counsel also cited Hoston v. East Berkshire Area Health Authority[1957] 1 All ER 210 and submitted even correct diagnosis andtreatment would not have prevented the disability fromoccurring thus the Plaintiff had failed on the issue ofcausation and submitted the said principles should be appliedin this case. The evidence before this court led by theDefence did not contradict the version of the Plaintiff.There was no evidence led that the delay was caused seekingtreatment or thereby the condition of the Plaintiff wasaggravated. The well established fact was that failure ofthe Korovou Hospital staff to extend their duty of care whichresulted in the amputation of the right forearm of thePlaintiff. There was no evidence led by the Defence properduty of care was exercised by the Korovou Hospital Medicalstaff. In fact, this was corroborated by the Defence witnessDr. Jessese agreeing with the evidence given by Dr Taloga.As such the Defendants submission lacks merits.

19. In the circumstances, I conclude, by the Plaintiff had provedthe medical negligence of the Korovou Hospital staff who werethe servants/agents of the Defendants and they failed toexercise duty of care on treatment of the Plaintiff andfurther conclude that the Defendants are liable fornegligence of the medical staff at Korovou Hospital who actedas the servants/agents of the Defendants.

Damages

20. I have considered the submissions on damages made by thecounsel for both parties. In my view the case calls for asubstantial amount by way of damages for pain, suffering and

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loss of amenities in life. The Plaintiff cannot use hisdominant arm. His studies were affected. At the time of theamputation of the arm, he was a 19 years old boy in his youthfacing a life time of deprivation of his normal sportsactivities, visible deformity of as a one arm person whichwill differentiate from the society and which will cause himsevere psychological pain.

21. In assessment of damages, the task of the court is to awarddamages in line with the principles established by the caseauthorities.

21.1 Lord Blackburn’s statement in Livingstone v. Ram Yards CoalCompany (1885) App. Case 25 at 39:

“compensation should as nearly as possible put the party whohas suffered injury in the same position as he would have beenif he had not sustained the wrong.”

21.2 The said principle was applied after 80 years in caseof Fletcher v. Autocare and Transporters Ltd [1968] 2 Q. B. 322Salmon L. J’s statement at pp. 363-364:

“On the other hand, the full amount of perfect compensationmanifestly cannot be given for pain and suffering or loss ofamenities for simple reason that, in the nature of things, therecan be no perfect compensation in relation to such matters……..To my mind the damages awarded should be such that theordinary sensible man would not instinctively regard them aseither mean or extravagant, but would consider them to besensible and fair in all circumstances.”

21.3 The awarding damages is based on the principle ofrestitution in integrum which means claimant is entitledfor full compensation for his losses.

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21.4 I also cite the statement of Singleton L.J. in case of Waldon v. War Office (1956) 1 WLR 51 at 55 which was cited by Byrne J. in the case of Paul Praveen Sharma v. The Attorney General and Dr Hubert Elliot [1993] 39 FLR 228 at p. 245:

“A judge in assessing damages draws up his own experiencewhere does he get that experience? From knowledge of otherjudges decisions as to amount; from knowledge of what is saidin this court and in the House of Lords; and from his ordinaryexperience in life.”

it is further said

“The judge realizes that his task is to assess damages in theparticular case before him, and upon the evidence before himand upon nothing else. If he can get help from decisions ofother judges, or from this court, I am inclined to think that inhis discretion he might well accept it. It is for him to judge.”

21.5 The statement made in the above cases and other similarcases well establish the damages should be awardedkeeping in mind the injury suffered, the pain sustainedand loss amenities in life. More specifically thedamages should somewhat compensate for the Plaintiff tolead his normal life. In the present case the Plaintifflosing his right forearm which was his dominant arm,having suffered pain and furthering of pain anddisability for his life time warrant for adequate damagesas compensation. I believe in the evidence of thePlaintiff with regard to the pain he suffered, set backin his education, mental trauma undergone, isolating inthe society in the activities, and obstructing his futureaspirations and ambitions.

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Special Damages

22. The Defendant submitted the special damages claimed by thePlaintiff in the sum of $2,500 is excessive and quoted thecase of Paul Praveen Sharma v. the Attorney General and Another. Thiscase does not support the contention of the Defendant. Inthe said case, Byrne J. had awarded the special damageswithout any receipts being produced. I believe in thetestimony of the Plaintiff and conclude a sum of $2,500 isreasonable. He had to visit Labasa Hospital for clinics morethan a year and when he was in Suva had to visit clinics atCWM for approximately two months. He had to spend for themedicine. No evidence placed before me by the Defendant tothe contrary. Accordingly, I award $2,500.00 as specialdamages, medication and travelling expenses which is areasonable claim.

General Damages

23. The Defendants submitted possibility of gangrene was notruled out by the Plaintiff’s witness. However, thePlaintiff’s medical witness and the Defendants medicalwitness both agreed that applying tight bandage would stopthe blood supply for the forearm and gangrene will develop.It was undisputed evidence that by the time the Plaintiff wasadmitted to the CWM Hospital the tissues were dead. It isalso note worthy to understand the meaning of Gangrene.Black’s Medical Dictionary 40th Edition states:

“Gangrene – The death and decay of body tissues caused by adeficiency or cessation of the blood supply…….”

The evidence before me was that blood supply was ceasedbecause of the tight bandage. There is no evidence before me

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to establish that gangrene developed before the admission toKorovou Hospital. The Defendant’s argument fails and thecase of The Attorney General v. Narayan [2011] FJCA Civil AppealNo. 57 of 2008 (decided on 11 April 2011) cannot be applied todecide the quantum of damages.

24. The Plaintiff claims the General Damages on the followingheadings:

(a) Pain and suffering $ 80,000.00

(b) Future nursing care $ 10,000.00

(c) Interest on 90,000 @ 6% 4 years and 3 months (1548 days)$ 22,901.91

(d) Loss of future earning capacity ($10,000 x 20 years)$200,000.00

Total for General Damages $322,901.91

25. There is no legislation in Fiji providing guidance forassessing award of non-pecuniary damages in personal injuryactions and I cite Cunningham v. Harrison [1973] QB 942 at page956 which was quoted in Fiji case Nasese Bus Company Limited &Another v. Muni Chand Civil Appeal No. ABU 40 of 2011(unreported decided on 8th February 2013) “………if judges do notadjust their awards to changing conditions and rising standards of living, theirassessments of damages will have even less contact with reality than they havehad in the recent past or at the present time.”

In the said case Calanchini P.A. by applying the saidprinciple stated:

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“It is sufficient for me to say at this stage, on the basis of what hasbeen said above, that I reject the Appellant’s ground of appeal thatthe award for non pecuniary damages was excessive orunreasonable.”

26. Now I will deal with the General Damages for Pain andSuffering. The evidence established the Plaintiff hadundergone severe pain at Korovou Hospital and CWM Hospital.It is evident he will suffer in future too. It would bephysically and psychologically. The loss of dominant rightforearm had left the Plaintiff with no other option otherthan to develop working and writing skills, by the left hand.I observe it is a very hard process. It would be moredifficult to the Plaintiff as an undergraduate at USP. Hisstudies were affected due to the injury and his ambition tobecome an Aircraft Engineer had become impossible. It wasstated by Dr. Taloga that the Plaintiff would have sufferedmaximum pain. If prosthesis is done to replace rightforearm, it would cost $70,000.00 approximately. In similarsituations the court had awarded damages ranging from $70,000to $100,000. I have specifically taken into account the caseof Eta Naqeletia v. Ram Kumar HBC 19 of 2010 (unreported decided on20th January 2012), right hand was not amputated and permanentdisability was assessed at 19% and Wati J. had awarded$70,000.00 as damages for pain and sufferings. Consideringthe said pain and sufferings, by the Plaintiff, and incomparison with the damages awarded in similar cases, I awardGeneral Damages of $80,000 which a reasonable sum.

27. Obviously the future nursing case is necessary for thePlaintiff; I award General Damages for $10,000.00 as

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compensation for future nursing care as it is a reasonableand justifiable claim.

Interest on General Damages

28. The Plaintiff claims interest on General Damages @ 6%pursuant to Law Reform (Miscellaneous Provisions) (Death and Interest) Actfrom the date of issue of Writ to the date of hearing i.e. 16March 2009 to 12 June 2013 (1548 days). Accordingly, I awardinterest for 1548 days calculated as below:

6 x $90,000 = $5400 = $14.79 x 1548 = $22,901.91

100 365

Loss of Future Earnings

29. Total amputation of the right forearm of the Plaintiff isassessed by Dr Taloga at a rating of 57% impairment of thewhole person which would definitely affect the futureearnings of the Plaintiff.

30. For assessing loss of future earnings, I consider thepermanent disability of 57% and the age of the Plaintiff atthe time of the incident, he was 19 years old. Paul PraveenSharma v. The Attorney General case of similar nature where thePlaintiff was 19 years old and who underwent below the kneeamputation. Byrne J. decided this case in 1993 and awardeddamages at a multiplier of 20 x $5,000 making $100,000.00 as

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damages under the heading “Loss of future earnings”. Applying sameprinciple, I accept the multiplier of 20 however, consideringthe inflation, increase in cost of living, applyingmultiplier of $7,500.00 to my mind is reasonable.Accordingly, I award $7,500 x 20 years totaling to$150,000.00.

31. I detail the above awards as follows:

(a) Special damages = $2,500.00

(b) General damages for pain and suffering = $80,000.00

(c) Future nursing care = $ 10,000.00 $90,000.00

(d) Interest on 90,000 @ 6% for 1548 days =$ 21,901.91

(e) Loss of future earning capacity =$150,000.00

Total$264,401.91

Costs

32. I order the Defendants to pay summarily assessed costs of$2,500 to the Plaintiff.

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Orders

33. (a) I enter Judgment in favour of the Plaintiff against theDefendants in the sum of $264,401.91;

(b) The Defendants are ordered to pay interest at the rate of 4% onthe above sum from the date of the Judgment until the fullpayment of the said sum of $264,401.91;

(c) The Defendants are ordered to pay costs of $2,500.00 to thePlaintiff.

Delivered at Suva this 25th Day of April 2014.

………………………

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C. KOTIGALAGE JUDGE

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