The Fiji Court of Appeal has ordered the Suva City Council to make a $40,000 interim payment to market vendor Krishan Kumar while the Council’s appeal against a $132,591 damages award remains pending.
Resident Justice of Appeal Chandana Prematilaka made the order on August 3 after considering competing applications from Kumar and the Council arising from a High Court judgment.
Kumar had successfully sued the Council after claiming he fell at the Suva Market when a rope tied between a tarpaulin and a market stall caught his left foot.
He suffered injuries in the fall and sought damages for pain and suffering, economic loss, future care and other expenses.
The Council had denied liability, maintaining that its staff regularly inspected the market and had not seen a rope obstructing the walkway. It also argued that Kumar had failed to keep a proper lookout.
The High Court, however, found that the Council owed Kumar a duty of care and had breached that duty. It also rejected the Council’s claim of contributory negligence.
Kumar was awarded a total of $132,591.15, including $60,000 in general damages for pain, suffering and loss of amenities, $52,000 for loss of future earnings and additional amounts for care, medical and travel expenses, interest and costs.
The Council subsequently appealed the decision and sought a stay preventing enforcement of the judgment.
Justice Prematilaka found that the appeal raised arguable issues and should not be dismissed at this stage.
“The appellant appears to have an arguable case with regard to other damages in appeal and the quantum in general damages as well,” Justice Prematilaka said.
“This also means that the appeal is not vexatious or frivolous and should not be dismissed at this stage.”
However, the judge noted that the appeal could take considerable time to reach a full hearing because the judge’s notes and transcript had not yet been received.
“Therefore, considering all circumstances I am inclined to allow an interim payment of $40,000.00 to be paid by the appellant to the respondent pending appeal,” Justice Prematilaka ruled.
The Court also rejected the Council’s application for a stay of execution.
Justice Prematilaka said that in money judgments, a successful litigant should generally not be prevented from receiving the benefit of a judgment simply because an appeal was pending.
“In the case of money judgments, generally a successful litigant should not be deprived of the fruits of successful litigation by withholding funds to which he is otherwise entitled, pending an appeal,” he said.
The judge ultimately found the Council’s stay application was premature and declined to grant it.
The Court ordered the Suva City Council to pay Kumar $40,000 plus prescribed post-judgment interest within 21 days.
It also ordered the Council to pay Kumar $2,500 in costs within 21 days.
Kumar’s application to have the Council’s appeal dismissed was refused, meaning the substantive appeal against the High Court judgment will continue.
