IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku’alofa

CA 5/98

Napa’a

v

Vaka’uta

Burchett, Tompkins, Beaumont JJ
5 August 1998; 7 August 1998

Negligence ⎯ post-traumatic stress disorder ⎯ appeal as to damages 

On 20 December 1995 the respondent’s son, aged 9 years, was crushed by a front-end loader before her eyes. That was on a roadway at the village of Fata’ulua in the island of ‘Eua. The respondent’s son was with two other children near the road, and the front-end loader, which was owned by the second appellant, was being driven by the first appellant. The respondent suffered the inevitable grief reaction, and after the lapse of some time developed a post-traumatic stress disorder. The Court awarded damages of T$50,000 plus interest at 5% per annum from 11 February 1997 (the date of the issue of the writ), together with costs, in respect of nervous shock which was held to have been inflicted upon the respondent by the negligence of the first appellant, for whom the second appellant was vicariously liable. The case, the Court was told, was, so far as is known, the first of its kind to be heard in Tonga. The appellants appealed from that award. 

Held: 

1. An award of T$50,000 dollars for pain and suffering and the loss of amenities, in a case where nothing in the nature of economic loss was shown, can not be regarded as within the range of acceptable verdicts. It must be regarded as excessive. 

2. A proper and just award was the sum of $17,000, taking into account all of the circumstances and the fact that a part of the damages was being awarded for deprivations, pain and suffering over a period commencing in the past. 

3. There was no justification for an allowance of interest in respect of so much of the award as related to pain and suffering and deprivations not yet endured. However, interest at the rate of 5% per annum would be allowed from the date of judgment until payment. 

4. The appeal was allowed; the award was set aside and in lieu, it was ordered that the appellants pay damages in the sum of $17,000. The costs order was not disturbed. 

Cases considered:
Cropper v Smith (1884) 26 ChD 700
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; 141 ALR 353

Statutes considered:
Mental Health Act 1992

Counsel for first appellant: Ms Tonga
Counsel for second appellant: Mr Cauchi
Counsel for respondent: Mr Niu

Judgment

This is an appeal from an award by Lewis CJ of T$50,000 plus interest at 5% per annum from 11 February 1997 (the date of the issue of the writ), together with costs, in respect of nervous shock which was held to have been inflicted upon the respondent by the negligence of the first appellant, for whom the second appellant was vicariously liable. The case, the Court was told, was, so far as is known, the first of its kind to be heard in Tonga. 

The tragic event out of which the action arose was the death of the respondent’s son, aged 9 years, when he was crushed by a front-end loader before her eyes. That was on 20 December 1995, on a roadway at the village of Fata’ulua in the island of ‘Eua. The respondent’s son was with two other children near the road, and the front-end loader, which was owned by the second appellant, was being driven by the first appellant. The respondent suffered the inevitable grief reaction, and after the lapse of some time developed a post-traumatic stress disorder. 

At the hearing, evidence was called from which the trial judge found that the first appellant had seen children running about in the vicinity, and that he was driving at a speed which was reckless in all the circumstances, particularly as the brakes of the vehicle were to his knowledge in a defective condition. The roadway, described as a “track”, was unpaved and narrow. So far as the brakes were concerned, the first appellant had several times reported their defective condition to the mechanic at the relevant Ministry, but the fault had not been rectified. In the circumstances, the judge’s finding in favour of the respondent on the issue of negligence was inevitable. 

The Notice of Appeal filed on behalf of the Kingdom of Tonga does not raise any ground of appeal with respect to liability, although it purports to challenge the decision on that issue. The other appellant does raise a defence of estoppel. This is based on the proposition that this appellant, who was very remorseful, was assured by the respondent and her husband that the respondent would not claim against him, except, perhaps, in a technical respect. But the fact is that the circumstances entitled the respondent to maintain her claim. And there is no basis for the suggestion that the elements of an estoppel could be made out. 

The first appellant could not show that he had suffered any detriment in reliance on the alleged representation.

The arguments in respect of damages are more formidable.

The facts to be taken into account in relation to the issue of damages should be set out briefly. In the first place, it is important to note that the trial judge, who heard and saw the witnesses, found expressly that he had no doubt the respondent was “a truthful witness”. She was a housewife and mother, aged at the time some 30 years. The child who was killed was the second son in a family of three children, a fourth being born after the accident on 15 June 1996. The respondent was pregnant at the time her son was killed. 

The respondent’s claim was originally limited to the sum of T$10,000 dollars, and was unsupported by any significant medical evidence. It appears that, as a result of a comment by counsel for one of the appellants about the inadequacy of a case so presented, the respondent’s counsel decided to obtain psychiatric evidence and arranged for a medical examination accordingly during an adjournment. Perhaps the novelty of the claim explains what occurred, but we think it appropriate to emphasise that, in all cases of personal injuries, the available medical evidence should be obtained in writing well in advance of the hearing, and all parties should be provided with copies of medical reports. Otherwise, unfortunate delays and difficulties will prove unavoidable. It is the responsibility of those appearing for a plaintiff to ensure that the extent of the claim is explored in good time, and that notice is given to the defendant of the full claim with proper particulars. 

However, it was emphasised by Bowen LJ in Cropper v Smith (1884) 26 ChD 700 at 710-711 that the Court, in hearing a claim or defence, endeavours not to punish the parties for mistakes of procedure, but rather to ensure that each of them receives the full measure of justice. Over the period of more than a century since Bowen LJ wrote his judgment in that case, it has repeatedly been followed, and recently by the High Court of Australia in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; 141 ALR 353. Accordingly, we have no doubt that the trial judge was right to allow the respondent’s claim to be amended to a claim of T$50,000, and to allow the psychiatric evidence which became available, although very late, to be adduced. Had the appellants sought an adjournment, they might have been entitled to it, but that did not happen. Very fairly, counsel for the Kingdom conceded that the medical practitioner called was acceptable to his client. 

The psychiatric evidence was presented by way of a report of Dr Puloka, who has the ordinary medical qualifications, and, in addition, diplomas which qualify him to give evidence on the subject of psychiatric illness. Dr Puloka examined the respondent on four occasions, on 21 October 1997, 22 October 1997, 30 October 1997 and 31 October 1997. He obtained a history of the respondent’s problems since the death of her son, which included the onset of left-sided headache, and what might be summed up as feelings of depression. After some time, she and her husband decided to move to Tongatapu and joined a Bible School there, “which in fact alleviated her psychiatric problem”. The doctor referred to the horror of what the mother saw immediately after the accident and to her having fainted upon seeing her son’s dead body. He recounted that she experienced distressing recollections of the event, and various physiological symptoms of her psychological reactions. She was “emotionally labile” upon examination, and the doctor thought it to be the fact that “she had been really unwell since October, 1996.” He specifically recorded that “she evidenced no grandiosity, delusion, hallucination or brain damage per se.” He found: 

“The most prominent features of her emotional illness are severe anxiety and severe depression that relate to the recollection of the accident.” 

The doctor submitted the respondent to a serious of standard psychological tests, each one of which revealed severe disturbance and, in particular, severe depression. He considered that her condition constituted a mental disorder within the meaning of the Mental Health Act 1992, and was incapacitating in nature. He concluded his summary by saying: 

“As a result of her very dramatic experience, Lineti has gradually developed [a] severe form of anxiety and depression that is characterized by signs and symptoms that fit in the DSM-IV (Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition) diagnosis for Post-traumatic Stress Disorder (PTSD).” 

The doctor also stated: 

“In my opinion, Lineti’s PTSD has been precipitated by the fact that she witnessed the nature of the death of her son. She has undergone the normal stage of bereavement after the death of her son but the incapacitating symptoms of PTSD [have] significantly affected her since October, 1996. … Lineti has developed great insight to her Mental Illness and this has rendered her not to become dangerous to other[s] or herself. Thus, a need for admission to the Psychiatric Unit is not warranted. The treatment plan for Lineti is a long term one since the prognosis of her psychiatric illness is somewhat poor.” 

He added that he had prescribed a drug for her symptoms and that close monitoring and treatment would follow.

There were no special damages.

In any claim for damages, the onus is on the plaintiff to prove what those damages are. The evidence here is that no ongoing treatment was received until the time of the hearing itself. We give full weight to the judge’s acceptance of the credit of the respondent, and to Dr Puloka’s opinion. But there is no evidence of the result of any significant period of treatment to guide the Court in the making of an assessment of the probable future for the respondent. It is well known, and a Court is entitled to take judicial notice of the fact, that after the catharsis of a trial, psychologically injured persons often make a significant degree of recovery. In this case, the doctor makes no specific prediction for the future. Notwithstanding that he foresees a need for ongoing treatment, he does not suggest, and indeed expressly discounts, any need for admission to a Psychiatric Unit. 

Bearing in mind all the circumstances, we are unable to accept that an award of T$50,000 dollars for pain and suffering and the loss of amenities, in a case where nothing in the nature of economic loss was shown, can be regarded as within the range of acceptable verdicts. In our opinion, it must be regarded as excessive. 

Since we have held the award made at first instance to be excessive, it falls to us to reassess the damages. We do so accepting the primary judge’s findings of fact, and his view of the credit of the witnesses. Taking into account all of the matters we have mentioned and which are referred to in the judgment under appeal, and that a part of the damages is being awarded for deprivations, pain and suffering over a period commencing in the past, we have concluded that a proper and just award in this case is the sum of T$17,000 dollars. Having regard to the way in which we have assessed this figure, it is unnecessary to allow any amount in respect of pre-judgment interest, but we should point out that the judgment under appeal is in error in allowing such interest on the full amount awarded. There is no justification for an allowance of interest in respect of so much of an award as relates to pain and suffering and deprivations not yet endured. However, interest at the rate of 5% per annum should be allowed from this date until payment of the judgment upon so much of it as remains outstanding. Accordingly, the appeal is allowed; the award is set aside; and in lieu of the award, it is ordered that the appellants pay damages in the sum of T$17,000 dollars. The costs order made below is not disturbed. The order in respect of interest is varied in the manner we have indicated. There will be no order as to the costs of the appeal.