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Bastien v Michoutouchkine [1992] VULawRp 4; [1980-1994] Van LR 540 (7 July 1992)

[1980-1994] Van LR 540

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 8 of 1992

BETWEEN:

SUZANNE CAMILLE BASTIEN
Plaintiff

AND:

NICOLAI MICHOUTOUCHKINE
Defendant

Coram: Chief Justice Vaudin d'Imecourt

Ms S. Bothmann Barlow for Plaintiff
Mr J. Malcolm for Defendant

JUDGMENT

[DAMAGES - Personal Injury/Assault - Assessment of Damages and Aggravated Damages]

This is a civil claim for damages for Assault arising out of an incident which occurred on the 27th July 1990.

The Plaintiff, Mme Bastien and the Defendant Mr Michoutouchkine are neighbours. There was a time, 30 years ago, when they were good friends. The friendship has soured some years ago. Since, it seems, they have little to do with each other. Mr Michoutouchkine is an admitted enemy of Mme Bastien. Whereas the latter will admit only to total indifference of the former.

On the 26th July 1990, Mme Bastien had just welcomed her brother, who had arrived late in Vanuatu and, therefore, gone to bed very late either that night or in the early hours of the 27th July.

Between 6.30 and 6.50 am on the morning of the 27th July 1990, Mme Bastien was awoken by loud military music emanating from her neighbour's premises. Quite determinedly, she made her way to the fence separating their properties and once there threw stones at the source of the music in order to attract attention. Her purpose was to have the offending sound, as she saw it, turned down. What ensued is hotly disputed. According to the Plaintiff, the Defendant came rushing out of a nearby shed and in anger struck her on the left hand, breaking her 5th metacarpal. The Defendant's case is that there is no truth in such an allegation. He accepts that the Plaintiff must have suffered her injuries at a time proximate to the incident, but vehemently denies being the instrument of the injury. It is claimed on his behalf, that it is entirely possible for Mme Bastien to have suffered her injury in the heat of the argument that raged between the two of them and to have somehow imagined that he was the author of her ills.

This case lasted 3 days. It started on the 2nd July 1992 and the whole of the evidence was concluded by the 5th July 1992.

Mme Bastien gave evidence and called a Mr Dieter Ludwig as to the facts. She also called three Doctors as to her injury and her present state. They were Drs Doan Ba-Try, Bador and Tavoa.

Mme Bastien accepted that she was throwing stones at her neighbour's radio, the purpose of which, she claimed, was to draw someone's attention so that she could demand that the offending sound emanating from the radio could be reduced or turned off. She was angered, she claimed, because of her brother and the fact that he had been awoken early when he had gone to bed late. 6.50 am is about the accepted time at which people get up in Vanuatu. She further contended that the radio had deliberately been turned her way and played aloud so as to disturb her. When she came along to remonstrate, she threw stones. She claimed there was no other way to draw attention. She had no telephone at the time and could not phone her neighbour. That brought Mr Michoutouchkine out in a hurry. He was very angry and raising a stick hit out at her causing her serious injury to her hand and in fact breaking her small finger, which had to be placed in a plaster cast. After which she suffered complications. The plaster had to be removed and eventually her finger had to be operated on. She suffered considerable pain and the long and short of it is that she has a minor but permanent defect. Mme Bastien admits to being 69 years old. She looks, if I may say so, considerably younger than her years. But in a person of her admitted age, it is not surprising to see such minor permanent defects as that of which she complains.

She called Mr Dieter Ludwig. He is a friend who happened to be camping on her property when the incident occurred. He heard the music and saw her go by his tent towards the fence between her property and Mr Michoutouchkine's. He did not see the incident. Shortly afterwards he got up having heard an argument between the two neighbours. He saw the Plaintiff on the beach, bathing her hand in cold water. She told him in a calm way, that her neighbour Mr Michoutouchkine had injured her. That must have happened minutes after the event. So soon thereafter that I admitted the evidence as part of the res gestae. It seems to me that Mme Bastien's statement was so spontaneous and proximate to the injury as to be admissible. Unless totally perverse, she would not have had time to invent such a tale.

Thereafter, a number of Doctors were called. All were to establish the injury and the effect thereof. This was not seriously disputed by the Defendant. He was, as he is entitled, putting her to proof of her case.

The Defendant Mr Michoutouchkine, gave evidence. Most of Mme Bastien's evidence was accepted by him save for minor matters, such as where she was placed exactly at the time. He denied injuring her, claiming that he had no implement in his hands when he came out of his work shed. He accepted that he was considerably angry, particularly at the thought that the Plaintiff was throwing stones at his lifelong companion and friend, Mr Aloi Pilioko, who to his knowledge had only one eye. In his evidence to me, Mr Michoutouchkine said "I could only think of this poor man with one eye and this woman throwing stones at him and the thought angered me so, that I came running out in a state of anger to stop her" or words to that effect. He vehemently denied carrying any implement as described by the Plaintiff. He claimed he had no stick of any sort and denies hitting Mme Bastien in any way. In fact, he claimed, he was never nearer than 3 metres from the Plaintiff at any time. Further, he claims that she was not at the spot where she placed herself but elsewhere and that, therefore, even if he had wanted to, he could not have hit her and that, even if he had the wherewithal to do so, which he strongly denied having.

He called Mr Pilioko in support of his contentions. Mr Pilioko's evidence amounted to little in my view. He claimed at one time, that he was so placed, behind a painting, that he had no views of the Plaintiff. Further, he said that he did not see the Defendant's pareo fall (a pareo, I must explain is a sort of wrap, which is placed about the lower end of the body to cover oneself). It is common ground, at the very least, that it did become detached from the body of Mr Michoutouchkine. It is surprising that Mr Pilioko would have been looking with any degree of attention and not have seen it happen. His whole evidence, therefore, is dubious. At best he was cowering behind his painting and did not see what happened, at worst he was being less than candid.

The Defendant also called a young Ni-Vanuatu named Graham Alick. That young man is devoted to Mr Michoutouchkine. His family has been in the Defendant's services for a number of generations. It is clear that the evidence that he gave was such as could only have been given as a result of coaching by the Defendant. I doubted his evidence altogether.

At the end of the day, the burden of proof in a civil case is such, that all it amounts to is proof on a balance of probabilities. Do I believe the Plaintiff and has she proved her case? Had this been a criminal trial, I would not have been satisfied beyond a reasonable doubt. But as a civil claim, I am satisfied on a balance of probabilities.

I heard Mme Bastien. She came through in her evidence as a matter-of-fact person. Truthful, determined and honest. There were a number of occasions when she could have had a serious dig at the Defendant. She deliberately kept, may I use the word, "personalities" out of it. She impressed me considerably. A lady of mature years, as she has admitted, but certainly not the senile old sole the defendant would have had me believe she is. Nor did she strike me as a calculated sour woman who wanted some sort of unknown revenge against the Defendant. Dare I say, a woman scorned. In my view, she spoke the truth and I, for one, believed her evidence entirely.

I do not wish to be disparaging to the Defendant and his witnesses. But they did not impress me one jot. The Defendant appeared shifty and on the Defensive. That is not to say that I did not believe anything he said, but on the main issue as to whether he hit the Plaintiff or not, I do not accept his evidence.

I believe that he came out with a stick, blinded with rage, believing that his life long friend was in danger and with all the hatred he had harboured towards the Plaintiff, hit out at her in a blind moment of fury. I entirely accept her evidence, that had it not been for the loss of his pareo at that very moment, he may well have hit out at her again. I have no doubt that he did hit the Plaintiff and that he did cause her injury. There remains for me now he hear arguments on damages i.e. as to whether I should award normal damages and specials as claimed or whether I should award aggravated damages.

I therefore find the case for the Plaintiff proved.

Judgment As To Damages

I have heard both counsel in this case as to general damages. I have been referred to a number of cases. Some similar to the present, all from Kemp & Kemp and, therefore, based on quantum of damages in the U. K. As I stated recently in the case of Solzer -v- The Government of Vanuatu, (S/C 117/92) the means earning in the U. K. and the means earning in Vanuatu are very different. Using sets of statistics prepared in the early 1980's in Vanuatu and the multiplier tables as set out in Kemp & Kemp I was able to determine the mean earnings of people in Vanuatu as being approximately 50% of that in the U.K.

The injuries here to Mme Bastien were nasty and very painful. She was in pain for some considerable time. She suffered complications, had to attend a specialist in Noumea. By April 1991 she had fully recovered, that was some 9 months after the event. She has a very minor residual defect which is permanent, that is, in the flexion of the small finger of her left hand.

Her hobby has suffered in a much as she can no longer "finish" off her framing of paintings, but she accepts that in any event, that would no longer have been possible today due to her eye sight, rather than solely due to the state of her left hand. I bear that in mind in my award of damages.

Had this been a case brought before me in England, I would have awarded her GBP3,000 damages. On the basis of Solzer -v- the Government of Vanuatu I proportionately reduce the same by 50% and, therefore, ward her 312,000 Vatu (the pound/Vatu being roughly at 208 vt/pound).

Added to that will be 15% interest calculated from 12th February 1991 and the special agreed damages of 210,000 Vatu 15% from 12 February 1991; costs agreed at 350,000 Vatu.

As to aggravated damages, I rule as follows that:-

There should be relatively few cases when aggravated damages should be awarded, where there has already been awards for pain and suffering.

The Court should always consider such an award, but rarely and only in special circumstances should the same be awarded.

Had I taken the view that Mme Bastien had in every respect behaved reasonably and that the Defendant had acted wholly out of malice, I would have held that those would have been the rare circumstances necessary to award aggravated damages. The case here is very different. Neighbours should act in a civil manner towards each other.

Mme Bastien should not have been throwing stones at Mr Michoutouchkine' s property. He was provoked, acted thoughtlessly, but without malice. Therefore I do not take the view that this is the sort of exceptional case where aggravated damages should be awarded.

I have been referred to the case of Stonie -v- Newman 139 D.L.R. p. 482 a decision of Rattan J. in the Supreme Court of British Columbia. I allow myself to be persuaded by his view, I accept that that decision is not binding on me, but it is, with respect to him, extremely sensible and in my judgment it is the right approach to adopt in cases such as these. I am certain that such would be the approach of the overwhelming majority of my brother judges within the common law system, of which Vanuatu forms part.

I order that the total award here should be as follows:-

Specials Vatu 210,000

General Vatu 312,000

Vatu 522,000 + 15% Interest from 12/2/91
(17 months)

15/12 x 17 = 21.25% = 110,925
Vatu Interest

Total award Vatu 632,925

+ Costs as agreed of Vatu 350,000

Judgment in the sum of Vatu 982,925

7 July 1992

HON. CHARLES VAUDIN D'IMECOURT
CHIEF JUSTICE