IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
CIASE No.121 OF 2000
BETWEEN:
GEORGE KAPIEL
Plaintiff
AND:
JOHN SINCLAIR JENKINSON
Defendant
Coram: Chief Justice Vincent
Lunabekn>
Counsel: Mr. Mark Hurley for
the Plaintiff
Ms Jennifer La’au for the
Defendant
By Specially Endorsed Writ of
Summons filed on 15th day of November 2the Plaintiff claims
from the Defendant compensation and damage for loss of his deceased son late
Paul George. The Defendant on 7 July 2000 unintentionally through negligent
driving caused the death of the deceased. The
Plaintiff claim for
compensation to be assessed by the Court under the Fatal Accident Acts
and the Law Reform (Miscellaneous Provisions Act.
What follows are the details of the Plaintiff’s claim.
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RELIEF SOUY THE PLAINTIFF
The Plaintiff is claiming
against the defendant the following:
(1) &nbp; &nbssp; &nbs Daan>Damages ages under the Fatal Accident Act;
(2) & &nnsp;&&nbp;;&nbp; &nbp;
es under the Law Reform (Miscellaneous Provisions) Act[4],
for the benefit of the estate of the deceased;
(3) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
(4) &nbbsp;&&nsp;;&nsp; &nsp; &nnbp;&
Interest on thon the amounts of the said damages at such rate and for such
period as this Court shall deem fit; and
(5) &nnsp;&&nsp;;&nspp;&nssp;
sp;
Costs of this suit.
 an>
ISSUES
uestion for the
determination is as follows:
What is the starting point for
apportionmendamage where there is contrcontributory negligence?
The relief sought in (1), (2),
(3), (4) and (5) will be dealt with aatter stage.
>
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FACTUAL BACKGROUND
The Plaintiff in this action is
the father of the deceased late[CH1]
Paul George. He is 60 years of age and resides on Tanna Island, Vanuatu. The
Plaintiff brought this claim for himself
and other dependents of the estates
of the deceased late Paul Georgenst the defendant.
At about 7.30PM on 7 July 2000,
the deceased late Paul George was walking along Mele Road towards Port-Vila.
He was approximately
one meter from the edge of the road, with his back to
the oncoming traffic. He was wearing a white and blue T-shirt.
At that time the defendant was
driving, managing and controlling a Toyota Hilux Regison No.3703 on the
sam same direction.
The motor vehicle is registered in the name of his employer,
Fletcher Organization (Vanuatu) Limited.
As a result of the defendant’s negligent driving, he
caused or permitted the vehicle to violently collide with and cause the
death of Paul George (the deceased).
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The defendant was charged with
the offence of unintentionally cause damo the body of another persoperson,
contrary to
Section 108 of the Penal Code Act [CAP/135] pleaded guilty on
the basis of negligence. He was sentenced to 8 months imprisonment by the
Supreme Court.
On appeal, the Court of Appeal
qd the sentence, and imposed a suspended sentence of 18 mont months but
since the defendant
has already served part of the sentence, he was ordered
to be released.
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The Plaintiff now brought this
action against the defendant for compensatamages.
EVIDENCE
The Plaintiff called Mr. Esrom
Loughman as his witness. His evidence was to the effect th the time of
the deat death of
the deceased late Paul George, he was living with him. He lived
with him for about 10 to 11 years.
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Before the deceased came to
live with him, he was living on the island of Tanna with his parents.
The ded was born in 1972.
His father and mother are still alive. He has a brother and a sisa sister who is
now married
and lives in Port-Vila. He has been cohabited with a woman who
was pregnant at the time of the death. But a week after his
death, she gave
birth to a baby boy. He was planning to marry the woman in December 2001.
She lives in Santo.
The ded was working for
various people starting with the late Luciano Traverso Builders, Rus, Russet and
at that time
of his death, Chief Kalorip of Mele.
The deceased has contributed to
community fundraising and supports the family members o island. He also
stat stated that
the deceased has helped him to build his house. The deceased up
to that time of his death was a builder.
<
The evidence of this witness is
not challenged by the Defendant. It is accepted as such.
The dent did not call any
witness. However, it was alleged on behalf of the defendant that that there was
contributory
negligence on the part of the deceased in the accident causing
his death. The plaintiff by counsel conceded that the deceased’s
contributory negligence is not in issue. The question is the extent or the
degree of the deceased’s contribution to his
death.
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SUBMISSIONS BY PARTIES
PLAINTIFF
The counsel for the plaintiff
submitted that heno objection to applicable law or takes any issue
the thereof.
He submitted that the right
approach that the Couruld take in assessment of damages in this case
where here contributory
negligence is found by Court is to start at extreme of
the amount of damages in cases of personal injury where death is resulted
and reduce the amount taking into account the issue of contributory
negligence.
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He submitted that it is a fact that the decease drank
kava and worked on one metre on the tar rohe defendant was driving
ng
toward the deceased. There is no evidence that the deceased has jumped onto
the road. He submitted that the defendant
has a duty of care towards other
road user. It is a fact that there was no mechanical problem or defects and
his headlights
are on and working well. He could have seen the deceased
especially he was wearing a white T-shirt. It was a straight road
and there
was no issue of the speed of the vehicle the defendant was driving.
">
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The defence counsel submitted
that there was contributory negligence on the part of the deceased in this
case. It is a
fact that the deceased had been drinking kava. It was dark and
there was no street lighting. The deceased was walking approximately
one
metre on the tarmac road, which were only approximately six metres wide. The
deceased was walking with his back to
oncoming traffic. She said there was
sufficient clear verge such that the deceased could have been walking on the
verge
rather than the tarmac. There was no mechanical defect with the
vehicle especially its headlight.
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The defence counsel also
submitted that the established fact show that the deceased did not in his
own interest take reasonable
care of himself and contributed by his want of
care to his injury. Counsel submitted that the deceased could have avoided
the tragedy, inter alia, he could have walked towards oncoming traffic so as
he could see it and he could have been walking
off the road on the verge.
She said under the Law
Reform (Contributory Negligence[5]
Section 1(1) provides:
lang="EN-GB">“Where any person suffers damage as a result of his own
fault and partlpartly of the fault of any other
person or persons, a claim in
respect of that damage shall not be defeated by reason of the fault of the
person suffering
the damage, but the damages recoverable in respect thereof
shall be reduced to such extent as the Court thinks just and equitable
having regard to the claimants share in the responsibility for the damage.”
She also submitted that in the
se of O’Connell v. Jackson
it was held that where the defendant was solely responsible for the
occurrence which inflicted the damage but the plaintiff
could have taken
steps to mitigate it, the damages will be reduced. She also submitted in the
case of Nance v, British Columbia Electric Ry
it was held that when contributory negligence is set up as a defence, its
existence does not depend on any duty owed
by the injured party to the party
sued, and all that is necessary to establish such a defence is to prove that
the injured
party did not in his own interest take reasonable care of
himself and contributed, by his want of care, to his own injury.
For when
contributory negligence is set up as a shield against the obligation to
satisfy the whole of the plaintiff’s
claim, the principle involved is that,
where a man is part author of his own injury, he cannot call on the other
party
to compensate him in full. The test for the standard of care in
contributory negligence was held in AC Billlings & Sons Ltd v. Rider
as what is reasonable in the circumstances.
The defence counsel submitted
that apportion provision to Section 1(1) of the Law Reform (Contributory
Negligence) Act
adds:
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“If having regard to all the
circumstance of the case it is not post possible to establish different degrees
of fault
the liability
shall be apportioned equally.”
Sheitted that if the
inference is that both must be to blame then in the absence of evid evidence
indicating which was
more to blame the Court should hold them equally liable
as held in the case of Baker v. Market Harboroug & Industrial Co-op
Society Ltd.
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It was presentr the
defendant that considering the circumstances of this case, the Court’s
st starting point for the
apportionment damages in a case of contributory
negligence should be 50:50.
THE LAW AND ITS APPLICATION.
The Law Reform (contributory Negligence) Act UK, is
accepted as an Act of general application is the law to apply in this case,
se,
in accordance with Article 95 (2) of the Constitution. The relevant section
of that Act is Section 1 (1) which read:-
“where any person suffers damaga result of his
own fault and party of the fault of a of any other person or persons, a claim
in
respect of that damage shall not be defeated by reason of the fault of the
person suffering the damage, but the damages
recoverable in respect thereof
shall be reduced to such extent as the Court thinks just and equitable
having regard to
the claimants share in the responsibility for the damage”.
The apportion provision to section 1(1) of the law Reform
(Contributory Nence) Act adds:-
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“if having regard to all the circumstance of the case
it is not possio establish different degredegrees of fault the liability
shall be apportioned equally”.
This case of contributory
negligence, which comes at the high end of the scale. I would iuld in this case
take into account
the circumstance as a matter of principle to be fair to
both parties. To achieve the proper award, I ask myself to what degree
had
the deceased contributed in the accident which cause his death.
In this case, the two (2)
photographs in Court with the consent of the parties show the followinlowing
fact. The road
where the accident took place is a straightforward road.
There are village settlements on side of the road. The deceased was
identified by letter X on the photograph on the right side of the road.
Other factors are that the deceased was walking
with his back toward
oncoming traffic. There is no street light and no foot path. It was dark at
the time of the accident.
The deceased was wearing a white shirt and blue
trousers. The deceased drank kava and walked on one metre on the tar.
The defendant want was driving toward the deceased. There was no mechanical
problem or defects and the headlights of the
truck are on and working
There was no issue of the speed of the vehicle the dthe defendant was driving.
These are object
the facts to be taken into account in this exercise. The
subject matters are relevant and cannot be taken into account (see
mitigating factors as set out in the judgment of the Court of appeal).
The main fault attributed to
the deceased was that he was wa one meter into the tar roar road.
The defendant could have seen
the deceased as he was wearing a white shirt. The deceaas not jumped
onto thto the road.
Having considered the degree of
faults and the duty of care of the defendant as ver of a truck in the
public road
vis à vis other road users such as the deceased and the
circumstances surrounding this case, I find that the defendant has
high
degree of fault than the deceased.
The defence submission that the
tarting point for apportionment of damages in this case (coe (contributory
negligence) should
be 50:50 is rejected.
Applthe principle of the
law to the facts as found, the fault attributed to the deceased ased for his own
injury is assessed
at 10%.
In this case, the starting
point for apportionment of damage is taken at the extreme amount and 10% of
that amount is
to be reduced to take into account the deceased’s
contribution to his fatal injury.
DATED at PORT-VIhis 18th
DAY of MARCH, 2002
BY THE COURT
VINCENT LUNABEK
Chief Justice
