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Obed v Kalo [2008] VUSC 47; Civil Case 221 of 2006 (24 June 2008)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 221 of 2006

BETWEEN:

KALO OBED
Claimant

AND:

CHARLES KALO
First Defendant

AND:

VANUATU TEACHER’S UNION
Second Defendant

Coram: Justice C.N. Tuohy

Counsel: Mrs. Patterson for Claimant
No appearance for Defendants

Date of Conference: 5 June 2008
Date of Decision: 24 June 2008

RESERVED JUDGMENT

Introduction

1. This is a claim for damages arising out of an accident which took place on 25 November 2003 when the claimant was struck by a motor vehicle while walking on Lini Highway.
   
2. The first defendant was the driver of the vehicle and the second defendant was the owner. Judgment by default in an amount to be determined was entered against the first defendant on 27 July 2007 and against the second defendant on 31 March 2008. A conference to determine the amount of damages was held on 5 June 2008 at which decision was reserved.
   
3. The claimant seeks special damages by way of loss of salary from the date of the accident until the date of the damages hearing in the sum of VT3,837,500 and general damages for future economic loss in an amount between VT16,658,915 and VT20,308,340 and for pain, suffering and loss of amenities of life between VT6.9 m and VT 11m.
   

Effects of the Accident

4. The claimant’s major injury was a compound fracture dislocation of his left ankle together with a partial degloving (stripping) of the skin from the medial aspect of the joint. Initially, his surgeon Dr. McNamara expected that he would eventually be able to return to his work in the hospitality industry. However that has not proven to be the case.
   
5. In a report of 13 July 2004 nearly 8 months after the accident, Dr. McNamara found that the compound fracture had fully healed but that the following deformities persisted:
   
   • Diastasis (separation) of the joint
   • Limitations of all movements of the ankle joint
   • Early changes of osteo-arthritis
   • Severe osteoporosis of the tarsal bones
     

At that stage, Dr McNamara considered these would be permanent disabilities and assessed a 75% loss of use of the left leg in terms of occupational and recreational activities. He made a final estimate of the disability on 8 February 2006 at 85% of the loss of use of the left leg.

6. The claimant has been in employment continuously since 1984 after leaving school, mainly in the hospitality industry. At the time of the accident he was Assistant Manager of the Seaview Restaurant. He stated that he had not had employment since the accident and is unable to work as he cannot walk or move without crutches. In view of the nature of his disability and of his employment history and experience, I accept that he has been unable to work since the accident and is permanently unable to work.
   
7. His injuries have also resulted in dramatic effects on his life outside the employment arena. He is from Makira Island where he is a chief. The island is steep so he is unable to leave the village and also unable to fully attend to his chiefly duties such as killing pigs and dancing at ceremonies. It is difficult for him to get around to communicate with members of his tribal group. He cannot work on his custom land which totals about 6 hectares in 17 pieces so cannot make customary tribute to the paramount chief. He fears that he might lose his land. (There is however insufficient evidence for the Court to find that this fear will become a reality. The claimant has sons now approaching adulthood and most custom owners eventually become weakened or disabled by age without the family thereby losing custom ownership).
   
8. The practical result of his disabilities is that he cannot live on his home island of Makira. He is unable to fish on the reefs, work in the gardens or gather fruit and coconuts, or cut and carry wood. He now spends most of his time at the family residence at Blacksands where, however, his movement is restricted.
   
9. There are many other ways in which his life has changed for the worse:
   
   • He cannot run or walk or play physically with his children
   • He cannot play sport or games
   • His ability to swim and dive has been significantly reduced
   • He cannot engage in house building
   • He cannot help his wife with household tasks and much of the family responsibilities have fallen on her which he naturally feels bad about
     
10. In addition, he suffered considerable pain following the accident which continues. He spent 1 ½ months in hospital initially. The nature of the injuries must have resulted in very great pain. The claimant said that it lasted for 2 years. He still feels pain, sometimes considerable. It fluctuates in intensity, being worse when he moves around a lot and when the weather is colder.
    

Special Damages

11. In his final position at Seaview Restaurant he was earning VT30,000 per month. Prior to that he had been receiving VT11,000 per week with a menswear retailer and expected that he would have soon obtained substantial increase in the salary he was earning at the Seaview. That expectation is supported by the evidence of Bryan Death, the General Manager at Moorings Hotel, who has worked in managerial positions in the hospitality industry in Port Vila for some time whose evidence is that a good ni-Vanuatu employee in a managerial position could expect to earn VT22,500 – 25,000 gross for working a 48 hour week based on an hourly rate of VT 450 – 500. Mr. Death’s sworn statement says that the VT22,500 – 25,000 is “per fortnight” but I think this is a mistake as the calculation at VT450 – 500 per hour would give those amounts for a week.

12 The special damages claim is made on the basis that the claimant would have continued to earn VT30,000 for the 2 years after the accident, and then would have earned VT23,750 per week. That figure is calculated on the most favourable assumptions from the claimant’s point of view i.e. that he would work a 48 hour week and 13 public holidays at top rates. Obviously, the figure is 3 times what he was actually earning at date of accident. In my view a figure of VT 15,000 per week is more reasonable.

13 There are 2 other issues. First there is an incorrectly transposed figure in the claimant’s calculations (VT720,000 reproduced as VT 750,000). That has led to an overstatement of VT 30,000. Secondly, the calculation is made from the date of the accident, 25 November 2003. The claimant’s sworn statement says at Paragraph 12:

“I was paid VT30,000 per month at Seaview Restaurant and when I was dismissed in August 2004 was given VT300,000 as a termination payment”.

That implies that the claimant was paid his salary of VT 30,000 per month between November 2003 and August 2004. It is also unclear what the “termination payment” consisted of. Such payment must be credited against the special damages claim which is calculated on the assumption that if it were not for the accident, the claimant would have continued in employment.

14 Therefore, from the amount claimed under this head there will be deducted a monthly salary for 8 months and the termination payment of VT300,000. If the Court has drawn an incorrect conclusion from the claimant’s statement, the claimant may file a further sworn statement and ask that the judgment be amended. Special damages are fixed as follows:

General Damages – Future Economic Loss

15 The claimant seeks damages for loss of future income on the basis that he would have earned VT23,750 per week equivalent (or VT1,234,000 per annum) for the rest of his working life until age 65. For the reasons set out in Paragraph 12, I consider VT 15,000 per week is more fair and reasonable, giving an annual figure of VT 780,000. Also the assumption that the claimant’s working life would have continued until 65 is not likely in the Vanuatu context. Retirement is normally at a much earlier age. Section 38 of the Vanuatu National Provident Fund Act (Cap. 189) provides that a member may withdraw his contributions at age 55. The Judicial Services and Courts Act 2000 s. 36 (1) provides that a Judge of the Supreme Court holds office until age 60. Judges in other jurisdictions where the normal retirement age is 65 usually hold office until 70 or 72 years of age. These differences may reflect the fact that average life expectancy in Vanuatu is less than it is in countries where the normal retirement age is 65. In any event I am satisfied that fixing a notional retirement age of 58 for the claimant in this case is fair and reasonable.

16 The claimant has also applied a discount factor of 3-5% to recognize the present value of future payments, calculated annually for lack of a monthly table. What the future may hold in terms of inflation is one of life’s uncertainties. However in my view a discount rate of 5% is fair. The claimant will attain 58 years of age in 2024, which is 16 years from now. Using the claimant’s tables, the present value of VT100 received annually for 16 years at a 5% discount rate is VT1084. At that rate the present value of VT 780,000 is VT 8,455,200 which sum I fix for future loss of earnings.

General Damages – Pain, Suffering and Loss of Amenities of Life

17 The claimant submits that if an equivalent case came before a Court in Australia or the United Kingdom the award under this head of damage would be somewhere between AUD75,000 and AUD120,000. Then counsel submits that the Court should not follow the approach taken in Solzer v. Garae & Another Civil Case 117 of 1992 in which the Court fixed the quantum of damages under this head at 50% of what would have been awarded in the United Kingdom to take account of Vanuatu’s different circumstances. It was submitted that in doing so the Court departed from the approach adopted by the Court of Appeal in Societe Civile Intercontinental & GFA v. Leigh Case No. 6A of 1984 (12 December 1984) and acted contrary to Article 95 of the Constitution. It was also submitted that Solzer v. Garae should not be followed because although wages may be lower in Vanuatu than in the United Kingdom, the cost of living is said to be higher here. Also it is said that the decision is discriminatory in that it treats the pain and suffering of a person in Vanuatu as being worth less than that of a person in the United Kingdom.

18 In Alphonse v. Tasso [2007] VUSC 54, Civil Case 21 of 2005 (29 May 2007), I had cause to consider Solzer v. Garae upon which that claimant sought to rely. I said this about it:

“45. The general damages sought for pain and suffering were calculated using the approach adopted by Vaudin d’Imecourt CJ in Solzer v Garae and the Government of Vanuatu CC 117 of 1992 (15 June 1992), that is, by ascertaining an appropriate award in the United Kingdom using the Guidelines for the Assessment of General Damages in Personal Injury Cases (6th ed) compiled for the Judicial Studies Board and dividing it in half.

46. That approach was questioned by the Court of Appeal in Entreprise Roger Brand v Hinge [2005] VUCA 21; CAC 13 of 2005 (18 November 2005) in which the Court suggested that at some stage it might need to undertake a more in-depth analysis of the proper basis for assessment of damages in personal injury cases of the sort carried out by the Supreme Court of Fiji in The Attorney General of Fiji v Broadbridge [2005] FJSC 4. However, no subsequent opportunity to do has arisen.

47. In a case like the present, where there is a particular injury, loss of one front tooth, which is specifically listed in the Guidelines, they remain a very useful place to start. They give a figure for loss or serious damage to one front tooth of £1,000 to £2,000. They note that in cases of damage to teeth there will generally have been a course of treatment as a result of the initial injury. The amounts awarded will vary according to the extent and/or degree of discomfort of such treatment.

48. Here there was a complete loss of the tooth, treatment was significant, involving 3 overseas trips and must have resulted in significant discomfort. In my view an appropriate award in the United Kingdom on this head would be at the top of the range, £2,000.

49. As well, for trivial facial scarring a range of £900 - £1,800 for males is given. There were no photos provided although the Claimant did state that he suffered from some tenderness and sagging of the lip even at August 2005 when he made his statement. I consider a figure of £900 would be the appropriate United Kingdom award.

50. As well as that it is necessary to keep in mind, the shock humiliation and fear which this assault caused to the Claimant which were significant.

51. The Claimant’s figure of VT 441,883 is based upon awards of £2,000 and £900, which is entirely in accord with my own assessment. The vatu figure is reached by dividing that sum by 2 as in Solzer v Garae and Government of Vanuatu and then applying a conservative multiplier of 2.5% p.a. for inflation from 2002 (the date of the Guidelines) up to 1 December 2006 and then converting to vatu at the exchange rate ruling at 1 December 2006.

52. The only query I have with that approach is the multiplier of 0.5 applied to the sterling figure which Vaudin d’Imecourt CJ considered appropriate to recognise the different economic circumstances of the United Kingdom and Vanuatu in 1992. While it might be somewhere near the mark today in respect of the relative cost of living, it is nowhere near it with respect to income levels which are many times higher in the United Kingdom. However in the absence of either evidence or argument on the point, I will follow the precedent, such as it is."

19 I do not think with respect that the former Chief Justice was wrong in Solzer v. Garae in using the Guidelines for the Assessment of General Damages in Personal Injury Cases compiled by the Judicial Studies Board in the United Kingdom. Claims for damages for personal injuries in Vanuatu are made under the British common law in force and applied in Vanuatu on the Day of Independence pursuant to Article 95(2) of the Constitution. The Court needs a practical guide of that nature, as much in Vanuatu as in the United Kingdom.

20. Nor do I disagree that there needs to be an adjustment for Vanuatu circumstances. I reject the argument that there is some worldwide standard figure for pain, suffering and loss of amenities applicable in all countries regardless of their economic circumstances. That flies in the face of economic realities. It overlooks that not only does one party receive a damages award, another party pays it. The Court cannot by damages awards cure the wide economic disparities between Vanuatu and more developed common law jurisdictions. It has to do justice while recognizing those realities.

21. The case of S. C. International & GFA v. Leigh is of no real precedent value. First, it was decided under French law, as is clear from the leading judgment (delivered in French by a French judge). Secondly there was no discussion of this point which is not surprising given that the claim was on behalf of an Australian tourist staying temporarily at what is now Le Meridien against the French company which then owned it and its French insurer.

22. As I said in Alphonse v. Tasso, I have some concern with the multiplier of 0.5 applied in that case as I am doubtful whether it properly recognizes the real differences in the economic circumstances of Vanuatu and the United Kingdom both on the income and the cost of living sides. However as in Alphonse v. Tasso, I have no evidence which enables me to fix some other multiplier and the Court of Appeal has not had any opportunity of providing further guidance. Therefore I intend to apply it in this case.

23. This injury can be categorized as a severe ankle injury in terms of Category 6(N) (b) of the Guidelines (8th ed). The range of awards for such injuries is ₤18,325 to ₤29,000. This injury is at the top end, given that there is a higher category of very severe ankle injuries starting at ₤29,000. I consider that an appropriate award in the United Kingdom would be ₤29,000. Applying a multiplier of 0.5%, the appropriate award in Vanuatu is the vatu equivalent of ₤14,500. At a fair exchange rate of VT 190 to the GPB₤ at the date hereof I fix general damages under this head at VT 2,755,000.

Conclusion

24 Damages are fixed as follows:

25 There will be judgment for the sum of VT 13,910,200 against both defendants together with costs which are fixed at VT 425,089 inclusive of disbursements. An enforcement conference is fixed for 22 August 2008 at 8 am and a summons in Form 24 is to issue against the first defendant and the President of the second defendant.

Dated at Port Vila, this 24th day of June, 2008

BY THE COURT

C.N. TUOHY
Judge