Chilwell v Robertioaba [2010] CKCA 4; CA 8.2009 (18 June 2010)

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IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)

l. The Appellant appeals against both a judgment of Grice, J. given in the High Court at Rarotonga on 11 November 2009 as well as a supplementary judgment on costs given by the Judge on 16 November 2009.

2. The Respondent had sued the Appellant for general and special damages arising out of injuries he had received in a motor accident on 6 August 2007. His motorcycle had collided with the Appellant's car which was making a right-hand turn from the Rarotonga Airport exit onto the main road towards Avarua. The Respondent was travelling away from Avarua.

3. The Respondent's claim was defended by the Appellant, both as to liability and quantum. The Appellant was represented at the trial by Mr Tevita Vakalabure who was removed from the roll of barristers and solicitors in late November 2009.

4. Grice J found for the Respondent on liability, rejecting defences of no negligence and contributory negligence. She awarded the Respondent $30,000 general damages, $27,422.54 special damages and costs and disbursements $26,016.95

5. The Appellant, although originally appealing against the finding of total negligence on her part for the accident, now appeals against the finding that there was no contributory negligence on the part of the Respondent. She also appeals against the quantum of damages and the amount of the costs order.

6. The Appellant - without the assistance of counsel after the disbarment of Mr Vakalabure - filed the appeal herself. Ms Edwards, who was instructed only in April 2010, has managed to put the documents in order and to have presented the case for the Appellant in a professional manner. The Court is grateful to her, as it is to Mr Little. The submissions for both sides were carefully and thoroughly prepared and presented to the Court.

7. Counsel for the Appellant sought leave to file further evidence on appeal, pursuant to Rule 22 of the Court of Appeal Rules. This application, which was opposed by the Respondent, falls to be considered before the Court deals with the substantive appeal.

(b) Official statements regarding free operations and medical procedures in New Zealand for Cook Islanders such as the Respondent.

(d) The notes from Rarotonga Hospital concerning the Respondent's admission and discharge at the time of his accident.

9. The principles governing the admission of fresh evidence on appeal are set out in the judgment of this Court in Kikorio v Harmon & Estall (Judgment 1 March 1990 - CA 7/89). Fresh evidence will be admitted only if:

(a) The evidence could not have been obtained, with reasonable diligence, at the trial

(b) The evidence must be such that, if given, it would probably have had an important influence on the result of the case, although it need not be decisive.

10. Counsel for the Appellant submitted that a contributing factor in this evidence not having being placed before the trial Judge, was the shortcomings of her then counsel. Whilst having every sympathy for the appellant - because the narrative unfolded in this judgment will indicate several such shortcomings - the Court cannot allow this sympathy to influence its assessment of the proposed new evidence in the light of the above criteria.

11. Clearly, a survey plan and the Respondents medical notes could have been obtained with reasonable diligence at the trial. Indeed, the Respondent's hospital notes were in a bundle of documents made available by the Respondent's counsel to Mr Vakalabure who elected not to put them before the Judge.

12. However, we take the view, as shall be seen in our discussion about liability, that neither the plan nor the notes could have altered the view of liability and contributory negligence reached by the Judge after she had seen and heard the witnesses.

13. As for the Policy documents, we agree with Mr Little that they are not entirely clear in the messages they purport to deliver. However, it appears from the transcript that there was a lack of information about the terms and effect of the policies. We feel that the Judge would have been assisted if she had seen these documents. They are of assistance to this Court when it comes to assess the quantum of damages. They do not cover credibility issues which might require cross-examination. They mean whatever they say. Accordingly, we allow in the evidence of the Policy documents.

14. The basic fact relating to this accident was that the Appellant was turning right towards Avarua out of a compulsory stop at the exit to the airport. The Respondent was riding his motorcycle on the main island road in the direction away from Avarua. The Appellant did not see the Respondent.

15. An eye-witness, - whom the Judge considered reliable - thought that a collision was inevitable when he saw the Appellant's vehicle making its right-hand turn into the Respondent's path. The eye-witness estimated the Respondent's speed at 45 kilometres per hour and no more than 50. The respondent himself estimated 25 - 30.

16. At trial, the Respondent called a Mr Wingrove, a Traffic Engineer from Sydney. The Judge accepted his evidence that the Appellant's lane of sight towards Avarua would have been 100 to 110 metres.

17. The Respondent said in evidence that he was level with a lamp-post when he first saw the Appellant's vehicle. The purpose of the Appellant's new survey plan was to show that the lamp-post was 21.65 metres from the airport exit and that the Respondent would have had a chance to take evasive action. We cannot place much weight on this evidence. Evidence of positions and speed in motor accident cases given by those involved is notoriously unreliable. We doubt whether the Respondent would have been concentrating on the location of the lamp-post when faced with a situation of a vehicle turning into his line of travel.

18. The purpose of producing the medical notes was that they include suggestions that the Respondent may have been intoxicated at the time of the accident. He had given evidence - accepted by the Judge - that he had consumed two "stubbies" of beer before the accident. There was no evidential breath or blood test taken from him. It is not surprising that alcohol may have been detected on his breath when he was admitted to hospital.

19. Grice J, who saw and heard the witnesses, held that there was no evidence that the Respondent had been riding his motorcycle other than normally. Nor that there was any evidence that his reaction had been impaired by alcohol. She accordingly found no contributory negligence against the Respondent - either on the grounds of alcohol impairment or of the lack of taking action to avoid a collision.

20. The Court is unable to disturb the findings of the Judge on liability and contributory negligence. Such findings were clearly open to her on the evidence which she heard. In our view, the additional evidence would not have made any difference to her findings. Reduced to basic terms, the obligation of a driver turning right out of a compulsory stop into the line of travel of oncoming traffic is a fairly basic one.

21. We are sorry for the Appellant who, after many years of blame-free motoring, has to face severe financial consequences from a moment of inattention of the sort of which many drivers could easily be guilty. However the Appellant's duty in this case was obvious and the consequences of a breach of that duty must inevitably follow. It is unfortunate that she had not apparently been advised about giving a thoughtful response to letters from the Appellant's Solicitor suggesting either an early compromise before proceedings had been issued or an acknowledgement of liability and discussions about the quantum of damages. Her then lawyer seemed set on advising her to fight the claim on all fronts, when a settlement might have produced a more favourable outcome for her. Settlement discussions would have been more than sensible after the Appellant had been convicted after a defended hearing on a driving offence arising out of the accident.

22. At the conclusion of the evidence, at the request of counsel for the Respondent, the Judge allowed both counsel to confer to work out special damages.

23. When the Court resumed after a break, the Judge asked counsel to advise her what had been agreed upon. A schedule was produced in response. Some items were not agreed upon. The record clearly shows that there was agreement on both items and quantum for all the following:

Airfares to New Zealand - Respondent	551.60
Rarotonga Hospital Fee	139.00
Medical ointments	350.00
Extra airfares	160.00
Long dress trousers	140.00
Dress shoes	140.00
New watch	150.00
Nokia Mobile Phone	200.00
Top-up of income - 20% per
6 months (balance unpaid wages)	2931.94
	$4762.54

24. Counsel for the Appellant before us contested the validity of most of the above items. For example, it was said that the claims for trousers, shoes, watch and phone had not been incurred as the result of the accident but that these had been items, not on the Respondent's person, but in a bag on the motorcycle. The Appellant said in evidence that the Respondent had told her that these items had been stolen. No evidence was given to contradict this assertion.

25. Another example of an apparently illegitimate claim is that for extra airfares of $160.00. These were for the Respondent's grandson whom he used as a "living walking-stick" when he was crippled by the accident. It is hard to see that this item of special damage was reasonably foreseeable.

26. Whilst we are inclined to agree that may of the so-called items of special damage such-as those mentioned above - are not normally the sort of items within the accepted understanding of special damages, the Judge was entitled to accept the clear agreement made by the Appellant's then counsel. She recorded in her judgment in respect of these items, "Counsel were able to agree on the quantum of a number of items of special damage and those agreed are listed as follows".

27. The Judge went on to reject several items which were not agreed to and for which there had been no invoice produced or other evidence in support.

28. We are driven to conclude that the Judge was entitled to accept the agreement of counsel as to the validity and quantum of the items of special damages listed in paragraph 23 above. If, as seems likely, some of the items should not have been included as special damages, then that is another example of the unfortunate way in which the appellant had been served by her former counsel. The Court and the Respondent were entitled to act on the agreement reached between counsel and we do not feel justified in going behind that agreement.

29. Grice J then considered a claim in respect of the Respondent's damaged motorcycle. On the meagre evidence available to her, she assessed the loss at $1500. We see no reason to interfere with that decision.

30. The balance of the claim for "special damages" was for a total of $21,160 based on the proposition that the Respondent would require a hip replacement operation to be carried out privately in New Zealand at some further date.

31. This claim was wrongly categorised by both counsel and Judge as an item of "special damages". It was clearly part of "general" damages since it was concerned with future expenditure.

32. The Judge awarded the whole of the $21,160 claimed. Without demur from counsel, this Court indicated that any award under this head will have to come under the general damages category. We must now make reference to the Respondent's injuries and to the cost of further medical treatment he is likely to need, in order to assess this head of claim.

33. The Judge heard evidence from Dr Noovao (who has at all material times cared for the Respondent in Rarotonga) and from Mr A. A McDiarmid, orthopedic surgeon in Auckland who attended by way of telephone conference. Mr McDiarmid saw the Respondent when a Visiting Surgeon in Rarotonga. The Respondent had also travelled to New Zealand where his general practitioner there had referred him to another surgeon, Mr Hanlon.

34. As a result of the accident, the Respondent suffered injury to his right knee which has caused ongoing and worsening pain and stiffness. At age 49, he no longer plays rugby and tennis and cannot run. He gets depressed through his inability to exercise.

35. Argument centred around the cause of the present degeneration of his right hip. The Judge held that the accident either damaged his hip or triggered a pre-existing condition. There was ample evidence on which to base her findings in this regard. Mr McDiarmid assumed either that the Respondent developed arthritis of the hip as a result of the accident or that he may have had pre-existing arthritis which has been aggravated by the accident. A hip replacement is standard treatment for the Respondent's condition.

36. Hip replacements are not available in Rarotonga. The Policy documents show that the Respondent might well be eligible to have a hip replacement in New Zealand at the expense of the New Zealand Government. Either on referral from Rarotonga or on self-referral if he came to New Zealand. He has not thus far applied for eligibility under this Policy and is being placed by Dr Noovao on the waiting-list. If he elected to "go private", the cost would be about $20,000.

37. Grice J awarded the Respondent under the heading of special damages $21,160. This was for the cost of the hip replacement operation in New Zealand, $20,000, together with other New Zealand expenses such as x-rays and MRI scan.

38. Mr Little pointed out uncertainties and some ambivalent wording in the Policy document, which made it less than certain that the Respondent would qualify for the total cost of full hip-replacement in New Zealand or for all or any of the ancillary treatment. However, on the face of the documents, the Respondent seems likely to qualify for free treatment in New Zealand in whole or in part.

39. Because of the distinct possibility that the Respondent will qualify for all or part of the cost of an operation in New Zealand, we think that the Judge (who did not have the Policy documents before her) may have been too generous in this regard. She should not have regarded this aspect of the claim as special damages but should have adjusted the general damages award to take account of the Respondent's entitlement under this heading.

40. Accordingly, we quash the award of $21,160 for special damages and substitute an award of $10,000 as general damages for this aspect of the claim. This sum is to be added to the general damages awarded for pain and suffering and loss of amenities. This figure of $10,000 takes into account the contingencies and uncertainties attaching to the funding of the hip operation.

41. The Judge awarded $20,000 for general damages. She noted that the calculation of general damages is never precise and that an award is intended to compensate for future losses, including the consequences of hypothetical future actions. The Court can take into account past and future pain and suffering, future medical costs, lost wages and loss of enjoyment of life.

42. The Judge had little precedent to assist her in this calculation. The last Cook Island case was in 1991. Pre-Accident Compensation New Zealand decisions are of no real-help since they are all at least 35 years old.

43. The Judge was exercising a discretion in her award of general damages. We cannot say that she acted on any wrong principle or failed to take any material consideration into account. Nor can we say that the award was so high that it should not have been awarded (the "goodness gracious as high as that" test referred to in English authorities). Even given the modest economic situation of many in the Cook Islands, we cannot say that the award is unreasonably high.

44. Also relevant to the assessment of damages under this head is the possibility that the present condition may have been due to spontaneous degeneration or that the accident merely accelerated degeneration that would have occurred in any event.

45. Consequently, we consider that the award of $20,000 for general damages (without the hip operation quantum) should be upheld.

46. The Judge in a separate judgment awarded indemnity legal costs and disbursements to the Respondent of $18,297.95 plus Mr Wingrove's fees and disbursements of $7719.

47. We consider Mr Wingrove's account reasonable. He gave testimony which was helpful to the Judge. He described what could be discerned from the evidence of the impact of the motorcycle on the Appellant's vehicle. For someone coming from Australia with his experience, his account was reasonable. Had the Appellant's then lawyer been more receptive to the quite reasonable approaches for settlement dialogue made by counsel for the Respondent, it might not have been necessary for Mr Wingrove to have been called.

(a) A 'Calderbank' letter from the Respondent to the Appellant offering to settle for $15,000 had received no response. The letter was sent before the proceedings had been issued.

(b) The Appellant had failed to meet timetable directions which meant that the Respondent had had to file applications to enforce those directions.

49. Dealing first with the second point, we note that, on 19 June 2009, the Chief Justice dealt with the application to strike out brought by the Respondent. The Chief Justice noted "It is matter of concern that Mr Vakalabure has not responded in any way to the letter of 13 May 2009 from Mr Little".

50. The Chief Justice went on to direct that unless the Appellant complied with the directions of 9 April 2009 within 7 days her statement of defence and contention would be struck out.

51. Despite this clear direction, Mr Vakalabure did not file submissions until the second day of the hearing before Grice J. He told the Judge that his office had been closed and he had limited resources. However, as the Judge noted, the Respondent had been put to expense because of the tardiness of the Appellant or her counsel.

52. The Chief Justice did not specifically reserve costs on the strike-out application. It was reasonable for Grice J. to have fixed the quantum for the costs allowance undoubtedly due to the Respondent as a result of Mr Vakalabure's tardiness. It should have been a separate head of award, not attached to the costs of trial. We consider that a sum of $1000 is reasonable under this heading.

53. The so-called 'Calderbank' offer was contained in a letter written directly to the Appellant by the Respondent's solicitor on 15 October 2007 - before proceedings had been issued. The letter stated that the Appellant could easily be entitled to damages in excess of $20,000 and offered to accept $15,000 in full settlement.

54. It is unknown in the experience of the members of the Court for a Calderbank letter to be written before proceedings have been issued. Usually, such a letter is written when the full extent of a Plaintiff s claim is known. Whilst in hindsight, the offer was advantageous to the Appellant, she was not to know at the stage the letter had been received the full amount of her possible liability.

55. The Appellant said in evidence that she gave the letter to Mr Vakalabure. She had expected advice from him on the offer but never received any. A similar result came from a letter dated 15 April 2008 from Mr Little to Mr Vakalabure. The letter suggested that the Appellant admit liability and discuss damages. No offer was contained in it.

56. The Court retains a general discretion to grant costs even where a Calderbank offer has been made: McDonald v FAI (NZ) General Insurance (2002) 16 PRNZ 298

57. The Judge considered the amount of costs charged to the Respondent was reasonable. We do not disagree. However, the question was whether the Judge should have awarded full indemnity costs and not followed the normal practice of awarding two-thirds of solicitor and client costs. She awarded full indemnity costs on the basis of the 'timely Calderbank offer' and the disregard by the Appellant of the timetable orders.

58. We consider that something between the two-thirds allowance and full indemnity is justified. Full indemnity costs should be reserved for worse cases than this one.

59. Accordingly, the costs order in the High Court is varied by awarding to the Respondent $15,000 for costs and disbursements plus the expert witness expenses, $7719 plus costs on the strike-out application, $1,000

60. The appeal is allowed in part. Instead of the amounts awarded to the Respondent in the High Court, the following amounts are substituted.

General Damages	30,000.00
Special Damages	4,762.54
Loss of Motorcycle	1,500.00
Costs and Experts fees	23,719.00
	$59,981.54

61. The Respondent has been largely successful in this appeal, and is awarded $1,000 costs for the appeal hearing.

Court of Appeal of the Cook Islands

Chilwell v Robertioaba [2010] CKCA 4; CA 8.2009 (18 June 2010)