Ioaba v Chilwell [2009] CKHC 27; Plaint1.2008 (10 November 2009)

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

Plaint No. 1/2008

BETWEEN:

MR ROBERT IOABA of
Rarotonga
Plaintiff

AND:

CARYN CHILWELL of
Rarotonga
Defendant

Counsel: Mr Little for Plaintiff
Mr Vakalalabure for Defendant

Hearing: 9 -10 November 2009
Decision: November 2009 (oral)

JUDGMENT OF GRICE J

Introduction

1. Mr Robert Ioaba was knocked off his motorbike as he was driving home from work on 6 August 2007. He collided with the side of Caryn Chilwell's car as she was making a right turn out of the Rarotonga airport onto the road towards Avarua. Mr Ioaba was hospitalised after the accident. He suffered injuries to his right knee. His injuries have caused him ongoing and worsening pain and stiffness. He needs a hip replacement to halt degeneration in his right hip. He seeks special damages for the costs incurred as a result of the accident and injuries as well as for general damages to compensate him for the future effects of the accident and ongoing right leg and hip problems.

The Witnesses

2. Mr Ioaba had consumed 2 small bottles of beer or stubbies in the hour or so before the accident. He left the Avarua wharf area and he recalls seeing a blue station wagon pulling across his path from the airport exit. He thinks he was riding at about 24-30 km per hour, In his last moment of consciousness he remembers hitting the right front side wing mirror of the car. He woke up on the road briefly and then did not gain consciousness until he was in hospital.
   
3. Miss Chilwell who has driven incident free for 49 years was shocked by the collision. She had dropped off some visitors at the airport for a flight to Aitutaki. She stopped at the airport exit and recalls looking both ways then pulling out. She simply didn't see Mr Ioaba. She checked the roadway both right and left before moving out. She explains the collision must have been caused by Mr Ioaba's excessive speed. She parked the car and rushed back to Mr Ioaba who was lying on the road. She had no mobile phone as she had not been expecting anything other than a quick trip from her shop, the Big Orange. She was in a state of shock after the incident and did all she could to assist Mr Ioaba. She visited him a few days later in hospital. Then she visited him at his home. At the home visit she was upset as she was asked to sign a list of expenses totalling $10250. Mr Ioaba produced this list and she felt under duress to sign it. Both Mr Ioaba and Mss Chilwell did sign this document which was produced.
   
4. Miss Chilwell felt harassed by subsequent calls from Mr Ioaba to follow up on the payment. She felt under pressure to sign the document and felt that the Cook Islands gossip mill was working overtime spreading rumours about her. She felt she was being unfairly treated by Mr Ioaba while she continued to feel concern for him. She was being taken advantage of to pay costs that may not have been justified. For example a Nokia mobile phone was listed at $600.00 but she subsequently discovered the most expensive phone would be about $200. She was then told by her lawyer to defend the claim. It is not clear on its face as to whether the document in question is meant to be an admission of liability, an admission of quantum on just a list of claims by Mr Ioaba. I do not place any weight on this document.
   
5. Grant Young was sitting in his mother's van outside the RSA on the Avarua side of the collision. He was waiting for his father who was inside the RSA. Mr Young was the "designated sober driver". He was admiring the scenery when he saw Mr Ioaba's motorbike travelling from Avarua toward the airport. Mr Young looked in his rear vision mirror and saw Mr Ioaba collide with the side of Miss Chilwell's car. He recalls Mr Ioaba flying into the air before cart wheeling and landing on his head. Mr Young ran inside the RSA and asked someone to call an ambulance. He then ran to the collision site. He estimates he ran about 150 to 180 metres to the collision by reference to the time it takes to run down a rugby field and by his calculation of the number and distance of the buildings from the RSA to the collision site. He made a statement to the Police when they arrived 2½ hours after the collision.
   
6. Mr Young was a friend of Miss Chilwell. He had known her for 10 years. He recognized her car when he was looking in the rear vision mirror. He said he remembered thinking when he saw the car moving from the stop sign, that the collision was inevitable. He thought Mr Ioaba was only 3-4 metres from the car when it was pulling out. He saw Miss Chilwell look toward Aorangi at the airport exit stop sign but didn't see her look toward Mr Ioaba. She then moved out and the collision occurred.
   
7. Mr Young hung around the collision site for sometime. He spoke to Miss Chilwell who appeared shocked. He thought he could smell alcohol on her breath but this matter was not pursued nor was it mentioned by any other witness.
   
8. Mr Young was cross examined at length on the distances involved between where he was sitting and the collision. He was also asked about surrounding possible obstructions such as trees and tables. He was adamant that he had a clear and unobstructed view and saw the accident unfold before him. There is no evidence which contradicts this. He impressed me as an honest and thoughtful witness. He did not know Mr Ioaba.
   
9. Mr Colin Wynyard is an independent expert traffic engineer. He gave evidence that the sight distance between the airport exit and the mounted gun at the RSA allowed a clear line of sight from the airport exit of 110 metres. He measured the distance last week. His first report was prepared before this viewing and was based on his observations made at a visit in 2004 when investigating another accident near this collision site. In that report he estimated a line of sight conservatively of "50 metres plus" based on his 2004 recollection.
   
10. Mr Wynward produced 2 reports. The first report dated 14 October 2008 dealt with the review of, and outlined his analysis and conclusions in relation to the accident. In a later report dated 21 September 2009 he reviewed the evidence of Mr Eric Short and Mr Pete Brothers, mechanics who provided witness statements.
    
11. Mr Wyngrove is based in New South Wales. His qualifications are listed in his report. They indicate significant experience and expertise in the area of traffic engineering and accident investigation. He been consulting in this area since 1991. Among other things he has given expert evidence in accident reconstruction and road safety in Australia and Malaysia. He holds tertiary degrees in science and a master of engineering science (transport engineering) from the University of New South Wales.
    
12. He was retained to give evidence in 2004 on an accident that had occurred near the present collision site. He was familiar with the airport exit. He again viewed the site last week. At that time he took specific measurements which he referred to in his evidence.
    
13. In his evidence he updated his earlier estimate of the line of sight from the airport exit and said that the clear sight distance was in fact 110 metres. He said this reinforced his view that Mr Ioaba should have been able to stop his motorcycle in approximately 34 to 38 metres. This calculation is based on speed, distance and time. At a sight distance of 100 metres plus with an approach speed of 50 kilometres the motorcycle would have had plenty of time to stop. Even if the motorcycle had been travelling at 80 kilometres there would have been enough time to stop in the clear sight available on this portion of the road. He concluded that Miss Chilwell should have had a clear view of the motor cycle. He was of the view that Miss Chilwell turned across the road when the motorcycle would have been in clear view.
    
14. At his recent view of the site he had noticed that there was a stop sign on either side of the airport exit. The markings at the exit indicate that there has been a change in the use of the exit at some time. It was now used as an exit only, but at some earlier stage it I had been used as both an exit and entrance. That Miss Chilwell was stopped at a stop sign was common ground.
    
15. Mr Eric Short a mechanic did inspect Miss Chilwell's car. Unfortunately he did so in late June 2009, nearly 2 years after the accident. The car showed damage from other accidents. This was pointed out by Mr Wynyard and accepted by Miss Chilwell. Mr Short's evidence was to the effect that the suspension arm was bent and therefore the motor vehicle would have been travelling in excess of 50 km per hour.
    
16. Mr Short's examination occurred a long time after the accident. The car had been through some other incidents. I am not satisfied that the damage Mr Short examined was even related to this accident. Secondly Mr Short has no qualifications in accident investigation and was not qualified as an independent expert. I do not accept his conclusions as to the speed of the motorcycle. I prefer the evidence of Mr Wynyard and Mr Ioaba. I find that the motorcycle was travelling somewhere between 25 km and somewhat less than 50 km per hour, most probably between 25km and 30km per hour when it hit the car.
    
17. Mr Wynyard did not inspect either vehicle. He relied on photographs and his observation of the collision site. He was critical of the photographs supplied to him. They were of poor quality and of uncertain age and origin.
    
18. The photographs showed damage to Miss Chilwell's car that he had initially understood occurred in the accident. He was now told and this was confirmed by Counsel for Miss Chilwell that the front damage had nothing to do with this accident. His observations of the car damage indicated that the motorbike hit the car at a obtuse angle. It was not a direct side or 90 degree collision. The damage was mainly to the right rear side panels of the vehicle. The door panel is soft metal and buckled in easily. He pointed out markings on the side panels which were likely the motor bike's handlebars moving down the side of the car. He pointed out denting in the area of the wheel guard. This area would have provided more resistance than the soft panel metal. He surmised that Mr Ioaba's right leg had come into contact with that wheel guard area. The bike would have rotated on impact and Mr Ioaba's body would have left the bike and travelled into the air. His view was that the damage to the car did not indicate the bike had hit with an extreme force at speed. He could not say exactly what the speed would have been. He also warned that his view was based on the photographs.
    
19. Following the accident Mr Ioaba spent 4 days in hospital. He had glass removed from his head which apparently came from a window in Miss Chilwells car. His right leg was injured
    
20. While in hospital he had x-rays to his knee. These x-rays have been lost. He subsequently received treatment and further diagnosis in New Zealand. He is left with an unstable and painful knee which he says has led to substantial pain and suffering and interferes with his enjoyment of life. In addition he suffers from right hip pain. Mr Ioaba says this is a result of the accident.
    
21. Dr Noovao a surgeon based at Rarotonga hospital reviewed Mr Ioaba's medical records and examined him in April 2009. He prepared a report dated 9 April 2009 for Mr Ioaba's lawyer. Dr Noovao is not a specialist orthopaedic surgeon but began practice in 1982 as a surgeon in Invercargill and has since gained a thorough working knowledge of orthopaedics. He has examined and operated on many orthopaedic related injuries.
    
22. Dr Noovao's view was that Mr Ioaba suffered a posterior cruciate ligament ("PCL") tear and a suspected tear to the interior anterior cruciate ligament ("ACL"). Damage to these ligaments in the knee causes pain and instability. No surgical intervention is recommended for the PCL. Both knee injuries were caused by the impact on Mr Ioaba's right leg suffered in the accident. While these injuries would cause instability and pain in the leg, they alone would be unlikely to cause the degree of pain that Mr Ioaba now complains of, according to Dr Noovae. That level of pain he said, may be the result of a "bundle" of injuries including degeneration of the right hip. Dr Noovao observed Mr Ioaba's limp and the wasting of the quadraceps in his right leg. These symptoms and knee damage would curb Mr Ioaba's activities. For instance, Mr Ioaba would not be able to run.
    
23. Dr Noovao found Mr Ioaba's right hip showed significant deterioration clinically known as arthritis. The left hip was normal on the x-ray. There were a number of likely causes for the right hip problem. The first was a pre-existing condition or injury which was exacerbated by the force impact progression from the right leg through to the right hip joint. The next possibility is that Mr Ioaba had a previously undetected fracture to the cup of the hip socket (acetabular fracture) at the time of accident which subsequently degenerated. No x-ray was taken of the hip at the time of the accident, probably because the hip pain was not apparent then. The final option for the hip degeneration was a vascular necrosis (alcohol related degeneration) or gout. Dr Noovao quickly dismissed both of these last options. He noted Mr Ioaba's left hip is normal.
    
24. Dr Noovao was unable to find any reference in the Mr Ioaba's records to a pre-existing condition. The records date back to the accident. He had heard nothing that would lead him to believe there was a pre-existing condition.
    
25. Dr Noovao was also present at an examination of Mr Ioaba by Mr McDiarmid an orthopaedic surgeon who was visiting Rarotonga from New Zealand. Mr McDiarmid was advised only on the first day of the hearing that he would be required to give evidence. By consent he gave his evidence and was cross-examined by telephone conference from his home in New Zealand. Mr McDiarmid had reviewed an MRI and x-rays and wrote a report dated 26 August 2008. He was of the view that the degeneration of the hip was likely to be caused by either an acetabular fracture or pre-existing arthrosis which was aggravated by the accident. In his view, given the strong temporal relationship between the onset of the pain in the hip and the accident, the impact to the knee in the accident was causative of the hip problem. The arthritis in the hip was now at an advanced stage and Mr Ioaba would need a hip replacement. The degeneration of the hip would get worse over time. He confirmed the left hip was radiologically normal.
    
26. Mr McDiarmid was of the clear view that the deterioration of the hip joint was caused as a result of the impact suffered to the right leg in the accident. The impact may have setoff or precipitated a a pre-existing injury or alternatively it caused an undetected fracture to the hip socket cup which in turn led to the degeneration.
    
27. I am satisfied on the evidence of Mr McDiarmid that the degeneration of the right hip was caused or contributed by that impact in the collision. I do not need to conclusively determine the cause of the hip degeneration but on the balance of probability the most likely alternatives for the right hip problem is a pre-existing condition which was precipated by the impact or alternatively an injury to the hip at the time of the accident. The Defendant in cases such as these must take the victim as she finds him. That Mr Ioaba had a pre-existing condition which was triggered by the accident is sufficient to establish causation and damages are therefore available as compensation for the injury and degeneration of the hip.
    
28. Mr Vakalalabure cross examined Dr Noovao on the possibility of the injury being an old rugby injury. Dr Noovao allowed this was a possibility but did not put it higher than this. Dr Noovao agreed with Mr McDiarmid's findings although pointed out that it was Mr McDiarmid who was the hip expert and mentor to Dr Noovao.
    
29. Both Mr McDiarmid and Dr Noovao recommend the right hip be replaced. Mr McDiarmid estimated the hip replacement will cost $20,000.
    
30. Dr Noovao's evidence is that the instability and pain that Mr Ioaba now complains of is as a result of the injuries to his knee caused by the accident. That the knee was injured in the accident was not seriously contested. He did not recommend any surgery to his knee. The knee is unlikely to ever properly repair itself.
    

Findings

31. I accept the evidence of Mr Ioaba and Mr Young. I find the collision was caused by the negligence of Miss Chilwell. She failed to stop at a stop sign to ensure the way was clear. She pulled out making a right turn across the path of Mr Ioaba's vehicle when the motorbike must have been in sight. Mr Ioaba had no time to avoid the collision. Miss Chilwell should have seen Mr Ioaba advancing. She either looked and did not see him or did not look and pulled out into his path. I accept the evidence of Dr Noovao and Mr McDiarmid as to Mr Ioaba's injuries. The right knee damage was caused by the force impact to his right leg as a result of the collision. The right hip damage was caused by or triggered a pre-existing condition or injury as a result of the force impact on the right leg. I find the collision was causative of both the right knee and right hip injury and its deterioration.
    
32. I find no contributory negligence by Mr Ioaba based on alcohol consumption or excessive speed. While no evidential alcohol testing was carried out on Mr Ioaba there is no evidence that Mr Ioaba's motorcycle was being ridden other than normally. Nor is there any evidence that his reactions were impaired by the alcohol such as to contribute to the accident. Mr Ioaba is entitled to damages by way of compensation,
    
33. Special damages generally cover compensation for pecuniary loss and expenditure up to the date of judgment.
    
34. Mr Ioaba's counsel produced a list of special damages claims. These included the hip replacement operation as well as claims for treatment and medical attendances in New Zealand. The hip replacement cannot be done in the Cook Islands. I reject Mr Vakalalebure's submission that Mr Ioaba should have had all the treatment in the Cook Islands and should have waited for a referral to New Zealand in the hope that the Cook Islands Government would pay the New Zealand medical expenses. There was no evidence that Cook Islands Government would do so anyway. Mr Ioaba was entitled to consult his family doctor in New Zealand and obtain a MRI scan not available in the Cook Islands. He suffered a reasonably serious injury to his leg and subsequently his hip. He was entitled to seek a reasonable standard of medical care and diagnosis.
    
35. Counsel were able to agree on the quantum of a number of items of special damage and those agreed are listed as follows:
    

Airfares for Plaintiff to New Zealand	$551.60
Rarotonga Hospital Fee	$139.00
Medication ointments etc	$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 at 20% for 6 months (balance unpaid wages)	2,931.94
Subtotal	$4,762.54

36. Other items of special damages were not agreed between Counsel. In that respect Mr Ioaba must prove the special damages by either production of invoices or other form of proof. In the case of the claim for crutches, wheelchair and physiotherapy, no invoices nor any proof of quantum were tendered. In respect of the other claims, invoices or supporting documentation were produced. In relation to the further claims for special damages I allow the following:
    

X-rays (New Zealand)	$80.00
MRI (New Zealand)	$880.00
Dr Hanlon	$200.00
Hip replacement operation (estimate provided by Mr McDiarmid and Dr Noovae)	$20,000.00
Subtotal	$21,160.00

37. I reject the following items as they have not been proved by invoice or other evidence.

Massage and medicine attendances	$840.00
Hireage of wheelchair	$560.00
Hireage of crutches	$260.00
Physiotherapist (Auckland)	$2,000.00
Subtotal	$3,660.00

38. A claim for $4,458.08 was made in respect of the loss of the motorcycle. The motorcycle suffered serious damage in the collision. Unfortunately the Police took it to their yard and since then it has disappeared. The motorcycle was about five years old. Mr Short, who had a business renting motorcycles, gave evidence that motorcycles have come down in value and now new cycles cost about $2,000.00 - $3,000.00. A motorcycle of 5 years old would be worth about half of the new purchase price. I therefore estimate compensation for the loss of the motor vehicle at $1,500.00. This takes into account the fact that through no fault of Miss Chilwell's the motor vehicle disappeared from the Police yard so there is no trade in value. This also takes into account the reduction in the value of new motorcycles and of depreciation.
39. Therefore the total amount of special damages allowed is $27,422.54.

40. Mr Vakalalabure did not oppose the increased claim for special damages over $30,000.00 which was the sum set out in the original and amended statement of claim. Particulars of the special damages claims were set out in Mr Little's submissions provided prior to the hearing date.
41. As to general damages, Mr Ioaba has and will suffer from the consequences of this accident for many years. To compensate him for that future suffering, loss of amenities, loss of future earnings and future costs, he seeks an award of general damages of $30,000.00. The calculation of general damages is never precise. It is an estimate which tends to compensate for the losses past, present and future once and for all. Even if the injuries later have far greater implications than the experts predict today, Mr Ioaba cannot recover any further damages later. General damages look to the future consequences or hypothetical events that are a matter of prediction and estimation and not capable of precise proof. Once it is established on a balance of probabilities that some loss will occur in the future he is entitled to general damages. General damages also compensate for non pecuniary loss such as pain and suffering, the cost of future medical care, future lost wages and loss of enjoyment of life. The Court can take into account the evidence it has heard including that of the medical experts as to what treatment will be needed in the future. It must then take an estimation of what is appropriate in the circumstances by way of general damages.

42. I was referred to two cases relating to general damages, each of which are now about 20 years old. I was advised from the bar that personal injury cases are not common in the Cook Islands. The first case is Harmon v Kikorio (and Others) PL.NO.3/88 High Court Rarotonga, 16/12/88 (Quilliam J). This was appealed on both liability and damages (see Cook Islands Judgments, 1991-95 at 23 and Cook Islands Judgments 1986-1990 at 128). In that case the 21 year old plaintiff was severely injured in a motorcycle accident. He suffered multiple compound fractures of the leg and dislocation of the pelvis. He was in hospital in New Zealand for nearly 5 months and an outpatient for a further 2 months. He had 7 operations, was left with permanent disabilities, including a shortened leg and would almost certainly to suffer further scholosis and arthritis from the injury in the future. More operations were forecast. He suffered severe pain and would do so for his lifetime. The effectiveness of painkillers would be limited. He could not play sport. His future economic position was uncertain although this was a lesser factor given he was in steady clerical work. Taking those issues into account the Judge awarded $40,000.00 in general damages in 1988.
43. I do not consider Mr Ioaba's injuries to be of the same degree of seriousness as the Plaintiff in that case.
44. Mr Vakalalabure referred me to the decision of Rolls v Attorney General (1991) Ck HC 3. This was a 1991 decision of the High Court where the Government was sued for allowing the escape of a dangerous prisoner. The prisoner attacked and raped the plaintiff who suffered both physical and severe mental distress as a result of the evidence. The Court in that case awarded $15,000.00 for general damages. Dillon J reviewed some New Zealand Accident Compensation lump sum awards relating to mental consequences, of attacks. He found a range of $2,000.00 to $20,000.00 in the awards.
45. The Accident Compensation (ACC) awards are of no assistance in this case. The nature of ACC payments is circumscribed by New Zealand's legislation. The Cook Islands has no ACC scheme. I bear in mind that the award of general damages should be commensurate with reasonable expectations in the Cook Islands. These will be somewhat different from other jurisdictions such as Australia. I am also mindful that Mr Ioaba's present salary is in the vicinity of $28,000.00 as a government employee.
46. The Court of Appeal in the Judgment delivered by Sir Muir Chilwell J (Kikorio v Harmon) (CA) (1991-1995) Cook Islands Judgments, 23, noted that it was impossible to import New Zealand general damages cases to the Cook Islands. A compilation of those cases between 1968 to 1972 had been provided to the Court. He noted that it was also impossible to compare ACC awards to Cook Islands general damages cases. The Court approved the decision of the lower Court in the case. Quilliam J in Harmon assessed damages under 3 heads:

a. Pain and suffering;
b. Loss of enjoyment of life and loss of amenities;
c. Loss of future economic benefits.
47. Mr Ioaba will need ongoing medication for his pain. He has suffered reasonably substantial pain to date and will continue to do so. If he has a hip operation the medical evidence indicates the pain may lessen. He has lost the ability to play rugby and competitive tennis and is not able to enjoy any active sports. He can no longer run, he can't play with his grandchildren and he is generally very cautious about undertaking any exercise. This in turn gets him down and makes him depressed. He will face the pain of at least one operation as well.

48. He will also incur further airfares going backwards and forwards to New Zealand as well as x-rays and related medical follow ups which cannot be itemised now.

49. Insofar as his future economic loss is concerned he is in a similar situation to the plaintiff in the Harmon case in that he is in steady government employment. This is a lesser factor in this case.

50. Mr Ioaba's injuries are at a level less serious than those of the plaintiff in Harmon. Mr Ioaba is also 47 years compared with the 21 year old Plaintiff in the earlier case. However the Harmon case is now 20 years old and the value of money has changed significantly.
51. Taking all those factors into account I fix the amount of general damages at $20,000.00. This is in addition to the special damages (including hip operation) which I have listed above, to a total of $27,422.54.
52. There will accordingly be:

a. Judgment for the Plaintiff against the Defendant for a total of $47422.54.

b. Counsel are to make oral submissions on the issue of costs which I will hear now.

__________________________
Grice J

Editorial Note: Derived from the Court’s electronic records and believed to be correct and final.