Elsworth v Yanuca Island Ltd [2003] FJSC 16; CBV0008.2002S (24 October 2003)

IN THE SUPREME COURT, FIJI ISLANDS
AT SUVA
Civil Appeal No CBV0008 of 2002S
(Fiji Court of Appeal Civil Action No ABU0085 of 2000S)

BETWEEN:

PETER DOUGLAS ELSWORTH
Petitioner

AND:

YANUCA ISLAND LIMITED
Respondent

Coram: Hon Justice Daniel Fatiaki, President of Supreme Court
Hon Justice Robert French, Judge of Supreme Court
Rt Hon Justice Peter Blanchard, Judge of Supreme Court

Hearing: Thursday, 16 October 2003, Suva

Counsel: Mr VM Mishra for the Petitioner
Mr R Smith for the Respondent

Date of Judgment: Thursday, 16 October 2003, Suva
Date of Reasons: Friday, 24 October 2003, Suva

JUDGMENT OF THE COURT

Introduction

Peter Douglas Elsworth petitions this Court for special leave to appeal against a decision of the Court of Appeal given on 7 August 2002. That decision reduced damages awarded to him by the High Court for personal injuries sustained in an accident at the Fijian Hotel on 4 January 1990 from $857,248.98 to $176,729.

The proceedings have been attended with extraordinary delay and error at first instance as appears from the account of their history set out later in these reasons.

The trial judge failed to make any findings on the important issue of contributory negligence which was before him on the pleadings. He also erred in his approach to the calculation of damages for loss of earnings and loss of earning capacity. The Court of Appeal made findings that should have been made but were not made by the learned trial judge.

While this Court might have formed a different view of the percentage reduction of the petitioner’s damages by reason of his contributory negligence and the multiplier used in the calculation of earning capacity, it was not satisfied, at the close of argument for the petitioner, that any error of principle had been shown in the approach adopted by the Court of Appeal.

In particular, the Court was not satisfied that the petitioner had shown that the case involves:

(a) a far-reaching principle of law;

(b) a matter of great general or public importance; or

(c) a matter that is otherwise of substantial general interest to the administration of justice.

These are the statutory criteria for the grant of special leave in civil cases. In the circumstances the Court was of the opinion that the petition for special leave must be dismissed. We now publish our reasons for so deciding.

Factual History and History of Proceedings

On 4 January 1990, Peter Douglas Elsworth, a 48-year-old Australian businessman from Kew in Victoria, was on holiday with his family at the Fijian Hotel. The hotel was owned and operated by Yanuca Island Limited.

During the day Mr Elsworth swam and played golf and tennis. In the evening he walked to a Chinese restaurant with his family. At the restaurant he had a meal with them and shared a bottle of wine with his wife and two adult sons. Their daughter and a friend of hers were also present.

After the meal the group returned to the Fijian and entered the Black Marlin Bar. It was sometime after 10 or 11 o’clock. The bar was crowded and there were no seats available at any of the tables. The bar was dimly lit. There was a dance floor spot-lit by a revolving light.

Mr Elsworth and his family found the ledge of a large window which was open at the side of the bar. The window was about 5 feet wide and 4 ½ feet high. Outside the window there was a drop of 6 to 7 feet to the ground. The ledge was between 10” and a foot wide. It was unprotected by any external railings. There was no external lighting to enable the height of the window above the ground to be seen. There was foliage outside the window.

Mr Elsworth and his family sat on the ledge. His wife and one of his sons began dancing on the dance floor while he had a beer. He began to feel sleepy. He fell asleep and fell out the window. He either fell to the ground or into the fork of a tree. Which of these occurred is not clear.

As a result of his fall, Mr Elsworth suffered a head injury and massive bruising to one side of his body. He was unconscious for several hours afterwards. He went in and out of consciousness for the next two or three days. He was taken to hospital in Fiji for four or five days and then airlifted to Australia where he was hospitalized for three weeks. Following his discharge he attended hospital daily for the next two months. It was not in dispute that he suffered a severe injury as a result of his fall. The immediate sequelae were slurred speech, impaired right side co-ordination and horizontal oscillation of his eyes. His symptoms were described by an experienced neurosurgeon, Mr Wallace, as “fairly striking neurological abnormalities”.

Mr Elsworth’s symptoms improved for a time. He adopted a positive and optimistic approach to his treatment and recovery and was determined to rehabilitate himself as soon as possible. Ultimately, however, he reached a point beyond which further improvement was unlikely to occur. In June 1998, his condition was found by the neurosurgeon not to have improved beyond such improvement as had been achieved by April 1993. He had ongoing problems with impaired numeracy skills, impaired memory and concentration. He had suffered a permanent impairment of his high intellectual functions. He had impaired sensation on the right side of his body, including his lips, tongue and the lower parts of the right arm and leg. He had a continuing balance disorder. This caused him to give up tennis and diminished his previously high level of skill as a golfer. The neurosurgeon, reporting on him in 1998, concluded:

“I believe all these current disabilities are likely to be permanent. There is no doubt whatsoever that this man [sic] injury has led to a significant diminution in his former high level of skill and expertise in business, engineering, sales and retailing, and has significantly diminished his self-confidence and his level of function as an executive in a successful business.”

A clinical psychologist who tested Mr Elsworth in 1993 and reviewed him in 1998 found him to have suffered declines in intellectual and memory functions, attention concentration and delayed recall. He also exhibited “depressive symptoms and significant anxiety with concern about personal insecurity, lassitude malaise, need for affection, and denial of social anxiety”.

Mr Elsworth and the company which he and his wife controlled and which was his employer at the time of the accident commenced proceedings in the High Court of Justice on 20 May 1992. However his company, Parkanson Pty Ltd, abandoned its claim at the commencement of the hearing of the action. The defendant was Yanuca Island Ltd. Mr Elsworth claimed damages for breach by Yanuca Island of its duty as an occupier under the provisions of the Occupiers Liability Act 1968 and for negligence. The trial proceeded in the High Court of Justice in 1998. It was protracted due to two or three adjournments. From the end of the hearing until judgment two years elapsed.

The High Court found Yanuca Island to be liable for breach of its duty under the Occupiers Liability Act. This was the basis upon which the case was fought at trial and on appeal to the Court of Appeal. Defences based upon Mr Elsworth’s contributory negligence and his voluntary assumption of risk did not succeed.

The judgment of the High Court awarded total damages of $857,248.98 and costs of $30,000. The breakup of the award at first instance was:

1. Pain and suffering and loss of amenity $100,000

2. Interest on pain and suffering of $60,000 at 6% per annum $ 29,700

3. Loss of earnings $610,000

4. Special damages $117,548.98

Total $857,248.98

In addition the trial judge made a global award of $30,000 for the costs of the action in favour of Mr Elsworth.

Yanuca Island appealed on both liability and quantum. Mr Elsworth appealed on quantum. His appeal to the Court of Appeal was dismissed and that of Yanuca Island allowed as to quantum. The damages awarded by the High Court were reduced to $176,729 and the costs increased to $60,000. The Court of Appeal made no order as to the costs of the appeal. The judgment of the Court of Appeal which comprised President Reddy and Justices of Appeal, Kapi and Smellie, was delivered on 16 August 2002. On 9 September 2002, Mr Elsworth filed a Petition for Special Leave to Appeal to the Supreme Court from the judgment of the Court of Appeal.

The Judgment at First Instance

On the issue of liability the learned trial judge found that Yanuca Island had breached the duty of care it owed to Mr Elsworth under s 4 of the Occupiers Liability Act. He found, inter alia, that Yanuca Island ought reasonably to have foreseen that the window ledge would be used as a seat by its guests. The ledge was not secured. There was no warning of the danger and the lighting was poor. Neither Mr Elsworth nor his family was told by hotel staff that they could not sit on the ledge.

Although contributory negligence was pleaded, the learned trial judge did not consider that plea or make any finding on it. Nor was there any finding on the defence of voluntary assumption of risk. Counsel for the petitioner argued that there was implicit in the trial judge’s reasons a rejection of the plea of contributory negligence. Like the Court of Appeal, we are quite unable to detect, from the reasons, any indication that his Lordship turned his mind to that topic.

In assessing general damages for pain and suffering and loss of enjoyment of life, the learned trial judge began with a figure of $120,000 which he then reduced by $20,000. The basis for this reduction was not clear although it was related to evidence about Mr Elsworth’s involvement in complex negotiations relating to Parkanson Pty Ltd some months after the accident.

The learned trial judge awarded damages for loss of income but gave no reasons to support the assessment. He made no distinction between loss of income and loss of earning capacity although these are distinct heads of damage. And although Parkanson Pty Ltd had abandoned its claim at the beginning of the trial, his Lordship held that he would not allow it any damages for financial loss because he was not persuaded that its business misfortunes were attributable to Mr Elsworth’s accident. He nevertheless found that Mr Elsworth’s loss of earnings from the company was attributable to the accident.

Special damages were not formally proved at trial although there was a schedule handed up at the close of the hearing. One of the claims, a figure of $40,000 for the costs of a doctor travelling from Australia to Fiji to attend Mr Elsworth and travel back with him to Australia was abandoned as it had been paid pursuant to a travel insurance policy. Nevertheless that sum and the other amounts set out in the schedule, totalling $117,548.98, was awarded absent proof or agreement by the parties.

The learned trial judge awarded a global figure for Mr Elsworth’s costs of the action. This did not include an allowance for a number of items by way of disbursement set out in the Special Damages Schedule which, according to the Court of Appeal, should have been claimed as part of the costs of the action.

The Judgment in the Court of Appeal

The Court of Appeal did not disturb the trial judge’s conclusion as to liability. It noted that his Lordship’s reasons made no reference to the cost, difficulty and inconvenience to Yanuca Island of taking steps to avoid the risk of guests falling from the window ledge. It accepted that given the hot night, the crowded bar, the absence of seats and the late hour, it was reasonably foreseeable that persons attending the Black Marlin Bar would sit on the window ledge. The possibility that someone might fall off the ledge should have been taken into account. It was not expensive, difficult or inconvenient to put up a warning notice or to fit guardrails outside the window. The Court was of the view also that, despite the fact that Mr Elsworth fell off the ledge when he fell asleep, the accident would not have happened if guardrails had been provided. On this basis it found breach of duty by Yanuca Island and that Mr Elsworth’s injuries were caused by that breach of duty. Factors relied upon by Yanuca Island, relevant to contributory negligence, were not sufficient to justify interfering with the trial judge’s conclusions that liability had been made out.

On the question of contributory negligence, the Court of Appeal held that “[t]here really can be no argument but that this is a case calling for a substantial percentage of contributory negligence”. Their Lordship considered that Mr Elsworth’s action in sitting on the window ledge after an energetic day when he was feeling tired was a significant contributing factor to the accident. When he felt himself becoming sleepy, knowing as he did of his own tendency to fall asleep quickly, he should have got up and moved away from the window. The Court of Appeal regarded his failure to take that action as “... a further very significant contribution to what happened”. They therefore made a global reduction of 70% in the damages awarded.

In relation to the trial judge’s assessment of damages for pain and suffering and loss of enjoyment of life, their Lordships accepted that Mr Elsworth had suffered a severe injury. They were of the view that the pain and suffering element was not great but that there was ongoing emotional distress, for which Mr Elsworth took medication, for some years.

Their Lordships had regard to previous awards in other cases in Fiji for pain and suffering and loss of enjoyment of life. They referred to three “benchmark” cases:

1. Salaitoga v Anderson (Civil Appeal ABU0026 of 1994)

In that case, an award under this head for $85,000, was made for injuries described by a leading orthopaedic specialist as some of the most horrific he had seen. This award was still, at the time of the Court of Appeal’s judgment, the second highest award in Fiji for pain and suffering and loss of enjoyment of life.

2. Kamea v The Attorney General (Civil Appeal HBC281 of 1996)

$70,000 was awarded under this head for serious brain damage suffered by the plaintiff from age 9.

3. Robutabutaki and Attorney General v Rokodove (Civil Appeal HBC0088 of 1998)

An award of $200,000 to a permanent paraplegic was reduced on appeal to $150,000 on the basis that $200,000 represented too high a jump from the previous high figure of $85,000 in the Anderson case.

Their Lordships in the Court of Appeal, having referred to these three “bench mark” cases then said:

“In the light of those authorities the starting point taken by the trial judge of $120,000.00 cannot be sustained nor can the reduced figure of $100,000.00. In our judgment an amount of $50,000.00 for pain and suffering loss of enjoyment of life is the most that can be justified in the circumstances of this case. This figure will carry interest at 6% from date of issue of writ to date of judgment.”

It may be observed in passing that their Lordships did not identify any other error in the trial judge’s assessment beyond its incompatibility with recent awards with what were evidently worse cases. It appears therefore, that their Lordships treated the assessment of damages for pain and suffering and loss of enjoyment of life as manifestly excessive.

In relation to the loss of income component of the damages, their Lordships regarded the trial judge’s assessment as unsatisfactory because it amalgamated the historic loss (special damages) with the loss of earning capacity (general damages). In addition there were conflicting findings, already mentioned, that Parkanson’s losses were not due to the accident whereas Mr Elsworth’s losses were. Parkanson, they noted, had lost a valuable agency shortly after the accident for reasons unconnected with it and, in any event, Mr Elsworth had sold his interest in that company for a modest sum within a year. There was, so the Court of Appeal held, no foundation for the assumption that Mr Elsworth would have continued to earn the same amount prior to the date of the trial or beyond had his accident not occurred. On the evidence of Mr Elsworth’s own accounting witness the Court of Appeal was able to conclude that his real income, putting aside the provision of a car and its running expenses and an entertainment allowance, would not have exceeded $50,000 per annum. In 1990 he had disclosed a taxable income in his income tax return of $34,000.

Their Lordships went on to calculate Mr Elsworth’s loss of earnings from the date of issue of the writ to the date of the judgment. The Court calculated historic loss of earnings on the basis that Mr Elsworth’s pre-accident average annual income was $50,000 and his post-accident income was $30,000. Over the seven and a half year period of the calculated historic loss, the $20,000 annual difference between pre-accident earnings of $50,000 and average post-accident earnings of $30,000, was $150,000. The Court had no evidence as to the relevant tax rate but simply deducted a figure of $10,000 for tax and so nominally reduced the recovery figure for historic loss of income to $140,000. This figure was to be converted to Fiji dollars and to carry interest at 6% from the date of the writ to the date of judgment.

Their Lordships considered Mr Elsworth would have continued to earn $50,000 per annum until age 65 had the accident not occurred. At the date of judgment he was 58. This meant the loss of earning capacity by reference to loss of future earnings fell to be calculated over a period of seven years. To allow for contingencies and the advantage of a lump sum payment their Lordships applied a multiplier of 4 to assess loss of earning capacity at A$200,000 which was to be converted to Fiji dollars.

As to the special damages claimed, these had not been proved but some, set out in the schedule handed up at the end of the hearing, were regarded by the Court as “beyond dispute”. The Court was prepared to take judicial notice of the fact that these were clearly recoverable. The items in question were qualifying and court attendance fees for two medical experts, the neurosurgeon and the psychologist and also for Mr Elsworth’s accountant. The amount for the accountant was reduced by 50% because half of his work related to the abandoned claim by Parkanson. The figures of special damage so assessed were as follows:

1. In respect of the neurosurgeon, Mr Wallace $12,995

2. In respect of the psychologist, Dr Healey $ 6,544

3. In respect of the accountant, Mr Armstrong $ 5,397

The damages calculated by the Court of Appeal were therefore:

General Damages

Pain and suffering and loss of enjoyment of life $ 50,000

Interest at 6% for 7½ years $ 22,500

Loss of future earning capacity

A$50,000 x 4 = $200,000

Converted (A$ = F$1.22) $244,000

Special Damages

Loss of earnings from issue of writ to date of judgment

$A144,000 converted (A$1 = F$1.22) $170,800

Interest at 6% for 7½ years $ 76,860

Qualifying and attendance fees for experts $ 24,936

Total $589,096

Recovery consequent upon reduction of damages on account of contributory negligence

Recovery prior to reduction on account of

Contributory Negligence $589,096

Less 70% for contributory negligence $412,367

Substituted damages award $176,729

The costs recoverable by Mr Elsworth in respect of the trial were increased to $60,000 by including in them a number of the matters claimed in the Schedule of Special Damages.

The Petition for Special Leave

The Petition for Special Leave set out seven grounds accompanied, in some cases, by numerous particulars. These grounds may be summarized as follows:

1. The Court of Appeal erred in failing to give adequate weight to the trial judge’s findings of fact, substituting its own “discretion” for that of the trial judge in relation to the question of contributory negligence.
2. The Court of Appeal erred in overturning the trial judge’s finding that Mr Elsworth’s pre-trial income was $100,000 per annum and substituting its own finding “rather than restricting themselves to a review of his findings of fact”.

100. The Court of Appeal erred in permitting Yanuca Island to argue questions of damages on the appeal as it had not made submissions on quantum at the appropriate time and was estopped from so doing on appeal.

4. The Court of Appeal erred in dismissing the Cross-Appeal given its merits as evidenced by the findings of the Court of Appeal on pre-trial loss and assessment of damages.
5. The Court of Appeal erred in concluding that the trial judge had made inconsistent findings in relation to the Parkanson losses and the loss of earnings suffered by Mr Elsworth.
6. The Court of Appeal erred in law in not allowing two trips to Australia by Mr Elsworth, his wife and Yanuca and the costs of Rick Hayter when their travel costs to Fiji were admitted.
7. The Court of Appeal erred in law in not taking into account the principle that the Court will consider whether a plaintiff is able to earn and/or control income and not whether he actually takes that amount or pays tax on it.
   

It may be observed immediately that while the grounds as set out in the Petition for Special Leave may have been appropriate for a draft notice of appeal, they do not in terms address the questions which must be addressed upon such a petition. It is necessary therefore to turn to those questions.

The Criteria of the Grant of Special Leave to Appeal
The statutory criteria for the grant of special leave are to be found in s 7 of the Supreme Court Act 1998. The criteria for the grant of special leave in civil matters are stated in s 7(3):

“In relation to a civil matter (including a matter involving a constitutional question), the Supreme Court must not grant special leave to appeal unless the case raises

(a) a far reaching principle of law;

(b) a matter of great general or public importance;

(c) a matter that is otherwise of substantial general interest to the administration of civil justice.”

This Court referred to these criteria in its decision in Matalulu and Rasolosolo v The Director of Public Prosecutions (Civil Appeal Number CBV0002 of 1999S), judgment in which was delivered on 17 April 2003. The Court there said, at p 22 of the judgment:

“Petitioners for special leave should ensure that when they frame their petitions they do so with care. The Supreme Court of Fiji is not a court in which decisions of the Court of Appeal will be routinely reviewed. The requirement for special leave is to be taken seriously. It will not be granted lightly. Too low a standard for its grant would undermine the authority of the Court of Appeal and distract this Court from its role as the final appellate body by burdening it with appeals that do not raise matters of general importance or principle or, in the criminal jurisdiction, “substantial and grave injustice”.”

Whether Special Leave Should be Granted

The petition in this case does not expose with any clarity the far reaching questions of law, matters of great or general public importance or of substantial general interest to the administration of civil justice which would be necessary to warrant the grant of special leave.

Counsel for the petitioner submitted that the Court of Appeal failed to give due weight to the standing of the trial judge as a justice of the High Court in too readily assuming that he had failed to consider the defence of contributory negligence. Principle, it was said, required a benevolent reading of the reasons which the Court of Appeal failed to undertake by too readily finding an omission to consider an important defence which had been expressly pleaded and was a live issue at trial. Moreover, it was submitted, the Court of Appeal effectively substituted its own view of the evidence for that of the trial judge in relation to its assessment of the annual income of the petitioner relevant to the calculation of his loss of earnings. The Court of Appeal was said to have failed to give due weight to the trial judge’s findings and to the advantage enjoyed by the trial judge who heard the witnesses and the full detail of the evidence at trial. Apart from those issues, the grounds of the petition invite the Court to revisit the merits of the factual conclusions and the findings of the Court of Appeal .

The jurisdiction of the Court of Appeal is set out in s 121 of the Constitution (Amendment) Act 1997. That section provides:

“121. (1) The Court of Appeal has jurisdiction, subject to this Constitution and to such requirements as the Parliament prescribes, to hear and determine appeals from all judgments of the High Court, and has such other jurisdiction as is conferred by law.

(2) Appeals lie to the Court of Appeal as of right from a final judgment of the High Court in any matter arising under the Constitution or involving its interpretation.

(3) The Parliament may provide that appeals lie to the Court of Appeal, as of right or with leave, from other judgments of the High Court in accordance with such requirements as the Parliament prescribes.”

Section 12 of the Court of Appeal Act (Cap 12) provides that an appeal shall lie from any decision of the High Court sitting at first instance. Where a High Court judge is exercising appellate jurisdiction the appeal to the Court of Appeal can only be on grounds which “involve a question of law only” (s 12(c)).

Section 13 of the Court of Appeal Act provides:

“13. For all the purposes of and incidental to the hearing and determination of any appeal under this Part and the amendment, execution and enforcement of any order, judgment or decision made thereon, the Court of Appeal shall have all the power, authority and jurisdiction of the High Court and such power and authority as may be prescribed by rules of Court.”

In hearing an appeal from a trial judge in the High Court the Court of Appeal, while proceeding by way of rehearing, and no doubt able to receive fresh evidence in exceptional cases, will give appropriate weight to the advantage enjoyed by the trial judge. For a trial judge is more likely to be appraised of the nuances and the details of the evidence than an appellate court which is faced only with the written record of the proceedings. However where, as in this case, there has been a delay of two years between trial and judgment, it may be thought that the trial judge would enjoy no relevant advantage over the Court of Appeal. For the trial judge in such a case would, like the Court of Appeal, be reliant upon the written record rather than any reliable recollection of the trial.

In this case the Court of Appeal:

1. Did not disturb the trial judge’s conclusions on liability.
2. Held that the trial judge had made no determination of the pleaded issue of contributory negligence.
3. Found contributory negligence on the basis of facts not disputed or able to be disputed.
4. Made its own assessment of contributory negligence.
5. Found in effect that the learned trial judge’s award for pain and suffering and loss of enjoyment of life was manifestly excessive having regard to other awards and reduced it, again on the basis of facts not in dispute.
6. Found that the trial judge had erred in law in conflating historic loss of earnings with loss of earning capacity and made its own assessment of the evidence to yield its calculation of those heads of damage. This did not involve any interference with any properly exercised assessment by the learned trial judge.
7. Found that the trial judge had no evidence upon which to make the assessment of special damages that he did but nevertheless identified certain items of special damage as beyond dispute and others as properly included in the costs of the proceedings.
   

There is no basis for saying that the Court of Appeal has exceeded its proper functions in arriving at the conclusions that it did. Nor could it be said that there is any arguable error of principle in the Court’s decision to finally determine the proper outcome in the case rather than remitting the matter for retrial. Nearly thirteen years have passed since the date of the accident and five years since the trial of the action. Neither party could be assured that it would not suffer unfair prejudice if the case were to be remitted for trial.

It might be that this Court, if sitting as a trial court or as an intermediate court of appeal, might have come to a different conclusion as to the extent of contributory negligence or the amount of damages which could properly be awarded for pain and suffering and loss of enjoyment of life. And this Court might have come to a different conclusion on the amount of damages properly recoverable for loss of earning capacity. There is no real elaboration in the reasons of the Court of Appeal explaining the particular percentage reduction for contributory negligence which their Lordships adopted or the multiplier chosen for assessing loss of earning capacity. Nevertheless the figures chosen do not of themselves indicate any underlying error in principle.

In our opinion, this case does not give rise to an issue of the kind necessary to warrant the grant of special leave. In any event we are not satisfied that the reasons of the Court of Appeal demonstrate appealable error.

Conclusion

For the preceding reasons the Petition for Special Leave is refused.

Hon Justice Daviel V Fatiaki
President of Supreme Court

Hon Justice Robert French
Judge of Supreme Court

Rt Hon Justice Peter Blanchard
Judge of Supreme Court

Solicitors:
Mishra Prakash & Associates, Suva for the Petitioner
Munro Leys, Suva for the Respondent