Taraia v Reue [2007] KICA 19; Civil Appeal 04 of 2007 (30 July 2007)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Civil Appeal No. 4 of 2007

BETWEEN

TIBWERE TARAIA
Appellant

AND

KEEN REUE
Respondent

Before: Hardie Boys JA
Tompkins JA
Paterson JA

Counsel: Joelle Grover for appellant
Karotu Tiba for respondent

Date of Hearing: 24 July 2007
Date of Judgment: 30 July 2007

JUDGMENT OF THE COURT

INTRODUCTION

[1] In this appeal the appellant claims that the damages awarded him by the Chief Justice in the High Court were erroneously calculated and were in any event inadequate.

[2] The appeal was brought out of time, but Mr Tiba not opposing, the Court granted an extension of time.

[3] The claim arose from an accident on 5 October 2004, when the appellant, a pedestrian, was struck by a motor vehicle driven by the respondent. The Chief Justice in a judgment delivered on 29 November 2006 held that the accident was caused by the negligence of the defendant, and that finding was not challenged on this appeal.

The appellant’s injuries

[4] The appellant was taken to hospital where he was found to have lacerations to the face and neck and bleeding from the nose and ears. X-rays of the chest, skull and spine showed no abnormality, but it was noted that there was decreasing muscle tone and power for all the limbs, indicative of nerve injury. There was no injury to his legs, although when the same trainee surgical registrar saw him again a few weeks later he was showing some sign of limping.

[5] The diagnosis of possible nerve injury was confirmed on 27 April 2005 when the appellant was again seen at the hospital. A certificate given at that time gave this diagnosis: "Nerve injury. Ulnar & Radial Nerve permanent damage’ "and stated that he was "physically unfit from engaging in further employment of any gainful native (sic: "nature"?)". Giving evidence at the trial, the doctor described "inability of left arm - partial paralysis of left arm and hand".

[6] The doctor made a quick examination of the appellant in Court and thought that the disability was a little better. The Chief Justice noted in his judgment that the appellant limped when walking to the witness box.

[7] The appellant was hospitalized for two weeks. He was then on sick leave from 5 October 2004 until 13 May 2005, when, as a result of the medical certificate given on 27 April, his employment was terminated, and he became entitled to withdraw his entitlement from the Kiribati National Provident Funds. Since then he has not been employed.

[8] In giving evidence, the appellant described the continuing effects of his injury. He said that his right leg is weak. His neck is stiff and he cannot turn it properly. He has limited movement of his arms, constant pain in both hands, which is not helped by his prescribed medication, and which means that they are not strong enough for him to bathe, dress or feed himself. He said that there had been no improvement in these symptoms since he left hospital, indeed they were becoming worse. His fingers are now "getting crooked," and one side of his face becomes numb.

[9] Both the appellant and his wife described his need for her care. They have three young children and there is no-one else to help. She prepares his food and feeds him, bathes him and puts on his clothes. She does what she can to alleviate his pain, at times massaging his hands, and ensuring he has good rest. She does not feel able to leave him alone for more than an hour or two. She had not previously been in employment, but shortly before the hearing, to bring in some money, she began half time employment, in a small shop close to the house from where she can hear her husband calling if he needs her. Her view was that his condition had showed no change.

Damages

[10] The appellant was about 42 years old at the time of the accident and had been employed for some 12 years as a driver in the public service. At the time of the accident he was earning a net wage of $180 a week, or $4,680 a year, a sum which he expected to increase year by year until his retirement at age 50. His evidence was that to provide further for his family he would go fishing after work and cut toddy. The statement of claim rather ineptly sought total damages of $63,456.64, comprising $35,376.84 for 8 years of lost salary at $4,422.08 a year, and 18 years of loss of ability to fish and cut toddy, calculated at $15 a week for each, a total of $28,080.

[11] In opening the appellant’s case in the High Court, Ms Grover, who had not prepared the statement of claim, sought and was granted leave to add additional heads of damage, namely pain, suffering and loss of amenity, together with "daily care and nursing services provided by the family." Further, it emerged in the course of the evidence that the appellant had incurred hospital expenses of $420.

[12] In his judgment, the Chief Justice dealt with damages in this way:

In summary, the plaintiff does not now work, he has lost about six years of employment by the Government, his enjoyment of life has been greatly reduced.

The assessment of his general damages is very much at large. There is not much evidence to go on. Damages are assessed in Kiribati at very much less than in many other places As well, I have to allow for contingencies – for example early death from some other cause, losing his job, another accident or some unforeseen illness.

Taking into account pain and suffering from his injuries, his now relative immobility, the loss of enjoyment of life, loss of six years of wages from his work and allowing for contingencies, I assess general damages at $15,000.

Special damages are $420.

The grounds of appeal

[13] On this appeal, Ms Grover put forward three grounds for the claim that the damages were inadequate.

[14] The first ground was that the Chief Justice failed to take into account the value of the time spent by the appellant’s wife as his primary caregiver. The second was that that the Chief Justice miscalculated the number of years before the appellant would have been obliged to retire. The third was a general assertion that the damages awarded were manifestly insufficient, particularly in respect of the loss of earnings.

The wife’s services as caregiver

[15] In support of the first of these grounds, Ms Grover relied on the decision of the High Court of Australia in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 15 ALR 387 where it was held that the award of damages for the value of future nursing care should not be limited to circumstances where the plaintiff was legally obliged to pay for them. Thus the Court upheld an award which included a substantial component for voluntary services to be rendered by the plaintiff’s family. The rationale of the judgments in that case was that the wrongdoer should not be relieved of responsibility for the costs of the continuing care of the plaintiff simply because family or friends were providing it gratuitously. The assumption is that if it were not for their help the plaintiff would have to pay some other provider. Mason J put it this way at p. 412:

The respondent’s relevant loss is his incapacity to look after himself as demonstrated by the need for nursing services, and this loss is to be quantified by reference to the value or cost of providing those services. The fact that a relative or stranger to the proceedings is or may be prepared to provide the services gratuitously is not a circumstance which accrues to the advantage of the appellant. If a relative or stranger moved by charity or goodwill towards the respondent does him a favour as a disabled person then it is only right that the respondent should reap the benefit rather than the wrongdoer whose negligence has occasioned the need for the nursing service to be provided.

[16] The assessment of damages under this head may not be a difficult exercise in a society where professional nursing care is available, but in Kiribati, although there is no evidence on the point, it is doubtless a very different matter. In Donnelly v Joyce[1974] 1 QB 454, [1973] 3 AllER 213, a leading decision of the English Court of Appeal, adopted in Griffiths v Kerkemeyer the measure of the infant plaintiff’s loss was held to be his mother’s loss of wages incurred while in nursing him, although as Stephen J observed in Griffiths v Kerkemeyer at p403 that was no doubt because it was likely to be less than the cost of skilled nursing services, and it was all that had been claimed. The present case does not enable that approach to be taken, for the appellant’s wife had not worked before the accident, and the job she had taken after it to bring in some money enabled her to continue caring for him. However, she was not sure how long the job would last, and obviously it might be difficult for her to obtain another that would equally well enable her to tend to her husband’s needs while she was at work.

[17] It is to be borne in mind that the need for nursing care is a loss suffered by the plaintiff, for which he or she may recover damages: see per Stephen J in Griffiths v Kerkemeyer at 387; or to paraphrase Gibbs J in that case at 390, the plaintiff’s loss is the existence of the need for the nursing help. It is not any pecuniary loss that may be suffered by the caregiver, although that loss may be the best measure of the plaintiff’s loss.

[18] Difficult though an assessment may be in the present case, the plaintiff is plainly entitled to be compensated for this aspect of his loss. It is not a matter for special damages, but rather must form a component of the assessment of general damages. It is apparent that the Chief Justice did not take it into account in his assessment.

Economic Loss

[19] We turn to the second ground advanced by Ms Grover. The Chief Justice included in his assessment of general damages an allowance for lost wages for 6 years. Assuming that the plaintiff would but for the accident have continued to work until retirement age of 50, the period of lost wages is 8 years. This loss must be dealt within two ways. First, there is the actual loss from the time his employment was terminated up to the date of judgment. These are special damages. Counsel are agreed that this actual loss amounted to $7,200. Secondly, as general damages there is the future loss for the period from the date of judgment up to the date the appellant would have had to retire, a sum that must allow for future pay increases, but that must be discounted for the contingencies that could have brought about an early retirement or even a premature death. The Chief Justice has allowed for the second head of loss, but not for the first, the special damages component as general damages.

[20] In arguing her third ground, Ms Grover made two points. The first was that in calculating the appellant’s economic loss, the Chief Justice failed to take into account the fact that the appellant is now unable to supplement the family resources by going fishing and cutting toddy. The second point was that in fixing the general damages at the figure he did, the Chief Justice must have applied too great a discount for contingencies.

CONCLUSIONS

[21] As already explained, it is clear that the appellant was entitled to special damages of $7,200 representing his actual loss of wages up until the date of judgment. There is no evidence of the value to the family of his fishing and toddy cutting activities, and so there is no basis for an award of special damages under this head. The claim of $30 a week for both is a pure estimate, and plainly excessive.

[22] As to general damages, as we have observed, the Chief Justice did not have regard to the value of nursing care. Rather than attempt to place a value on that, it seems to us preferable to look at the general damages in the round. The total award needs to have regard to pain, suffering, disability and loss of enjoyment of life, together with the appellant’s future economic loss, including some very modest recognition of his contribution of fish and toddy, and the value of the nursing care he will continue to need. The life expectancy of a male in Kiribati we were told is 62 years, and the appellant was a healthy man, but even so all the components of general damages must be discounted to allow for the normal contingencies of life. Ms Grover accepted that damages in Kiribati are set at a lower level than in say Australia or New Zealand.

[23] In arriving at an appropriate award, this Court must acknowledge that the Chief Justice is familiar with the local approach to this question. Nevertheless, even without an allowance for nursing care we regard the figure at $15,000 as inadequate. Making allowance for that, we consider that a proper award would be $25,000.

[24] The result is that the appeal is allowed, and the judgment in the High Court is varied by increasing the amount of special damages to $7,620 and the amount of general damages to $25,000. Judgment for the plaintiff will therefore be in the sum of $32,620. The appellant is entitled to her costs in this Court in a sum to be agreed or failing agreement to be fixed by the Registrar.

Hardie Boys JA
Tompkins JA
Paterson JA