Taraia v Reue - Judgment [2006] KIHC 150; 67-05 (29 November 2006)

IN THE HIGH COURT OF KIRIBATI
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 67 of 2005

Between:

TIBWERE TARAIA
Plaintiff

And:

KEEN REUE
Defendant

For the Plaintiff: Ms Joelle Grover
For the Defendant: Mr Karotu Tiba

Date of Hearing: 27 November 2006

JUDGMENT

About 8 o’clock in the morning on Wednesday 5th October 2004 the plaintiff was knocked down by a saloon car driven by the defendant. It happened on the main road at Antenon.

The plaintiff gave the only evidence as to what happened. He was crossing the road from the lagoon side: more than halfway across when the defendant, driving fast in the direction of Bikenibeu, came from behind a bus stationary on the lagoon side: collided with him and carried him about 10 metres before stopping.

The defendant did not come to Court. He is a medical practitioner doing post graduate work this year in Fiji. I know he has been back to Kiribati during the year: in August he gave professional evidence in another case. To shew the difficulty we have had in fixing a date for hearing here are my notes from the file:-

24 Feb: Defendant is overseas. Mr Tiba will find out when he returns. Case ready to be set down. For mention on 10 March.

10 Mar: Defendant is staying in Fiji until end of year. Told Tiba he will have to return for hearing. Set as priority for Monday 12 June (1 day).

26 May: Monday 12 June vacated: priority for Monday
31 July.

26 July: Tiba’s client will not be back from Fiji until end of year. Tiba to take instructions as to the date he will return. To fix date for hearing for mention on 17 August.

17 August: Tiba to contact Dr Ken to see how long he is staying. With a view to a hearing on Thursday
24th for mention tomorrow, 18 August.

18 August: Maitinnara undertakes to contact Dr Ken and to tell him (if he has not already left) that the case will be heard on 24 August.

24 August: He went back last week. Plaintiff anxious to have a hearing. Dr Ken will be back in third week in November. For hearing without fail, on Monday
27 November (1 day).

Mr Tiba, who subsequently told me he had never met his client, applied at the start of the hearing to withdraw. I refused the application. The defendant, even though not present, was entitled to be represented.

Notes of the plaintiff’s evidence on liability:-

On lagoon side - to cross to other side - bus on lagoon side standing 10+m from me - having passed middle of road car coming fast from behind bus. Didn’t have time to come back. Car overtook bus. Bumped me took me to other side. On top of car - I managed to jump. Fell on to front of car - took me 10+ m from where it hit me. Almost 0800 light no rain. I was just past middle road when hit. Saloon car. No beeping sound. I had looked both ways.

In July 2005 the defendant pleaded guilty in the Magistrates’ Court to dangerous driving and to driving under the influence. Ms Grover, with Mr Tiba’s consent, tendered the minutes of the hearing. Strictly, I doubt if the minutes proved the pleas and conviction. A Magistrates’ Court is not a court of record, the proceedings of which may be received without proof. However the prosecution had applied to the High Court (HCCrR 5/05) for review of the Single Magistrate’s refusal to record a conviction of driving under the influence. So the Magistrates’ Court file is already in the High Court and was the subject of my decision on 13 January 2006. I may take note of the defendant’s admissions by his pleas: not conclusive evidence against him in civil proceedings but to be taken into account.

The defendant pleaded contributory negligence. On the facts as I have them - it may have been otherwise for the defendant had given his version of the incident - I do not find the plaintiff guilty of contributory negligence. He was properly more than halfway across the road when the defendant suddenly, unexpectedly and without warning came from behind the bus and knocked him down.

The plaintiff was taken to Nawerewere Hospital and admitted. On admission a surgical registrar, Dr Bwabwa Oten, examined him.
Dr Oten’s report:

History of being hit by a saloon car. Carried in by two men - relatives. Fully conscious and oriented. No smell of alcohol. Bleeding from the nose and ears and from the wound on the left cheek and neck.

Wound: laceration of the left upper lip - 12cm

Abrasion rough and coarse abrasion of the left lower cheek and neck.

Bleeding minimal.

The plaintiff stayed in the private ward of the hospital for two weeks. The charge was $30 per day: total $420. I allow $420. It is the only item of special damage proved.

Before the accident, for about 12 years, the plaintiff had been a civil driver at the civil section of Public Works and Utilities. He operated heavy machinery. He had sick leave from 5 October 2004 until 13 May 2005 when his employment was terminated. This followed a certificate dated 27 April 2005 by Dr Baua Tebau that the plaintiff was "physically unfit from engaging in further employment of any gainful nature".

Dr Tebau in the certificate gives the opinion that the plaintiff is "suffering from nerve injury after MVA in October of 2004.

The doctor amplified this in Court:-

Inability of left arm - partial paralysis of left arm and hand.

Dr Tebau thought it may slowly improve.

Dr Tebau had a quick examination in Court of the plaintiff and thought the disability "is a little better".

The plaintiff thinks he may be 44 years old. He did not go past primary school. He is married with three children, the eldest of whom is 13.

My impression of the plaintiff is that he is making the most of his injuries, perhaps even enjoying the extra attention from wife and family. Yet there is the opinion, which I accept, of Dr Tebau that he can no longer work.

The plaintiff, whom I notice limped when walking to the witness box, on his injuries and disabilities:-

Injuries: on my neck, couldn’t open mouth, body paining. Only given tablets ...... Doctors told me I’d become disabled - Baua and Ioanna.

Neck injured. Leg - could not walk properly. Two hands not strong.

Three years now - pain in two hands. Can’t turn neck fully - hard. Panadol doesn’t work. Cannot feed, bath, dress myself. Legs - right leg was hit - bruised - told the doctors: they looked at legs. Told me vein injured. Can’t go fishing or cut toddy. Restriction in lifting left hand above shoulder height. No changes at all: becoming worse. Wife prepares food, bathes me, clothes. No one else - she can’t leave me for more than two or three hours. Left side of face numb - tears.

It is puzzling if I am to accept the whole of the plaintiff’s evidence, that neither doctor mentioned an injury to the leg.

His wife, Nei Teeua Tibwere, confirmed her husband’s evidence:-

Help - since then - so many things bathe, feed, clothes, relieve pain - massage hands sometimes. Needs help every day. No one else (except children). I started working two weeks ago in a shop close to our house. I can (hear him yell) ..... I think it’s still the same: no better and no worse.

Before the accident the plaintiff said he was fit and healthy. Now he, it seems, does nothing but be about the house. His net wage was $180 per fortnight - $4,680 a year. Ms Grover reminded me that he could expect annual increments in wage.

He has withdrawn, because he can no longer work, $8,000 or $9,000 from his KPF. He was entitled to this money in due course. I should not take it into account in assessing damages.

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.

There will be judgment for the plaintiff for $15,420.

Dated the 29th day of November 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice