Kamoriki v Attorney General [2007] KIHC 118; High Court Civil Case 61 of 2006 (19 July 2007)

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

High Court Civil Case 61 of 2006

BETWEEN:

TEETA KAMORIKI
(as Executor of the
Estate of Manoata Teeta)
Plaintiff

AND:

ATTORNEY GENERAL (iro Ministry of
Health and Medical Services)
Defendant

For the Plaintiff: Ms Joelle Grover
For the Defendant: Mr David Lambourne, Solicitor General

Date of Hearing: 16 July 2007

JUDGMENT

Nei Manoata Teeta was 13 years and 9 months old when one afternoon, on the Dai Nippon Causeway, she was struck by a motor cyclist. Her right leg was broken: it was a compound fracture. She may have suffered internal injuries as well: if so, they were not diagnosed. She was taken first to the Betio hospital, then to the TCH at Nawerewere. She died on the operating table some five hours after the accident. The Ministry of Health has admitted liability for her tragic death.

The plaintiff, Teeta Kamoriki, father of the deceased, claims damages. They come under four heads. The first three are claims under the Law Reform (Miscellaneous Provisions) Act 1934 (UK) for Manoata’s pain and suffering, her loss of expectation of life and for funeral expenses. The fourth is a separate claim, under Lord Campbell’s Act by Teeta for himself and his wife, Nei Taoia Teeta, for loss of dependency.

Teeta and Nei Taoia each swore an affidavit, admitted in evidence and each gave oral evidence. As well, Dr Alan Ruben, an Australian paediatrician and public health physician, who has spent some time in Kiribati, made a report about her treatment at the hospital and causes of death. I have read Dr Ruben’s report and by consent of Ms Grover and Mr Lambourne made use of it.

1. Manoata’s Pain and Suffering

Her discomfort and pain and distress may be imagined. The evidence of her condition is from her parents. From Teeta’s affidavit:-

6. When I arrived (at the hospital) Manoata looked pale. I asked one of the nurses on duty what treatment she would receive and the nurse replied that she would soon be taken for an x-ray.....
   
7. I could tell that Manoata was not well. She looked pale and seemed weak .....
   
11. Since arriving at the hospital, Manoata had not received any treatment. Nobody was checking up on her condition ....
    
13. I was very upset that Manoata had not received any pain medication throughout the whole incident. She was suffering needlessly. The nurses just ignored her for the time we were waiting in the emergency room. I never saw anyone check her pulse, change her bandages or change her IV drip.
    

I notice particularly that Manoata was given no pain relief. The Solicitor General argued that perhaps it would not have been advisable to give her anything: there is no evidence one way or the other. Having read
Dr Ruben’s report I doubt it. Dr Ruben lists "absence of pain relief" as one of the "system deficiencies" at the hospital. Later in the report:

Pain relief should be given if there are no neurological contraindications, such as evidence of brain injury including depressed level of consciousness.

There is no suggestion of any head injury.

The relevance of Dr Ruben’s opinion is the implication in it that Manoata would have been in pain and the lack of pain relief which I find probably should have been given must have increased Manoata’s suffering.

Ms Grover submitted that Manoata must have come, seeing the urgent activity around her before she was taken in for operation, to be in fear of death. I doubt that.

I am seeing Manoata’s condition and suffering through her parents’ eyes. One can imagine their anxiety and distress which may have led them to magnify hers. Nevertheless I accept Manoata must have been suffering very much.

The suffering was only for a short time, a few hours and this must be reflected in the award. I assess damages at $350.

2. Loss of Expectation of Life

Counsel reminded me that, somewhat against my present inclination, the sum usually allowed is a modest and set one. I so decided in two cases a few years ago, Taan Anterea v Dr Kabwea Tiban and the Attorney General (CC 16/95 delivered in December 2000) and Tanana Abeton v Director of Lands (CC 42/00 delivered in January 2001). In each I allowed $2,000 for loss of expectation of life. In the last seven years there has been a small decrease in the value of money. That justifies me now in increasing the sum to $2,250.

3. Funeral Expenses

Exhibited to his affidavit Teeta set out a detailed list of funeral expenses. They come to $3,765.40. Although he did not cross examine on individual items the Solicitor General argued that the total is too much: Teeta was reconstructing long after the event. I should not allow the expenses as they stand. Yet Teeta is a manager at the Fair Price. I assume that he is used to making lists of goods and fixing their costs. Mr Lambourne did not pick out any specific items which I should strike off the list. In the absence of any evidence or indication I can see no reason why I should strike off anything. I accept the figure of $3,765.40.

In accordance with Kiribati custom, Nei Taoia received gifts of money given by those who came to the funeral. She put the total contributions at $2,000. I accept that figure.

Who is to have the benefit of the contributions? The plaintiff or the defendant?

The Solicitor General argued vigorously that not to take the contributions into account in making allowance for funeral expenses is to give the plaintiff an undeserved windfall. On the other hand as I pointed out to him, if I do take them into account, his client is getting the same windfall by reduction in the assessment.

Neither counsel cited any settled law on the point. I am free to make a decision. One side or the other must get the windfall. I can see no reason why the tortfeasor should get it rather than the blameless plaintiff. I do not take the contributions into account and assess the funeral expenses at $3,765.40.

4. Loss of Dependency

As I said in Tanana Abeton’s case, "the really difficult assessment is for dependency".

Manoata was a promising girl nearly 14 years old. According to her father, "she would have passed Form III for secondary school". [I must remember again that I am seeing Manoata through her parents’ eyes: like all parents we see our children in the best light, magnifying their virtues and overlooking their faults.] She was a good girl. Helped at home (both parents are working) and in Teeta’s restaurant, "Bikeni Matang" in Betio, after school. Her work at home and at the restaurant must have had monetary value but I cannot quantify it (any attempt to quantify it would be no more than a guess), let alone use it as a basis for calculation. Manoata was a Girl Guide and active in her KPC youth group. She may well have gone on to University (and her parents would have had to pay for her support as the Solicitor General pointed out). Probably would have married in her early 20’s and may have helped support her parents and two brothers until then.

Above all, following Kiribati custom, her parents in their old age could have looked to her, as their only daughter, to provide for them in her own family.

There are so many imponderables, so many contingencies. It is hardly possible even to guess how a girl of 14 will turn out over her life, whether her life be long or short: not much more possible to know how long Teeta, now 54 and his wife now 48 will live. And so on and on. Assessment must be very much a matter of "wielding the broad axe". Yet the Solicitor General conceded that I should allow something: the contingencies do not press the assessment to extinction (to borrow the words of McCardie J in Barnett v Cohen ((1921) 2KB 461 @ 472). I allow $10,000 for loss of dependency.

In summary the assessment is:

1.	Manoata’s pain and suffering	$350.00
2.	Manoata’s loss of expectation of life	$2,250.00
3.	Funeral expenses	$3,765.40
Total assessment pursuant to the Law Reform Act		$6,365.40
4.	Loss of Dependency pursuant to Lord Campbell’s Act	$10,000.00
Grand Total		$16,365.40

I accept the Solicitor General’s submission, relying on the decision of the House of Lords in Davies v Powell Duffryn Associated Collieries Ltd ((1942) AC 601) that damages recoverable under the Law Reform (Miscellaneous Provisions) Act must be taken into account in assessing damages under Lord Campbell’s Act.

From the headnote (@ 602).

Damages recoverable under the Law Reform (Miscellaneous Provisions) Act, 1934, must be taken into account in assessing damages under the Fatal Accidents Acts, 1846 to 1908, in the case of dependants who will benefit from the damages under the Act of 1934.

From the $10,000 I have allowed for loss of dependency under Lord Campbell’s Act must be deducted $6,365.60, leaving a balance of $3,634.40.

[In coming to this decision I assume that Teeta and N. Taoia "will benefit from the damages under the Act of 1934" as they will be beneficiaries of her intestate estate. The point was not argued. Maybe it need not be but, before I enter judgment I shall give counsel an opportunity to make submissions on it.]

I assess the plaintiff’s net damages at $10,000.

Dated the 19th day of July 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice