Nabuange v Kautunteabike - Judgment [2007] KIHC 60; Civil Case 61 of 2005 (22 February 2007)

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

High Court Civil Case 61 of 2005

Between:

TEKINA NABUANGE
Plaintiff

And:

MAEA KAUTUNTEABIKE
Defendant

For the Plaintiff: Ms Berenike Iuta
For the Defendant: Mr Stephen Earl

Date of Hearing: 20 February 2007

JUDGMENT

On 13th December 2003 Nei Tekina Nabuange (born 1972) was a pillion passenger on a motorbike travelling from Ronton to Banana on Kiritimati Island. A collision occurred. Nei Tekina suffered serious injuries. Dr David Langston in his report dated "7/09/03" (but which I think should be 7/09/04) sets them out:-

Internal haemorrhage uterus

Fracture tibia/fibula right leg

Rupture of ligaments left knee

Fracture forearm left ulna

Head injuries with disfiguring scars on forehead

Disfiguring scars on limbs

Fracture of pelvic bones

Nei Tekina was sent to Hawaii for treatment, returned to Kiritimati for some months and then came to South Tarawa for treatment at the TCH.

Two subsequent reports were exhibited to her affidavit of 16th February 2007 in which she sets out her present condition. I received the affidavit without objection from Mr Earl. Apart from the computation of loss of earnings, the contents of the affidavit were not challenged.

The report of Dr Abhilash Babu Panaekal, Consultant Orthopaedic Surgeon, of 01/07/05:-

The above named was seen at the Orthopaedic clinic with difficulty to walk and pain the right leg. As per her old history she sustained trauma after road traffic accident in December 2003 and was taken to Christmas Island hospital and later was transferred to Hawaii for treatment, where she had operation for fracture both bone right leg with plates, rupture of all the ligaments in the knee which could be never be treated, fracture of left ulna treated with P.O.P., fracture of pelvis bones treatment report not given, head injuries which disfiguring scars on forehead, after undergoing treatment in Hawaii she was transferred back to Christmas Island where she went treatment for nine months and later being transferred to Tungaru Hospital, she was treated with Gynaecologist and underwent hysterectomy for Internal haemorrhages of uterus.

Patient was consulted by the Orthopaedic team on June 2005 and come to the conclusion that her knee ligaments can’t be repaired and advised her knee brace which she should wear it through out her life when she is mobilizing and was provided with the walker for support, no other Orthopaedic intervention currently required.

From the report of Dr Cati A T, consultant surgeon:-

Her being on Tarawa ..... is mainly due to her persistent pain from the injured joints of her left leg and the fracture of her right leg. In actual fact she could return to Xmas and continue her medications there.

From the affidavit:-

8. I was active, healthy and physically fit before the accident ....
   
12. After the accident I can no longer enjoy life; I live in pain most of the time and I have to take medication for as long as the pain persists which is for the rest of my life.
    
13. Because of the pain I can no longer be involved in making bread or candies or doughnuts, or even local cigarettes .....
    
14. I have permanent scars on my body and I have also to suffer permanently from the injury to my knee. Not only am I being prevented from making a living, I am also being prevented from enjoying life.
    

Nei Tekina’s appearance when she gave evidence confirmed immediately how much enjoyment of life she has lost. I noted that she is a big woman who "uses an arm crutch to walk and has one ankle bound: very disabled from movement". Nei Tekina needed help to get into the witness box and sit down.

I can’t sit for a long time – problems with bottom and hand. Still feeling the pain – still taking tablets. Left leg and left side of back. Pain killers..... Have children at school: I can’t look after them at home: our family looks after them. I live with relatives, husband and children.

I have the impression of a lady who had suffered grievous injuries, has a severe permanent disability, continues to suffer pain, and has lost much of the enjoyment of life.

The level of damages awarded in Kiribati is very substantially less than in many other places. I must keep that in mind and not award nearly as much as I would have awarded in Australia.

I allow $25,000 for general damages.

Apart from the claim for general damages there is a claim for loss of income. From Nei Tekina’s affidavit:-

9. I was in fact carrying on the business of making and selling doughnuts and bread and buns and I was earning, after all my expenses $104.28 a week or $5,422.58 per year.
   
10. I was also making and selling candies and local cigarettes from which I would earn about $100.00 in net profit per week. That is about $5,200.00 per annum.
    
11. I was also involved in other activities to earn money.
    

In cross examination Nei Tekina had difficulty justifying these figures. Even for someone working hard to earn money I doubt if, from the activities she described, she could have been earning as much as $10,000 a year. I shall work on an income of $5,000 a year.

The accident was over three years ago which gives a past loss of income of about $15,000. The loss will continue into the future: how long into the future is unknown. I can do no more than make a guess and then discount both past and future loss substantially for contingencies. Say she had kept up her activities for another five years from now: that would give a future loss of income of about $25,000. That makes a total of $40,000. Discounting for contingencies I allow $20,000 for loss of income, past and future.

I assess the plaintiff’s damages at $45,000.

On 4th February 2006, by consent, I entered judgment for the plaintiff against the second defendant, Attorney General (iro Ministry of Linnix) for $2,500 without prejudice to her claim against the first defendant.

I shall hear counsel as to the order I should now make.

Dated the 22nd day of February 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice