Korieta v Broadcasting and Publication Authority [2011] KIHC 40; Civil Case 08 of 2011 (31 October 2011)

IN THE HIGH COURT OF KIRIBATI 2011

CIVIL CASE NO. 8 OF 2011

BETWEEN

TERETIA KORIETA
PLAINTIFF

AND

BROADCASTING AND PUBLICATION AUTHORITY
DEFENDANT

Before: Hon Chief Justice Sir John Muria

9 September 2011

Mr Banuera Berina for Plaintiff
No Appearance for Defendant

JUDGMENT

WRIT – assessment of damages – personal injuries suffered as a result of electric shock from an antenna belonging to defendant – victim a child of 4 years old – measure of damages in Kiribati – principles applicable in assessing damages – interest on award

1. Muria CJ. By a writ filed on 29 January 2011 and issued out of the Court on 14 February 2011, the plaintiff who is the mother of the four (4) year old injured daughter, claimed special and general damages, interest and costs against the defendant for injuries suffered from shock and burns arising out of an electrified antenna belonging to the defendant. The incident occurred on or about 10 October 2010 at Nanikaai, South Tarawa.
   
2. The writ was issued on 14th February 2011 and served on the defendant on 22nd February 2011. No appearance was entered by the defendant and so on 27th April 2011 a default judgment was entered against the defendant and for damages to be assessed.
   
3. Although the defendant did not enter appearance and default judgment had been entered against it in this case, on direction by the Court, the plaintiff served the notice of hearing on damages upon the defendant on 2nd September 2011. However despite the service of notice the defendant did not appear at the hearing on 9th September 2011.
   
4. I should point out that the defendant had not taken any steps in its defence since the commencement of the proceedings against it.
   

Brief Background

5. The brief background to this case shows that the defendant, among other functions, provides radio broadcasting services throughout Kiribati. For such functions, the defendant installed transmitters, one of which is at Nanikaai. The said transmitter had an antenna which was located outside the building that housed the transmitter.
   
6. There was no secure fence around the antenna nor was there any guard to the installation to prevent people from coming into contact with the antenna. It is also true to say that when the defendant is broadcasting, the antenna becomes charged with electricity.
   
7. On or about the 10th October 2010 at Nanikaai, South Tarawa, the victim who was then a four (4) year old child of the plaintiff, ran after her hair-band which was blown off by the wind toward the transmitter belonging to the defendant. The transmitter had an antenna which was charged with electricity at the time.
   
8. The victim came into contact with the antenna and immediately suffered electric shock and severe burns to her right and left wrists, as well as to her right foot. She had to undergo operation and had been hospitalized from 10th October 2010 to 10th November 2010.
   

Nature of the Injuries

9. The evidence shows that the victim suffered shock, burns to left and right wrists, and right foot. As a result of the severe burns, three of her fingers had to be amputated – her right middle finger, her right ring finger and her right little finger. The injuries also left her with permanent ugly scars on her wrists and foot.
   
10. The evidence also shows that the victim was under considerable pain and suffering at the time and for over a week as a result of the burns to her body, she had to endure constant injections for over a week to help her with the pain.
    
11. The doctor assessed the victim's permanent incapacity at 45%.
    

Assessment of Damages

12. The case is virtually undefended with judgment in default already entered for the plaintiff. The sole issue is therefore, one of ascertaining the appropriate quantum of damages for the victim.
    
13. In a case such as this, I feel that it is incumbent on the Court to consider the approach to be adopted in assessing damages in cases of this nature in our developing jurisdiction here Kiribati. For a number of reasons, this is important. First, the body of case law in Kiribati, in this area of the law is very limited and it is still developing. An established approach developed by the Courts in Kiribati would be helpful, not only to the parties, legal practitioners and the judges, but also to the general public, as well as in the development of the law in personal injury cases.
    
14. Secondly, in developing an approach to assessment of damages in personal injuries cases, the Courts must bear in the forefront the circumstances of our own jurisdiction. This in turn will help us in establishing a measure of uniformity of awards and developing a trend of our own.
    
15. Courts in many developing common law jurisdictions have adopted guiding approaches in personal injuries cases such as the present one before the Court. One such cases is Cornilliac v St Louis (1965) 7 W.I.R. 491 from Trinidad and Tobago, where Wooding CJ made the following guiding remarks:
    

"In a jurisdiction such as ours in which assessments of general damages are made by the judges without the aid of juries it has become accepted principle that the courts should strive for as high measure of uniformity of awards as is reasonably practicable. ... Such uniformity as may be practicable should conform with current trends here and not elsewhere. ... We ought consciously to set about establishing and following trends of our own. But until we do, we should pay heed to and take such guidance as we can from awards elsewhere, making such adjustments as may be appropriate having regard to our own prevailing conditions".

16. I feel it is important that in this area of the law, our courts do pay regard to the cases decided by other courts of similar developing jurisdictions. Of course, we should take heed of the principles and such guidance as we can from awards made by courts in developed jurisdictions. However, as Wooding CJ said that we do so "making such adjustments as may be appropriate having regard to our own prevailing circumstances", a view which I respectfully adopt.
    
17. Mr. Berina of Counsel for the plaintiff referred to the case of Oli Manufotu v E. Phil & Sons A.S. and Ors, a decision of the Supreme Court of Samoa. Among other things, Sapolu CJ dealt with the issues of loss of amenities and pain and suffering. The remarks made by Sapolu CJ in that case are helpful, in particular, bearing in mind the fact that the case is from a similar developing jurisdiction within the same Region. Of course, each case must be determined on its own circumstances, since the facts giving rise to the injuries suffered and the nature of the injuries themselves vary from one case to another.
    
18. It is said that all that needs to be done is to assess and award what is reasonable, fair or moderate and conventional. But I think it is true to say that the task of assessing non-pecuniary damages is not easy. Having said that, I am also mindful of the words of Lord Morris of Borthy-Gest, in H. West & Son Ltd. -v- Shepherd [1963] UKHL 3; [1963] 2 All ER 625 ("West's case") at p. 631, who says:
    

"All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In that process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional."

19. We are still developing our case law in this area of the law in Kiribati and the task of showing what is reasonable, moderate and conventional may not be as easy as in other developed jurisdictions. However, my task in the present case, in order to achieve what Lord Morris of Borthy-Gest said, is to find, first of all, what is fair to the plaintiff as an individual. This is because, first, the object of damages, as far as the victim is concerned, is to compensate her with money for the personal injuries she suffered.

20. Secondly, there is the need to see that the award is fair in the eyes of the community in which the Court has jurisdiction. I think a fair-minded community would be satisfied to see the defendant being called upon to carry out his "moral obligations... to do for the plaintiff whom by his careless act he had reduced to so pitiable a condition" per Lord Devlin in West's case at page 638.

21. Thirdly, there is the need to be fair between plaintiffs generally. In this regard, it is worth noting what Lord Morris said (above) in West's case, "it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards." Equally, it is also worth noting the remarks by Daly CJ in the Solomon Islands case of Longa v Solomon Taiyo Ltd [1980 – 1981] SILR 239 where his Lordship said:

"Recognizing immediately that there is great force in the observation that no two cases can be identical, there must be some kind of starting point or there would be such inconsistencies between awards as to result in a plaintiff feeling a sense of injustice when he hears of other awards. I cannot but say that I have found references to awards given in other jurisdiction helpful in this case, although they must be seen against what is considered to be fairness in the community of the Solomon islands, and, as we build up our own body or precedents in injury cases, courts will no doubt find those precedents of value if merely to give a starting point".

This consideration encapsulates the need to be fair in the eyes of the community and the need for uniformity in awards.

22. With the above principles in mind, I turn now to the issue of the quantum of damages. I am content to say that I find the approaches taken by the courts in similar developing jurisdictions to our own helpful. In this regard the Trinidad and Tobago, Samoa and Solomon Islands cases referred to above have given useful guides. I also note the two Kiribati cases Tibwere Taraia v Keen Reue (27 November 2006) Civil Case No. 67 of 2005 and Teeta Kamoriki v Attorney General (16 July 2007) Civil Case No. 61 of 2006 also referred to by Mr. Berina. This latter case is of a different nature and involves different consideration. We need not concern ourselves with it here.

23. I feel the cases Cornilliac, Longa and Manufotu, all referred to above, appropriately set out the various heads and the principles under which general damages are to be assessed in a case such this. These are:

(i) the nature and extent of the injuries sustained;

(ii) the nature and gravity of the resulting physical disability, including disfigurement;

(iii) the pain and suffering which had to be endured;

(iv) the loss of amenities suffered; and

(v) The extent to which, consequently, the plaintiff's pecuniary prospects have been materially affected.

24. The victim is now 5 years old. She was 4 years old at the time of the accident. She suffered severe injuries and hospitalized as a result of the accident caused by the negligence of the defendant. The nature and extent of those injuries are described in paragraphs 9, 10 and 11 (above) of this judgment. I need not repeat them.

25. In both Longa and Manufotu, there were additional claims for loss of future earning capacities since the plaintiffs in both cases were employed at the time of the accidents. In Longa the injury was to one eye (R), caused by unsafe system of work which resulted in a hook flying into the plaintiff's eye. The case was decided in 1982 by the High Court of Solomon Islands. Among other things, the plaintiff was awarded $5,000.00 as general damages.

26. In Manufotu, the plaintiff was employed by the defendants and was injured while operating a saw at his place of worked. His right hand came into contact with the running blade of the saw, cutting off his fifth finger, his ring finger seriously injured, his middle finger sustained minor laceration and his index finger was almost cut off. The case was decided by the Supreme court of Samoa in 2002 which awarded the plaintiff a lump sum of $66,000.00 as general damages.

27. In Taraia, the plaintiff was employed as a driver in the Ministry of Public Works and Utilities. He was injured in a road accident caused by the negligent driving of the defendant. He sustained injuries to the neck, mouth, arms and to the body generally and suffered partial immobility to his left arm. The High Court of Kiribati awarded the plaintiff $15,000.00 general damages in total. The award, however, included an element of loss of future employment. The actual award for the injury, disability and pain and suffering would, therefore, represent a figure less than $15,000.00.

28. As I have stated earlier in this judgment, each case depends on its own set of circumstances. The present case is not at par with any of the cases cited nor with any other cases, and it was never meant to be. Nevertheless, having considered the whole circumstances of this case, including the injuries suffered and the effect on the plaintiff/victim, I feel I can safely place this case, in the circumstances of Kiribati, above that in Taraia, despite the fact that the nature of the injuries are quite distinct. The culpability of the defendant in the present case clearly justifies, in my view, a more serious concern.

29. In my judgment, the plaintiff, in the present case, is entitled to general damages for injury, pain and suffering, and inconvenience together with loss of amenities under heads (i) – (iv) set out in paragraph 23 above. No amount, of course, can fully compensate the victim in such a case because money can never do that. Nevertheless, the award of damages in such cases is to compensate the injured plaintiff for the losses and injuries suffered. The amount awarded should be seen as the court's best effort at attempting to be just and fair, to the victim/plaintiff individually, as well as, in the eyes of the community which ought and able also to see that the defendant has in fairness paid for the expenses it put the victim through by its careless action that caused her suffering and pain.

Conclusion and order

30. In the present case, in judgment the appropriate amount for general damages is one of $20,000.00 under heads (i) to (iv). There is no award for pecuniary damages under head (v), as none is claimed in the writ. Special damages are not disputed and I award the amount claimed in the sum of $226.30 to the plaintiff. The total sum adjudged in favour of the plaintiff is therefore $20,226.30.

31. The plaintiff also claims interest. There was no suggestion by Counsel as to what is the appropriate rate of interest to be awarded in a case such as the present one. Again if a rate is suggested, we would also have to decide whether such a rate is appropriate for Kiribati on general damages award. The question of interest to be awarded on judgment for general damages had been dealt with in many cases, both by the courts in the UK and in our region here in the Pacific.

32. The point had been dealt with in Liliau v Trading Company (Solomons) Ltd (No.2) [1983] SILR 40 where the High Court of Solomon Islands granted 5% interest on a judgment for general damages and which was to run from the date of service of the writ to the date of judgment, following the English case of Jefford v Gee [1970] EWCA Civ 8; [1970] All E.R. 1202. See also Longa's case where the court also granted 5% interest on judgment for general damages to run from date of issue of the writ to the date of judgment.

33. Like in Liliau, the starting point in the present case is also section 3 of the Law Reform (Miscellaneous Provisions) Act 1934 of the United Kingdom which applies in Kiribati. Section 3 provides:

"3. (1) In any proceedings tried in any Court of record for the recovery of any debt or damages, the Court may, if it thinks fit, order that there shall be included in the sum for which judgment is given, interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment:

Provided that nothing in this section –

(a) shall authorise the giving of interest upon interest; or

(b) shall apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise; or

(c) shall affect the damages recoverable for the dishonour of a bill of exchange."

34. It will be observed under the above provision that the grant of interest is very much in the exercise of the court's discretion. In this case, I feel that the plaintiff is entitled to interest and that 5% per annum is the appropriate rate in Kiribati on a judgment for general damages. The interest is to run from the date of issue of the writ to the date of judgment.

The plaintiff shall also have her costs of these proceedings.

Order accordingly.

Dated the 31st day of October 2011

(Sir John Muria)
Chief Justice