IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 50 of 2018

BETWEEN:	WINIUEA KABUAUA				
					Plaintiff

AND:	CCB ENVICO PTY LTD  

Date of Hearing:	30 January, 3 February 2025 
Date of Judgment:			5 March 2025

Appearances:			Ms. Elsie Karakaua for the Plaintiff
                                                     	Mr. Banuera Berina for the Defendant

JUDGMENT - Damages

Brief background 

1.	 In November 2021, the Court of Appeal in Civil Appeal 3 of 2020 determined that the plaintiff was employed by the defendant at the time of the accident and, therefore, is entitled to compensation from the defendant. The case was sent back to the High Court to assess the damages, which was the purpose of the hearing before this Court.

2.	For background, the defendant employed the plaintiff at the time of the accident, which occurred sometime in 2017. The plaintiff sustained injuries when one of the pipes fell on his upper thighs. Through a Writ, the plaintiff seeks damages under section 5 of the Workman Compensation Ordinance for future loss of earnings, general damages for pain and suffering, loss of convenience and amenities, loss of pecuniary prospect, physical disability and disfigurement, punitive damages, interest, and costs actions.

Evidence, Submission and Analysis
3.	 The trial to assess damages occurred on two occasions. The plaintiff provided evidence. The defendant requested to call a witness after the plaintiff had delivered their closing submissions. The plaintiff objected, and I concur, as it was too late in the proceedings to make that request.  

4.	In the plaintiff’s evidence, he stated he suffered a permanent partial incapacity assessed at 80%. His medical report dated January 25, 2018, was submitted to support this fact. The report clarifies that his incapacities include ‘ankylosis of the left hip at 60% and leg length discrepancy of 20%.’ The medical report was not challenged.  

5.	The plaintiff relies on sections 5 and 8(1) of the Workers' Compensation Ordinance, which addresses cases of permanent partial incapacity. 

6.	Section 5(1) states the following;

“In any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, the employer shall, subject as hereinafter provided, be liable to compensation in accordance with the provisions of this Ordinance, and for the purposes of this Ordinance, as accident arising out of the employment shall be deemed, in the absence of evidence to the contrary, to have arisen in the course of the employment and an accident arising in the course of the employment shall be deemed, in the absence of evidence to the contrary, to have arisen out of the employment;
Provided that-
(a)	The employer shall not be liable under the Ordinance in respect of any injury, other than an injury which results in partial incapacity of a permanent nature, which does not incapacitate the workman for the period exceeding 3 days from earning full wages at the work at which he was employed, and
(b)	If it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall, unless the injury results in death or serious and permanent incapacity, be disallowed.

7.	Section 8(1) reads as follows;

Where permanent partial incapacity results from the injury, the amount of compensation shall be-
(a)	In the case of an injury specified in the schedule, such percentage of the compensation which would have been payable in the case of permanent total incapacity as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and the Schedule
(b)	 In the case of an injury not specified in the Schedule, such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury.

8.	The plaintiff claims $1,597.50 as loss of earnings during the injury period from 3 November to 29 December 2017. This calculation has four (4) paydays: $277.50, $360, $480, and $480. He claims another $37,440 (the correct sum instead of $39,048.50) for the loss of future earnings for the three (3) years he claimed he would have worked had he not encountered the injury. The breakdown is $480 x 26 fortnights x 3 years. In total, $39,048.50 for loss of income.

9.	His claim for general damages for pain and suffering, loss of convenience or amnesties, physical disability, disfigurement, and permanent incapacitation is $48,000 based on the case of Taurabwakai v Teriao HCCC 44 of 2012 (26 February 2015). In that case, the plaintiff was awarded $18,000 for his permanent incapacity of 30%. The plaintiff suffered 80% permanent incapacity; therefore, he would be getting that sum. For stress and anxiety, he claims $3000, the same sum awarded to the plaintiff in the case of Tebetanga v Betio Town Council [2014] KIHC 43; Civil Case 192 of 2010 (17 October 2014)

10.	The plaintiff further claims punitive damages for the delay in compensation. He avers that no compensation was ever paid to him, even after they sent a demand letter to the defendant. He refers to the case of  Koru v Tabiteuea Meang Island Council [2020] KIHC 30; Civil Case 53 of 2017 (20 October 2020), where the High Court awarded punitive damages at $4000. He seeks $4000 for this head.

11.	The Court of Appeal awarded the plaintiff costs for the proceedings before it and the High Court. The plaintiff proposes $6800: $3000 for the High Court and $3800 for the Court of Appeal.

12.	On the other hand, the defendant objects to the claim and argues that since the plaintiff sued for compensation under the Workman Compensation Ordinance, the total claim for permanent incapacity should not exceed $25,000, as stated in section 7 of the Ordinance. The defendant submits that it could have been sued for negligence, but this was not the case. 

13.	Section 7 reads as follows;

“Compensation in the case of permanent total incapacity
7(1)	Where permanent total incapacity results from the injury the amount of compensation shall be a sum equal to 48 months earnings or $25,000 whichever is less:
	Provided that in no case shall the amount of compensation in respect of permanent total incapacity be less than $5000.”

14.	 According to the defendant, the plaintiff had the option of suing in other torts, which is specified in section 26 of the Workman Compensation Ordinance, but the plaintiff chose to sue under sections 5 and 8 of the Workman Compensation Ordination. For ease of reference, section 26 states as follows;

“Proceedings independently of this Ordinance
26. (1) where the injury was caused by the personal negligence or wilful act of the employer or some other person for whose act or default the employer is responsible, nothing in this Ordinance shall prevent proceedings to recover damages being instituted against the employer in a civil court independently of this Ordinance.”

15.	 Based on section 7 of the Ordinance, the defendant submits that the plaintiff can only claim $20,000, which is 80% of $25,000. The defendant agrees that the plaintiff suffered permanent incapacity and is entitled to compensation under the Ordinance. Nothing in the Ordinance provides for claims for general damages for pain and suffering, or punitive damages. According to the defendant, these other claims are elements of negligence or other torts requiring an unlawful tortious action.

16.	The defendant argues that the three cases presented by the plaintiff do not apply to his situation. First, since they involve negligence, they do not constitute claims under the Workman Compensation Ordinance. Second, these cases are unrelated to employer-employee relationships.  In support of this argument, the defendant refers this Court to the case of Mareko v Rereieta and Kiribati Port Authority [2024] KIHC 2; Civil Case 36 of 2018 (2 January 2024), where the plaintiff brought a different claim for pain and suffering after having received compensation under the Workman Compensation Ordinance in the sum of $2750 for his total incapacity assessed at 11% of $25,000. 

17.	The plaintiff did not dispute that they filed under the provisions of the Workman Compensation Ordinance for permanent incapacity; however, the plaintiff did not intend to use the rates specified in the Ordinance. The plaintiff contends that the rates from the three cases cited in support of his claims for special, general, and punitive damages should be applied. As mentioned previously, the defendant did not challenge the amount for each category of claim. Instead, the defendant argued that these claims are not covered by the Workman Compensation Ordinance and are based on negligence that requires an allegation of an unlawful or tortious act. I believe this argument should be addressed when liability is determined. The parties did not submit that this issue was addressed at the trial for liability. At this hearing, the sole purpose is to assess the damages. 

18.	After reviewing the judgment for liability dated 13 October 2020, I found that this matter was one of the issues submitted to the High Court for consideration. There were three issues for determination before the High Court at that time, which are listed below;
-	Whether the defendant was employed by the defendant at the time of the accident;
-	If the defendant was the employer of the plaintiff, whether the defendant should pay compensation to the plaintiff under the Workman Compensation Ordinance, and thirdly;
-	Whether the plaintiff is entitled to other damages.

19.	The High Court then addressed only the first issue and determined that the defendant was not the plaintiff's employer at the time of the accident; therefore, the defendant was not liable. On appeal, the Court of Appeal reversed the decision, concluding that the defendant was the plaintiff's employer during the accident. Additionally, it ruled that the plaintiff met the definition of a workman under the Ordinance. The Court of Appeal directed that the issue of quantum be remitted back to the High Court for determination. This leaves the third issue still unanswered: ‘whether the plaintiff is entitled to other damages.’

20.	 Both Counsels made submissions on this issue to this Court. The plaintiff stated he is entitled to the other damages. The defendant, through Counsel, said the plaintiff could not receive compensation under these other damages since the plaintiff’s case was initiated under the provisions of the Workman Compensation Ordinance. I understand the plaintiff’s action when he supported his claim for other damages using case authorities, which indicates their intention to use rates other than those stated in the Workman Compensation Ordinance. However, I agree with the defendant that the claim must specify and prove the defendant’s negligence or fault that resulted in the plaintiff’s injury so that the defendant can be held liable for these other damages.  I believe the plaintiff could combine both claims in one action against the defendant as long as the negligence claim is clearly stated and proved at the trial.

21.	I looked at the statement of claim, which did not show the negligence claim against the defendant. Even the transcript for the hearings in 2020, together with the Counsels’ closing submissions at that time, did not mention the negligence claim. Therefore, I agree with the defendant that this case was initiated or based only on the Workman Compensation Ordinance, where sections 5 and 8 are relevant, as shown in the Writ and plaintiff Counsel’s submission.

22.	The Workman Compensation Ordinance intends to compensate the workman for having his capacity to work reduced by his injury, that is, the injuries must incapacitate the workman and affect his ability to work. In other words, economic claims such as loss of earnings while hospitalised and loss of future earnings could be compensated under the Ordinance. The three case authorities raised by the plaintiff are irrelevant for a claim under this Ordinance. 

Conclusion

23.	Under sections 5 and 8 of the Workman Compensation Ordinance, the plaintiff sued the defendant for compensation for his injuries while working under the defendant. The plaintiff suffered 80% permanent partial incapacity; therefore, as per the Ordinance rates, he is entitled to 80% of $25,000 (the ceiling figure), which is $20,000 and cost awarded by the Court of Appeal to be agreed or taxed. The plaintiff is also entitled to the costs of this proceeding, to be agreed or taxed.

24.	Claims for other damages are not awarded as these fall outside the scope of the Workman Compensation Ordinance.

25.	The plaintiff is entitled to an interest of 5% from the date of judgment.

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice