Vaka v Palu [2000] TOSC 7; C 0936 1996 (22 March 2000)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

NO.C.936/96

BETWEEN:

HALATOA VAKA
Plaintiff;

AND:

1. SIONE MUTI PALU
2. 'ALANI RAMSAY
3. 'ETILUNA MAFI
Defendants.

BEFORE THE HON. CHIEF JUSTICE WARD

Counsel: Mr Lopeti Foliaki for plaintiff
Miss Lesina Tonga for defendants.

Date of hearing: 6^th, 7^th, 8^th March 2000.
Date of judgment: 22 March 2000.

JUDGMENT

On 24 August 1996, the plaintiff went to the Hufangalupe Night Club in Vaini. There is a dispute about how long he was there but eventually, in the small hours when the club was closing and the staff tidying up, he was still there. He was forcibly ejected by the defendant and the security staff and went and sat in the car of a friend. Whilst sitting in the car the defendant also entered and there was a scuffle. By the end of that scuffle, a substantial portion of the pinna of the plaintiff's ear had been bitten off by the defendant.

The defendant was, at the time, a part owner of the night club. However, the original claim identified him as an employee of the night club and sought to sue two of the owners as well in negligence. When the defence of the, then, first defendant was filed, it was clear that the defendant was one of the joint owners of the club. The second and third defendants were never served and the case has proceeded against his defendant only.

Strangely, the statement of claim was never amended and so it was to a large extent couched in terms of a claim in negligence against the owners.

This become relevant because Miss Tonga for the defence in her final submission has treated the case entirely as a claim in negligence. Had that been the case, I would have been bound to agree with her suggestion that the plaintiff has failed establish negligence in the terms in which it was pleaded.

This court is all too frequently having to point out to counsel the importance of proper pleadings and this is a case where the pleadings at the trial did not address the issues to be tried only. Even in opening, Mr Foliaki for the plaintiff described the case as being a claim in negligence. However, as the opening continued it became plain that it was not and his case was a claim for damages for assault.

In the case of Frasad v Morris Hedstrom (No.2) 1993 ULR 69 @ 72, the Court of Appeal repeated the need for pleadings to be clear and precisely to identify the case the other side must face. Failure to do so may result in the court stopping the plaintiff calling evidence of matters not pleaded and the claims being refused. In Prasad's case the Court distinguished cases where, despite deficiencies in the other side had clear notice of the case against it and had not been misled.

However, in this case, whilst the statement of claim does not specify it was a case of assault, the whole of the content of paragraphs 5 to 9 relate to the conduct of the defendant alone. It is clear that it is alleging an unlawful attack and that the injuries are a direct result of that attack. It then, in paragraph 10, sets out the injuries under the heading of "Particulars of Injury". Paragraphs 11 and 12 then refer to the duty of the owner of the Night Club and include the heading "Particulars of Negligence".

Once the case was not pursued against the second and third defendants, the plaintiff should have sought to amend the claim and remove those paragraphs but I am satisfied that the paragraphs 5 to 9 are clearly stating a claim of assault.

As I have said, the early incidents occurred in the night club. There is substantial dispute about those events. Whilst that dispute includes the actual time a cut above the eye and to the mouth of the plaintiff occurred, they have little to do with the main incident except that the defendant submits to the court that the plaintiff's misbehaviour was a contributing factor to the harm he received.

I do not consider the two injuries just described add in any significant way to any damages to which they may have a right but the line of defence requires a consideration of those earlier events.

A number of witnesses were called. I do not set out their evidence but state the evidence as I found it established by the plaintiff in furtherance of his claim or, where he failed to do so, the conclusion I reached on the defendant's allegations.

I find those earlier events to be as follows. Whether or not there was an intention to ban the plaintiff from the club made before 24 August, I am not satisfied that has been communicated to the plaintiff. I therefore accept he went to the club expecting and believing he could enter. He was allowed to enter and there is no evidence that it was by anything but the usual way. By the time the staff were clearing up, he was affected by drink and was behaving in a unacceptable manner. He was making extremely offensive and embarrassing comments to the barmaid. I do not believe his suggestion they were joking remarks nor do I accept the barmaid was taking them as such. I am sure she was gravely offended and he knew it but persisted.

On hearing these comments and the complaint of the barmaid, the defendant came out of an office near the bar and signalled the plaintiff to leave. I do not know on the evidence whether the plaintiff saw but, when the defendant attempted to pull the plaintiff out, I have no doubt he knew he was being asked to leave and the reason.

I do not believe the plaintiff's account that the defendant struck the first blow but I am satisfied that there was almost immediately a scuffle between them. I am satisfied the defendant was within his right to eject the plaintiff and the force used was no more than necessary to eject him. At the same time, I am satisfied both the plaintiff and the defendant had lost their tempers and were only separated at that stage by the security. They both continued to shout abuse and challenges at each other.

I am satisfied the plaintiff has established that the injury to his mouth and above the eye occurred during this scuffle. I have found the defendant was within his rights to eject the plaintiff and, as the plaintiff was resisting violently, the force was reasonable so I do not find the infliction of those two injuries amounted to an unlawful attack.

Once outside and when he was sitting in the car, I am satisfied the plaintiff did shout threats that he would go home and get a gun and kill the defendant and his family. I do not accept it has been proved that the defendant had a gun but I believed the defendant's evidence that he had heard stories that the plaintiff had one and believed them.

There is no dispute that the defendant then attacked the plaintiff as he sat in the car and I am satisfied that he bit off the portion of the plaintiff's ear. That was an unlawful assault and caused the injury for which the plaintiff now claims damages.

I accept that the plaintiff behaved badly in the club and provoked the defendant outside by his threats to get a gun and that may explain why the defendant attacked him in the car. It does not in any way justify the attack and can in no way mitigate the assault when he bit the plaintiff's ear. I find this was an unlawful assault and the defendant is liable.

The plaintiff seeks damages for all the injuries he received from the defendant. I only find he is liable for the injury to the ear.

The plaintiff spoke of extreme pain and excessive bleeding. He described considerable discomfort for some weeks during the time the injury needed to be dressed each day and for some time afterwards. Even now he experiences some discomfort if he lies on that ear. He states that he still has some pain and also has recurrent episodes of loss of hearing.

I am satisfied that the pain at the time would have been intense and, although I do not accept there was severe loss of blood, I accept there would have been sufficient bleeding to frighten him at the time. I also accept that he experienced discomfort short of real pain for some weeks following the injury.

The doctor who examined him at the time, Dr Sivili, described the injury as severe and I accept that description. He estimated that about two thirds of the ear had been removed. I do not accept it is that much and would be nearer a half of the total area of the pinna but I consider that difference is of no consequence. He suggested that, as the function of the outer ear was to reflect sound waves into the ear canal, the reduction in that reflective area would inevitably result in some reduction of the plaintiff's hearing. He was unable to assess the extent. The defendant called Dr Saafi who is an ENT specialist. He suggested that any possible loss of hearing from the reduction in the reflective part of the ear would be very small and in most cases would not occur. I accept that is the case.

Both doors were agreed that there would have been no further loss of hearing unless the ear canal itself or the middle or inner ear structures were damaged. There is no evidence of such damage and I accept there was no such loss of hearing. On their evidence I am also satisfied that, if the plaintiff is experiencing spasmodic loss or reduction of hearing, it is nothing to do with this injury.

The Plaintiff originally claimed $150,000.00 in total damages but in his final submissions Mr Foliaki suggests a proper award would be $20,000.00 for the pain and suffering and an equal amount for the embarrassment and disgrace.

He bases that claim on English authority which put a figure of 6,770 to 10.840 English pounds on a case where multiple fractures caused facial deformity of a permanent nature.

I accept it is reasonable to look to English examples in order to establish the scale of such awards but I do not accept the example cited by Mr Foliaki is a sufficiently proximate case.

However, as Mr Foliaki properly concedes, allowance must be made for the economic differences between England and Tonga. Clearly a level of damages appropriate in England would be well above the proper equivalent in Tonga. The purpose of damages in tort is to try and fix a monetary figure to compensate for the harm suffered. Such an exercise is imprecise but the courts must try and set some levels to equate the injury to the award and to ensure some standard approach. The courts in England have much wider experience and far more cases with which to set such levels and so it is instructive to look to them. However, an award must be fair both to the injured party and to the person who is liable to pay. There must, therefore, be some relationship between the level of the damages and the general levels of income and cost of living in the country as a whole.

I do not have precise figures upon which to base an adjustment of the English levels to meet circumstances in Tonga. One method would be to try and compare the levels of middle level wages for like jobs in each country both in the public service and the private sector. Very low and very high earnings are more variable and therefore less reliable.

On such a basis I consider that the level of such wages in Tonga fall between a quarter and a fifth of the level for equivalent earnings in England. I therefore consider that an appropriate award for the injury in this case, taking into account the pain and suffering and the continuing loss and consequent embarrassment and occasional discomfort but allowing nothing for subsequent loss of hearing, would be one of $2,500.00.

Miss Tonga has suggested that, as the defendant is only one of the co-owners of the club, he should not have to bear the whole burden of the award. I see no basis for that suggestion. The assault for which I have found in favour of the plaintiff was entirely the action of this defendant. The plaintiff had left the club and was sitting in a car waiting to leave when he was subjected to a separate and unlawful assault by the defendant. Even if the other owners had still been parties, I would not have found that attack was the result of negligence in the way they were conducting the club.

The plaintiff also claims interest on the judgment sum for whatever period the court considers appropriate. This case has taken a long time to reach trial and it would appear from the court records that the delays were not the fault of either party. It was first filed in 1996 but it was not until March of last year that this trial date was fixed. Had the defendant admitted liability as, on his own account, he should really have done, the plaintiff would have had his money sooner. However, the claim for $150,000.00 in the plaintiff's statement of claim was a totally unrealistic figure for such an injury. Had he claimed a more realistic figure, the defendant may well have seen his way to admitting it or attempting to settle the case.

It has become a regular feature of many actions in Tonga to claim excessive amounts. Such claims encourage dispute, discourage admissions and settlement and prolong litigation. This was such as case and I do not think it right to give interest for a period that may have been prolonged by the plaintiff's own pleadings. I shall order interest on the judgment sum at 10% pa from 19 March, 1999, being the date when this trial was fixed, until payment.

The same considerations apply to costs. The inflated sum claimed initially may well have discouraged the defendant from seeking to settle. Had he paid into court, of course, he may have avoided all costs but he did not. However, I consider it appropriate to order the defendant to pay four fifths of the plaintiff's costs to be taxed if not agreed.

Thus my order is:

Judgment to the plaintiff against the defendant in the sum of $2,500.00 with interest at 10% pa from 19 March 1999 until payment.

The defendant to pay four fifths of the plaintiff's costs to be taxed if not agreed.

NUKU'ALOFA: 22 March 2000.

CHIEF JUSTICE