Knab v Hoeller [2001] TOSC 16; C 1016 2000 (16 May 2001)

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

NO.C1016/00

BETWEEN:

PETER KNAB
Plaintiff

AND:

BERNHARD HOELLER
Defendant.

BEFORE THE HON. CHIEF JUSTICE WARD

Counsel: Miss L. Tonga for plaintiff.
Mr L. Niu for defendant.

Date of Hearing: 15 May 2001
Date of Judgment: 16 May 2001.

JUDGMENT

This is a claim for damages for assault in September 2000. At that time the parties, both Austrian nationals, were involved in the running of a resort, the Popoa Village resort on Vaka'eitu Island, but it is clear that there was, by then, bad feeling arising from disputes about the actual involvement and investment in the resort.

Despite filing a defence denying all knowledge of the assault, there has been no dispute in court that the defendant assaulted the plaintiff and is liable for it. Effectively the only dispute has been as to the actual immediate cause of the attack and the extent of the attack. As to the former, the defendant contended that it was a direct result of the general disagreements over the resort. I accept that was the basic, underlying cause but I accept the plaintiff's account that the actual incident which exploded into the attack was a minor disagreement over the defendant's stated intention to hold a kava party on the beach. I also accept the evidence of the plaintiff as to the actual extent of the attack. He was supported in his account by a number of members of the staff of the resort and I accept that their versions, despite a number of minor discrepancies, were truthful.

The damages claimed are for the loosening of the top right incisor of the plaintiff and the pain caused then and subsequently together with the embarrassment he felt as a result of such an incident occurring in the presence of the resort guests and staff. I accept that the injury was the result of a blow to the face by the defendant.

The plaintiff told the court how he had severe pain from the tooth and great difficulty eating for a period of three to four weeks. Since that time, the pain has become spasmodic but, when it occurs, produces a sensation of needles being pushed up through his upper jaw. The difficulty in eating food was not such that the defendant could not eat a proper diet but that he had to have his food prepared in such a way that he did not have to chew hard or tough food and had to take care he only ate on the left side of his mouth. To a limited extent that condition continues to the present day. I accept that evidence.

He also gave evidence of how he attended a dental clinic run apparently by visiting dentists at a Mormon school in Tongatapu but they could not correct the problem except by extraction because of lack of materials in Tonga. He clearly hopes to avoid losing the tooth but cannot afford, at present, to go abroad for treatment. No evidence has been led as to the likelihood of such treatment being available or successful or the cost.

In those circumstances I can only make an award on the basis of the loss of such a tooth because I accept that it is still loose and, if not treated, will eventually need to be extracted. It is a front tooth so it will leave a visible gap and may also lead to loosening or displacement of the upper incisors that may have a pronounced effect on his appearance. The plaintiff is a man approaching sixty.

I consider the proper award for such a tooth bearing in mind the pain at the time and the suffering since is $800. I also accept that the assault, although a symptom of the deeper problems between these men, was totally unjustified and, taking place as it did in front of two guests who apparently left the resort hurriedly as a result and of some of the staff of the plaintiff, would have caused him embarrassment. No evidence was sought from the staff as to the effect it had on their attitude to their employer or to any actual loss of income from the guests who left so I can allow nothing for that. However, I am willing to add a small amount for the embarrassment to make a total award of $1100.

The original claim was for damages of $20,000 and so the claim had to be filed in the Supreme Court. Mr Niu for the defendant suggests that claim was grossly inflated and could never have been justified. Had it been a more realistic figure, the matter could have been dealt with in a lower court where costs would have been lower and the delay much less. Miss Tonga, who did not draft the pleadings and took over the conduct of the action at a very late stage, accepts the claim was far too high but points out that the defence of a complete denial by the defendant gave little room for any adjustment.

The filing of claims for ridiculous and unrealistic sums in damages is far too common in Tonga. It is a practice that should stop. Such a claim discourages negotiation and settlement. Many a defendant confronted by such a claim will react by disputing everything about the case from fear of having to pay such a large sum. In many cases, a reasonable claim will result in a satisfactory negotiated conclusion and, if not, be heard in the Magistrate's Court with all the resulting saving of time and expense. Where the plaintiff succeeds but is only awarded a substantially smaller sum than that claimed, it is unconscionable that the losing party should have to pay the extra costs unnecessarily incurred.

In any case where the award is such that it would have fallen within the jurisdiction of a lower court, the winning party's costs should be limited to the scale appropriate in that court. This case could have been brought in the Senior Magistrate's Court. The plaintiff shall have his costs but limited to a scale appropriate to that court which I fix at $200.

I would add that it is surprising how rarely counsel, when faced with such a claim, avail themselves of the procedure in Order 16. Under that rule, should the final award not exceed the sum tendered, the tendering party is unlikely to have to pay any of its opponent's costs.

NUKU'ALOFA: 16^th May, 2001.

CHIEF JUSTICE