Entreprise Roger Brand v Hinge [2005] VUCA 21; Civil Appeal Case 13 of 2005 (18 November 2005)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

CIVIL APPEAL CASE No. 13 of 2005

BETWEEN:

ENTREPRISE ROGER BRAND
Appellant

AND:

ALFRED HINGE
Respondent

Coram: Hon. Justice Bruce Robertson
Hon. Justice Daniel Fatiaki
Hon. Justice Patrick Treston
Hon. Justice Oliver Saksak
Hon. Justice Hamlison Bulu

Counsels: Mr. Felix L. Kabini for the Appellants
Mr. Jacob Kausiama and Mr Hillary Toa for the Respondent

Date of Hearing: 9 November 2005
Date of Judgment: 18 November 2005

JUDGMENT

This is an appeal against the judgment of the learned Chief Justice Vincent Lunabek entered in favour of the respondent on 23rd May, 2005. The respondent was awarded damages in the sum of VT5,036,060 together with interest of VT428,000, and costs in the sum of VT80,000. The total sum was ordered to be paid by 30th August 2005.

The appeal is on the ground that His Lordship erred in fact and/or law in applying the principle of ‘non est factum’ (‘not my deed’) and that in any event the damages awarded were excessive. The appellant seeks orders quashing the judgment and the orders of the Supreme Court in Civil Case No. 189 of 2004.

By way of background facts the respondent was employed by the appellants as a furniture-maker between 1984 to 20th April 2004 when he was dismissed. On 26th October 2002 the appellant sustained bodily injuries during the course of his employment while carrying out repairs to the appellant’s roof of an engine shed. Whilst removing rotting iron sheets the respondent fell through a roof from a height of some 13 metres landing on the concrete floor. He suffered severe multiple injuries and was brought to the hospital where he was admitted and spent three weeks. The appellant sustained the following injuries and resultant disability:

(a) a fracture dislocation of the left elbow with 90 % disability and limitation of movement restricted to a range of 30 degrees.

(b) a Colle’s fracture of the right wrist with 50 % disability and limitation of flexion/extension movements.

(c) a minor deformity of the left wrist in the region of the Pisinform with 30% disability.

(d) a soft tissue injury to the left knee

(e) loss of the left incisor upper tooth causing a permanent loss.

(f) a partial avulsion of the left lower incisor teeth.

The injuries were first assessed in a medical report dated 17th January 2003 to be permanent in nature. A further report was issued on 25th February 2003. And a final report was issued on 17th June 2003 confirming again the findings of 25th February 2003. Dr. Basil McNamara was the consultant surgeon who had provided the above reports. He concluded in his report of 17th June 2003 that it was likely that the changes would be progressive with time and further that the degree of disability would worsen.

A year later on 21st June 2004, Dr Santus Wari, Acting Consultant Surgeon performed another examination on the respondent and reported that the disabilities recorded in Dr. Basil’s report of 17th June 2003 had not improved. He concluded that the disabilities were permanent and that they had “gotten worse”.

The respondent was discharged from hospital after spending three weeks as an impatient. During that time he was looked after and cared for by his wife and brother. He continues to attend regular check-ups. The plaster on his injured hands was removed on 13th January 2003 and he was asked to return to work on 4th June 2003. He still had bandages on at that time. He was only able to sweep floors.

Then he received advice that his employer’s insurer was going to compensate him for his injuries. The payment was delayed. The Respondent spoke to Ms. Mariella Delaplane about it who informed him that he would only be paid in respect to his personal expenses and not for his injuries. To that effect the Respondent provided a list of his expenses but it was refused.

But the Respondent persisted, and finally, on 10th November 2003 he was called into the office of the Appellant Company and made to sign a document headed “Offer of Settlement”.

It reads:

“CJI
Insurance

OFFER OF SETTLEMENT

Claim Number 30025 Policy No. 03W0030596

I/We Alfred Hinge agree to accept from Consolidated General Insurance Limited, One Hundred Thousand Eight Hundred Vatu (VT100,800) inclusive of VAT (The Settlement figure) being an ex gratia payment in full and find settlement of all claims for all partial and/or total disablement arising from all injuries sustained in work place accident while under the employ of Dinh Gilbert trading as Enterprise Roger Brand occurring on or about (the 16/10/2002).

I/We further agree and declare that:

1. The payment is an ex gratia payment by consolidated General Insurance Ltd.
   
2. Payment of the settlement figure is a full and valid discharge of this loss.
   

Signed: (Alfred)

Date: (10/11/03).”

The respondent signed the document and was given a cheque for the sum of VT100,800. He continued in employment until terminated in April 2004.

The appellant filed a claim for damages for his injuries. The appellants denied liability on the basis of the deed of settlement dated 10th November 2003. The respondent however pleaded ‘non est factum’. The matter went to trial before the Chief Justice. On the evidence before him, the learned Chief Justice found in favour of the respondent. The respondent had claimed the sum of VT7,100,000. The Court awarded him damages in the sum of VT5,036,060 with interests in the sum of VT428,000 and costs in the sum of VT80,000.

The appellant appealed. Mr Kabini submitted that:-

(a) The award of damages at VT5,035,060 was too high in the circumstances of the case.

(b) The requirements for a plea of ‘non est factum’ established in Petelin v. Cullen (1975) CLR 355 were not satisfied in the respondent’s case;

(c) According to the general rule a party of full age and understanding is bound by his/her signature to a document whether he/she reads or understands it or not [See: Fiji Development Bank v. Raqona [1977] FamCA 81; (1984) 30 FLR 151 and Mary Maraia Hewitt and Arthur Lord v. Habib Bank Ltd [2004] FJCA 33, ABV0007, 20045 (26th November, 2004)].

(d) The findings of the learned Chief Justice were sustainable on the basis that the evidence showed that the document was read over to the respondent and, after he had understood it, he signed it.

(e) It was unbelievable that someone who had left school at class 6 could not read or understand English.

Counsel for the respondent submitted that the learned Chief Justice had found correctly on the evidence before him and had correctly understood and applied the law as stated by Lord Reid in Sanders v. Anglia Building Society (1971) AC 1004 when he said that “......there must be a radical or fundamental difference between what he signed and what he thought he was signing.” Our attention was drawn to the evidence of the respondent’s conversation with the Secretary, Ms Mariella Delaplane about payment for expenses and where she said the payment would cover only the expenses but not the injuries.

Counsel for the respondent also submitted that the case of Petelin v. Cullen was applicable in that it established that to make out the defence of ‘non est factum’, the defendant must show that he signed a document in the belief that it was radically different from what in fact, it was, and, at least against innocent persons, his failure to read and understand the document was not due to any carelessness on his part.

On the issue of the amount of damages, counsel for the respondent submitted that the sum of VT5,036,060 was not excessive in view of the original claim being for VT7,100,000, and on the medical reports showing the likelihood of continued worsening of the Respondent’s disabilities.

We have reviewed the evidence. The record shows that the respondent himself gave oral evidence and was cross-examined. For the defence, Ms Mariella Delaplane testified and was cross-examined. The issue before the learned Chief Justice was whether the respondent knew what it was, that he was signing.

The evidence of the respondent shows that on 10th November 2003 one Rosali, an employee of the appellant company came running to him and told him to go into the company office to collect his money. He went into the office and was confronted with a document written in English. He was not given any explanation as to the contents of the document. Mr Dinh (the appellant company owner) merely pushed the paper towards him and told him “yu signem”. He thought there were four people, apart from himself, in the office. They were, Mr Dinh Van Than, Ms Delaplane, Rosalie and an Insurance representative. He attended the Tagabe Primary School and left school at class 6. He read newspapers but only in Bislama. He explained what he believed he was signing to be the payment of his ‘out-of-pocket’ expenses. He had earlier provided a list to Ms Delaplane which amounted to the sum of VT214,800.

He was not advised to or given an opportunity to seek independent advice before signing the document. He reiterated that he did not understand what he was signed. The respondent remained unmoved in cross-examination.

Ms Mariella Delaplane was the sole witness called for the appellant company. Her evidence shows that five people were in the office during the signing of the document on 10th November 2003. She denied that there was no explanation of the document to the respondent. She read the paper to the respondent once and explained it to him. She asked him twice whether he agreed to it before he signed. She denied that the respondent was forced by Mr Dinh to sign. Then she said Mr Dinh was not present but two people from the appellant’s insurer were present. She agreed the injuries sustained by the respondent were serious.

In his assessment of that evidence the learned Chief Justice believed the evidence of the respondent to be the truth. Ms Delaplane contradicted herself more than once. No other persons who were present at the signing of the document were called by the appellant company to confirm and reinforce Ms Delaplane’s evidence. Under those circumstances we are unable fault the learned Chief Justice’s findings of fact. It is clear that the respondent is illiterate and that he was a person who had to rely on others for advice as to what he was signing. We are satisfied that the respondent did not receive and was not given the opportunity to get independent advice.

It is also clear from the evidence that the respondent reasonably believed that what he was for reimbursement of signing was his expenses when in fact it was not. It was a radically different document. And it is also clear from the evidence that the respondent could not have been careless in signing the document. If nothing else, it is possible he was intimidated into signing because he was up against four other people including the boss, in the room pressing him to sign. None of those other people gave evidence to disprove that fact by the respondent.

Regarding the cases cited and relied upon by the appellant, the Fijian Cases of Mary Maraia Petesen Hewitt and Arthur Lord and the Fiji Development Bank cases are not applicable. The case of Bradley West Solicitor Nominees Co. Ltd v. Keeman [1994] 2 NZLR 111 is also not applicable to this case. That case establishes that the plea of ‘non nest factum’ is not available to a signatory who had taken reasonable care in the circumstances.

We consider that had the respondent understood and taken reasonable care in signing the Offer of Settlement deed he would have manifested such care by crossing out or deleting the “We” parts of the deed leaving only the “I” parts. He was not signing the document with any other person who sustained injuries with him, rather he was alone and doing it for himself. In fact had he done so, it would also have indicated that he could read and understand English and hence the true nature of the document that he was signing.

The cases of Saunders v. Anglia Building Society, Gallie v. Lee [1971] A.C. 1004 and Petelin v. Cullen contain good law concerning ‘non est factum’ and the principles applicable in relation to it. We agree with the Chief Justice in adopting and applying them and are satisfied that he had applied them correctly.

For those reasons we reject the appellant’s submission that:-

(a) The tests in Petelin v. Cullen were not satisfied.

(b) The respondent had understood what he was signing on 10th November, 2003.

(c) The findings of the learned Chief Justice were irrational.

(d) It was unbelievable to believe the story of a class 6 leaver.

The finding of ‘non est factum’ was fully justified.

The remaining issue is the amount of compensation awarded.

The Chief Justice noted two Supreme Court judgments which had been referred to [CC 3 of 1984 - Rejane Lansonneur (PI) v. Pierre Barge and Lowndes Lambert Pacific Ltd (1980-88) Van LR Vol 1; Richard Solzer v. Pierrot Garae and Vanuatu Government (CC 117 of 1992) (1980-1994) Van LR 528.

He then reviewed the medical reports and assessed the general damages in the total sum of VT5,000,000 made up of permanent disabilities designated by the doctors at 30% in respect of an injury to the left wrist, 90% to the left elbow and 50% to the right wrist as well as other less permanent injuries at VT4,500,000 and for pain and suffering VT500,000.

Mr. Kabini argued that these sums are grossly in excess of compensation awards in similar cases even exceeding awards in cases of death.

We are conscious that there are problems about the determination of the awards of general damages and we invited each of the lawyers to provide further submissions on the matter in light of other cases decided in this jurisdiction or of comparable assistance.

Mr. Jacob Kausiama filed some material on behalf the Respondent.

He referred to the Solzer decision which was referred to by the Chief Justice and he provided material Guidelines which have been produced by The Judicial Studies Board in the United Kingdom.

The problem with material like that is when it comes to issues of conversion. There needs to be some major question marks over the currency rates adopted in the submissions and, more importantly, wage rates, cost of living and the like are so different between one country and another that there are real difficulties in gaining benefit from them.

We have also regard to the comprehensive recent decision of the Supreme Court of Fiji in The Attorney General of Fiji v. Broadbridge [2005] FJSC 4 which rejected any suggestion that the multiplicand/multiplier approach was the only appropriate approach in Fiji for the determination of personal injury damages but as well the Court noted the value which there can be in such an exercise. It also undertook a very far reaching consideration of cases in England, in Australia and to some extent North America.

Mr. Hinge is now 46 so he would have been 43 at the time of the accident in 2002. At that stage he was earning VT21,120 per month only a little more than the current minimum wage in Vanuatu of VT20,000 a month.

On the basis of the available evidence, it appears that this man will be effectively out of the work force as a result of his progressively deteriorating injuries and so we have a period of at least sixteen years in which this man, but for the accident, would have worked to support his wife and four children who at the time of the accident were 13, 11, 10 and 8.

On a simple multiplier basis this of itself shows a loss in the vicinity of four and a half million Vatu without any allowances for inevitable increases in wages over that period which of course can be off-set against a degree of discounting for contingencies and allowing for a discounted present value of future entitlements.

It may well be that at some stage this Court will have to undertake an analysis of the sort taken by the Fiji Court in Broadbridge. However, in this case we are not satisfied that it had been demonstrated that the award made was outside the proper discretion of the judge on the evidence presented.

There will always be a degree of assessment and impression in an award of general damages and an Appeal Court will only intervene if it is earlier demonstrated that the sum ordered is clearly inconsistent with both principle or relevant precedent.

Considering the fact that the award to Mr. Solzer had a starting point of VT3,000,000 for an accident in 1989 as the value of money has altered greatly since then, we conclude that the Chief Justice's starting point cannot be challenged.

There was no particularised challenged to the VT500,000 awarded for pain and suffering.

There were some questions as to whether an allowance should have been made for the VT100,800 received from the Insurance Company in November 2003. There is no suggestion that the judge overlooked that modest sum and it is not a matter for us to interfere with, to do so would be merely fiddling.

Therefore we are not persuaded that there is any proper basis to interfere with the assessments made and the appeal on that point also should be dismissed.

There is only one issue which requires our intervention. The award attracted interest at 12%. That is the maximum permissible but there was no evidence to justify interest at a rate which was more than compensatory or had a punitive aspect. We discussed the issue in Air Vanuatu (Operations) Ltd v. Molloy [2004] VUCA 17 and said:

“The third issue concerns the award of interest at 12% from the 27 April 2003 to the date of payment. With due respect to the Chief Justice section 56(6) provides for interest at a rate ‘not exceeding 12%’. 12% is neither a requirement nor an entitlement. In pre judgment interest, the important fact is to reflect the reality of a person having been kept out of money to which he is entitled.

Counsel advised us that there was no evidence called on this point and no submissions were made upon it. In our judgment in the absence of evidence, the court should only award what would be the amount that a person could receive from a normal bank investment during the relevant period. Richard Lo trading as LCM v. Sagan Civil Case No. 27 of 2003; [2003] VUCA 16.”

There was likewise no evidence led in this case so the interest rate is reduced to 5%.

Mr. Hinge is entitled to normal costs on a standard basis in respect of the appeal.

DATED at Port Vila, this 18th day of November 2005

BY THE COURT

BRUCE ROBERTSON J
DANIEL FATIAKI J
OLIVER A. SAKSAK J
PATRICK I. TRESTON J
HAMLISON BULU J