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Vanuatu Copra & Cocoa Exporters Ltd v Agwaiasi [2024] VUCA 15; Civil Appeal Case 637 of 2024 (17 May 2024)
IN THE COURT OF APPEAL OF THE REPUBLIC OF VANUATU (Civil Appellate Jurisdiction) | Civil Appeal Case No. 24/637 COA/CIVA |
BETWEEN: | VANUATU COPRA & COCOA EXPORTERS LIMITED First Appellant |
AND: | HENRY ALEXANDER FORD HOOKER Second Appellant |
AND: | ENID TUTUO AGWAIASI AND ZARIELLA AGWAIASI Respondents |
Date of Hearing: | 9 May 2024 |
Before: | Hon. Chief Justice V. Lunabek Hon. Justice J.W. von Doussa Hon. Justice R. Asher Hon. Justice D. Aru Hon. Justice V.M. Trief Hon. Justice E.P. Goldsbrough Hon. Justice W.K. Hastings |
Counsel: Date of Decision: | M.J. Hurley and A. Kalmet for the Appellants P. Fiuka for the Respondents 17 May 2024 |
JUDGMENT OF THE COURT
- Introduction
- This is an appeal against a judgment of the Supreme Court dated 2 February 2024, where the learned trial Judge made an award of damages
in favour of the respondents. Their claim for damages related to severe personal injuries suffered on 16 February 2022 when the second
appellant Henry Alexander Ford Hooker, then employee of the first appellant Vanuatu Copra & Cocoa Exporters Limited (‘VCCE’),
lost control of the loader that he was driving and hit the respondents who were walking along the side of the road at Luganville
on Santo.
- The respondents are citizens of the Solomon Islands. The first respondent Enid Tutuo Agwaiasi was working as a nurse at the Northern
District Hospital at Luganville under contract with the Vanuatu Government. The second respondent is her daughter Zariella Agwaiasi,
who was 20 years old at the time and enrolled at university.
- Mr Hooker was convicted of careless driving and given a suspended sentence.
- In the judgment, the primary Judge found the appellants jointly and severally liable in negligence. He held that there was no contributory
negligence on the part of the respondents. The appellants had accepted the respondents’ medical evidence as to the nature and
extent of their injuries. The primary Judge awarded general damages and damages for pain and suffering to each respondent, loss of
earnings to Mrs Agwaiasi, special damages, interest and costs. He stated the following at [33]-[37] of the judgment:
- I accept the defendants’ calculations of damages. Mrs Enid Agwaiasi to be as follows, but disallowing the 33% for contributory
negligence: -
a) For right ankle injuries VT5,801,600
Lacerations and abrasions VT2,755,000
VT8,556,600
b) For left ankle injuries VT3,935,320
And left leg fractures VT4,440,000
VT8,375,320
c) For Pain & Suffering with
Stress & anxiety VT4,000,000 (as submitted by claimants)
d) For loss of earnings (x13 fortnight) = VT847,340
Total damages = VT23,627,126
- For Ms Zariella Agwaiasi, she has Judgment for: -
- Head injuries VT457,209
- For facial lacerations VT2,033,520
- For left eye injury VT584,600
- For left leg injury VT5,801,600
- For right leg injuries VT14,245,000
- For Pain & Suffering with
Stress & anxiety VT4,000,000 (as submitted by claimants)
Total damages = VT27,121,929
- For Special damages as submitted by the claimants, I accept the amount of VT1,847,863.
- I assess the total damages awarded to the two claimants to be in the total sum of VT52,597,018.
- I therefore enter Judgment in favour of the two claimants against the first and second Defendants jointly and severally for the following
sums: -
- For Mrs Enid T. Agwaiasi – VT23,627,126 as general damages, and as special damages, the sum of VT1,847,863;
- For Ms Zariella Agwaiasi – VT27,121,929 as general damages.
- The Appeal and Submissions
- The appeal was advanced on the following grounds:
- (i) Grounds 1 and 4 – that the primary Judge erred in that despite accepting the appellants’ calculations of damages based on the United
Kingdom (‘UK’) Judicial College’s Guidelines for the Assessment of General Damages in Personal Injury Cases (16th ed.) (the ‘Guidelines’), “but disallowing the 33% for contributory negligence”, awarded general damages without reducing the comparable awards by one third to take into account the various socio-economic
differences between the UK and Vanuatu. Accordingly, the award for Mrs Enid Agwaiasi should not have exceeded VT9,741,512 and for
Ms Zariella Agwaiasi should not have exceeded VT15,404,500;
- (ii) Ground 2 – that the primary Judge erred in awarding VT4,000,000 damages for pain, suffering, stress and anxiety when the claims for
pain and suffering, including stress and anxiety, fall within the general damages awards under the Guidelines and are not separate
components of general damages awards otherwise it would result in double or multiple counting: Shem v North Efate Timber Ltd [2008] VUSC 48 per Tuohy J at [8]-[10] and Tari v Telecom Vanuatu Limited, unreported judgment dated 13 June 2018 at [15] in Civil Case No. 17/1228 per Saksak J (not overturned on appeal);
- (iii) Ground 3 – that the primary Judge erred in finding for loss of earnings when there was no evidence adduced from the period of Mrs Agwaiasi’s
admission in hospital that she had not received her fortnightly salary after the accident; and
- (iv) Ground 5 – that apart from the costs of care VT163,500 and airfare to the Solomon Islands VT62,050, there was no evidence adduced to
substantiate the claims for ongoing care of VT180,000, medication costs of VT500,000 or ongoing medication of VT1,000,000 therefore
those items should have been disallowed.
- The respondents conceded grounds 1 and 4 in that they agreed with the primary Judge’s calculations of the general damages (which
were based on the Schedule to the appellants’ submissions) and that those totals be reduced by one third to take into account
the socio-economic differences between the UK and Vanuatu, therefore the award for Mrs Enid Agwaiasi should be VT11,287,947 and for
Ms Zariella Agwaiasi be VT15,414,620. They also conceded grounds 2 and 4. As to ground 5, they agreed that medication costs and ongoing
medication be disallowed but that clear evidence was adduced that Ms Zariella Agwaiasi went to the Solomon Islands for bone treatment
(which is lacking in Vanuatu) therefore the special damages award should be VT405,550.
- Respondents’ counsel Mr Fiuka submitted that since they had conceded 4 out of the 5 appeal grounds, that the parties should
bear their own costs of the appeal. Appellants’ counsel Mr Hurley sought costs of VT300,000 as there had been a significant
change in the result as to quantum. There was no challenge to the costs in the Supreme Court where the appellants lost on liability.
He submitted that the difference between the parties’ calculations for general damages for Mrs Enid Agwaiasi was because instead
of using the Guidelines-based figure in one instance, the primary Judge used the quantum awarded in Obed v Kalo therefore it would be double-dipping to maintain that.
- Discussion
- It was accepted before the primary Judge that the Guidelines were to be used in his assessment of general damages. The appellants
set out in the Schedule to their submissions in the Supreme Court calculations of general damages based on the Guidelines. They also
set out awards previously made by the Vanuatu Courts in other personal injury cases. The appellants converted the awards from the
Guidelines into vatu and reduced them by one third to take into account the socio-economic differences between the UK and Vanuatu.
We agree this was in accordance with the trend in the Supreme Court in Bernard v Blake [2013] VUSC 217, Rovo v Republic of Vanuatu [2020] VUSC 138, Nicholas v Yamak [2020] VUSC 256 and Covo v Ritsinias [2021] VUSC 167. Accordingly, the primary Judge erred in not reducing his calculations of the general damages by one third to take into account the
various socio-economic differences between the UK and Vanuatu.
- In Telecom Vanuatu Ltd v Tari [2018] VUCA 37, this Court held as follows:
- ... The guidance found in the UK Judicial Board of Studies publication can only be that, guidance. It is necessary to look at the
particular circumstances of the injured party to arrive at appropriate award of general damages rather than just the injuries suffered.
There is no doubt that the impairment experienced by one person as a result of a particular injury may be very different to that
experienced by another from exactly the same injury. Obvious examples would be the loss of sight in the right eye of a man already
blind in the left eye as opposed to loss of one eye to a normally sighted person; or the loss of a finger by a concert pianist as
opposed to a labourer.
- This Court’s cautionary words were that the Guidelines offered guidance in assessing general damages in personal injury cases.
However, it is necessary to look at the particular circumstances of the injured party to arrive at an appropriate award of damages
rather than just the injuries suffered. In this matter, however, the parties focused on the injuries suffered without arguing the
respondents’ particular circumstances.
- For the reasons set out above, the awards of general damages in [33] and [34] of the judgment dated 2 February 2024 must be set aside.
In the circumstances and given the seriousness of the injuries suffered by the respondents, the calculations of general damages accepted
by the primary Judge are reduced by one third so that the following award of general damages is substituted for Mrs Enid Agwaiasi:
- (a) For right ankle injuries VT5,801,600
Lacerations and abrasions VT2,755,000
(b) For left ankle injuries VT3,935,320
And left leg fractures VT4,440,000
Total VT16,931,920
Reduced by one third (VT5,643,973)
TOTAL DAMAGES VT11,287,947
- The following award of general damages is substituted for Ms Zariella Agwaiasi:
- (a) Head injuries VT 457,209
- (b) For facial lacerations VT2,033,520
- (c) Left eye injury VT 584,600
- (d) Left leg injuries VT5,801,600
- (e) And right leg injuries VT14,245,000
Total VT23,121,929
Reduced by one third (VT7,707,309)
TOTAL DAMAGES VT15,414,620
- Following the concessions to grounds 2 and 3 of the appeal, the awards for pain and suffering, and for loss of earnings, in [33] of
the judgment dated 2 February 2024 must be set aside.
- As to ground 5 of the appeal, we agree with the respondents that there was evidence adduced that Ms Zariella Agwaiasi went to the
Solomon Islands for bone treatment (which is lacking in Vanuatu). Accordingly, the award of special damages in [35] of the judgment
dated 2 February 2024 must be set aside and be substituted by an award of VT405,550 for the costs of care, airfare to the Solomon
Islands and ongoing care.
- Result
- Appeal allowed.
- The awards of general damages in [33] and [34] and other damages in [35]-[37] of the judgment dated 2 February 2024 are set aside
and substituted by the following:
- (i) General damages for Mrs Enid Agwaiasi of VT11,287,947;
- (ii) General damages for Ms Zariella Agwaiasi of VT15,414,620; and
- (iii) Special damages of VT405,550.
- Costs shall follow the event. Given the concessions made by the respondents, we consider that the amount sought by the appellants
for the costs of this appeal is too high, and we fix a lower amount. The respondents are to pay to the appellants the costs of the
appeal fixed at VT75,000.
DATED at Port Vila, this 17th day of May 2024
BY THE COURT
.................................................
Hon. Chief Justice Vincent Lunabek
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