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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


  1. Introduction
  1. 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.
  2. 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.
  3. Mr Hooker was convicted of careless driving and given a suspended sentence.
  4. 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:
    1. 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


  1. For Ms Zariella Agwaiasi, she has Judgment for: -
    1. Head injuries VT457,209
    2. For facial lacerations VT2,033,520
    1. For left eye injury VT584,600
    1. For left leg injury VT5,801,600
    2. For right leg injuries VT14,245,000
    3. For Pain & Suffering with

Stress & anxiety VT4,000,000 (as submitted by claimants)

Total damages = VT27,121,929


  1. For Special damages as submitted by the claimants, I accept the amount of VT1,847,863.
  2. I assess the total damages awarded to the two claimants to be in the total sum of VT52,597,018.
  3. I therefore enter Judgment in favour of the two claimants against the first and second Defendants jointly and severally for the following sums: -
    1. For Mrs Enid T. Agwaiasi – VT23,627,126 as general damages, and as special damages, the sum of VT1,847,863;
    2. For Ms Zariella Agwaiasi – VT27,121,929 as general damages.
  1. The Appeal and Submissions
  1. The appeal was advanced on the following grounds:
  2. 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.
  3. 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.
  1. Discussion
  1. 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.
  2. In Telecom Vanuatu Ltd v Tari [2018] VUCA 37, this Court held as follows:
    1. ... 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.
  3. 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.
  4. 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:

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


  1. The following award of general damages is substituted for Ms Zariella Agwaiasi:

Total VT23,121,929

Reduced by one third (VT7,707,309)

TOTAL DAMAGES VT15,414,620


  1. 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.
  2. 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.
  1. Result
  1. Appeal allowed.
  2. 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:
  3. 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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