Leigh v Societe Civile Inter-Continental [1984] VULawRp 6; [1980-1994] Van LR 76 (7 February 1984)

[1980-1994] Van LR 76

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 27 of 1982

BETWEEN:

GEOFFREY LEIGH
represented by his father, MORRY LEIGH
Plaintiff

AND:

SOCIETE CIVILE INTER-CONTINENTAL
First Defendant

AND:

GROUPEMENT FRANCAIS D'ASSURANCE
Second Defendant

Coram: Chief Justice Cooke

Counsel: M Louzier for plaintiff
M Leder for defendants

JUDGMENT

[DAMAGES - FRENCH LAW - personal injury - assessment of damages]

In my preliminary judgment, I have found the First Defendant liable by not giving sufficient warning that the panels (of a door of the hotel operated by the First Defendant) contained glass. Again, I also found the parents of the child negligent to a degree in not taking care of the child. From the [joint] affidavit of the parents which I quote in full to appreciate their situation, they said:

"On Sunday 25th day of December 1977 in company with Geoffrey and our elder son Philip then aged 17 years, we departed Melbourne, Australia en route to Port Vila for a holiday. We had an overnight stay in Noumea on Christmas day and arrived at the Intercontinental Hotel in Port Vila at approximately 4.30 p.m. on Monday 26th day of December 1977. We were travelling with our friends Mr and Mrs David Kay and their children.

Upon our arrival at the Intercontinental Hotel at approximately 4.30 p.m. we checked into our rooms through the Reception Desk and were shown to our rooms at approximately 4.45 p.m. We had booked two rooms in the Hotel, one double room being for ourselves and the other room being for our two sons. Upon entry into our rooms we decided that we should all shower and change following the plane journey in order that we would be all fresh for an early dinner. As Geoffrey was aged only 9 years we showered him first and dressed him in fresh clothing. I the said Ann Leigh then showered and dressed and then I the said Morry Leigh showered and dressed. After we had showered Geoffrey asked if he could go down to the foyer of the Hotel in company with the two children of Mr & Mrs Kay who were then aged l0 years and 6 years. We had a lot of unpacking to do and considered that it would be easier to unpack without the children being present and also that it would be a good idea for Geoffrey and the other children to become familiar with the surroundings of the hotel. After Geoffrey and the other children left the room we remained in the room talking and unpacking and during that time our elder son Philip was showering. After Geoffrey had been gone from the room for only 5 minutes or so there was a knock on the door of the room and upon opening the door we were confronted by Jamie Kay, then aged l0 years, who informed us that Geoffrey had been involved in an accident and that we should go to the foyer immediately. Prior to allowing Geoffrey to look around the hotel whilst we were unpacking our travel bags we had arranged with Mr & Mrs Kay that we would have dinner as soon as our son Philip had showered and dressed as we were all feeling very tired. We had informed Geoffrey that he should return to our room within 10 minutes by which time we would all go to dinner together. Immediately prior to the happening of the accident we were not present in the foyer of the hotel with our son Geoffrey as we had no opportunity to do so, being engaged in necessary duties in the room of the hotel."

From the parents' description of the events that happened I am quite satisfied that they, the parents, acted as normal parents would have done under the circumstances and I found that the maximum negligence I can attach to them is 20% liability. They had just arrived at the hotel and were not familiar with the various areas thereof and could not possibly have foreseen the danger of the glass through which the boy crashed. However, as parents they had a responsibility and in my opinion, under the circumstances, 20% liability is the correct percentage of their negligence.

Turning to the damages, Dr Brouillard who first examined the boy in Vila stated:
"Geoffrey Leigh, 9 years old, following an accident on 26th December 1977 at the Intercontinental Hotel where he fell through a glass window, was admitted in the emergency ward. I recorded:

- a large wound on the right inner thigh and a cutting of the femoral artery and of all inner muscles.
- a wound on the left outer knee with discharge of cutaneous substance.
- a wound on the right knee with partial cutting of the patellar tendon
- a wound on the right nostril.

He was operated on in emergency with intensive resuscitation, joining of the femoral artery and vein and stitching of muscles and wounds. After eight days in hospital, he was sent to Australia for treatment.

The boy was next seen by Professor J. Nayman when admitted to the Royal Southern Memorial Hospital, Melbourne, on the 5th January 1978.

By Mr Newing, Senior Plastic Surgeon, St Vincent's Hospital, Melbourne, on the 7th September 1979.

By Mr Flanc, another surgeon on the 5th May 1982.

By Mr Johnson, a surgeon on the 29th April 1982.

By Mr O'Brien, a surgeon on the 8th June 1982 and

By Mr McDonald, a surgeon, on three occasions in 1983.

The boy as a result of the accident, had in particular, a large wound on the right inner thigh and a cutting of the femoral artery and all inner muscles.

Mr Newing feels that some consideration should be given to repairing the divided femoral artery. In the penultimate paragraph of his report he states:

"It would be possible to find the divided femoral artery and to repair it by direct suture using preferably microsurgical techniques. Some consideration could be given to an x-ray to demonstrate the state of the blood vessels (arteriogram) but this has some minor hazards of its own. It may be that there would be a shortage of length of the femoral artery and in this case the alternatives would be to abandon the operation or possibly to bridge the defect with a vein graft."

It is quite clear that from the opinion expressed by Mr Newing the repair to the femoral artery might just be possible but dependent on whether it was found that the femoral artery was of sufficient length to repair or whether the possible defect could be bridged by a vein graft. No opinion is expressed whether such a vein graft would be successful.

Mr O'Brien, the surgeon, has stated as follows in paragraph 3 to end of page 2:

"This young boy has permanently a lymphodaema of his right lower limb. This will require lifelong attention. For some years it should be possible to control this swelling by the conservative measures of stockingette and elevation at night. It cannot be determined whether this could be carried through indefinitely. If the swelling increases despite these measures, then at some stage in his life he would require radical surgery of his lower limb. The nature of this radical surgery could not be predicted at this stage but would certainly involve removal of fat and deep fascia from his limb. Multiple operations would be required over a period of time. Individuals with this type of lymphodaema of the limb are more subject to infection. Great care must be taken to avoid this and, if it does occur, to treat it vigorously with antibiotics.
He will be able to participate in sports but this limb will always be longer and heavier than its normal counterpart.
In summary, it can be said that this boy has a chronic lifelong condition of obstructive lymphodaema of his right lower limb and that this has resulted from his injury."

From the views of Mr O'Brien, the boy has to be content with a permanent lymphodaema of his right lower limb, subject to infection, a limb always longer and heavier than its normal counterpart and a chronic lifelong condition of obstructive lymphodaema of his right lower limb.

Finally, we have the report of Mr McDonald, surgeon, Melbourne, appointed by the Court to examine the boy in 1983. His final opinion is dated 15th November 1983 which is attached with photos numbered 1 to 5 showing the various injuries. At paragraph 3, Mr McDonald referring to the right leg states:

"The leg still remains swollen distal to the scar which was a result of the injury suffered. He has had no further infection in the leg. He still wears a supporting stocking. He is playing some sports such as Tennis and Football, but has stated that his right leg tires quickly after running."

Further in his report Mr McDonald sets out the measurement of the leg (last paragraph, page 1). He states:

"The right leg volume displaced 8,350 mls of water and the left leg volume displaced 7,200 mls of water. That is, there is an increase in tissue fluid volume of 1,150 mls in the right leg distal to the point measured."

In reply to questions by me, Mr McDonald stated that the boy would have to more or less drag his right leg, as he walked or ran because of the extra fluid in the leg. At page 2 of his report of the 21st January 1983, fourth and fifth paragraph from the bottom he states:

"The major disability is in relation to the sequelae of the major laceration of the right thigh, when the femoral artery and vein were divided and successfully surgically repaired. Unfortunately at the same time as the artery vein muscles were divided, the lymphatic channels, draining the lymph from the distal leg proximally will have been severed and these are not possible to be anastomosed at initial surgery. From the history obtained, it would appear that there must have been adequate lymphatic drainage subsequent to the injury to prevent the recurrence of lymphodaema, that is the collection of lymph fluid in the distal leg below the long laceration sustained."

Mr Louzier claims the sum of A$6,725 for medical costs
the sum of A$3,000 for loss of amenities the sum of A$10,000 for cosmetic damage and
the sum of A$140,000 for disability.

On the other hand, Mr Leder for the defendants submits as a result of an agreement reached between Mr McDonald and Dr Nouchi, the partial permanent disability is fixed at between 12 to 14%. He submits that the plaintiff should be awarded CFP 1,200,000 damages. That cosmetic damage is fixed at 2 on the scale of 5 and should be CFP 250,000. Pain and suffering should be CFP 400,000, fixed at 4 on the scale of 5 and loss of amenities should be CFP 200,000, fixed at 1.5 on the scale of 5.

Having carefully considered the submissions of both Counsel and having examined the cases submitted by Mr Louzier, Counsel for the plaintiff, and English cases on this matter, I am of the opinion that between the date of the accident and the date of hearing of this case, the boy had undergone some seven or eight operations to improve his condition. There was some improvement according to the medical report but the circulation was not fully restored. He must have suffered considerable pain during such period and I am not prepared to accept the agreement between Dr Nouchi, who never saw or examined the boy, and Mr McDonald. Neither Mr Leder or Mr Louzier, Counsel for the parties, were present to examine the Doctor and Surgeon as to the agreement they signed.

Dr Nouchi seems to want to assess the actual partial permanent capacity when it is clear from the evidence of both Mr O'Brien (Surgeon) and Mr McDonald (Surgeon) and following case law before the Cour de Cassation that future damage can be compensated for now as being damage which is bound to happen even if it does not exist now.

I prefer to accept the fixed rate of incapacity of at least 26% as stated by Mr McDonald, appointed by the Court, who examined the boy on two or three occasions. Both experts Mr O'Brien and Mr McDonald are of the opinion that the condition of the boy will become worse. I repeat what Mr O'Brien said:
"In summary, it can be said that this boy has a chronic lifelong condition of obstructive lymphodaema of his right lower limb - multiple operations would be required over a period of time."

From the reports of the various surgeons I am satisfied:

(1) that the boy has a skin tag on the right nostril that requires attention.

(2) that the site of the skin graft on the left knee causes no trouble.

(3) that below the knee joint level the right leg is considerably larger than the left, and

(4) that there will always be an additional amount of fluid in the right leg as a result of the accident which will considerably handicap the boy and necessitate multiple operations over a period of time.

(5) that the boy has a chronic lifelong condition of obstructive lymphodaema of his right lower limb which will require multiple operations over a period of time.

I am further satisfied that the case law before the Cour de Cassation establishes two kinds of damages which can be compensated. There is the present damage which has happened and is therefore certain and the future damage i.e. damage which the experts state requires multiple operations. Mr Louzier for the plaintiff has placed before the Court on this matter other cases of the Cour de Cassation which I have found very helpful. As the experts have satisfied me that the injuries will require further operations it is my opinion that I should award damages now that will compensate for what has happened and will happen. I accept the experts evidence as to the future condition of the boy. I therefore make the following awards:

Pain and Suffering: This has been considerable and the future, in view of multiple operations, will bring further pain and suffering under the circumstances, I award A$12,000 as being appropriate.

Loss of amenities: Mr McDonald's evidence that he will have additional fluid in his right leg which will at all times result in dragging the right leg thus impeding his movement, visualises the difficulties this boy will experience. Accordingly, I award A$12,000 as being appropriate.

Cosmetic damage: I award A$6,000 as the Surgeons consider the operation to rectify the situation would not be difficult.

Incapacity: I accept the figure of 26% for incapacity and as stated by Mr McDonald and confirmed by Mr O'Brien that multiple operations will have to be carried out and that the boy will have a chronic lifelong condition of obstructive lymphodaema of the right leg. I award here the sum of A$100,000 as being appropriate, making a sum total of A$130,000.

I am of the opinion that the father's expenses should be paid i.e. A$6,725 medical, hospital, pharmacy costs and A$5,000 for general costs of the case. This makes the total awards to be A$141,725. I found it necessary to ascribe liability in proportions to more than one person. I have had regard not only to the causative potency of the acts or omissions of each of the parties, but to their relative blameworthiness. In the case of The Miraflores and the Abadesa (1967) 1 A.E.R., 672 at p. 677, Lord Pearce said:

"... the investigation is concerned with 'fault' which includes blameworthiness as well as causation; and no true apportionment can be reached unless both those factors are borne in mind."

I have also taken into consideration the age of the boy as I consider this young boy has a disability which is going to last for the rest of his life, according to the experts. I have also borne in mind that a young person is more adaptable than an older person. The younger person in my opinion can succeed in getting a degree of mobility which an older man may have difficulty in producing.

The defendants in this case knew full well that the glass door was a potential danger and attempted to make adults aware of such by putting a strip of adhesive tape close to the top of the glass door to warn them of the danger. They failed, however, to even consider children whom they accepted as guests into the Hotel. No warning sign was given for them to observe. The parents, as they stated, had arrived from Australia and been at the Hotel for a short while prior to the accident and were unable to view the many places of potential danger to the child before the accident happened. In my opinion, it would have been difficult for the parents to visualise the child crashing through the glass door. Accordingly, I think my proportion of the blame to them to be 20% is fair and just viewing all the circumstances. Accordingly, 20% of the total I awarded to the plaintiff shall be deducted as the plaintiff's share of the blame.

The total award is A$141,725, from which 20% must be deducted, which amounts to A$28,345, leaving an award of A$113,380. As A$10,000 has already been paid, the sum of $A103,380 is now payable by the defendants.

I further order that the defendants do pay the medical and legal costs outstanding including fees due and submitted by Mr McDonald, to include photograph fees. Also Court fees of VT 24,000.

Provisional execution of this judgment is hereby ordered should an appeal be lodged.

Interest of 5% to be paid on the award with effect from today.

7 February 1984

FREDERICK G. COOKE
CHIEF JUSTICE