Dara v Orambath [1986] VULawRp 9; [1980-1994] Van LR 219 (12 May 1986)

[1980-1994] Van LR 219

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 164 of 1985

BETWEEN:

DORMAN DARA
Plaintiff

AND:

EDWARD ORAMBATH
First Defendant

AND:

ABATTOIRS OF SANTO & ISLANDS LTD
Second Defendant

Coram: Chief Justice Cooke

Counsel: Mr Boulekone for plaintiff
Mr De Preville for defendants

JUDGMENT

[DAMAGES - Assessment - Incapacities]

This case was heard by me in Santo on the 20th June 1985, when I gave judgment for the plaintiff but postponed the question of damages to Vila, to allow the Insurance Company to be represented and an attempt at settlement to be made.

The facts of the case are clear. The plaintiff, like many other people in Santo, went to the market in Santo. To do so he had to cross a wide road opposite the market. All traffic on market-day proceeds very slowly when nearing the market boundary, knowing that the people will cross the road. I take judicial notice of this as I have seen it happen on numerous occasions.

The plaintiff was half-way across the road when the first defendant came along in a truck belonging to the Santo Abattoirs. He was driving the truck too fast and attempted to get around the plaintiff when crossing the road, without reducing speed, resulting in the tail of the truck hitting the plaintiff and knocking him to the road.

THE DEFENDANT WAS CHARGED:

(1) with dangerous driving and was fined 8000 VT or 3 months imprisonment
(2) with unintentional harm and was fined 3000 VT or 6 weeks imprisonment
(3) with absence of front and rear number and was fined 1000 VT or 2 days imprisonment

The defendant pleaded guilty to all the charges against him. The plaintiff was severely injured. His injuries were to the hip and back. He was totally immobilised for six months. When discharged from the hospital he had to walk with the aid of a stick. He is totally unable to work now.

The surgeon at the hospital stated that the plaintiff had a compound fracture above the knee. He had to spend three months in hospital in traction in order to rest the leg. He went through a lot of pain and suffering and his incapacity was placed at 25% to 30%. He claims damages of three million vatu.

On the 25th of April 1985 the quantum of damages was raised by Mr De Preville, who appeared for the defendants. Mr Boulekone, who appeared for the plaintiff, stated that an attempt was made to settle the matter without success.

Mr De Preville based his estimates (of damages for loss of income) on the fact that the plaintiff was not a salaried worker and more of a farm worker who has a salary of 7500 VT a month.

In my opinion the figure is much too low. I consider 15,000 VT would be more appropriate and I award him 45,000 VT for three months temporary total incapacity.

Mr De Preville again submits that 75,000 VT would be a reasonable figure for pain and suffering. Again I disagree, as the surgeon who treated him, said he went through a lot of pain and suffering. In my opinion a sum of 100,000 VT would be more appropriate.

Finally to deal with partial permanent incapacity. The plaintiff was a very active man and worked very hard on the land even though he is sixty years of age. I have considered that 15,000 VT a month is more appropriate and fair. Taking 25% incapacity this would amount to 45,000 VT annually when multiplied by the figure of 10,176VT taken from Joint Regulation No. 18 of 1960. This amounts to 45,000 x 10,176 = 457,920 VT.

I therefore award the plaintiff:

- Temporary total incapacity: 45,000 VT
- Pain and suffering : 100,000 VT
- Permanent partial incapacity : 457,920 VT
602,920 VT (and interest from date of award to date of payment)

Costs will also be awarded against the defendant.

12 May 1986

FREDERICK G. COOKE
CHIEF JUSTICE