Boe v Thomas [1987] VULawRp 4; [1980-1994] Van LR 293 (15 May 1987)

[1980-1994] Van LR 293

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

Appeal Case No. 9 of 1986

BETWEEN:

ROBERT BOE
First Appellant

AND:

JOHN RONNIE TAGA
Second Appellant

AND:

BEN THOMAS
Respondent

Coram: Chief Justice Cooke

Counsel: Mr G. Rissen for Appellants
Mr P. Coombe for Respondent

JUDGMENT

[DAMAGES - quantum - loss of expectation of life - CUSTOM LAW -
relevance to award]

This is an appeal from the decision of the learned Magistrate, Mr Norris, in ordering the Respondent, Ben Thomas, to pay to the First Appellant the sum of thirty thousand vatu (30,000VT) by way of compensation for the death of Bernadette Boe aged 3 years, his adopted daughter. The award was made under the Criminal Procedure Act. The grounds of appeal were:-

1. That the learned Senior Magistrate erred in law and fact in making the Order appealed against.
2. The amount of the Order was inadequate.

3. The particulars:-

• (a) The procedure of the hearing was not in accordance with the law and in particular section 213 et seq. of the Criminal Procedure Act.
• (b) The learned Senior Magistrate failed to take cognisance of the rights of the Second Appellant, the natural father of the deceased in considering the claim or making the Order.
• (c) The learned Senior Magistrate gave weight or excessive weight to the alleged contributory negligence of a person not a party to the matter.
• (d) The learned Senior Magistrate did not receive evidence of the special damages incurred by the Appellants or either of them.
• (e) The learned Senior Magistrate failed to give weight or sufficient weight to the custom of the parties in assessing general damages.

The facts of this case as related by Emily Meta, the fourth prosecution witness at the trial, were as follows:-

"I am aged 19. On 18th December 1985 I was with Bernadette aged 3. We were on the sea-ward side of the Pekoa-Luganville main road to the East of the main wharf and not far from the junction with the road from the Agriculture Dept. and Post Office. We were going to the hospital because Bernadette needed treatment for skin trouble - sores caused by sea-grass. Moise's taxi stopped on the other side of the road, just to the East of the Post Office road junction. I had not signalled nor spoken to Moise. I wanted to cross the road to Moise's taxi, but there were trucks coming from the East side - British Paddock side. At that time I was holding Bernadette by the hand. I told Bernadette that we must wait until all the trucks had passed, and I pushed her behind me, letting go of her hand. I spoke to Bernadette in the Ambae language, which she understands. When all the trucks moving Westward had passed, Bernadette ran out across the road. I saw nothing coming from the West side until the last moment when I tried to pull Bernadette back. The truck nearly hit me, and I jumped back. I now mark the position in relation to the road which Bernadette had reached ("B"). Bernadette was over half-way across the road surface when she was hit. I don't know if the accused swerved to the left to avoid me, thus hitting Bernadette, or not. I was too shocked. I looked to the left and I didn't see any trucks coming from the West. The first time I saw the accused's truck was when it was very close to me. I think if I had not jumped back, the accused's truck must have hit me. I saw the accused's truck hit Bernadette and she was carried on the front of the truck. I think Bernadette was carried about 15 yards and then she fell off onto the side-table, on the land-ward side of the road. Bernadette was lying on her back. She was already dead. Her forehead and jaw were badly damaged. Both Bernadette and myself are the adopted daughters of S. Sgt. and Mrs R. Boe. Bernadette did not cry out when she was hit. Moise and I took Bernadette to hospital. I was too shocked to form any impression of the accused's speed at the time of the impact I am sure I looked to the left before I ran out after Bernadette. The accused went to Pekoa airfield and then he came to the hospital. The accused asked me why I had not held Bernadette's hand. I replied that I had not held Bernadette's hand because I had not seen the accused's truck coming. Bernadette is generally obedient and follows instruction."

XX (Accused) - "I let go of Bernadette's hand when I put her behind me. I told her to wait until all the trucks had passed. The bus was the last vehicle to pass from the East side and then Bernadette ran across the road. I looked to my left (Westward) and saw nothing. The accused truck was speeding after it hit Bernadette. Bernadette was carried about 12/13 yards (Witness demonstrates distance) and then the truck drove on and turned round and stopped about that same distance away. The accused dismounted from his truck but the accused didn't speak to me or to Moise. No, Bernadette was on the grass, not on the tarmac, when I was holding her hand. No, I didn't see the accused's truck although looked in the direction from which the accused came (from West). Even if the accused saw Bernadette and myself clearly, I only saw the accused's truck when it was almost on top of us."

Her evidence was corroborated by a taxi driver, Moise Lassa, the first witness for the prosecution, as follows:

"On 18th December 1985 was driving my taxi on the main road adjacent to Naturel Wharf (Radio Amateurs) near the main wharf. I went to Simonsens' wharf and I left my passengers there. I returned towards the town empty. Just before I reached the junction with the road descending from Agriculture and other Government offices, I saw two girls standing on the other (seaward) side of the road. They wanted a ride. I stopped my taxi. There were vehicles coming in the opposite direction from the town so the girls had do wait until they passed. Then I saw the accused driving very fast. The two girls crossed the road towards me. The bigger girl jumped backward but the smaller girl ran forward and was hit by the accused's truck. I was parked on the side table and the smaller girl had nearly reached my vehicle. The accused was not holding the right side of the road. The girl had nearly reached my vehicle when she was hit. I thought the accused might hit my taxi as he passed close to me.

After he had hit the girl, the accused veered back to the right side of the road. I didn't know the names of those two girls at the time. The girl hit by the truck was carried on the front of it for a short distance. The accused stopped his truck. The accused told me he would return shortly. I carried the girl to my taxi and took her to hospital together with the girl who had been with her at the road-side. The accused drove away in the same direction, that is towards Pekoa. The accused remained at the wheel of his truck and did not dismount. I did not go close to the accused. The accused was about 30 yards away when he said he would return soon. The accused was speeding. The accused was exceeding the speed limit, but I cannot give a precise estimate of the accused's speed in kilometres. I have driven for more than 30 years. I cannot say if the young girl misjudged her distance from the accused's truck, but I know she was very near my side of the edge of the tarmac surface when she was hit. The girl was lying on her stomach almost in a road-side drain. She was lying on my side, not the sea-ward side.

(Sketch Plan produced ("A"). Witness confirms accuracy of sketch-plan.)

When I took the small girl to my truck she was unconscious or dead. There was blood coming out of the young girl's mouth and nose. I think the young girl was holding an umbrella when she was hit. The girl was examined in the Out-Patients Dept. I went to fetch the mother of the two girls. The two girls were sisters. After I left the girls' mother at the hospital, I made a report at the Police Station."

XX (Accused) - "I was watching the approach of the accused's truck. I did not watch the two girls until the moment of the accident. I saw the bus and various other trucks proceeding towards the town and they passed me whilst I was parked on the side table. The two girls waited for the traffic to pass."

In the appeal before me, Mr Rissen, the Public Solicitor, appeared for the Appellant and Mr Coombe for the Q.B.E. Insurance Company.

Mr Rissen stated that the appeal was not against the criminal decision, merely the civil action of the learned Magistrate who did not comply with the procedure set out in the Criminal Procedure Act. This I agree with and I will have a directive sent to the Senior Magistrates as to the procedure they should follow in future.

Mr Rissen referred me to my judgment in Osea William v Ruth Bill (No. 1/81) in which I awarded the sum of £1000 for the loss of a child under similar circumstances as in this case. I followed the decision of Benham v Gambling [1941] 1 All ER p.7 but allowed a greater award than the sum of £200 (approximately 35,200VT) awarded by the House of Lords because the said £200 awarded in 1941 was increased to £500 by the Court of Appeal in 1968 and to £750 by the Court of Appeal in 1973 due to inflation which, in my opinion, still is a matter to be considered in the year 1987.

Mr Rissen further submitted that I should consider the custom of the parties in assessing damages. I regret that I cannot accede to this submission of Mr Rissen as custom varies so much in each village throughout Vanuatu that it would be quite impossible to lay down guidelines for those dealing with the matter. Over the years, the chiefs seem to have reasonably dealt with the compensation in their villages hence I should be loathe to interfere in a matter which in my opinion is better dealt with by them.

Mr Rissen relied on Article 45 of the Constitution for his submission on custom which states:- "The administration of Justice is vested in the Judiciary who are subject only to the Constitution and the law. The function of the Judiciary is to resolve proceedings according to law. If there is no rule of law applicable to a matter before it, a court shall determine the matter according to substantial justice and wherever possible in conformity with custom." In this type of case I have ruled that the Fatal Accidents Act 1846 is a statute of general application and applies to Vanuatu. Also that the Law Reform (Miscellaneous Provisions) Act 1934 applies. Hence there is a rule of law available.

Mr Coombe also referred to the Osea William v Ruth Bill in which it was held that the Fatal Accidents Act 1934 and Law Reform Miscellaneous Act 1934 applied to Vanuatu. He further referred to the case of Vincent Tanda v Michael Cheung, a Solomon Islands case No. 52 of 1983 where Mr Justice Daly accepted that the decision in Benham v Gambling also applied to the Solomons.

The correct loss of damage is a conventional figure as was indicated in the 1981 case but Mr Coombe was then not aware of the Solomon Islands cases. The figure awarded in the Solomons in 1983 was $1,500 which is less than £1,000 sterling. I am not prepared to state that the award will always be £1,000 sterling. The facts in each case have to be considered and damage assessed accordingly. It may well be only £200 as awarded by Viscount Simon in the Benham v Gambling case.

Mr Coombe also referred to the case of Gayhart v Registrar of Motor Vehicles (1956) 6 D.L.R (2d) p.474, a Canadian case and referred to as item 3130 p.386 Vol. 36 (1) of the English and Empire Digest. It states:- "In assessing damages in an action under Trustee Act R.S.M. 1954, for the shortening of the expectation of life, the principles to be applied are those of Benham v Gambling, as modified by the two factors approved by the Supreme Court of Canada in Osbaldeston v Bechthold (1953) 2 SCR 177 and Bryce v Northland Greyhound Lines, Inc and Royal Transportation Lines Inc. (1956) S.C.R. 408 viz., (1) Allowances for the difference in conditions between England and Canada, which justifies relatively higher awards in Canada provided the "ratio" established by Benham v Gambling is adhered to; and (2) that allowance be made for depreciation in the value of money since that date.

Another case referred to was Ramsawak v Carnarvon (1960) 2 West Indies Report p. 426.

In that case, A.C. a man of temperate habits, married with four children was knocked down by B.R.'s motor car. He died within an hour of the collision. There was no evidence that he suffered any pain. He was 42 years of age and a cane farmer earning between $30 and $40 weekly. In an action brought by his widow under Judicature Ordinance Cap. 3 of No.1 (T) and for funeral expenses, the court awarded her $9,720. To arrive at this amount the court purported to disregard the depreciation of the dollar and awarded her $1,200 for pain and suffering, $2,400 for loss of expectation of life, and $120 for funeral expenses and then multiplied the total of those sums by 2.6 as a means of providing for the depreciation of the dollar. B.R. appealed against the amount of the compensation.

Held: (1) as regards the claim for pain and suffering there is no evidence on which to base any assessment for damages;

(2) as regards the claim for loss of expectation of life the better course is to follow comparable cases decided in England rather than to investigate statistics in Trinidad as to the purchasing power of the dollar. In 1955, £450 was regarded as average in England for a mature and healthy person. Deceased in this case was not much more than the average healthy person and as damages in Trinidad are not given on as high a scale as in England. $2,400 is considered a reasonable assessment for the loss of expectation of life;

(3) as regards the $120 for funeral expenses no question can arise whereby that sum can be increased because of the depreciation of the dollar.

Mr Coombe further referred to the case of Ingall v Moran [1944] 1 All ER 97 to indicate a defence that may be argued should an insurance company be given notice of a pending action. There, an action was brought by the respondent an administrator of his deceased son's estate for damages recoverable under the Law Reform (Miscellaneous) Provisions Act, 1934, for loss of expectation of life and expenses occasioned by an accident which occurred on September 19, 1941, by reason of the defendant's negligence in driving a lorry whilst in pursuance of a public duty. The respondent's son died intestate. The writ in which the respondent was described as an administrator, was issued on September 17, 1942, although letters of administration were not granted to the respondent until November 13, 1942. The statement of claim was delivered on November 18, 1942 and the action was delivered on April 20, 1943. The appellant contended:

(i) that the action was not properly constituted at any time in as much as the writ was issued when the respondent was not an administrator;

(ii) alternatively, that, even if the action became well constituted the grant of letters of administration on November 13, 1942, it was out of time by reason of the Public Authorities Protection Act, 1893 s.1(a) as amended by the Limitation Act, 1939 s.21. The respondent contended that by reason of the doctrine of relation back an action commenced by him as administrator before the grant of letters of administration was properly constituted (provided that letters of administration were granted to him before the hearing of the action):-

Held: (1) an administrator as such has no course of action vested in him before he has obtained letters of administration.

(2) the doctrine of relation back of an administrator's title to his intestate's property to the date of the intestate's death when the grant of letters of administration has been obtained has no application to an action commenced by the administrator as such, before the grant is made.

(3) the respondent had no cause of action vested in him at the date of the issue of the writ and the action failed and ought to be dismissed.

As regards pecuniary benefit, I find that the Plaintiff has not satisfied me that he had reasonable expectation of such. Therefore, in my opinion such action under that head fails. As to the right of action surviving for the estate of the deceased girl, a right given under the Law Reform (Miscellaneous Provisions) Act 1934 which can only be damages arising from the diminution of the child's expectation of life.

Mr Coombe stated that notwithstanding all the difficulties that may arise in this case he was prepared to concede for the purposes of this case only that whatever sum is appropriate as the conventional sum is the correct sum of damages subject to the question of contributory negligence as there was such on the part of the young girl and he was prepared to consent by reducing damage to 50% by reason of the contributory negligence of the young girl.

Mr Rissen, in reply stated that the conventional sum was not affected and conceded to the 50% reduction as not unreasonable.

Having perused the evidence given before the learned Senior Magistrate and which I have set out in the early part of this judgment, it is clear to me that the Respondent was driving very fast as confirmed by Moise Lassa (PW1), a taxi driver. I think it is reasonable for me to infer from the evidence that the Respondent had a passenger who was in a hurry to get to the airport to catch a plane and he, the Respondent, was travelling very fast in order to satisfy his client. Of course, the Respondent actually pleaded guilty to dangerous driving and was sentenced to six months imprisonment suspended for three years and fined 10,000VT.

When considering the question of contributory negligence, I must consider such facts. I cannot possibly agree, bearing in mind the facts in this case and the manner in which the Respondent drove his taxi on this particular day, that the child was 50% to blame for the accident.

The facts related by the deceased's sister, Emily Meta, absolutely appal me. In small towns throughout Vanuatu where there is no guidance for children in crossing roads except possibly near the schools, a fact which must be known to everyone who drives a car, close attention must be paid to the movement of pedestrians on the road irrespective of whether they are children or adults. In my opinion no care was taken by the Respondent for persons moving on the road. When viewing the girl's evidence (Emily Meta) and the pleas of guilty to dangerous driving by the Respondent, again in my opinion, the slightest degree of care by the Respondent would have prevented the unfortunate death of this young girl.

The maximum contributory negligence, in my opinion, is 15% and indeed in awarding that I do so with a certain degree of reluctance in view of the evidence.

Although Mr Rissen, the Public Solicitor, who appeared for the first Appellant, agreed to contributory negligence of 50%, in my opinion the Court is not bound to accept such, particularly in this case where, not alone did the Respondent plead guilty but the facts showed that the Respondent drove his taxi in such a manner as to have no regard for road users.

In my prior judgment in Osea William v Ruth Bill I considered the sum of £1,000 to be appropriate as the conventional sum but that sum may be slightly on the high side when one considers the sums awarded in England, Trinidad and Canada. In my opinion, the highest award here would be more in the region of £250 viewing the circumstances and that the child being a female and an adopted child may never have to contribute to the family of adoption. I do not bind myself to that sum but will always keep £1,000 as the highest sum I would award. I award damages in the sum of £250 or equivalent in Vatu and deduct from that amount 15% which I allow as contributory negligence by the child making the final sum £212.5 or the sum of 36,125 in Vatu.

I therefore allow the appeal and alter the amount awarded by the learned Magistrate to 36,125VT.

Both parties to bear their own costs but fees to be paid by the Insurance Company.

Dated at Vila this 15 day of May, 1987.

FREDERICK G. COOKE
CHIEF JUSTICE