Gower v Hotel Equities South Pacific Ltd [2002] VUSC 13; Civil Case 091 of 2000 (28 February 2002)

IN THE SUPREME COURT

OF THE REPUBLIC OF VANUATU

class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> (Civil Jurisdiction)

Civil Case No.91 of 2000

BETWEEN:

ass="MsoNormal" align="center" style="text-align: center; mer; margin-top: 1; margin-bottom: 1"> JEANNIE GOWER

Plaintiff

AND:

ass="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> HOTEL EQUITIES SOUTH PACIFIC LIMITEDn>

Defendant

Coram: R. Marum J. MBE

Mr. Nigel Morrison for the Plaintiff

Mr. Hurley for the Defendant

JUDGMENT

class="MsoNormal" style="text-align: justify; margin-top: top: 1; margin-bottom: 1">

ass="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1"> Nature of claimn>

lass="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1"> That on or about 13 March 2000, the plaintiff and her husband arrived in Port Vila, from Australitralia and were accommodated at Le Lagon Park Royal. On the 14^th March 2000 they ate food and drank beverage prepared by the defendant. That evening, they both felt unwell and exhibited signs of food poisoning. Next day the 15^th March 2000 they seek medical attention. At about 10.00.p.m still on 15^th March 2000 before going to bed, the plaintiff went to the toilet to vomit, she bent away from the toilet bowl. The toilet sit moved away from the toilet bowl, that is coming free from its mounting. As a result the plaintiff fell forward, her head strike the toilet cistern and sustain severe injuries and suffered loss and damages.

Issues

1. &bsp; ; &nbbp;&nnbsp;&nsp; &nbp; &nbssp; &&nsp;;&nsp; Did thentlaintiff suffer food poisoning on or about 14^th March 2000?

"> 2. style="font:7.0pt "Times New Roman""> &nbsp &nbssp;&nnbp; &nsp; &nbbp;&nnbsp; &nbbsp; Dian>Did she fall in the toilet and suffered blow to the head and lacerations to the face and on out 1>th March? pan><

3. &nsp; & &nbbsp; &nbp; &nbp; &nbbp;&nnbsp; Did she fall dall due to the toilet sit was improperly fitted.

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lass="MsoNoMsoNormal" style="text-align: justify; text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> 4. nbsp; p; ; &nbbp; &nbp; &nbs;  p; Did thed the plaintiff suffer injuries as a result from the improperly fitted toilet sit?

5. &nbp; &nnbp;&&nbp;;&nbpp; &nsp;  p;&nssp; Did the defendefendant liable to the plaintiff?

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It is not contested that, the plaintiff with her husband were staying at the Le Lagon Park Royal on the 13^th to 17^th March 2000 and left for Brisbane on the 17^th March 2000..

Issue No. 1: &nsp; & p;&nbp; &nsp; &&nbp;;&nbpp; &nDid the plaintiffntiff suffer food poisoning on or about

The evening of the 14^th March 2000 the plaintiff ask for chicke banana and after eating chng chicken and banana she felt unwell. On that evening after Mr. & Mrs. Gower finish eating chicken and banana, they took a short walk then went back to their room. A couple of hours later, they both felt unwell. In her opinion she fell ill from foods eaten that evening. She felt sick and went to bad, she felt her bowel was upset.

On Wednesday 15^th March 2000 she went out to White Sands Club to play golf; but after 3 holes placing they both could not manage to go on further. They have to come back straight to their room at Le Lagoon that morning.

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In thernoonphone inquiring ring if other guest too were suffering from food taken the previprevious night and the answer was no, she asked to see a doctor. Doctor Tulimanu came that afternoon and attend to her sicknesckness and treated her for upset abdomen correspond to her complaints. Doctor Tulimanu was not called, however, report tendered by consent.

lass="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1"> No evidence called tlain the food eaten on the 14^th March 2000 that evening. No evidence from from Doctor Tulimanu to explain what really the cause of them being unwell. However, from the plaintiff’s evidence, no other guest felt unwell from the meal of the evening of the 14^th March 2000. It was not enough to accept the evidence of the plaintiff and her husband alone as to the allege food poisoning, unless there were some other material evidence relating to the food poisoning detrimental to their life or to impair or otherwise to injure their bodies at that time, which there were non for the court to find or to draw inferences to the likelihood of food poisoning, e.g. other guest too who had stomach upset that evening, or medical evidence of some sort to show to this court what actually caused or may have caused the stomach upset. To say that the food prepared was poisoning, than other guest too who may have eaten the same food would have similar effect. No medical evidence there after to show that they continued suffering from food poisoning. Further, she is allergic to certain foods. The caused remain unknown. And this claim is dismissed.

Issue No. 2: > &nnsp;&&nsp;;&nspp;&nssp;&nsp; Did she fall e tohlet alet and suffered blow to the head and laceration to the face and head on or a March 2000?

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The plaintiff and her husband were accommodated at the Le Lagon Park Royal from thsup>th March 2000 to 0 to the 17^th March 2000.

That evening of the 15^th March 2000, somehow, thee feeling better, and this could be from the medical treatmreatment that she received from Dr. Tulimanu. Later that evening she was thinking that the feelings of vomiting have gone. At that time she was sitting towards the end of the bed. She felt that she will vomit and stood up and walked into the toilet. In the toilet, she could only recall putting her hand on the toilet sit, bent forward to the toilet sit (that is to vomit) and from there, she did not realized what has happened. Then she heard her husband’s voice saying – “Oh Jesus Christ No”. Her husband, some three minutes after, went into the toilet and found her head was on the over flow of the toilet. He lifted her up and put her on the bed. Doctor Tulimanu was called and attended to her and treated her wounds. The photo shows that she had about three wounds as visible to her face area. No evidence from the defence to refute what occurred in the toilet area in her room, that was quite obvious as no one of them was there to witness what occurred. Therefore, I accept that the plaintiff did fall in the toilet area and sustain injuries.

p class="MsoNoMsoNormal" style="text-align: justify; text-indent: -108.0pt; margin-left: 108.0pt; margin-top: 1; margin-bottom: 1"> Issue No. 3: &nbp; &nnbsp;;&nbp; &nsp; &nnbp;&&nbp;;

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No evidence by the defence as to the cone condition of the toilet sit before the plaintiff and her husband moved into that room. Mr. Gower, prior to his wife sustaining her injuries, found the toilet sit was not stable when used. That is, the toilet sit when use it either move to the left or right by 1 to 1 ½ inches, instead of sitting square.

In cross-examination, he did not find out why it was moving, but saw the toilet sit as too sand that’s why it may be mobe moving, but though that it was properly fixed.

lass="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1"> Mark Yen Lister, a plumber and self employed, on theup>th July 2000, some four months later, attendttend to the same toilet and identify the same toilet sit as very cheap. He explains, which I accept, that the back toilet sit is normally bolted to the toilet bowl. When he went down there on 17^th July 2000, the same toilet sit was still there and was still broken. That is the thread was snapped off. He confirmed in cross-examination that the right hand side of the toilet sit was broken off as he tested it himself and it moved. And at least the toilet sit should fit onto the toilet bowl with overlap inside and outside, and if it was the correct sit, bolted to the toilet bowl, then it should not move. Mathew Young gave evidence that the toilet sit was replaced and explained that the toilet sit was not properly place, and confirm that in cross-examination that the toilet sit was still not in place. He further explained that toilet sit are replaced when they are damaged if reported by housekeeper, and he was not aware of any report. I find that the toilet sit at that time the right side of it did not have any bolt making it to be loose when used or when one holds onto it.

During the incident only the plaintiff ar husband were the only witness of fact. It is not clot clear from the evidence as where exactly she hit her face after falling. The photos, No. 6, showing of broken cistern pieces and the broken top will explain the near possible impact of the fall. I accept that the toilet top did not have any inlet valve making the toilet inlet valve left bare making it dangerous when a person falls on to it. Nevertheless, I find some difficulties to relate the injuries to the unfitted inlet valve. I am of the view that, if the plaintiff had hit her face on the object itself, the injuries could have been more worse then what she suffered and that could also affected her skull, due to the nature of the pointed object. Furthermore, on inspection, the space between the wall to the inlet valve was not wide enough for the head to fall through, neither no direct evidence to say that she fell also onto the inlet valve, and on Doctor Alison Reid’s report, the plaintiff had an x-ray on returning to Brisbane and there were no facial fracture. The likelihood of hitting her head on the toilet valve was not possible. If it was than no evidence to support that impact to have occurred apart from the toilet cistern for this court draw such inferences. I can only conclude from the evidence, that when the plaintiff went into the toilet to vomit, she hold onto the toilet sit, which was already broken, the toilet sit gave away and she fell forward on to the cistern of the toilet and hit her face area on the cistern of the toilet reservoir and sustain injuries to her face area.

Issue No. 4: &nnsp;&&nsp;;&nspp;&nssp;&nsp; Did the plaintiffer fnjurinjuries as a result from the improperly fitted toilet sit?

p>

Injuries

Doctor Tulimanu came to treat her. Medical report by Dr. Tulimanu is nce of fact that he attendetended to her injuries. Her wounds were treated. Even the photos showing bloodstain and photo 2, 3 and 4 showing clear wounds to her face area, are all evidence of fact that she actually sustain injuries from the fall. I find that she had laceration to her right forehead, to her right cheek, to her nose and left nostril and her right eyebrow. The stitches were removed away by Dr. Read in Australia as evidence of injuries further attended to in Australia.

Shock and sequel and mental anguish

She was blackout on hitting her head ohe cistern and could not recall what happened there aere after. The hitting of the head is a violent happening and was a shock to her. From this shock and injuries caused she continued to suffer great emotion as to the appearance of her face. I accept from her that she care very much of her out look appearance, and that is a personal character and likeness that she possess and should be respected, as every body not the same. And part of Doctor Ian Lynagh report states: -

“The emotional and behaviour reactions Mrs. Gower shows to the injury and its sequel, appeared … excessive …”

Also in Dr. Jim O’Calloghon finding in his opinion, which I accept for reliance, that: -

“Her majsability over the past twelve months has been psychologically in basis and related toed to her perception of horrible scaring of her face.”

She has been emotionally disturbed and affected by the scaring on her face. She did not want friends to see her, cease to play golf, cut back to her social activities, stopped answering phone. She even suffered headaches, and experience numbness to her right side of her skull. And even muscular pain on the neck area.

On the 2^nd July 2eport by Dr. Ian Lynagh, and also agreed upon by Doctor Jim O’Calloghan that, Mrs. Gos. Gower was capable of performing all pre-accidental duties and did not require any further therapeutic intervention, apart from any psychological issues.

Mathew Young’s evidence, which I accept, that the hotel room was rented to them at about $190 per day. This is a substantial amount and was paramount duty imposed upon the owner to ensure that the rooms hired are safe and sound to be used by the user. That is, each time each room is vacated and ready for the next user, it must be fully inspected and any risk must be reported and fixed.

Mr. Andrew Curtin started work with the defendant on 20^th August 2001 and his evidence will be of very little assistance as to what occurred on 15^th March 2000, but explains procedure they do on damages to room property.

Mathew Young was working with Le Lagon from November 1998 to October 2000. He attended to the matter after the incident occurred. And he was the room manager. Mathew Young admitted in his evidence the right plug sit was broken off the toilet sit, and sometimes after the incident a new toilet sit was fitted in but was still smaller then the toilet bowl. So in fact the problem continued to remain, and that is the toilet sit was still smaller then the toilet bowl.

Also in Mathew Young’s evidence, which I accept, that housekeeper normally checks toilet sits and other things and report to the manager. And in Andrew Curtis, as to procedure of reporting, after the incident and after taking up duties with the defendant, is that the housekeeping inspects the rooms and requested any maintenance to be done to any rooms. The other type of maintenance is, preventive maintenance that comes direct from their department. And confirm Mr. Young’s evidence.

Duty

Generally, the defendant through his servant has a duty to inspect the rooms for damages and for maintenance or any other faults. The housekeepers had a duty to report any damages or even other matter require for changing or repairing. The evidence of Mr. Young and Andrew is sufficient that these are routine matter to be attended to on daily basis. This means that, before the plaintiff and her husband were to move into the room at least the manager or manager of maintenance to inspect each room for any damages. This was the duty imposed on the defendant to perform. If they had than they have failed to inspect the toilet sit and to replace it. The letting of room to the Gower’s for hire meant that the toilet sit was safe and sound for usage by the Gower’s. No evidence that the room was inspected and reported for maintenance to the toilet. It is an implied contract between the defendant and the plaintiff, that when the plaintiff pays for her hotel room she was paying for a safety room. The giving of key to the plaintiff is an agreement by the defendant that the room she paid for was safe for usage.

I find that the defendant failed to provide; toilet seat to laintiff accommodation of the same type, fittings and qualiquality on the toilet porcelain fittings; and failing to ensure the toilet sit in the plaintiff accommodation was adequately or properly fixed to the toilet porcelain; and was negligent and liable in damages for injuries sustained by the plaintiff.

Duty of guest

It is not the duty of a guest to report amage done prior to getting into the room, as that isat is a matter for the defendant through his officers assigned to do that duty before letting the room for hire to guest. Nevertheless, any damage caused or occurred at the time of occupation the guests has some duty to report purely for the peace enjoyment of the guest, otherwise, the defendant had the duty each day to ensure that they do their normal routine duties of ensuring that the rooms are safe for usage.

Co for efendant advances thes that the Gower’s did not report the sit moving. On this ahis advancement, Mr. Gower admitted that h was aware that the toilet sit was too small for the ceramic base and when they usey use the sit it slide either to the left or right by 1 to 1 ½ inches instead of sitting square. He though that this occurrence was due to the toilet sit was smaller than the toilet bowl and therefore, he has discharged the duty as to the safety ness of the toilet sit for usage, however if he had notice that the right bolts was broken than he will have the duty to report it. To say that Mr. Gower could have reported the matter when he discovered that the toilet sit moved to the right, will not hold the plaintiff to contribute to the incident. In another way, it is not good enough to look around to point fingers to the Gower’s when the duty was squarely upon the defendant to perform. This advancement must fall out for consideration.

The plainticounsel further advance in law that: -

“When contributory negligence is set up as a defence, itstence does not depend on a on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove that the injured party did not in his own interest take reasonable care of himself and contributed by his wants of care to his own injuries.”

He advances further that the plaintiff was acting in a reasonableer and was not acting in a in a negligent manner. While the defendant counsel advances that the plaintiff did not use the toilet for it’s conventional purpose. On these advances, if the defendant’s counsel advancement is considered to be more acceptable then the question that I ask myself is, where can the plaintiff vomited to in their room, is it the bathroom sink or the toilet as the conventional place? I find that a reasonable person would used the toilet bowel in the hotel rooms to vomit as the conventional place, as the bathroom sink and shower block area are not the proper area to dispose off vomiting substances. I am satisfied she has chosen the toilet as the conventional place to vomit. By going to the toilet to vomit there were no duty on her to take care to avoid being injured in using the toilet for vomiting, unless there were some risk involved to her knowledge in using the toilet or carelessness, which I find as non. Contributory negligent in the Margot Hillel v Iririki Island Resort Ltd, be distinguished from this case. In that case the plaintiff was quite aware that it was raining that day and should take precaution on using the wet steps. In this case the plaintiff was not aware at all that the right hand bolt was broken already. I find that the defendant has fail to show that the plaintiff contributed to the injuries sustain by going to the toilet to vomit.

Economic Loss

Further statement of claim by way of amendment, which clthat:-

“As a result of the plaintiff’s injuries and sequel, there was a consequent economic loss. Mrs. Gower works in business with her husband at Clean Image Carpets. For the year 1999 through 2000 pre-accident, casual wages were paid by the business in the amount of A$1,965. For the year 2000 through 2001 post accident, casual wages were paid in the amount of A$8,417. The plaintiff claims the difference between these two amounts as being a loss directly flowing from the accident and injuries and consequent on her inability to attend at work. The loss claimed is in the amount of A$6,452.”

The plaintiff and her husband have a small partner business and they do not employ any other person. She mends the office herself. After the incident, and on return to Brisbane she resume duties 2 months after the incident but could only answer phone. But resumed duties in September/October 2000 and not on full duties, by May 2001 she was on full duty.

In pleading the period must be specified for 1999. For the period 1999 to 2000 I accept to mean from January 1999 to 13^th March 2000 casual wages were paid at A$1,965. From year 2000, I will accept as from 13^th March 2000 to the end of 2001. The period ending 2001 is not specified, but I will accept as at 31^st December 2001. On economic loss at least the defendant’s counsel wrote to the plaintiff counsel on the 29^th of August 2001 and again on the 31^st August to supply to the defendant’s counsel; copies of all taxation return for the year 1999/2000, 2000/2001 in respect of the business Clean Image Carpet; copies of group certificates; claims, receipts, correspondence in relation to their private health insurance; their medical provider as to Medicare; These were not produced. Mr. Gower in evidence stated that even for the taxation return if they were to be produced it would not be helpful to the economic loss. The defendant’s counsel advances that this was for comparison purposes to ascertain the economic claim loss in the post March 2000 period. And advances that as such documents request not produced, the court has no basis for comparison.

The view of the court is that pleading process is for all parties to discd documents in preparation tion for trial, so that a party is not taken by surprise. If a document is requested in the pleading process and not given to the other party and the document is advanced in the trial the court can reject, unless by their consent. On this finding, counsel for the defendant advances that in this case there were no documentation for the court to quantify economic loss and the economic loss claim be rejected.

ass="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1"> The other aspect was that the plaintiff started work months after the incident, by answering the telephone,hone, but fully resumed work by September/October, and by May 2001 she was back in office. There were no medical report suggesting that the plaintiff was unfit for work e.g. for a certain period. Dr. Jim O’Calloghan in his report stating, her major disability up until December 2000 was her inability to leave her house or answer the telephone because of her appearance. Dr. Laurie Lingard, seeing the plaintiff on the 15^th June 2000 was a much-assisted report of what she saw after the incident and on seeing the plaintiff and was satisfied that, she was suffering emotionally from the condition of scaring of her scares. One year after the incident, Dr. Lynagh, consultant psychologists, between 17^thApril 2001 to 31^st May 2001, find that she was adjusting to her normal working life and required no further therapeutic. And by Dr. Kim Harwood medical report, on seeing the plaintiff on the 5^th of April 2000, about 20 days after the incident, reported that the laceration was repaired and for him to determine the extent of her injuries and to plan a treatment course to improve the detrimental cosmetic appearance of there resultant scars. And state that she will carry these scars for the rest of her life. And by the 8^th of June 2000 report Dr. Kim Harwood think that she will be all right in the long term, as the scars continue to improve in response to the treatment. And by the report of the 14^th of July 2001 by Dr. Kim Harwood that the remaining scaring on her right fore head, nose and right cheek, with careful make-up can adequately camouflage the scars. Further, by Laurie Lingard, a Subconscious-Mind Therapist, on the report of the 15^th of June 2000, about three months after the incident, finds the plaintiff to be suffering emotionally from condition of scaring. By 31^st of May 2001, by Ian Lynagh, Consultant Psychologist, the plaintiff was feeling back to normal and grown to become accepting of her scars. I find that by starting to work two months after the incident shows that she was fit to work and remaining is the emotional scaring over the scars on her face with on going medical treatment. I find no evidence from any doctor to show that she was medically unfit for work for a certain period in determining her capability to start work. For these reasons I accept that she was unfit for work from the 17^th of March 2000 to 15^th of June 2000 and there after she was capable. On this finding if any expenses as to labour cost experience within this period the defendant will be liable to repay.

There were claims for contractual wone by A. J. Floor Covers, AP & L. M. Dore, Queensland Carpet Tile Service and Pend Peut were done. Mr. Gower hired these contractors in November/December to do the works that he should have done it himself. The reasons for hiring them was that his wife was extremely emotional through out the previous months and as a result it was necessary to hire those private contractors to do his work and this established loss to their business.

The office duty was purely administrative anagement work and could easily perform by the plaintlaintiff while continue to therapy work to be continued on her injuries and her emotional fear. I find these hiring were after the month of June when the plaintiff was capable to work and the loss cannot be passed on to the defendant for the defendant to be liable. Further more the plaintiff must do her best to try and minimize her own expenses. And therefore, the amended statement of claim on economic loss is struck out.

Issue No. 5 ; Is the defendefendant lint liable to the plaintiff?

Damages

class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1"> In finding the deft negligent the issue of damages and claims as follows: -

1. &nbssp; &nsp;&nbp; &nbssp;&nnsp;&&nsp; &nsp; &nb p; /span>Food poisoninsoning at VT315,000;

pan lang="EN-GB">

2. &nnsp;&&nsp;;&nspp;&nssp;&nsp;  p; s Injuriejuries sustained that is when she fell into the toilet cistern at VT8,400,000;

3. &nnbsp; nbsp;&nbp; &nbss;&nbbs;&nnbsp; &nsp; &nbbp;&nnbsp; Opan>Out of pocket expenses at VT39,500;

&nb">

4. &nbp; &nnbsp;;&nbp; &nsp; &nnbp;&&nbp;; &nnbsp; p; Mrsa Gerardon’s visit – 13 visits at A$35 per visit – total of A$455;

lass="MsoNoMsoNormal" style="text-align: justify; text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> 5. nbsp; p; ; &nbbp; &nbp; &nbs;  p; Mr. Gow. Gower care and protection at 4 hours per day for 3 weeks a total of 26 hours at A$10 per ha tot A$1,0;

class="MsoNoMsoNormal" style="text-align: justify; text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> 6. &nbssp;&nnsp;&&nsp; &nsp; &nbbp;&nnbsp; &nb Fuan>Future mure medical treatment – Cosmeticoo caage tent to the eye brow at A$165 for 2 to 3 years (say 10 treatment) ent) at A$at A$1,6501,650.00;

an lang="EN-GB">7. &nsp; &&nbp;;&nbpp; &nnsp; &nbp; &nbbp;&nnbp;& Ipan>Injection of denal fillers in nose scar at A$55 – 4 times yearly for 20 yet A$400;

">

I find no evidence on food poisoning and claim for food poisoning is dismissed.

Injuries sustained at VT8.400.000 Million

Counsel for the plaintiffnces on this claim referring to the Penfold v. Da . Da Silva, which was submitted by the defendant’s counsel as follows: -

Case	Court/Judge	Date	Age at time of Injury	Brief Details	Awards £
Penfold v. Da Silva	an lang="EN-GB">Nov 1999	span lang="EN-GB">20 Female	Fell against a glass door causing severe lacerations to her face. Left with severe scarring, loss of sensation and weaknesses in facial muscles. Revisional surgery and option but no guarantee of success. Suffered impaired confidence, lack of sleep, and flashbacks for 18 months and post-traumatic depression.	22,500

Hurley advances that the plaintiff’s case is not as serious as in the Penfold case. He advance on the case Longa v. Solomon Taiyo Ltd. 1980/81 SILR 239 at p. 256 which states: -

“”

In Dillingham Corporation of New Guinea v Diaz where Daly CJ said at p. 256: -

“I should add that this is not to say that there is to be automatic deduction from damages likely to be awarded elsewhere. Clearly on would then have the ludicrous situation of having to decide whose damages were the starting point. What one must do is to take into account what is fair and reasonable within this jurisdiction as well as what is fair to the plaintiff in his individual circumstances.”

Also advances iner v. Garae and others [1989 – 1994] 2 VLR p. 5 wwhere the Court held that general damages in Vanuatu should be approximately 50% of general damages which a person might be expected to be awarded in the UK and counsel advances that, this finding should be applied in this case. He further advances on a recent appeal case of ANZ Bank (Vanuatu) Ltd. v. Gougeon & Ors. Civil Appeal Case No. 6 of 1998, judgment dated 8^th October 1999, the Court of Appeal held at p. 6:-

”The Court will have regard to and seek assistance nce from principles which have developed in other jurisdictions, especially when they are the historical basis for the present legislation in this Republic.”

On the above finding, other Pacific developing countries courts awards of damages is of some assistance. Nevertheless, it is not an easy task in awarding the correct amount as damages, as these are not matters put on scale to get the correct reading. For me to approach the award on economic strength will create different categories of award in a given jurisdiction, but rather to approach it in a fair and reasonable approach. Even to use the English case award and to give 5o% off in Vanuatu, is of some help but will continue to maintain categories in a given jurisdiction. Vanuatu has it basis in determination as authorized by Article 47 (1), which states in part: -

In this this way, the Vanuatu Court will develop its own local jurisprudence in areas of assessments of damages for personal injuries, with the principal of common law in assisting the courts to decide awards.

The Appeal Court decision in the case ANZ Bank (Vanuatu) Ltd. v. Gougeon & Ors. Continues to recognize the reasonable approach.

The Court is dealing with an Australian citizen with the defendant a local company incorporated under the laws of the Republic of Vanuatu. No evidence is lead to the incorporation. Nevertheless, the defendant as making business in Vanuatu is a registered local company under the Companies Act CAP 191. In the eyes of the law, both parties be treated the same and to apply the reasonable standard approach and that is in their local circumstances and situation the parties are in. To apply the Australian standard will be equivalent to that of England standard and to be halved in the Vanuatu standard and will continue to maintain categories in a given jurisdiction. I will prefer the reasonable standard approach in doing justice in this case as allowed for in Article 47 (1) of the constitution. And the standard approach are; the need to be fair to the plaintiff as an individual upon entering the country; and the need to be fair to the plaintiff generally

The status of the plaintiff will come under the group of tourist, where people coming in the country for a short time as visit. I am not assisted very much on the local cases apart from Margot Hillel v Iririki Island Resort Ltd Civil case No. 156 0f 1997. Nevertheless, the court is trying its best to award what is a reasonable amount. And as advance by counsel for the defendant, that in Vanuatu the court, like Solomon, has not build up it personal injuries precedents.

And the damages I considebe within the range of what what is expected to be a reasonable amount to be awarded in Vanuatu are as follows: -

& p; &nsp; &nsp; ;&nbpp; &nnsp;&&nsp; p; For the lacerations on the forehead is quite a longer one and I wi aVT500

2) ;&nbssp; &nsp; &nbs; &nbbp;&nnbp;& For the lacerations on the right side fI wilrd VT00;

3)  p; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;& For the lacens toeye bI wilo award VT300,000;

/p>

4) & &nnsp;&&nbp;;&nbp; &nbp; &nnbp;& For shock and sequel, I will award VT500,000;

5)  p;&nbbsp;&nsp; &nsp;  p; &nnsp;&&nsp; &nbp; Head a– VT10;

6) &nbbsp;&&nsp;;&nsp; &nsp; &nnbp;& &n Numbness to the right skull – VT300,000;

ass="rmal" style="text-aljustify; text-indent: -36.0pt; 0pt; margimargin-lefn-left: 72t: 72.0pt;.0pt; marg margin-toin-top: 1; margin-bottom: 1">

& p; &nsp; &nsp; ;&nbpp; &nnsp;&&nsp; p; Muscular pain to the neck – VT200,000;

p clasoNormal" stylet-aliustifxt-indent: -36.0pt;.0pt; marg margin-lein-left: 7ft: 72.0pt; margin-top: 1; margin-bottom: tom: 1"> 1">

8) & &nsp; &nbssp; &nbssp; Including VT39,500. In item 9

9) &nnbsp;;&nspp;&nsp; &nsp; &&nbp;; &nnsp;& Out of poexpens agr$2,931.80 and VT39,500

10) &bsp; ;&nbssp;&nbp; Generalneral claim as d A$ed A$1,260.00

n lang=lang="EN-G"EN-GB"> 11) ;&nbssp; Fsp; Future ture medical treatment:

&GB"> nbsp;

a) &nnsp;&&nsp;;&nspp;&nssp;&nsp;  p;&nssp; For cosmetic tattoo tent t browy 2 tears ill award A$1,650.00;

b) &nnbsp; &nsp; &nbbp;&nnbp;&&nbp;; &nsp; Injection of denal fillers in scar$55 xarly 0 ars = A$4,400.00

In future claims foal fillers, parties aies are claiming on assumption, the defendant’s counsel advances that 10 years was reasonable and the plaintiff estimate is 20 years. The Court consider 15 years as reasonable at A$55 x 4 per year = A$220 x 15 years = A$3,300.00.

Specialges.

Even thoughhough pleaded, no evidence of actual costs and the out of pocket expenses would already cover such expenses, otherwise not than no evidence for further claim for special damages. For the claim for Mrs. Geradon visits lacks evidence and not awarded.

Dated at Port Vila, this 28^th day> day of February 2002.

R.M MBE

p>

JUDGE.