Shem v North Efate Timber Ltd [2008] VUSC 48; Civil Case 85 of 2007 (24 June 2008)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 85 of 2007

BETWEEN:

MALACHI SHEM
Claimant

AND:

NORTH EFATE TIMBER LIMITED
Defendant

Coram: Justice C.N. Tuohy

Counsel: No appearance for either party

Date of Conference: 2 April 2008
Date of Decision: 24 June 2008

RESERVED JUDGMENT

1. This is a claim against an employer arising out of an accident at work on 2 May 2005 when the claimant sustained injuries to his left hand.
   
2. The defendant has taken no steps in the proceeding. Judgment was entered on 25 October 2007 for an amount to be determined. On the same date, judgment was also entered for VT91,000 for employment entitlements. I fixed a conference for 2 April 2008 to determine the amount of damages for personal injury. Before that arrived, the claimant’s solicitor ceased acting and no one attended the conference. Accordingly, the Court has only the claim and the brief sworn statements in support to work with.
   
3. The claimant cut the fingers of his left hand while using electrical woodworking machinery to make furniture. His injuries consisted of traumatic partial amputation of his index, middle, ring and fifth fingers. Subsequently, formal amputation of all four fingers was carried out. This obviously left him with only a thumb on his left hand. Dr. NcNamara has assessed him as having 85% loss of use of his left hand as a permanent disability.
   
4. The defendant has apparently paid the claimant VT 300,000 for the loss of his fingers but there is no defence of accord and satisfaction or indeed any defence filed at all.
   
5. The claim asks for VT 7m for 85% loss of use of the left hand and VT 1m for pain and suffering "and other general damages". It also seeks an order for unspecified special damages.
   
6. The claimant’s brief sworn statement in support is the only evidence apart from a sworn statement annexing Dr. McNamara’s report which sets out the nature of the injury and the percentage loss of use. It is so brief that the content relevant to damages can be reproduced in full (verbatim):
   

"8. As a result of the Defendant’s negligence, I loss my four fingers, I loss my strength to my right hand because of the handicap of the left hand, I do not have any work as I could not anything without my four fingers, four nights at the hospital sleepless nights and I also gone through three weeks of pain and suffering.

9. The defendant paid me VT300,000 but I believe I should have been paid more compensation for the loss I sustain.

10. Because of the situation I was in the Defendant did not give any notice for me to stop work.

11. Most of my expenses are met by the Defendant in terms of hospital fees and other medical charges. However, after I left the Hospital I have incurred some expenses in relation the filing of this case:

VT10,000 Transport Pele Island to Vila back to Pele and Erakor to Port Vila back to Erakor

VT5,000 – Food

VT 15,000"

7. The special damages claimed are presumably the VT15,000 mentioned in Paragraph 11. These are not strictly special damages but may be allowable as disbursements on a costs application.
   
8. As to pain and suffering and loss of amenities of life, I intend to take the same approach as I have in Kalo Obed v. Charles Kalo and Vanuatu Teachers Union CC 221 of 2006 delivered at the same time as this judgment, for the reasons explained in that judgment i.e. to apply the Guidelines for the Assessment of General Damages in Personal Injury Cases compiled by the United Kingdom Judicial Studies Board with a multiplier of 0.5%.
   
9. Hand injuries are dealt with in Part 6 (I) of the Guidelines. There it is stated:
   

"The hands are cosmetically and functionally the most important component parts of the upper limbs. The loss of a hand is valued not far short of the amount which would be awarded for the loss of the arm itself. The upper end of any bracket will generally be appropriate where the injury is to the dominant hand".

In this case the injury is to the left hand. It is assumed that hand is not the claimant’s dominant hand because of the reference in his statement to loss of strength in his right hand.

10. The injury falls somewhere within Category 6 (I)(d), "Amputation of Middle and/or Ring f-fingers" in which the range is ₤36,125 to ₤52,950. The claimant does retain his thumb and the body of his hand so there is still some usage as Dr. McNamara’s report confirms. Given that it is the non-dominant hand, I find that the appropriate award in the United Kingdom would be ₤42,000. Applying the 0.5% multiplier this results in an award of the vatu equivalent of ₤21,000. A fair rate of exchange as at the date of this judgment is VT190 to GPB₤, giving an award of VT3.99 m for general damages by way of pain and suffering and loss of amenities of life, which I round to VT 4m.
    
11. Insufficient evidence has been provided to enable the Court to establish past or future loss of earnings so no award can be made under that head even if it had been claimed. In the light of that, there will be no deduction made for the VT 300,000 already paid by the defendant.
    
12. There will be judgment for the claimant in the sum of VT4m together with costs to be agreed or fixed on application to the Court. The judgment sum is to be paid to the claimant within 2 months of the date hereof.
    

Dated at Port Vila, this 24th day of June 2008

BY THE COURT

C.N. TUOHY
Judge