Western Samoa Shipping Corporation Ltd v Feagai [1994] WSCA 5; 06 1993 (22 March 1994)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 6/93
BETWEEN

THE WESTERN SAMOA SHIPPING CORPORATION LTD

a duly incorporated company having its registered office at Apia
Appellant
AND

IOSEFA FEAGAI

of Satufia, Satupaitea,
Company Employee
Respondent

Coram: The Rt. Hon. Sir Robin Cooke,
President The Rt Hon. Sir Gordon Bisson
The Hon. Sir John Jeffries

Hearing: 22 March 1994

Counsel: Ruby Drake for Appellant
Katalaina M. Sapolu for Respondent

Judgment: 22 March 1994

JUDGMENT OF THE COURT DELIVERED BY SIR JOHN JEFFRIES

Before the Court is an appeal and cross-appeal from a decision of Dillon J delivered in the Supreme Court of Western Samoa on 2 April 1993. The cause of action was negligence brought by Iosefa Feagai as plaintiff who, at the material time, was an employee of the defendant. The defendant appeals against the whole of the judgment of Dillon J on liability and quantum. The plaintiff cross-appeals on quantum.

For convenience the parties in this judgment will continue to be described as plaintiff and defendant as there are two appeals.

The facts upon which the claims are based are within a narrow range. At the time of the accident, yet to be described, the plaintiff was aged 20 years, having been born on 7 April 1971. The defendant operated an inter-island ferry service between the islands of Upolu and Savaii and other island services. The plaintiff was employed by the defendant as an oiler and had been in that occupation for about one year in early December 1991. On Friday 6 December 1991 Cyclone Val struck the Samoan islands and continued to rage for some four days. The plaintiff alleged he had been working long hours during the cyclone. On Sunday 8 December the plaintiff had been instructed by the master of the defendant's vessel, m.v. Salamasina, to secure the ropes of the said vessel to the wharf. He was required to perform the work in open space at the wharf side while the hurricane-force winds were blowing. Whilst the plaintiff was engaged in the work of securing the vessel with two other workmen, a piece of flying roofing iron, coming apparently from the direction of the sea, struck his right leg at about mid-calf level at the back of the leg. The injuries will be described in greater detail hereafter, but the accident necessitated immediate hospitalisation together with operative surgical treatment. He was in hospital for approximately six weeks. After the injury plaintiff returned to work for defendant but left through his perceived inability to perform the work satisfactorily because of the injury that he had sustained.

The claim was heard before Dillon J, sitting as a Judge alone, on 24 March 1993. The plaintiff called several witnesses, besides giving evidence himself, as to liability and quantum. In his amended statement of claim, plaintiff alleged breach of duty of care owed to him by defendant as his employer, in failure to provide a safe place and system of work; and failure to provide proper and efficient supervision of his work. It was alleged the injuries suffered were caused by defendant's negligence, and several particulars were pleaded which are of the variety familiarly found in such claims. Defendant filed a rather simple statement of defence with blanket denials and stated it was putting plaintiff to proof. Defendant called no evidence and rested its defence on 'rigorous cross-examination', as described by the Judge.

The learned Judge found negligence established, which he nominated as failure to secure the vessel on 6 December when the storm began. In short he said the ship should have been secured before the storm reached its height and the negligence was failure to provide a safe system of work, it seems, by the Captain issuing instructions on 8 December to plaintiff and two other employees to secure the vessel.

The learned Judge said there was no evidence of an emergency arising, by which we take it he meant a sudden emergency.

Mrs Drake, who was not counsel in the lower Court, has argued that defendant was not negligent, basing that submission on the inferences that could reasonably be drawn from the evidence.

As stated earlier, defendant did not call any evidence itself. Mrs Drake submitted that in such exigent circumstances all available persons must do what can be done, and it was not negligent of the defendant employer to instruct an employee to secure the vessel on the third day. The sudden appearance of a single piece of roofing iron flying through the air is not an eventuality for which the defendant should be held liable in law. That was not a failure to provide a safe system of work, argued Mrs Drake, which was in essence the learned Judge's decision.

We do not agree. We accept Miss Sapolu's central submission that weather conditions had begun to deteriorate on 6 December, being the first day, progressing from an initial storm warning to gale warning on the second, finally reaching hurricane status on the third, which should have impressed defendant's employee to have acted earlier in securing the vessel. Not to have responded in those conditions was negligent by failing to do something which a reasonably prudent employer ought to have done in the circumstances. It is a failure to use ordinary and reasonable care. The appeal against liability is therefore dismissed.

We turn now to what is possibly the substantial part of the appeal and cross-appeal. Defendant says the award was too high and the plaintiff that it was too low. The learned Judge made an award of $52,000 for general damages, broken down as described hereafter.

Details of the injuries suffered by plaintiff were as follows. The medical reports state that when plaintiff was admitted to hospital on 8 December he was suffering from a serious and dirty wound on his right leg. There was no dispute but that it had been caused by a piece of flying roofing iron. The wound had caused quite severe injuries to the calf muscles of the right leg, cutting nerve, artery and veins. An infection developed, but was controlled by medical treatment. The wound completely healed but, as a consequence of the nerve injury, plaintiff has a permanent paralysis of the elevator muscles of the right foot and he is unable to have a dorsal flexion of the ankle. He is left with a permanent inability to run properly and his walking ability is palpably affected. In short, he limps. For a time he also suffered from anxiety symptoms with some apparent psychological sequelae.

Before the accident he claimed he was involved actively in marathon running and playing rugby and volleyball. He is now excluded from participation in those sports. He says his social life is adversely affected because he is a figure of fun caused by his limp, and that his matrimonial prospects are thereby diminished. He says his inability to perform his previous level of physical work puts him at a serious disadvantage on the labour market and he thereby will suffer future economic loss, which is usually the largest item of general damages for personal injury. He is assessed as having a 35 per cent disability, which is significant.

In his amended statement of claim plaintiff claimed $75,000 for pain and suffering and $75,000 for loss of amenities. Under para. 15 of the amended statement of claim, plaintiff claimed for loss of earning capacity which is to be distinguished from actual future economic loss. Under this heading he claimed his working life would be shortened in that he would have to retire at an earlier age. We think it can be accepted that there will be a loss of earning capacity in the future, even if it cannot be precisely quantified now.

Before examining the damages award in this case, we say something briefly on damages and personal injury cases. The purpose of damages is to compensate for injury insofar as money is able to do it. Damages are limited to the effects of the accident and are in no sense punitive in respect of the employer. Basically there are two types of damages, being special and general damages. Special damages may be disposed of quickly as they are now not in dispute. The actual out-of-pocket expenses which represent special damages, we are informed, are not in issue between the parties.

General damages for personal injury are usually broken down into separate divisions. Injuries, even if somewhat similar in nature, fall upon an individual in different ways with different effects. Therefore it is not possible for the law to fix a tariff or a scale, but nevertheless the law has worked out broad guidelines that must be adhered to as far as the circumstances of the case allow. However, the short point is that each award of general damages must be tailor-made for the individual plaintiff.

The first heading we deal with is pain and suffering which arises from the injury. An award under this heading is to cover pain and suffering from the instant of the accident for the rest of one's life. Pain and suffering is obviously severe at first in most instances, but the body has a capacity to adjust automatically. Fortunately past pain and suffering quickly recedes in the recall. In this case there is certain evidence of pain and suffering at the point of the accident and during hospitalisation and, one assumes, for a period thereafter until healing took place. The medical reports do not mention particularly continuing pain.

Loss of enjoyment of life is very difficult to measure in terms of money. It is substantially measured by a comparison of lifestyle before and after the accident. Plaintiff says marathon running was his favourite sport but almost by definition that is a pastime with a relatively short life. The same may be said of his other nominated sports, such as rugby and boxing. The adequate performance of one's occupation, no matter what it is, is usually a source of pride and affects self-esteem. With a seriously damaged leg for a manual worker, that is likely to be a more permanent loss of amenities. He is young still, with a long working life ahead of him. We are tolerably certain by comparison of before and after, plaintiff's life has materially changed.

We turn now to future economic loss, which is usually the most important in terms of size of an award. The risks on the labour market of an injured manual worker must be given proper consideration. We have already observed that we think there will be a loss of earning capacity. We have taken account of Mrs Drake's firm submission, supported to some extent by the judgment, that there was no evidence of actual future economic loss and that the plaintiff voluntarily left his employment. That is certainly a point of substance, but a Court nevertheless must endeavour to grapple with future likely contingencies.

The learned Judge set about making an assessment of general damages by itemising the usual heads of pain and suffering, loss of amenities or loss of enjoyment of life, and future economic loss arising out of the permanent disability. The strategy of the Judge was to select a range for the headings about to be described and to fix a figure about mid-range. After totalling the items, the Judge apparently made a discount of $10,000 so as to ensure compensation was not given twice for the same damage under separate heads. He started, it seems, by looking globally at the injury and its effects and for that he awarded $30,000, which was the highest of the items. He then looked at the loss of amenities and awarded $10,000. For pain and suffering, possibly only up to the date of the award, he gave $2000. He specifically said there was no evidence of loss of earning capacity available to the Court, but he inferred it would arise over a working life of 30-40 years and awarded $20,000. The total of $62,000 was reduced as mentioned earlier.

For reasons that we will outline hereafter, it is not the intention of the Court on appeal to interfere with the award of damages, but nevertheless we feel bound to express reservations about the way the Judge reached that award. Many cases have warned against overlapping of categories which might result in more compensation being awarded than was merited on the facts. We think there is an element of overlapping in this judgment, especially under the category whereby $30,000 was awarded in a kind of global way for the injury. We think it better when making the assessment for general damages that the three traditional subdivisions be used, even if in the final award separate amounts are not attributed to those subdivisions. Furthermore, if precedent is to be used, it should come from personal injury cases and not from other unconnected awards of damages. We are inclined to the view that it is not desirable to break down the award as precisely as the Judge did. That strategy could give an impression of exactitude which is not warranted.

Having said that, we still obtain guidance from the judgment and have reached the view, not without some hesitation, that on appeal we should not interfere with his discretion. We clearly believe the award to be on the high side, at least, but not so that it is properly to be described as 'out of all reason' or 'wholly disproportionate' which might call for appellate interference. In short, we have not been persuaded either way to alter the award and therefore the appeal and cross-appeal on damages are both dismissed.

Bearing in mind that we regard the appeal on negligence as the less substantial point there will be an order for costs in favour of the respondent in the sum of $500.

Solicitors:
Drake & Co. Apia, for Appellant
K.M. Sapolu, Apia, for Respondent