Katopau v Samoa Breweries Ltd [2000] WSSC 36 (13 October 2000)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

IESE KATOPAU
of Vaitele, Unemployed.
Plaintiff

AND:

SAMOA BREWERIES LIMITED
a duly incorporated company carrying on business at Vaitele as brewers.
Defendant

Counsel: K. M. Sapolu for plaintiff
R. Drake for defendant

Hearing: 24, 25 August, 12, 13 September 2000
Judgment: 13 October 2000

JUDGMENT OF SAPOLU CJ

In these proceedings the plaintiff is claiming damages against his former employer Samoa Breweries Ltd, the defendant, for personal injuries alleged to have been caused by the negligence of the defendant. The defendant company, on the other hand, has denied liability in negligence but says that if the Court finds negligence on the part of the defendant then the plaintiff was guilty of contributory negligence and any damages to be awarded to the plaintiff should be reduced to the extent of his own contributory negligence. The defence of contributory negligence was pleaded by the defendant.

For the purpose of clarity and in order to facilitate dealing with the issues in this case, I will deal first with the evidence which is relevant to the questions of negligence and contributory negligence and then decide whether negligence and the defence of contributory negligence have been proved. I have decided to deal first with these questions because it is only if the Court finds that the defendant was negligent, that it becomes necessary to consider the question of what should be a fair compensation to be awarded to the plaintiff for his personal injuries claim.

Evidence related to alleged negligence and contributory negligence

The defendant company is the sole manufacturer of beer in Samoa. Its beer is called “Vailima” and is sold in bottles. Some of this beer is exported to other countries including American Samoa, but most of it is sold locally. To manufacture and pack its beer into containers for local consumption and for export, the defendant company employs permanent staff as well as casual workers.

The department of the defendant company which deals with the packing of bottles of beer into carton boxes for export overseas is called the “expedition department”. A number of casual workers are employed in that department. The basis on which those casual workers are employed is that the defendant company would call them to work when they are required. The work they do includes not only the transfer by hand of bottles of beer from plastic crates and pack them into carton boxes for export, when there is a purchase order from overseas, but also the stitching of carton boxes used for packing the beer for export.

The evidence showed that a small number of these bottles of beer very often explode when they are transferred from the plastic crates to be packed into carton boxes. Even though there was some discrepancy in the evidence as to how often these explosions occur in the expedition department, I accept the evidence of the plaintiff and of his witness Tautalapo Seko who had both worked as casuals at the defendant company’s expedition department, that these bottle explosions occur everyday. Even though the witness Nomeneta Uesili, who is still a casual worker with the defendant company and was called by the defendant, initially testified that these bottle explosions occurred on every second day, he later said under cross-examination that they happened everyday. Tuapala Seia, the supervisor of the defendant’s expedition department, was also called as a witness by the defendant company. His evidence was that he rarely heard any bottles of beer exploding. But he also said that he does not spend all his time at the expedition department as he has other work to attend to at other parts of the defendant company’s premises.

The reason for some of the bottles of beer exploding was explained by the witness Ruurd Overhoff who is the defendant company’s production manager; he was called by the defendant company to testify. He said that the beer inside the bottle is carbonated in order to preserve and provide fizziness to the beverage. That creates pressure inside the bottle so that the pressure inside is always greater than the pressure outside of the bottle. The bottles of beer are then put inside plastic crates. These plastic crates of bottles of beer are then pasteurised or sterilized for one hour at a temperature of 60 ْ C to kill any bacteria. The beer bottles are then cooled down and the bottles decrease in temperature from 60 ْ C to 45 ْ C or 35 ْ C. He also said the purpose of cooling the beer bottles down is to equalise the temperature inside the bottles of beer with the outside temperature. While this may be the purpose of cooling the bottles down, it is clear from the evidence of the plaintiff and his witness Tautalapo Seko, as well as the evidence of the witness Nomeneta Uesili who was called by the defendant, that quite often when the bottles of beer get to the casual workers at the end of the production line, they are warm or sometimes a bit hot.

It seems from the evidence that the plastic crates containing pasteurised bottles of beer are moved along a conveyor after they are pasteurised. As the crates are moved along the conveyor, the bottles of beer collide with each other causing chips to some of the bottles. These chips create a weakness to some of the bottles. Because of the pressure inside the bottles created by the carbonated beverage, some of the bottles with chips explode and break. I also think that the fact that the bottles of beer had been pasteurised for one hour at the temperature of 60 ْC contributes to the explosions because liquid expands when heated and that must have added to the pressure already created inside the bottles by the carbonated beer.

Now when the crates of beer get to the casual workers at the end of the conveyor, they are stacked on to pallets. The casual workers would then take two bottles at a time from the plastic crates using both hands, and pack them into the carton boxes in which the beer would be exported overseas. It is during this process that some of the bottles explode. There was thus a hazard to the safety of the casual workers from the exploding bottles. The hazard existed particularly in relation to the workers face and eyes from broken glasses from the exploding bottles. This hazard was known to the defendant company because it took steps to provide its workers with safety gear which consisted of pairs of glasses and faceshields. A faceshield consists of a glass mask that covers the whole face and a helmet to protect the head; a pair of glasses is the same style as a common pair of glasses but a bit bigger and covers only the eyes.

The plaintiff joined the defendant company’s workforce on 24 November 1999 as a casual worker. He was assigned to work in the expedition department. The work he was required to do was stitching carton boxes using a machine and packing bottles of beer from plastic crates stacked on pallets into carton boxes for export when there was a purchase order from overseas. He worked together with about seven other casuals.

The plaintiff said that when he started to work for the defendant company, Tuapola Seia, the supervisor of the expedition department, explained to him the work he was required to do and instructed him to wear the safety gear, which was either a faceshield or a pair of glasses, during working hours. Obviously this safety gear was for the protection of the plaintiff from the hazards caused from exploding bottles. What happened with these safety gear was that the casual workers would collect them from the office of the supervisor in the mornings before work started. They would then wear these safety gear during working hours. When they break for lunch they remove the safety gear and put them back on again when they resumed work in the afternoon. At knock-off time they would leave the safety gear on the supervisor’s desk as casual workers were not allowed to take their safety gear home with them after work. This was not the same with the permanent staff who were allowed to take their safety gear home after work. The explanation for this may lie in the fact that the permanent staff work every day of the week, whereas the casual workers would only work when required to do so by the defendant company.

The next day when they were required back at work, the casual workers would again go in the morning to the supervisor’s office to collect their safety gear and put them on before they started work. Then when it was knock-off time in the afternoon, the casual workers would leave their safety gear on the supervisor’s desk before they go home. The casual workers followed that procedure every morning and afternoon in relation to the safety gear when they were required by the defendant company to come to work. According to the plaintiff, this procedure continued for a short while after he joined the defendant company, and then there were no more safety gear for the casual workers. He continued to go to the supervisor’s office in the mornings before work started to collect a safety gear for himself but there was none.

After going e the supervisor’s office for some time, without success in obtaining a safety gear, the plaintiff gave up. The other casorkers who were working with him also had to go without any safety gear. The plaintiff also also said in his evidence that the situation relating to the non-availability of safety gear was drawn to the attention of the supervisor. However no more safety gear were provided for the casual workers. When the Court asked the witness Tautalapo Seko if he knew what had happened to the safety gear that was used by the casual workers, he said they were given to the members of the permanent staff for their use.

I do not accept the evidence given by the supervisor that there were always safety gear available for the use of the casual workers and that it was his habit to give out those safety gear to the casual workers, including the plaintiff, everyday. I find the evidence given by the plaintiff and the witness Tautalapo Seko on this aspect of the case more believable, and I accept that evidence.

On 17 February 2000, the plaintiff again went to work as required by the defendant company. He said that only one safety gear, namely, a faceshield, was available that day and the casual workers made a grab for it; one of the workers by the name of Tui, who has left for New Zealand, got the faceshield. So the other casual workers had to go without a safety gear again. On that day the plaintiff spent the morning and the early part of the afternoon stitching carton boxes at the stitching machine. In the latter part of the afternoon he went to work with the other casuals in packing bottles of beer from plastic crates stacked on the pallets into carton boxes, as he was instructed by his supervisor to do. These beers were for a purchase order from American Samoa to be supplied the following morning. The plaintiff said the bottles of beer were a bit hot and the witness Tautalapo Seko said the bottles were warm. When the plaintiff was about to close a carton box he had already packed, a bottle of beer exploded and a piece of glass from the bottle hit him on the right eye. The plaintiff put up his hand to his eye which was bleeding. He then lay down and was later carried out of the factory from where a vehicle of the defendant company took him to the hospital.

The supervisor in his evidence said that on the day of the accident he told the plaintiff to wear a safety gear. However, the plaintiff’s evidence is that there was only one safety gear available on that day which the worker Tui got. So the plaintiff and the other casual workers had to go without any safety gear. The witness Nomeneta Uesili, who is still a casual worker at the defendant company, said that the casual workers, including the plaintiff, were given safety gear to wear by the supervisor on the day of the accident. But the problem was that the casual workers would only put on the safety gear when the supervisor was around. Nomeneta Uesili further said that on the day of the accident, when the supervisor was not present the casual workers would take off their safety gear, and that was what happened when the plaintiff was injured.

I do not accept the evidence given by this witness. In the first place the supervisor said in his evidence that at the time of the accident to the plaintiff he was working at the stitching machine which is close to where the casual workers were packing the beer into carton boxes. That machine is inside the expedition department of the factory. So the supervisor was present in the expedition department. If the evidence by Nomeneta Uesili is correct then the casual workers, including the plaintiff, must have been wearing their safety gear at that time because the supervisor was around. The plaintiff should not therefore have been injured when the beer bottle exploded in his face. Secondly, bottle explosions was a daily occurrence of which the casual workers were fully aware. The hazards involved were known to all the casual workers. I see no reason why the casual workers, as Nomeneta Uesili said, would remove their safety gear when the supervisor was not present and only wear them when the supervisor was present. The workers knew that the safety gear was for their own personal safety and protection and to remove them while they were working would expose them to the hazard of facial injuries caused from exploding bottles. There was no evidence that the safety gear was causing any discomfort or inconvenience to the casual workers as to make them feel like taking them off when the supervisor was not present, thus exposing themselves to the risk of eye or facial injuries from exploding bottles. Neither was there evidence of any complaints that the safety gear was affecting the casual workers’ vision when doing their work so as to necessitate taking them off while performing their duties. Thirdly, I was not impressed with this witness’s demeanour as he exhibited signs of nervousness during parts of his evidence. I therefore do not accept the evidence by the witness Nomeneta Uesili.

Legal issues and evidential findings on negligence and contributory negligence

At the outset, there are two matters I need to refer to briefly before I come to the questions of negligence and contributory negligence. The first is that while the Accident Compensation Act 1989 provides some compensation to workers who sustain injuries from industrial accidents, section 65 of the Act does preserve a worker’s common law action in negligence against his employer. The second matter is that the common law doctrine of common employment under which an employer was not liable to an employee for injury caused by the negligence of a fellow employee has been expressly abolished by section 9 of the Law Reform Act 1964 and by clear implication by section 65 of the Accident Compensation Act 1989.

That brings me to the question of negligence. An employer has a common law duty to take reasonable care for the safety of his workers or employees. In Public Trustee v Pila Patu [1970 – 1979] WSLR 35 Spring CJ said at p. 38:

“The common law has always held the master to be under an obligation to take reasonable care for his servants’ safety.”

The contents of this duty on an employer to take reasonable care for the safety of his workers were elaborated by the High Court of Australia in O’Connor v Commissioner for Government Transport [1954] HCA 11; (1959) 100 CLR 225, a case cited by counsel for the plaintiff, where it is stated at p.229:

“The defendant as employer was of course under a duty, by his servants and agents, to take reasonable care for the safety of the deceased [an employee of the defendant] by providing proper and adequate means of carrying out his work without necessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury.”

In the present case, there is clear evidence that the supervisor of the expedition department of the defendant company initially provided the plaintiff with safety gear. But after a while, that stopped. Consequently, the plaintiff and other casual workers had to work without safety gear even though the supervisor was told about the non-availability of safety gear. On the evidence, I find that the supervisor, and therefore the defendant company, failed to provide proper and adequate means for the safety and protection of the plaintiff in the performance of his work. This failure constituted a breach by the defendant company of its duty of care to the plaintiff. As a consequence, the plaintiff sustained a serious injury to his right eye. The injury was clearly a foreseeable consequence of the defendant company’s breach of its duty of care. The defendant company was therefore negligent. It follows it must be liable for damages to the plaintiff for the injury to his eye.

On the question of contributory negligence, the Court must be satisfied on the facts that the plaintiff failed to take reasonable care for his own safety and that failure contributed to his injury. If the Court is satisfied such a failure on the part of the plaintiff did occur, then the defence of contributory negligence must succeed. The damages to be assessed and awarded to the plaintiff must be reduced to such extent as the Court thinks just and equitable having regard to the plaintiff’s share in the responsibility for the damages: section 3 of the Contributory Negligence Act 1964.

On the evidence that I accept, I am of the view that the plaintiff should not be held guilty of contributory negligence. The accident that happened was caused by a bottle of beer exploding. The reason for the bottle of beer exploding was something beyond the control of the plaintiff and his fellow casual workers. To protect himself and other casual workers from eye or facial injuries, the plaintiff and other casual workers were supplied by the defendant company with safety gear to cover and protect their eyes and faces. But as time went by, no more safety gear were provided. Again the plaintiff had no control over the supply of safety gear. Even though his supervisor was informed about the non-availability of safety gear, none was again supplied. Perhaps the alternatives the plaintiff could have taken in order to avoid the risk of injury was to buy a pair of glasses himself or resign from his job. Both alternatives are clearly unacceptable. It is the common law duty of the defendant company, as employer, to take reasonable care for the safety of its workers by providing proper and adequate means for carrying out their work without unnecessary risk. The alternative of resigning from his job would be an unreasonable and unrealistic option to expect the plaintiff to take. In any event, if the plaintiff had chosen to resign that would not have removed the risk of casual workers sustaining eye or facial injuries from exploding bottles, unless they were provided with safety gear. I am therefore of the view that the defence of contributory negligence cannot succeed.

Given the conclusion I have reached on the question of negligence, I would have to proceed further to consider what should be a fair compensation to be awarded to the plaintiff for the consequences of his injury. But before I deal with the question of what should be a fair compensation to be awarded to the plaintiff, I must set out the relevant evidence.

Evidence related to plaintiff’s injury and consequential losses

Before the plaintiff was employed by the defendant company on 24 November 1999 as a casual worker, he had been successively employed by two security firms as a security officer. There is no evidence as to why he ceased employment as a security officer or the kind of wages he earned as such. He is now 34 years of age and appears a physically well-built person like someone one would expect to find in security work. He was about 33 ½ years old at the time of the accident.

The plaintiff said that his right eye was hit and injured by a piece of broken glass from the explosion of a bottle of beer on the afternoon of 17 February. He felt severe pain as blood came out of his eye. He put up his hand to his eye and lay down. He was then carried outside of the factory by some of his fellow employees where he was taken by a defendant company vehicle to the hospital. He was admitted for 12 days. He was attended by Dr Mau Imo the same evening he was admitted and the doctor said in her evidence that the plaintiff suffered extensive injuries to his right eye which was hanging out, and it had poor prognosis. There was also the risk of the plaintiff’s remaining good eye being affected and becoming blind. She therefore formed the opinion that the injured right eye had to be removed by surgery and she advised the plaintiff who consented to the surgical operation which was carried out the following day.

According to the plaintiff, he continued to suffer severe pain and continuing bleeding on the night of 17 February up to his operation the following day. After his operation, which was done under anaesthesia, he continued to suffer severe pain and blood continued to come from his eye in spite of the medication given to him. He was also very distressed about the loss of his eye. For three days he could not eat or drink as he felt severe pain on the right side of his head above his right eye. On the fourth day, the dressing placed over his injured eye was still stained with blood showing that there was still bleeding. However, his condition appears to have started to improve after that as he was continued to be given treatment and medication for pain relief. The plaintiff was given an artificial eye but he told the doctor that at times he feels discomfort and soreness in his right eye socket.

On 29 February, the plaintiff was discharged from the hospital. He does not wear the artificial eye all the time up to now. Most of the time he goes without the artificial eye because it causes discomfort and soreness to his injured eye. The other alternative to the artificial eye, according to Dr Mau Imo, is a glass eye but the plaintiff would have to go overseas for such an eye. He still reports to the doctor at the hospital, from time to time, for check-ups on his eye. The last time he reported to the doctor was on 21 August and the doctor prepared a report on the condition of his eye at that time. That report was produced to the Court. In the report the doctor says the plaintiff’s eye was healing well.

After the plaintiff was discharged from the hospital, he still felt stinging pain in his injured eye in the first few days. His wife applied “launonu”, leaves of the nonu tree, for three days to reduce the pain. The plaintiff still continues to feel dizziness and soreness in his eye at times up to now, particularly when he goes out in the sun. The plaintiff also said that fluid still comes out of his eye up to now and sometimes his vision in his good left eye becomes blurry. During the hearing of this case, I did observe the plaintiff sometimes putting his handkerchief on his injured eye to soak something. He also said his injured eye is still a psychological burden to his mind. He further stated that before his injury he was able to do heavy work at home such as cutting grass, cutting logs for firewood with an axe and climbing coconut trees for copra for his family’s food. He no longer does those things as he feels fearful for his safety. Initially when he tried to cut logs for firewood with an axe, the axe sometimes missed the log and he’s fearful for his safety. He is now only helping his wife with minor domestic chores such as taking care of their young child, doing the laundry, cooking and other light work inside the house. He has also become worried and fearful of walking on the roads in case he loses sight of cars and gets run over. He is now, however, looking for a job. The evidence given by the plaintiff’s wife is generally confirmatory of the plaintiff’s evidence. She added that at times the plaintiff feels very sad and unhappy about the loss of his right eye.

Before the plaintiff was injured he was a physically energetic man and was able to do heavy work at home. He had complete vision in both eyes and had no pain in his head or right eye. He had complete self confidence in whatever work he did. He suffered no distress or fear. He enjoyed life as a normal human being. He was also able to work as a security officer.

In relation to the plaintiff’s earnings when he was in the defendant company’s employment, the witness Uaina Liki, the personnel manager of the defendant company, said the plaintiff’s rate of pay as a casual worker was $1.50 per hour. This witness also said the plaintiff, like other casual workers, would only come to work when required by their employer, the defendant company. In his evidence, the plaintiff said he normally received about $35 net a week but for some weeks he received up to $50 net when he was required to work overtime. He did not pay NPF contributions or income tax on his wages. The plaintiff’s work record, which was produced, shows that he worked for 29 days for the defendant company from 24 November 1999 to 17 February 2000 when he was injured. Given that in previous weeks he worked mostly for 3 or 4 days a week, I will assume that, if not for his injury, the plaintiff would have worked for 3 days, including Friday and Saturday, in the ninth week when he was injured. There was no evidence of any outgoings in connection with the plaintiff’s employment as no special clothing was required for his job and he walked to work as he lives at Vaitele not far form the defendant company. There was no direct evidence that the plaintiff had to pay for his lunch at the defendant company’s premises. But from the evidence of the plaintiff that at 12 noon the employees stop work and go to have lunch on the defendant company’s premises, I assume that the lunches were provided by the company and not directly paid for by the employees. So there was no deduction from the wages paid to the plaintiff for his lunches which must already have been taken care of by the defendant company.

In relation to the monetary payments made to the plaintiff and the expenses he incurred, the defendant company gave $75 on 19 February to the plaintiff while in hospital; that sum of money was to include his wages for that week. On 24 February, the following week, the defendant company gave $60 to the plaintiff while still in hospital; that sum of money was to include his wages for that week. On 28 February, the day before the plaintiff was discharged from hospital, he called the defendant company for money and was sent $50 which was used to pay for the plaintiff’s hospital bill of $48. Sometime after the plaintiff was discharged from the hospital, he received a cheque for $1,276 from the Accident Compensation Board for his injury and $48 for his hospital bill which had already been paid by the defendant company. He also received compensation of $14.40 per week for four weeks from the Accident Compensation Board for loss of wages after being discharged from the hospital. For the medical report the plaintiff obtained from the doctor for the purpose of this case, he paid $25. He also consulted a private doctor about his eye and paid $15 consultation fee. There was no evidence as to the plaintiff’s costs of transportation to see the doctor after he was discharged or how often he went to see the doctor. To see the doctor, he had to catch a bus from Vaitele, where he lives, to Apia and then he takes another bus from Apia to the hospital. He again has to catch two buses to return from the hospital to his home. I make a very rough estimate of $60 for the plaintiff’s transportation costs to see the doctor at the hospital from the time of his discharge on 29 February to 21 August, the last time he went to see the doctor before the hearing of this case.

Some guiding principles on assessment of damages in personal injuries claims

At common law, damages for personal injuries claims are awarded in a lump sum on a “once and for all” basis for past and future losses. Damages are not awarded on the basis of periodic payments or provisional damages. They are awarded “once and for all” in a lump sum which must necessarily involve estimates, for a high component of such an award normally relates to future losses. Thus a plaintiff cannot come back in the future and say the award was too low or the defendant to say the award was too high as the future unfolds. In other jurisdictions, for example, Western Australia, South Australia and the United Kingdom, statutory provisions have been enacted giving the Court discretionary power to award damages by way of periodic payments or provisional damages in appropriate cases. In Lim Poh Choo v Camden and Islington Area Health Authority [1979] 1 QB 196 at p. 220, Lord Denning MR expressed the view that the trial Court had the power to make a lump sum award on an interim basis so that the plaintiff can come back to the Court in the future if the interim award turns out to be too low. However, on appeal, the House of Lords disagreed with Lord Denning MR’s view. As I understand these proceedings, they were conducted on the basis that the award of damages in an action for personal injuries is to be by way of a lump sum on a “once and for all” basis. At least that was the position taken by Dillon J in the case of Retzlaff v Western Samoa Airport Authority [1980 – 1993] WSLR 464 cited by counsel for the plaintiff. For the purposes of this case, I am content to follow that approach.

Lim Poh Choo v Camden and Islington Area Health Authority [1979] UKHL 1; [1980] AC 174 at pp 183 – 184 in this way:

“Sooner or later – and too often later rather than sooner – if the parties do not settle, a Court (once liability is admitted or proved) has to make an award of damages. The award, which covers past, present, and future injury and loss, must under our law, be of a lump sum assessed at the end of the legal process. The award is final: it is not susceptible to review as the future unfolds, substituting fact for estimate”.

The above position seems to be the one adopted in most jurisdictions, at least in England and Australia.

There is, however, a division of judicial opinion whether the lump sum award of general damages in personal injuries claims should simply be given as a global sum without allocating a separate sum for each component head of damages that makes up the award, or whether a separate sum should be allocated to each component head of damages, even on a tentative and preliminary basis, and then total up those individual sums to arrive at a lump sum award. Our Court of Appeal in Western Samoa Shipping Corporation Ltd v Iosefa Feagai (1994) (CA 6/93; unreported judgment delivered on 22 March 1994) has preferred not breaking down an award of general damages by allocating a separate sum to each component head of damages and then total them up. The Court of Appeal said:

“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.... 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.”

The opposite view expressed in Australia by Gibbs J in Gamser v Nominal Defendant (1977) 136 CLR 145 at 147 – 148 and Gibbs and Stephen JJ in Sharman V. Evans [1977] HCA 8; (1977) 138 CLR 563 at 572, which were cited for the plaintiff, is not the view favoured by our Court of Appeal.

The next matter I wish to refer to is the classification between special and general damages in personal injuries claims and how it applies to the assessment of damages. Special damages relate to pre-judgment pecuniary losses and expenses incurred by a plaintiff as a consequence of his injury. They would include such matters as hospital and medical expenses, transportation costs to see a doctor, and lost earnings before judgment. Because they are special damages, such matters must be strictly pleaded and proved. As for general damages, these relate primarily to post-judgment or prospective non-pecuniary losses such as pain and suffering, loss of amenities or enjoyment of life, and loss of earning capacity. General damages also relate to such matters as pre-judgment or past pain and suffering which are non-pecuniary losses and post-judgment or prospective pecuniary expenses which at the time of judgment had not crystallized. For the purposes of pleading, general damages need not be specifically pleaded, but they must be averred in the statement of claim.

As special damages are those damages which crystallize into concrete form before trial, they are capable of precise mathematical calculation or approximation, and there should be little difficulties in reaching agreement on the amount to be awarded for special damages. It is the assessment of general damages which relate to prospective losses that presents the real difficulties. Because these are losses in the future, the Court in assessing damages for such losses must necessarily be involved in making only estimates for no one can foretell the future with exactitude. The task of making assessment for general damages is commonly carried out under the conventional heads of pain and suffering, loss of amenities, and loss of earning capacity: see the judgment of the Court of Appeal in Western Samoa Shipping Corporation Ltd v Iosefa Feagai (1994) (C.A. 6/93; unreported judgment delivered on 22 March 1994).

I turn now to the actual assessment of damages in this case. I do so by following the special and general damages classification. After that, I will discuss why some of the matters raised for the defendant company should not be taken into account in reduction of damages in this case. Perhaps, I should also mention that the status of the plaintiff, whether he is rich or poor, is irrelevant to the assessment of damages.

Special damages

The plaintiff’s hospital bill of $48, the cost of $25 for the medical report he obtained for this case, the consultation fee of $15 for seeing a private doctor about his injured eye, and the transportation costs of $60 to see the doctor at the hospital from time to time would clearly come under special damages. These items come to a total of $148. As the defendant company paid for the hospital bill of $48, that total sum should be reduced to $100.

The next item that comes under special damages is pre-judgment lost earnings. This relates to the period from the time of the accident to the date of judgment. The amount claimed in the statement of claim which was prepared on 15 June is $665. Even though it was submitted for the defendant company that the plaintiff should have taken steps to mitigate his losses, the evidence shows that he was for a long period of time insufficiently fit to take on another job. At the time of the hearing of this case, the plaintiff was looking for another job. I would allow the claim for lost earnings from 17 February, the date of the accident, to date of judgment.

The plaintiff was paid at the rate of $1.50 per hour which would be $12 for a normal eight hour working day. His work record shows that for the full eight weeks that he worked for the defendant company, the average number of days he worked per week was 3 or 4. The plaintiff said he was paid about $35 for some weeks, but when he was required to work overtime he was paid up to $50. Based on the evidence, as to his hourly rate of pay and the number of hours he worked a day, I take this to mean that when he worked for three days a week he was paid $36 but when he worked four days a week he was paid $48. The plaintiff did not have to pay NPF contributions or income tax so the remunerations he was paid were net wages.

Given that on average, based on his work record, the plaintiff worked 3 or 4 days a week at $1.50 per hour or $12 per day, I will take the sum of $42 as the average between the sum of $36 wages for a 3 days working week and the sum of $48 wages for a 4 days working week as the lost earnings per week sustained by the plaintiff from the date of the accident to the date of judgment. The number of weeks during that period is 31. As the defendant company paid the plaintiff his wages for two weeks, I will deduct two weeks from the total of 31 weeks and that leaves 29 weeks. Multiply $42 by 29 weeks and the total pre-judgment loss of earnings by the plaintiff is $1,218.

Add together the expenses of $100 incurred by the plaintiff in relation to his injury and $1,218 for pre-judgment lost earnings and the total comes to $1,318. I award that sum as special damages to the plaintiff. In doing so, I must point out there is no evidence that the plaintiff ever became ill or sick, apart from his injury, since he was discharged from the hospital so as to necessitate any reduction in the amount awarded for lost earnings on the ground that ill-health, apart from the injury, could have prevented the plaintiff from working on any day between the date of the accident and the date of judgment.

GENERAL DAMAGES

General damages, as already pointed out, are to be assessed under the conventional heads of pain and suffering, loss of amenities, and loss of earning capacity. Damages under these heads are to compensate the plaintiff for non-pecuniary losses as a consequence of his injury.

Pain and suffering

The evidence shows that the plaintiff suffered severe pain at the time of the accident and continued to suffer severe pain up to the time of his surgical operation the following day. After his operation, which was carried out under anaesthesia, he suffered severe pain again in spite of panadol tablets given to him to take. For three days he could not eat or drink. Even though his condition improved, the plaintiff continued to suffer pain and headaches at times. The pain and headaches the plaintiff suffered after his discharge from the hospital must also be taken into account under this head of damages.

The plaintiff’s distress, depression, anxiety and sadness caused from the loss of his eye is suffering and comes under this head. So is his psychological lack of self-confidence and fear to walk on the roads on his own in case he is run over by a car even though that should be temporary. The discomfort the plaintiff experiences when he wears his artificial eye and from the fluid that still comes from his injured eye are also matters to be taken into account in assessing damages under this head of damages. Likewise is the fact that sometimes his vision in his remaining good eye becomes blurry and the consequential anxiety that may cause.

Loss of amenities

The loss of an eye is a very serious matter and must be fairly reflected in an award of damages. It is a permanent disability which the plaintiff will have to carry with him for the rest of his life. He has been deprived of the capacity to enjoy life, as he used to do before his injury when he suffered the loss of his right eye. It is now for instance, most unlikely that he would be able to work as a security officer again, a job he held before he joined the defendant company.

The plaintiff is also now unable to perform any hard work at his home. He can only assist his wife with light domestic chores. This partial loss of house keeping or domestic capacity, which I think should be temporary, (there was no evidence on the point), also comes under loss of amenities. The plaintiff’s life has been materially affected.

Loss of earning capacity

The plaintiff is now 34 years of age and would retire at the age of 55 years. He has claimed general damages for 21 years for loss of earning capacity. The evidence on future loss of earning capacity is very slim. Even though the only relevant evidence is that the plaintiff is unlikely to become a security officer or hold a similar job again, I am of the view that the range of job opportunities available to the plaintiff in the future has been diminished because of the loss of his right eye. Certainly his chances of gaining employment where a person with two eyes is needed have been seriously diminished as he now has only one eye. Similarly, his chances of gaining employment where it is more appropriate or desirable to employ a person with two eyes have also been reduced. To this extent, I am of the view that the plaintiff’s earnings capacity has been diminished. While the evidence on loss of earning capacity is therefore very slim, the Court must still endeavour to grapple with future likely contingencies : Western Samoa Shipping Corporation Ltd v Iosefa Feagai (supra).

Another factor which is relevant to the assessment of damages in this regard are recent comparable verdicts in similar cases. In Retzlaff v Western Samoa Airport Authority and Another [1980 – 1993] WSLR 464, this Court in 1991 awarded general damages of $70,000 to the plaintiff for the loss of his right eye. Of less direct relevance, but still in this area of personal injuries, is the case of Western Samoa Shipping Corporation Ltd v Iosefa Feagai (supra) where the Court of Appeal upheld an award of general damages by this Court of $52,000 to a plaintiff who has had to walk with a limp on his right leg for the rest of his life as a result of the injury he suffered due to his employer’s negligence. These are the only judgments we have had on personal injuries in the last 30 years. Because they are recent judgments, they are of particular relevance to the assessment of damages in this case. In cases of this kind where what is involved is a loss of an organ of the body, such as an eye, I think some measure of consistency and comparability is to be expected, while at the same time giving due regard to the special circumstances of each case. It would not be conducive to public confidence in the administration of justice if there are marked differences in the awards for the loss of a particular organ of the body unless the difference is well justified. The current social, economic and industrial conditions in this country may also be a relevant factor to the assessment of damages.

In the assessment of damages under the head of loss of earning capacity, the Court also takes into account future contingencies or “vicissitudes of life” as they are sometimes called. These would include such matters as ill-health or sickness and redundancy. On the positive side for the plaintiff, future contingencies would also include the possibility of increased wages and earnings.

Taking all these matters into consideration and bearing in mind that the plaintiff should not be compensated twice under separate heads of damages, I am of the view that in this present day the figure of $73,000 represents a fair compensation for general damages. Add to that the special damages of $1,318 and the lump sum to be awarded to the plaintiff is $74,318.

Other matters claimed in reduction of damages

In its statement of defence, the defendant company claims several matters which should be taken into account in reduction of any award of damages to the plaintiff. The first is the cake and flowers given by the defendant company to the plaintiff while in hospital. In reply to a question by the Court whether the defendant company intends to pursue that matter, counsel for the defendant quite properly said no. I think the cake and the flowers were voluntary and benevolent gifts which should not be taken into account in reduction of damages.

The next matter claimed in reduction of damages was the use of a company vehicle to transport the plaintiff to the hospital when he was injured and to take the plaintiff’s wife to the hospital and back to her home on the afternoon the plaintiff was injured. In my view these expenses to the defendant company should not be taken into account in reduction of damages. The transportation costs were a direct consequence of the injury to the plaintiff which was caused by the negligence of the defendant company. If those costs are to be taken into account in diminution of damages, then the plaintiff should be entitled to claim them as special damages against the defendant company for they were costs that arose directly as a consequence of his injury. Transportation costs claimed by the defendant company should therefore not be taken into account in reduction of damages.

The other matter claimed by the defendant company to be taken into account in reduction of damages are the monies that were given to the plaintiff while he was in the hospital. On Saturday, 19 February, the defendant company gave to the plaintiff $75, which was to include his wages for that week. On 24 February, the defendant company gave to the plaintiff $60, which was also to include his wages for that week. The plaintiff’s wages were about $36 for a 3 days working week or $48 for a 4 days working week. The appropriate amounts have already been deducted for the plaintiff’s wages for those two weeks when special damages were assessed for the plaintiff’s pre-judgment lost earnings. The real question, therefore, is whether the sums of money that were left over after deducting the wages for the plaintiff, should be taken into account in reduction of damages.

Even though the sums involved are small, the principle in issue is important. Nothing was said about the surpluses that were left over from the monies that were given to the plaintiff by the defendant company after the wages were deducted. The defendant company simply gave two sums of money to the plaintiff while in the hospital and said those sums of money included his wages for two weeks. In these circumstances, the reasonable inference to draw is that the defendant company intended the surpluses from those sums of money to be a voluntary gift to the plaintiff while in the hospital because of his injury caused from the defendant’s negligence. If there was anything to suggest that the defendant company intended the surplus monies, which were small, not to be voluntary gifts, I would have been inclined to accept that they should be taken into account in diminution of damages. But there is nothing of the sort. The surplus monies should, therefore, not be taken into account in reduction or diminution of damages: see, for example, the judgment of Dawson J in the High Court of Australia in Kars v Kars (1996) 187 CLR 254 at pp 363 – 364 which was a case on a personal injuries claim arising out of the negligence of the defendant.

The last matter the defendant company claimed to be taken into account in reduction of damages are the payments made by the Accident Compensation Board under the Accident Compensation Act 1989 to the plaintiff for his injuries, hospital bill and lost wages for four weeks. I have decided not to take these payments into account in reduction of damages. The first reason, as was submitted by counsel for the plaintiff, is that section 65 (3) of the Accident Compensation Act 1989 imposes on the person who has been paid compensation under the Act the obligation to refund to the Accident Compensation Board a reasonable amount of such compensation from any damages he may recover from a claim which is independent of the Act. In other words, the plaintiff is required under the Act to refund a reasonable amount of the compensation paid to him by the Accident Compensation Board from any damages he may be awarded in this case. There was no evidence as to what that reasonable amount would be. But it would not be unreasonable if the plaintiff is required to refund the full amount of compensation paid to him by the Accident Compensation Board, otherwise he would be compensated twice for the same thing with the damages awarded to him in this case.

In Redding v Lee [1983] HCA 16; (1983) 151 CLR 117, another case on personal injuries, the High Court of Australia touched upon this question whether the benefits paid to an injured person under a statute can be taken into account in reduction of damages where those benefits have to be repaid to the institution that provided them. Gibbs CJ who touched on this particular point said at p. 125:

“If the statute expressly provides (as some statutes relating to workers’ compensation have done) that a plaintiff who has recovered damages shall repay the amount of the benefit it will be clear that the receipt of the benefit must be disregarded in the assessment.”

And at p. 163 Brennan J said:

“Where for example, the Act provides for recoupment of a benefit or allowance out of damages awarded to the person receiving the benefit or allowance, it may be taken that the legislature does not intend that damages should be diminished by receipt of the moneys to be recouped (cf Batchelor v Burke [1981] HCA 41; (1981) 148 CLR 438 at pp. 453 – 455, per Gibbs CJ). Otherwise the receipt of a benefit or pension would result in a double deduction – once from the damages assessed and again in paying out the sum recouped by the Commonwealth. Section 115C provides for recoupment an amount equal to a sickness benefit and therefore the receipt of a sickness benefit does not diminish a wrongdoer’s liability.”

Should it turn out that the reasonable amount of compensation to be refunded by the plaintiff to the Accident Compensation Board is less than the amount of compensation paid to him by the Board, the question then arises whether the damages awarded should be reduced to the extent that the amount refunded is less than the amount of compensation that was paid by the Accident Compensation Board to the plaintiff. From the position taken by the High Court of Australia on this question, it seems to me that if the intention of the legislature, as may be gleaned from the statute, is that the recipient is to enjoy and retain the benefits given to him under the statute without diminishing the damages recoverable from the tort feasor, then those benefits should not be taken in any way in reduction of damages: see National Insurance Co of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569 per Dixon CJ and Windeyer J; Redding v Lee [1983] HCA 16; (1983) 151 CLR 117.

I realise that the particular issue I am dealing with now was not addressed in counsel’s submissions, but having regard to the provisions of the Accident Compensation Act 1989, it appears that there is no intention on the part of the legislature that, should the injured person be required to refund an amount which is less than the compensation paid to him, the difference should be taken into account in reduction of the liability of the wrongdoer. The legislature’s intention seems to be that such difference in money terms should be enjoyed and retained by the injured person for himself and not to be taken into account in reduction of the tortfeasor’s liability. I therefore reject the claim by the defendant company that the compensation paid by the Accident Compensation Board to the plaintiff should be taken into account in reduction of damages.

All in all then, judgment is entered for the plaintiff in the lump sum of $74,318 plus costs and disbursements. Counsel to file memorandum as to costs within 7 days.

CHIEF JUSTICE

Solicitors:
Sapolu Lussick for plaintiff
Drake & Co. for defendant