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Supreme Court of Samoa |
THE SUPREME COURT OF SAMOA
HELD AT MULINUU
CP 10/09
BETWEEN:
PETER POULOS,
a businessman of Siusega
Plaintiff
AND:
SAMOA RUGBY UNION INCORPORATED,
a duly incorporated body having its registered office at Malifa
Defendant
Presiding Judge: Justice Slicer
Counsel: L Tamati and A Su'a for plaintiff
S Leung Wai for defendant
Hearing: 14 – 16 June 2011
Written Submissions: 4 and 8 July 2011
Judgment: 8 August 2011
JUDGMENT OF THE COURT
The Issues
"19. AFTER seeing 2 specialists, namely, Dr. Dale Speedy and Mr. Chris Furneax, I was strongly advised not to play contact sports in the future as I would become a quadriplegic."
4. His claim in contract was that:
"20. SINCE the injury, I have not played any contact sports and I continue to experience chronic neck pain.
21. PRIOR to becoming a player for the Upolu Samoa Team on or about the 5th day of April 2006, Fepulea'i Selefuti Patu (Fepulea'i), who was the coach at the time, assured me that insurance was in place for all players."
General Background
(a) his inclusion in the selection squad was in fact membership of the 'selected squad';
(b) even if there were two squads the SRU owed him a duty of care to insure; and
(c) he entered the 'selection squad' as a result of an agreement that he was insured.
Selection Process
(1) Some 4 months before a tournament the selectors would consider and monitor up to 100 persons as potential or prospective players.
(2) That number would be reduced approximately one month before the tournament.
(3) 35-40 players would be invited to attend a trial or selection camp some two weeks later.
(4) Those players would disperse and 5–7 days later a final squad of 30 players would be selected for the tournament.
(5) 22 of those named would be selected for the particular match. If the match was to be held outside of Samoa the full squad would ordinarily travel but for a home match only those named for that match were required to attend.
(6) That process was undertaken in this case. The pre-selection squad entered these camps on 3 April and dispersed on 6 April. The camp was both a training exercise, including match practice which enabled the coach and selectors to assess the capabilities of each player, fitness levels and the like and to experiment with differing positions and combination. Here 6 players, including Poulos, were nominated as captains during various practice matches. Poulos was injured on 5 April. But for injury it was likely that Poulos would have been selected.
(7) The team was selected and announced on 9 April and Poulos omitted.
(8) Each selected player was required to sign a selection agreement following the announcement.
Duty of Care
Agreement
The Selection Agreement
26. Clause 1 provided that:
"The Union from 1 April 2006 to 1 April 2007 may select the player who agrees to be selected to play for the Union at any IRB Pacific Rugby Club match as listed in Schedule 1 of this agreement."
"The Union shall provide insurance in respect of travel and medical for the player while travelling to and participating in the IRB Pacific Rugby Cup."
28. The agreement did not commence until the player had been selected, and Clause 1 does not assist the Plaintiff's case. The wording of Clause 10 might cause a selected player to believe that it covers loss of future income in the event of incapacity. Attention ought be given to its wording and import.
The Insurance Policy
29. On 11 April 2006, Pacific Insurance issued a policy of insurance for the Upolu Samoa and Savaii team for the period 1 April 2006 to 20 May 2006. This cover note issued on 11 April was backdated to 1 April at the request of the SRU but contained the condition
"That there are no known losses or events which could lead to any claims between the first and up to date."
30. The backdating request was an attempt to assist Poulos.
31. The policy was capped and contained insured benefits and exclusions in the following terms:
| "Loss of Deposits | $ 2,000 |
| Personal Accident | $30,000 |
| Money | $ 2,000 |
| Public Liability | $20,000 |
| Medical Expense | $50,000 |
| Luggage/Personal Effects | $ 5,000 |
| Credit Card | $ 1,000 |
| Vehicle Expenses | $ 500 |
All limits in New Zealand Dollars (NZD)
Excess: NZD $300 (or otherwise stated)
Please note the following Conditions and Exclusions:
The above Limits are in aggregate amounts.
Exclusions to Cover:
No Cover for Claims arising from:
- Drunkenness / intoxication and/or disorderly behaviour.
- Injuries off the field other than being in training or during matches.
- Pre-existing medical conditions and/or pre-existing medical injuries."
32. The policy was required by the International Rugby Board ("IRB"). Its terms were wider than the IRB requirement covering the period of training before the game.
33. No player was permitted to enter the field unless insured and had signed the selection agreement.
Standard of Care
34. The Plaintiff submitted employments agreements with Kansai ("Exhibit P1" Tab 43) and London Scottish ("Exhibit P1" Tab 44) both of which were more comprehensive than the Samoan agreement. The English agreement (8.2) provided for 'private medical insurance cover during the Player's employment ... such cover to provide for the cost of treating injury to the Player however caused." It also provided through Clause 12 for a pensioner's scheme.
35. The Kansai agreement Articles 30 and 41 allowed for sickness and continuance of salary and applied through 45, 46 and 47, relevant Japanese statutory requirement governing insurance for accident, compensation and medical expenses. Relevantly Article 47.2 states:
"The employee shall bear in part of his medical expenses that is not covered by insurance arrangements under Article 45 (Health Insurance and Employee: Pension Insurance) or Article 47 (Accident Insurance)."
36. Both agreements were more comprehensive than the Samoan agreement. Both were executed in countries with far greater resources than those of Samoa or the SRU.
37. The question of standard of care ought be determined, not by the highest standard, but of what is reasonable in the circumstances (Wyong Shire Council v Shirt (1980) 146 CLR 552 and Bolton v Stone [1951] UKHL 2; [1951] AC 850). In the former case, Mason J. stated that the test was:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
38. The test included the probability of injury (Bolton v Stone (supra)), the gravity of the risk (Read v J. Lyons & Co. Ltd [1946] UKHL 2; [1947] AC 156), the social value of the activity (Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 560), common practice (Bindon v Bishop [2003] 2 NZLR 136 and Sulco Ltd v ES Redit & Co. Ltd [1959] NZLR 45) and statutory requirements.
39. Here there was a high probability of injury, high gravity and great social value.
40. Claims against sporting officials or bodies failing to take action to prevent harm illustrate the difficulty in assessing the standard of care. In Agar v Hyde [2001] HCA 41; (2000) 201 CLR 552, the High Court determined that the IRB owed no duty to players to alter or amend the rules of rugby to minimise the risk of injury from other players. In the English case of Vowles v Evans [2003] EWCA Crim 3556; [2003] 1 WLR 1607, the Court of Appeal determined that a rugby referee had a duty to enforce the rules to players in the game that was under his control (duty to require uncontested scrums) whilst the same Court in Watson v British Boxing Board of Control [2001] EWCA Civ 184; [2001] 2 WLR 1256, required the British Boxing Board of Control to provide immediate medical attention in case of injury.
41. In Van Oppen v The Clerk to the Bedford Charity Trustees [1989] 3 All ER 389, the Court held that a school was under no duty to take out insurance for a school boy who suffered a spinal injury while playing rugby at school.
42. Here the standard of care is to be assessed as that pertaining to the taking out of insurance. The IRB set a standard which differed from that of the professional clubs. Its Pacific Rugby Cup 2006 agreement Clause 6 required:
"6.1 Each Participating Union and its Team Members shall participate in the Tournament at its own risk and each Participating Union shall take out with a reputable insurer such insurances as its considers necessary including without limitation medical, accident and death and personal injuries insurance and shall ensure that a copy of such insurance policy/policies shall be available to the Company on request.
6.2 Each Participating Union will ensure that any doctor, physiotherapist or other medical personnel who form part of its Team are legally able and are fully insured to provide medical treatment in the country in which the Tournament is held and shall ensure that a copy of such insurance policy shall be available to the Company on request.
6.3 For the avoidance of any doubt, it is the sole responsibility of the Participating Union to ensure that all Team Members are medically, dentally and physically fit to attend and to participate in the Tournament and that only Team Members that are medically, dentally and physically fit shall participate in any Match in the Tournament. The Participating Union is solely responsible for ensuring that all medical, dental and physical examinations of Team Members and reviews of their medical, dental and physical fitness histories are undertaken by fully qualified and suitably experienced personnel in order to ensure compliance by the Participating Union with its obligations under this Clause 6.3."
43. The IRB agreement is confined to team members participating in the Tournament. It requires in Schedule 2 acceptance by a team invited to the Tournament. It imposes other conditions. The Samoan agreement and the terms of insurance obtained were more generous than that required by the IRB. Standard of care is defined as that expected of a reasonable person or organisation.
44. The question is not whether the SRU had a duty to obtain insurance but whether the standard of care should be comparable with those employed by different regimes or commercial organisations. The answer ought be 'no'. This was a selection camp not a tournament. It was designed to test fitness, coordination, team balance and skills. Inherent risk was less than would be expected during competition.
45. It is impossible for courts to lay down detailed codes of conduct to cover human experience. They attempt to set standards on the basis of a reasonable person or organisation (Frost v Chief Constable of the South Yorkshire Police [1998] UKHL 45; [1999] 2 AC 455 and Wyong Shire Council (supra)). Here the SRU was responsible for the conduct of others but entitled to rely on standards set by the IRB (Burnic Port Authority v General Jones Pty Ltd [1994] HCA 13; [1994] 179 CLR 520).
46. I would adopt a passage in the text. The Law of Torts in New Zealand Todd, 4 Ed. at paragraph 7.3.01 namely;
"The ultimate issue is what reasonable care requires in all the circumstances of the case. The judge's conclusion about the matter is impressionistic, not calculated. In personal injury cases an economic equation poses a distasteful comparison between the material cost of avoidance and the value of a person's health or life, which have humane dimensions. The decisions show that economic efficiency has only a limited role to play where individual safety is at stake. However, it cannot be discounted altogether, particularly where decisions involve broad planning issues rather than danger posed to specific individuals. An economic analysis is more easily made in cases of property, damage or financial loss, where the court can compare like with like. Even so, relevant financial or economic data are not mentioned very often."
47. The consequence of the above is that Paragraph 19 (i) of the Statement of Claim ought be dismissed.
Failure to Provide Immediate Assistance
48. The Plaintiff has not made out this ground. He stayed for some little time, on the field after the incident. He was properly examined and assessed by an experienced medical practitioner soon after the event (Watson v British Boxing Board of Control (supra)). Particular (ii) is dismissed.
Agreement and Response
49. The Plaintiff's Statement of Claim paragraph 19 (iii) and (iv) allege negligence in the Defendant:
"19. (iii) failing to provide the Plaintiff with sufficient funds in order to attend to his injury when he needed treatment in New Zealand urgently; and
(iv) failing to provide for the Plaintiff's future medical check ups."
50. The evidence shows that Samoa looks after its own. At every level of Samoa rugby a player pays $1.00 to a general fund to cover the basic costs resulting in injury. But the general scheme or mutual agreement does not extend to cover compensation provided for by the Japanese or European agreements.
51. The Court accepts the Plaintiff's evidence that he was assured by the SRU, through its coach, that he would be looked after. It does not accept that the assurance extended to European or Japanese standards. The general assurance was that there would be support for the cost of medical treatment and associated costs but not future loss of income. The matter will be dealt with separately on the pleading of breach of agreement.
Volenti Non Fit Injuria
52. Every person playing rugby, at any level of the game from heaven, consents to the risk of injury. Samoa has adopted a model that each player in school or club competitions contributes to a central compensation fund designed to pay for medical expenses for injuries suffered during a game. No evidence was led as to whether the scheme provided for loss of income but the Court suspects that it was a basic scheme with some discretion for the payment of small amounts of general compensation.
53. As previously mentioned professional European and Japanese Clubs provide comprehensive insurance for contracted players.
54. Poulos accepted the risk of injury during training, practice or preparatory games and the competition games. But he did not accept the risk without a corresponding duty by the SRU to assist on expenses associated with such injury. The questions of the standard of care required or contractual duty are dealt with respectively in these reasons for judgment.
55. The Defendant's plea ought be rejected.
Contributory Negligence
56. Poulos has suffered previous injuries involving torn ligaments to the left and right knees in 1995 (New Zealand), 2003 (Japan) and England (2004). None of those injuries are relevant to the issue of contributory negligence but would have some import in the expected playing life of Poulos for the purpose of any assessment of general damages or future economic loss. The claimed pre-April injury involves interpretation of the medical evidence of the vertebrae C5/C6.
57. The Defendant pleads that the Plaintiff contributed to the injury in:
"a) playing at the said game when and while he had a pre existing injury;
b) not following the training programme prepared by and as directed by the coach of the Upolu Samoa team;
c) carrying out daily weight training exercises at the material times instead of following the prescribed programme with the requisite rest periods so players can recover properly;
d) failing to take any adequate steps to prevent his getting injured as pleaded;
e) failing to properly position and or place his body to prevent getting injured as pleaded;
f) failing to move himself promptly away to prevent getting injured as pleaded;
g) getting involved in the pleaded phase of the game when he was playing as a loose forward not a tight forward;
h) failing to adopt the proper and correct posture to avoid getting injured as pleaded; and
i) other and further particulars if any to be provided prior to the trial."
58. There was no, or if so, slight evidence led on Particulars (b) to (i) and each is groundless and ought be dismissed.
59. The Defendant's primary contention is that he played with a pre-existing injury. The review of the injury can be best summarised in a report dated 1 June 2006 of an eminent sports physician Dr. Dale Speedy which stated:
"The MRI scan cervical spine that Chris Furneaux arranged has shown a moderate sized left poster lateral C4/5 disc protrusion with extra dual compression on the dural sac, mild flattening to the anterior surface of the cord on the left side and impingement on the left C5 root sleeve. The recent T1 spinous process fracture is confirmed. There is mild subluxation across the left C5 facet joint reflecting previous injury. Mr. Furneaux was also concerned that there may be some narrowing of the vertebral artery foramen."
"Findings: In the right oblique view there is an area of cortical irregularity around the left superior facet of C6 raising the possibility of a non-displaced fracture through this region. I cannot visualise it however on any of the other films and the appearance could reflect superimposition of bony structures stimulating a bony injury in this site.
Summary: There is apparent abnormality to the left superior facet joint of C6. Whether this represents a non-displaced fracture or simply composite shadowing would require a CT of the cervical spine for further assessment and this is recommended."
61. A neurosurgeon and spinal surgeon, Mr. Chris Furneaux who had examined Poulos and the MRI scans stated his findings on 24 May as:
"Please find enclosed a copy of the MRI report on Peter which shows that, as well as the C5/6 facet fracture and the T1 spinous fracture, he has a C4/5 disc prolapse. This doesn't need surgical intervention at this stage, but I have explained to Peter that any further trauma may cause further prolapse of the disc and result in quadriplegia."
62. On 10 May, Mr. Furneaux had reported to the treating physician Dr. Speedy that he had found that the X-rays and CT scan showed 'an old fracture at C5/6 with more encroachment on the vertebral foramen and a fracture of the spinous process at T1' (Tab 62). On 1 June, Dr. Speedy reported to the physiotherapist:
"His plain xrays and the CT scan show an old fracture at C5/6 with some encroachment on the vertebral artery foramen and a fracture of the spinous process at T1. There is no needed treatment for the spinous process and this should be treated symptomatically."
63. The medical reports and opinions were reviewed by a local medical practitioner, Dr. Ben Matalavea, experienced in the treatment of sports injuries. Dr. Matalavea had not examined Poulos. It was his opinion that:
(1) The T1 fracture (caused on 5 April) was unlikely to have caused the spinal paralysis problem.
(2) The injuries at C4, 5 and 6 were old injuries, were exacerbated by the event of 5 April and the cause of the Plaintiff's condition.
(3) Poulos exposed himself to serious injury when playing with a pre-existing injury.
64. The Defendant argues that the Plaintiff contributed to the April injury through negligence.
65. The Court respects the opinion of Dr. Matalavea but prefers the conclusion reached by Dr. Speedy and Furneaux in their reports and the evidence of a physiotherapist Karen Sutton, a witness on the trial. In an exchange with the Court, Dr. Matalavea stated:
"His Honour a man can be injured in rugby at C4/C5 in a small way, okay?
Wit yes.
His Honour and sometimes it wld heal itself.
Wit yes yr hon.
His Honour 2 years later another game, bigger hit, C4/C5 again hit, big problem.
Wit yes yr hon.
His Honour greater injury.
Wit yes yr hon.
His Honour on the notes, is it possible that this happens? He has a C4/C5 indication of fracture from the past, step 1; step 2 in 2006 he plays and the same area is his and there's a new injury which is a bad one and at the same time T1 is injured, is that possible?
Wit yes yr hon. the report didn't say that.
His Honour I read the report a little differently but I'll tell u something else: we know he cld play for the London Irish.
Wit yes yr hon.
His Honour that is top team and he gets thru the year w/out problem; so if the old C4/C5 that we see here was a problem it wld've been harmed that year but if he had C4/C5 many years ago which had healed itself and he goes thru 2005 okay and its this time in 2006 that C4/C5 are properly injured, so there had been 2 injuries to C4/C5, u understand my question?
Wit I can understand the question yr hon.
His Honour and wht wld be your answer? – no disrespect from me, I mean.
Wit my answer w/the MRI has been done shld pick up something to indicate a new injury at that level bcoz that's very sensitive to the old established injuries, yr hon.
His Honour so the MRI shld show that it was new not old.
Wit yes yr hon.
His Honour I know your problem; wht if we call it 'preexisting condition?' – does that help?
Wit yr hon. I have to clarify my answer to say yes, you can have a preexisting injury but if its healed, well that's a diff. story, I think bcoz u can have a deficit structurally from the previous injury but I jst wanted to explain my answer."
66. In the course of cross-examination the Doctor stated:
| "Tamati | we look more specifically at type of injury, now I'm sure Dr u're well aware of wht spinal configurations are and wht they look like
so when we talk abt C5/6 u know that it's a little bone to the side; I'm sorry I dnt have a very good diagram in front of my but
this was provided to the hon. court yesterday as an aid and u'll note on this particular document that its file grade 11, u cld look
at that. |
| | |
| Wit | yes. |
| | |
| Tamati | it shows the spinal column and u'll see the little things that come out, like little bones that stick out. |
| | |
| Wit | yes. |
| | |
| Tamati | that's where the C5/6 is, isn't it? – those little bones that jot out; maybe this one wld be of better assistance. |
| | |
| Wit | yr hon. we dnt refer to those bones as C5/6 we jst say its btwn the vertebrae called C5 and the vertebrae called C6 and its btwn those
bones. |
| | |
| Tamati | so those bones, correct me if I'm wrong, but these are the bones that were actually fragmented, right? |
| Wit | yr hon. I'm not quite sure which part of the bone was injured; it jst says in the report 'an old fracture' but it didn't mention which
part of the bone. |
| | |
| Tamati | but it's possible that it was there? |
| | |
| Wit | yes according to the MRI. |
| | |
| Tamati | but those bones dnt actually affect the nerve, is that correct? |
| | |
| Wit | not necessarily. |
| | |
| Tamati | so if they were healed, it is very unlikely that it cld cause more serious damage to Peter in the future, wht do u have to say? |
| | |
| Wit | yr hon. I think it's a difficult question this one bcoz in all honesty if u have an injury in this area before and sustain a certain
degree of risk to a further damage it's a very, very significant injury that we didn't see before the MRI." |
| | |
67. The Court accepts the evidence of Furneaux that the real danger from spinal injuries concern the vertebrae between C1 and C6. There was some confusion at trial between injuries to C4/5 and C5/6.
68. The Court finds that any injury to C5/6 had healed, and the condition was a result of trauma to C4/5 combined with T1 on 5 April. It is likely that such trauma may have shown up on the CT scan as flowing over into C5/6 but it was a fresh injury not a consequence of a pre-existing injury.
69. That finding is further supported by:
(1) the evidence of Karen Sutton, a professional physiotherapist with 20 years experience working for the SRU as its injuries manager. She has assisted Poulos in the assessment and management of his injury. She had worked with his training and fitness development since 2003. She would have been well aware of any injury or its effect had it existed.
(2) There was no evidence of the date of the healed injury C5/6.
(3) Poulos had played for two professional clubs during the period 2003 and 2006. Contracts with those clubs involving large amounts of money would not be made without a rigorous health test and regime.
(4) Poulos had played in international games without any appearance of a spinal injury.
(5) There was no evidence of impairment prior to 5 April.
(6) The evidence of Dr. Taavao who had examined Poulos on 5 April and found that he could '... not lift his arms above his shoulders because of sharp pain', a finding consistent with the Plaintiff's case.
70. The Court dismisses the pleading of contributory negligence as alleged in the Defence paragraph 29 (a).
Agreement and Response
71. The Court accepts that the appropriate test for any agreement is as stated in Fletcher Challenge Energy Ltd v Electricity Corporation of New Zealand [2001] NZCA 289; [2002] 2 NZLR 433 and Baikie v Fullerton-Smith [1961] NZLR 901. The question of whether there can be an implied term to insure in a contract involving a sports injury was considered in the English Court of Appeal in Reid v Rush and Tompkins Group Plc [1989] EWCA Civ 10 by Lord Justice Gibson when he said at 5:
"For my part, I have no doubt that the concession made by Mr. Smith with reference to contractual implied terms was rightly made. I can see no basis in the facts pleaded for holding that the defendants gave an implied undertaking to insure the plaintiff against the risk of uncompensated injury caused to him, while acting in the course of his employment, by third party drivers in Ethiopia. Such a term could not be implied by law under the test of "necessity", as applicable to all such contracts of employment; nor could it be implied as a term which the parties must have agreed: see Liverpool City Council v Erwin [1976] UKHL 1; [1977] A.C. 239, and per Lloyd L.J. in The Maira [1988] 2 Lloyds L.R. 126 at page 135. As to treating such a term as implied by law, the arguments in favour of a social policy, which would require employers to provide some level of personal accident insurance for the benefit of men and women working overseas, and for their dependents, are obvious but there appears to be to be no way in which the court could "embody this policy in the law without the assistance of the legislature": see Lord Bridge in D. & F. Estates v Church Commissioners at page 389E."
72. The Court accepts that the Plaintiff believed himself to be covered for insurance at the time he entered the selection camp and did so following a conversation with Selefuti Patu, the coach and/or Fasimalo, the manager. But it finds only that there was only a general agreement that the Board would look after him during that period. In doing so it accepts the evidence of Su'a Peter Schuster of the scheme operated by the Board.
73. Poulos was not entitled to insurance coverage until he had been selected as a player for the competition. He was not entitled to the terms of the standard contract signed by team members.
74. To succeed the Plaintiff must establish, on the balance of probability, that both parties had agreed to be bound by its terms. The Court accepts that, at best, they had agreed that 'the Defendant would look after him.' He had an honest understanding but such is insufficient to establish a concluded contract or agreement relating to insurance.
75. The Board was in breach of a general term of a contractual duty but not a specific term of insurance.
76. The SRU was in breach of that contractual duty. It had employed Peter Horne ("Horne") as its high performance manager. He attempted to arrange for the back dating of the insurance policy to help Poulos. He had negotiated the insurance policy, none of which was refunded. He had meeting with Poulos about the questions of payment of medical expenses. But he did little that was practical. He was present at the meeting with Lefau Tauiliili Harry Schuster and Poulos but did little, if anything, to assist the Plaintiff with advancing the claim. In evidence he claimed that he believed that some of the expenses claimed by the Plaintiff were paid. The Court does not accept that claim. He was present when Poulos and Schuster met but did nothing, as an employee or agent of the Defendant, to implement the offer made by the SRU.
77. Horne may have been well meaning but he did little, in practical terms, to assist the Plaintiff to recover expenses already incurred.
78. Poulos' problems were eventually brought to the attention of the SRU Board resulting in a meeting between Schuster, Horne and Poulos. Schuster explained the SRU policy to Poulos in late 2006 or early 2007. He told the Plaintiff that the Board would consider the Plaintiff's problem and 'would try and help him out'. He did nothing to direct employees of the SRU to assist the Plaintiff other than ask Poulos to present his receipts. He offered to recommend that Poulos apply for a paid participant in the SRU's training programme but never followed up the proposal. He said that it was up to the Plaintiff to 'come back'.
79. The SRU did little to assist the Plaintiff in the payment of his immediate expenses. Schuster did not 'follow up' on his suggestion or direct employees, including Horne, to assist in the process.
80. A tax invoice for $2,345.63 was sent to Pacific Insurance by the Physio Rehab Group on 8 June 2006 but the claim refused. It is not fair to the Plaintiff for the Defendant to contend that no invoices were provided.
81. On 24 May 2006, Horne emailed the Plaintiff:
"Please understand we have not given you a shafting and we have been working on the issues here in Samoa regarding your cover."
82. It is possible that the Defendant was concerned that any concession made to Poulos might constitute an admission of liability. But it remained responsible for assistance, as distinct from the issue of insurance, to the Plaintiff. No directions were given to staff to organise the provision of invoices, arrangement or undertakings of payment. It left a valued player on his own contrary to the principles and practice of Samoan rugby. In doing so it breached the terms of its agreement with the Plaintiff before his entry into the 'selection squad'.
83. On 6 October 2006, Poulos sent a message to Karen Sutton which included:
"I very nearly took this matter to court but have given them a chance to do something about it...it's a shame that no one has ever offered to help."
84. On 14 March 2007, George Latu, a senior and respected member of the SRU met with the Plaintiff and asked for an estimate of the costs and expenses incurred as a result of the injury.
85. These proceedings were not commenced until 10 February 2009. SRU had ample opportunity to at least pay from its own resources medical and travel expenses already incurred. It has paid nothing to date.
86. The Plaintiff paid all of the transportation and medical costs. He is entitled to succeed on Grounds (iii) and (iv) of his Statement of Claim, paragraphs 19 and 20:
"19 . The Defendant acted negligently in the following manner:
(i) failing to pay insurance premiums in order to cover the period in which the Plaintiff sustained the injury;
(ii) failing to respond as a matter of urgency to the Plaintiff when he was undergoing great pain and suffering from the injury and during the time that the injury occurred;
(iii) failing to provide the Plaintiff with sufficient funds in order to attend to his injury when he needed treatment in New Zealand urgently; and
(iv) failing to provide for the Plaintiff's future medical check ups.
20. The Defendant breached the agreement with the Plaintiff by not covering the costs relating to the injury sustained by the Plaintiff."
Damages
87. The Plaintiff could possibly have continued with a professional career for 5 years. Accepting:
(a) that his income at Irish Income was constant; and
(b) it was lessened by age or contingency.
88. Future loss of earnings would be assessed at £80,000 x 5 namely £400,000.
89. But the Plaintiff sued on the failure to insure in which his damage would be capped as per the policy. The cap on that policy is $111,500.
90. Its terms were:
| "Loss of Deposits | $ 2,000 |
| Personal Accident | $30,000 |
| Money | $ 2,000 |
| Public Liability | $20,000 |
| Medical Expense | $50,000 |
| Luggage/Personal Effects | $ 5,000 |
| Credit Card | $ 1,000 |
| Vehicle Expenses | $ 500 |
All limits in New Zealand Dollars (NZD)
Excess: NZD $300 (or otherwise stated)"
91. The maximum which the Plaintiff could have obtained had he been insured by the Board was:
| "Personal Accident | NZD$30,000 |
| Medical Expenses | NZD$50,000 |
| | NZD$80,000" |
92. If the Court is wrong on the issue of insurance either through negligence or agreement, it would assess damages, for the benefit of the Court of Appeal, damages in the sum of NZD$80,000 being the sum total of the insurance policy.
Negligent Non Insurance Damages
93. Samoa has no statutory provision itself equivalent to the Accident Compensation Act 1982 Section 317 which provides a bar to civil proceedings for personal injuries. In this case, whether or not SRU carries general insurance against its own negligence is irrelevant to any assessment of damages (see generally: Law of Torts in New Zealand Todd, 4 Ed 2.3.03).
94. The Plaintiff could possibly have continued with a professional career for 5 years. Accepting:
(a) that he earned an equivalent amount as he received at Irish London; and
(b) it was lessened in the final years through age or contingency.
| 5 years at £80,000 | £400,000 | |
| Less reduction for age | 10% | £40,000 |
| Less Contingencies | 20% | £80,000 |
| | £120,000 | £120,000 |
| | | £280,000 |
96. The remaining items are as set out in the award for breach of agreement.
Damages for Breach of Agreement
97. The Plaintiff claims NZD$6,792.94 as costs incurred for the medical examinations in New Zealand. That sum is properly documented and will be allowed.
98. The Plaintiff still suffers from the injury and, in accordance with custom policy and the agreement allowance, should be made for future treatment.
99. The Plaintiff continues to suffer from the after effects of the injury and is likely to require further treatment. Poulos has recovered from much of the injury, able to play golf and generally live a reasonable life. Nevertheless some allowance will be made for future medical and travelling expenses. A sum of SAT$20,000 will be allowed for this head of damage.
100. The evidence does not permit an accurate assessment of future expenses. The Board did offer a training course which would provide the Plaintiff with a possible future employment as a coach or trainer. There is no evidence that Poulos followed up or rejected the proposal. These are insufficient evidence to establish the terms of 'look after you'. It has no evidence of the present income or capacity for other paid employment. The parties will be afforded the opportunity to adduce further evidence as this head of damage.
101. The Plaintiff is required to mitigate his loss or damage. Relevant to that issue is whether he should have accepted the Board's offer to provide training as a coach which would enable him to obtain future employment and thus mitigate against future loss of income.
ORDERS:
(1) The Defendant pays the Plaintiff the sum of NZD$6,792.94 for past medical and travel expenses.
(2) The Defendant pays to the Plaintiff the sum of SAT$20,000 for future medical and travel expenses.
(3) The Defendant pays the costs of the action, subject to the Supreme Court (Civil Procedure) Rules R103.
(4) The parties have leave to adduce further evidence on the matter referred to in this Judgment, paragraph 100.
JUSTICE SLICER
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