Vanuatu Copra & Cocoa Exporters Limited v Agwaiasi

A. Introduction  

 

1. This is an appeal against a judgment of the Supreme Court dated 2 February 2024, where the learned trial Judge made an award of damages in favour of the respondents. Their claim for damages related to severe personal injuries suffered on 16 February 2022 when the second appellant Henry Alexander Ford Hooker, then employee of the first appellant Vanuatu Copra & Cocoa Exporters Limited (‘VCCE’), lost control of the loader that he was driving and hit the respondents who were walking along the side of the road at Luganville on Santo.   

 

2. The respondents are citizens of the Solomon Islands. The first respondent Enid Tutuo Agwaiasi was working as a nurse at the Northern District Hospital at Luganville under contract with the Vanuatu Government. The second respondent is her daughter Zariella Agwaiasi, who was 20 years old at the time and enrolled at university.   

 

3. Mr Hooker was convicted of careless driving and given a suspended sentence. 

 

4. In the judgment, the primary Judge found the appellants jointly and severally liable in negligence. He held that there was no contributory negligence on the part of the respondents. The appellants had accepted the respondents’ medical evidence as to the nature and extent of their injuries. The primary Judge awarded general damages and damages for pain and suffering to each respondent, loss of earnings to Mrs Agwaiasi, special damages, interest and costs. He stated the following at [33]-[37] of the judgment:  

 

33.  I accept the defendants’ calculations of damages. Mrs Enid Agwaiasi to be as follows, but disallowing the 33% for contributory negligence: - 

 

 

 

 

 

 

 

 

 

 

b) For Ms Zariella Agwaiasi – VT27,121,929 as general damages.   

 

 

 

5. The appeal was advanced on the following grounds:  

 

(i) Grounds 1 and 4 – that the primary Judge erred in that despite accepting the appellants’ calculations of damages based on the United Kingdom (‘UK’) Judicial College’s Guidelines for the Assessment of General Damages in Personal Injury Cases (16th ed.) (the ‘Guidelines’), “but disallowing the 33% for contributory negligence”, awarded general damages without reducing the comparable awards by one third to take into account the various socio-economic differences between the UK and Vanuatu. Accordingly, the award for Mrs Enid Agwaiasi should not have exceeded VT9,741,512 and for Ms Zariella Agwaiasi should not have exceeded VT15,404,500;    

 

(ii) Ground 2 – that the primary Judge erred in awarding VT4,000,000 damages for pain, suffering, stress and anxiety when the claims for pain and suffering, including stress and anxiety, fall within the general damages awards under the Guidelines and are not separate components of general damages awards otherwise it would result in double or multiple counting: Shem v North Efate Timber Ltd [2008] VUSC 48 per Tuohy J at [8]-[10] and Tari v Telecom Vanuatu Limited, unreported judgment dated 13 June 2018 at [15] in Civil Case No. 17/1228 per Saksak J (not overturned on appeal);  

 

(iii) Ground 3 – that the primary Judge erred in finding for loss of earnings when there was no evidence adduced from the period of Mrs Agwaiasi’s admission in hospital that she had not received her fortnightly salary after the accident; and    

 

(iv) Ground 5 – that apart from the costs of care VT163,500 and airfare to the Solomon Islands VT62,050, there was no evidence adduced to substantiate the claims for ongoing care of VT180,000, medication costs of VT500,000 or ongoing medication of VT1,000,000 therefore those items should have been disallowed.  

 

6. The respondents conceded grounds 1 and 4 in that they agreed with the primary Judge’s calculations of the general damages (which were based on the Schedule to the appellants’ submissions) and that those totals be reduced by one third to take into account the socio-economic differences between the UK and Vanuatu, therefore the award for Mrs Enid Agwaiasi should be VT11,287,947 and for Ms Zariella Agwaiasi be VT15,414,620. They also conceded grounds 2 and 4. As to ground 5, they agreed that medication costs and ongoing medication be disallowed but that clear evidence was adduced that Ms Zariella Agwaiasi went to the Solomon Islands for bone treatment (which is lacking in Vanuatu) therefore the special damages award should be VT405,550.   

 

7. Respondents’ counsel Mr Fiuka submitted that since they had conceded 4 out of the 5 appeal grounds, that the parties should bear their own costs of the appeal. Appellants’ counsel Mr Hurley sought costs of VT300,000 as there had been a significant change in the result as to quantum. There was no challenge to the costs in the Supreme Court where the appellants lost on liability. He submitted that the difference between the parties’ calculations for general damages for Mrs Enid Agwaiasi was because instead of using the Guidelines-based figure in one instance, the primary Judge used the quantum awarded in Obed v Kalo therefore it would be double-dipping to maintain that.  

 

C. Discussion 

 

8. It was accepted before the primary Judge that the Guidelines were to be used in his assessment of general damages. The appellants set out in the Schedule to their submissions in the Supreme Court calculations of general damages based on the Guidelines. They also set out awards previously made by the Vanuatu Courts in other personal injury cases. The appellants converted the awards from the Guidelines into vatu and reduced them by one third to take into account the socio-economic differences between the UK and Vanuatu. We agree this was in accordance with the trend in the Supreme Court in Bernard v Blake [2013] VUSC 217, Rovo v Republic of Vanuatu [2020] VUSC 138, Nicholas v Yamak [2020] VUSC 256 and Covo v Ritsinias [2021] VUSC 167. Accordingly, the primary Judge erred in not reducing his calculations of the general damages by one third to take into account the various socio-economic differences between the UK and Vanuatu.  

 

9. In Telecom Vanuatu Ltd v Tari [2018] VUCA 37, this Court held as follows:   

 

 

10. This Court’s cautionary words were that the Guidelines offered guidance in assessing general damages in personal injury cases. However, it is necessary to look at the particular circumstances of the injured party to arrive at an appropriate award of damages rather than just the injuries suffered. In this matter, however, the parties focused on the injuries suffered without arguing the respondents’ particular circumstances. 

 

11. For the reasons set out above, the awards of general damages in [33] and [34] of the judgment dated 2 February 2024 must be set aside. In the circumstances and given the seriousness of the injuries suffered by the respondents, the calculations of general damages accepted by the primary Judge are reduced by one third so that the following award of general damages is substituted for Mrs Enid Agwaiasi:  

 

(a) For right ankle injuries VT5,801,600  

Lacerations and abrasions VT2,755,000  

 

(b) For left ankle injuries VT3,935,320  

And left leg fractures VT4,440,000  

 

Total VT16,931,920  

 

Reduced by one third (VT5,643,973) 

TOTAL DAMAGES VT11,287,947  

 

12. The following award of general damages is substituted for Ms Zariella Agwaiasi: 

 

(a) Head injuries VT  457,209 

 

(b) For facial lacerations VT2,033,520  

 

(c) Left eye injury VT  584,600  

 

(d) Left leg injuries VT5,801,600  

 

(e) And right leg injuries VT14,245,000 

 

 Total VT23,121,929   

 

Reduced by one third (VT7,707,309) 

TOTAL DAMAGES VT15,414,620  

 

 

13. Following the concessions to grounds 2 and 3 of the appeal, the awards for pain and suffering, and for loss of earnings, in [33] of the judgment dated 2 February 2024 must be set aside.  

 

14. As to ground 5 of the appeal, we agree with the respondents that there was evidence adduced that Ms Zariella Agwaiasi went to the Solomon Islands for bone treatment (which is lacking in Vanuatu). Accordingly, the award of special damages in [35] of the judgment dated 2 February 2024 must be set aside and be substituted by an award of VT405,550 for the costs of care, airfare to the Solomon Islands and ongoing care.   

 

 

D. Result  

 

15. Appeal allowed.  

 

16. The awards of general damages in [33] and [34] and other damages in [35]-[37] of the judgment dated 2 February 2024 are set aside and substituted by the following:  

 

(i) General damages for Mrs Enid Agwaiasi of VT11,287,947; 

 

(ii) General damages for Ms Zariella Agwaiasi of VT15,414,620; and   

 

(iii) Special damages of VT405,550.      

 

17. Costs shall follow the event. Given the concessions made by the respondents, we consider that the amount sought by the appellants for the costs of this appeal is too high, and we fix a lower amount. The respondents are to pay to the appellants the costs of the appeal fixed at VT75,000.