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Kikorio v Harmon [1991] CKCA 1; CA 07.1989 (8 November 1991)

IN THE HIGH COURT OF APPEAL OF THE COOK ISLANDS
HELD AT RAROTONGA
Appeal No. 7/89

BETWEEN

PETER KIKORIO
Appellant

AND

LEE HARMON
First Respondent

AND

WILLIAM ESTALL JUNIOR
Second Respondent

Coram: The Right Honourable Sir Thaddeus McCarthy (Presiding)
The Honourable Sir Clinton Roper (Chief Justice)
The Honourable Sir Muir Chilwell

Counsel: Mr Mitchell & Mr Sceats for Appellant
Mr Gibson for First Respondent
Mr Campbell for Second Respondent

Hearing: 30 July 1991
Judgment: 8 November 1991

JUDGMENT OF THE COURT
DELIVERED BY SIR MUIR CHILWELL

This is an appeal against a judgment of Quilliam J delivered on 16 December 1988 in which, following a defended hearing, he gave judgment for the first respondent (plaintiff) against the appellant (first defendant) for $42,450 damages and costs for personal injuries suffered by the first respondent in consequence of a motor accident which occurred on 1 January 1987, involving a station wagon driven by the appellant and a motorcycle ridden by the second respondent (second defendant) on which the first respondent was a pillion passenger. Quilliam J found that the accident was caused by the fault of the appellant and that there was no fault on the part of the second respondent, who was awarded judgment against the first respondent, with costs.

Because the second respondent did not intend to add to the submissions to be made by the first respondent, we granted Mr Campbell leave to withdraw in order to save the unnecessary expense of his remaining in Court merely to adopt those submissions.

On 1 January 1987 between 6.30 and 7.00 am the second respondent with the first respondent as pillion passenger was riding his motorcycle in an easterly direction along the main road in Rarotonga towards Upper Tupapa and at the same time the appellant was driving his station wagon in the opposite direction. The two vehicles collided causing injuries to the first respondent which required extensive surgical and hospital treatment. Quilliam J found that the accident happened completely on the appellant's incorrect side of the road and, in consequence, the first respondent had proved causative negligence in terms of an allegation in the statement of claim that the appellant had failed to keep to the left side of the road in the direction his station wagon was travelling. The Judge also found that the second respondent swerved to his left but was unable to avoid the Accident and he absolved him from liability. The first respondent claimed as special damages $2,380 for loss of earnings for 34 weeks at $70 net per week and $70 for property damage (items of clothing) and he claimed for general damages, for discomfort, pain and suffering and loss of enjoyment of life, the sum of $50,000. The quantum of special damages was not contested and the Judge assessed the general damages at $40,000. The appellant contends that the judgment is wrong both as to liability and the assessment of general damages.

The appeal in relation to liability turns entirely on fact, with the consequence that although the appeal is by way of rehearing, the appellant, if he is to succeed, must carry this Court to the point where it is satisfied that the trial Judge did not take proper advantage of having seen and heard the witnesses. The Judge said that in outline the case for the first respondent at the trial was that the motorcycle carrying him as a pillion passenger was travelling on its correct side of the road when the appellant's station wagon crossed to its incorrect side and maintained that course until it collided with the motorcycle; and the appellant's case was that the motorcycle swerved to its incorrect side, perhaps to avoid a large puddle of water, collided with the appellant's station wagon and he was unable to avoid the collision. That outline is a fair summary of the evidence of the respondents on the one hand and of the appellant on the other hand, except that the appellant did not say that the second respondent appeared to be avoiding a puddle; the Judge was invited to draw that inference. Clearly, credibility was an issue which the Judge resolved in favour of the respondents, stating that he preferred the evidence of the first respondent to that of the appellant and that, in general terms, he preferred the evidence of the second respondent to that of the appellant. In fairness to the appellant, it should be said that the Judge did not find him untruthful but mistaken, due to the passage of time. Pivotal to the judgment on the liability of the appellant was the Judge's finding that the collision happened on the appellant's incorrect side of the road and it is that finding which the appellant has attacked. The only eye witnesses to the collision were the three parties and we think it desirable to summarise, from the record, the evidence they gave.

The first respondent said he first saw the appellant's station wagon when it was between 100 and 120 yards away from the collision point; it was travelling fast and hit the right side of the motorcycle about the middle; the second respondent tried to avoid the accident by driving closer to the seaward edge of the road; on the grass; the station wagon did not make a sharp turn but came at an angle; the more the second respondent tried to turn the motorcycle, the station wagon got closer and quicker towards the respondents. He said at impact he was propelled backwards on to the grass on the seaward side of the road. He placed the point of impact at the seaward edge of the road a few yards to the east of the driveway leading into the Airport Authority residence and his resting point a few yards into the grass and a few yards to the west of the driveway. The second respondent's evidence was to the same affect; the station wagon come across the road; the second respondent moved to his left but the station wagon kept coming; the station wagon did not appear to be swerving away; the front right side of the station wagon hit the motor cycle which slid down the side of the station wagon. He placed the point of impact at the entrance to the driveway and his resting place a few yards into the grass or slightly forward of the point of impact. He said he was thrown forwards and towards the sea side.

The appellant's evidence was that when he first saw the motorcycle, each vehicle was on its correct side and no collision was apparent but at the last moment the motorcycle swerved; he heard a bang; he did not slow down or skid but brought his vehicle to a stop and parked it alongside the driveway to the residence of Dr and Mrs Woonton, which is on the inland side of the road, and he subsequently reversed back towards the collision point. He placed the point of impact at the right front of his car, which was about the centre of his side of the road, a point some distance to the west of the Airport Authority driveway.

A matter of significance, which we mention, is the coincidence between the respondents' and appellant's evidence that the station wagon did not slacken speed or take any avoiding action. The principal point of difference is the side of the road on which the collision occurred and whether or not the second respondent made a sudden swerve into the path of the station wagon.

The Judge's preference for the evidence of the respondents was based, he said, on his consideration of the whole of the evidence. However, he selected four matters for mention - viz.:

(1) The appellant's account of the respective positions of the vehicles at the time he first saw the motorcycle was plainly incorrect.

(2) The appellant's evidence that the second respondent was carrying a beer can in his hand was without foundation.

(3) The appellant's evidence that he showed Constable Graham, who attended at the scene, where the impact had occurred was contrary to the evidence given by the constable.

(4) The appellant's conduct after the accident was inconsistent with the appellant's evidence about the motorcycle swerving out suddenly in front of him.

Point (1) seems to depend upon the Judge's preference for the evidence of the respondents and so begs the question. Point (2) is in a similar position except that the proposition was not put to the first respondent. Point (3) seems to depend upon a preference for the evidence of Constable Graham except that he was called by the appellant and said in evidence in chief that he had been unable to ascertain the point of impact. Point (4) is more compelling. Constable Graham attended the scene of the accident, arriving shortly after the ambulance. He said In cross-examination by counsel for the second respondent that he had a short conversation with the appellant to the effect that neither he nor his passenger had suffered injury. As earlier mentioned, he said in his evidence in chief he had not been able to ascertain the point of impact. The inconsistency which impressed the Judge was that he would have expected at the scene, and certainly to Constable Graham, the appellant to have given his account of the motorcycle suddenly swerving in to him and in indignant terms, but he did not do so. A witness, Mr Brown, not mentioned by the Judge, arrived at the scene very soon after the collision. He said that in answer to his Inquiry about what happened, the appellant said he heard a crash but did not know what happened. On the other hand, other witness, Dr Tamarua, not mentioned by the Judge, also arrived at the scene after the accident. He said that the appellant told him he saw the motorcycle coming at him and tried to avoid it; he could not recall if the appellant said the motorcycle was on the wrong side; the appellant told him he was on his own side and suddenly saw the motorcycle coming at him; he tried to avoid it and applied the brakes. Police Superintendent Goldie Goldie spoke to the appellant at the police station between 7 and 8 am on the morning of the accident. The appellant told him he could not figure out how the collision happened; he thought the motorcyclist was drinking and thought he saw they had a carton of beer with them. In answer to a question, he said he was driving and the next minute there was a motorcycle in front and a collision. The evidence most favourable to the appellant was that of Dr Tamarua and, in part, that of Superintendent Goldie Goldie, but they did not refer to the motorcycle swerving suddenly out in front of the appellant and, moreover, the appellant's statements to Mr Brown and the Superintendent about not knowing how the accident happened ore not consistent with the sudden swerve advanced at the trial as the cause of the collision. We think that point (4) of the Judge's reasons justifies his finding on credibility and we reject the contrary submission of counsel for the appellant. Nor can we accept counsel's submission that the failure to refer to the swerve can be explained by the shock of the accident. The evidence did not indicate anything beyond a usual degree of shock.

Early in his judgment, and before he mentioned the question of credibility, the Judge found that the accident happened completely on the appellant's incorrect side of the road. He reached that conclusion from the resting positions of each respondent and of the motorcycle following the impact and from finding that the impact was solid and heavy.

In respect of the resting positions, he found that each respondent and the motorcycle finished up off the road on the seaward side and in the vicinity of the driveway leading into the Airport Authority residence. He observed, correctly, that the witnesses were in general terms in agreement and there is no dispute about that in this Court. He said (at page 165):

"These positions provide the key to this case. Upon the balance of probabilities I do not see how the impact could have occurred anywhere near the spot claimed by the [appellant]."

That spot he said had been placed "near the left - hand edge of the road in the direction in which the appellant was travelling, i.e., close to the inland edge of the road". Unfortunately, that is not what the appellant said. His evidence placed the spot at the right front of the station wagon, which was about midway between the left - hand edge and the centre of the road, some 2 to 3 metres from the left-hand edge.

Concerning the nature of the impact, the Judge said (at page 165):

"Another significant factor is the damage to the (appellant's) vehicle and the relative lack of damage to the motorcycle. Although the damage to the [station wagon] has not been precisely established, it is clear that it struck the motorcycle with its right front. More accurately perhaps, it should be said that it struck not the motorcycle but the [first respondent's] right leg. The [appellant] says this was merely a glancing blow but I am satisfied it was much more than that. This is clear from the nature of the injuries to the [first respondent] and the fact that he was in all probability thrown backwards from the line of travel of the motorcycle. There must have been a solid and heavy impact."

The most complete description of the damage to the station wagon was given by Mr Brown, who said the damage was to the right front corner; headlight/indicator smashed, mudguard damaged and door mirror missing. The second respondent said that the motorcycle suffered a broken footrest and bent handlebars. The first respondent's injuries comprised severe compound fractures of the right thigh and of both bones in the lower leg, as well as dislocation of the pelvis.

The appellant contended that the Judge erred in failing to have regard to all the evidence as to the line of travel of and resting position of the appellant, in incorrectly stating the appellant's placing of the point of impact and the conclusions drawn therefrom and erred in the conclusions drawn from the resting positions of each respondent and the motorcycle and in his conclusions as to the nature and angle of the collision and the effect of the impact upon the movement of the motorcycle and each respondent. Before considering these matters, we refer to the evidence of Miss Puna, which the Judge put aside in reaching his conclusion about the point of impact. The Puna residence is immediately to the west of the Airport Authority residence and opposite that of Dr and Mrs Woonton. Her evidence was that from her home she saw the respondents pass on the motorcycle, heard a bang and saw the appellant's vehicle going very fast past the gate of her residence. It was off the sealed surface and she heard the sound of a car on gravel; she also heard, but did not see, the sound of a cardboard box near the gate being crushed by the vehicle. She indicated on a plan where the appellant's vehicle was parked on its correct side - some distance to the west of the Woonton's driveway, but she did not see it returning to its correct side, She sold that it then backed up to a point outside the Woonton's residence. Without giving any reasons, the Judge said he thought he should treat the evidence with some caution, perhaps because she was 17 and knew the respondents, but he was satisfied it was consistent with the rest of the evidence, accepted it in general terms and said it put the issue as to the point of impact beyond any doubt.

The appellant contended that the Judge ignored the evidence of Dr and Mrs Woonton; their evidence was important because they established the appellant's resting place as parked on the inland edge of the road by their driveway. Mrs Woonton's attention was attracted by the noise of the collision. From her house she saw the vehicle of Mr and Mrs Brown; she went to another room and saw the appellant passing at considerable speed. She marked on a plan the positions where he parked and to which he backed. Dr Woonton confirmed those positions but he was asleep at the time of the collision. We do not consider that either witness added anything to the point of impact. It was argued that Mrs Woonton would have observed the appellant swerving over from the seaward to the inland side of the road if that were true; that she was called by the first respondent but did not support Miss Puna's evidence of the line of travel. As far as we can judge, Mrs Woonton's evidence was neutral as to the line of travel. It neither supported nor detracted from Miss Puna's evidence.

It was argued that in the absence of the usual impact evidence such as skid marks or broken glass, the use of the resting points of each respondent and of the motorcycle must be conjectural; this because, so it was submitted, the path of objects after a collision varies greatly depending upon a number of factors, including their speed, the angle at which they strike, the particular parts which connect and subsequent control. Then it was argued that, given that the vehicles must have collided at an oblique angle, the first respondent's injuries were equally consistent with the appellant's evidence of a glancing blow and if there was a glancing blow, the point of impact could have been as stated by the Appellant, resulting in the motorcycle being deflected to the seaward side of the road. The burden of these submissions was to persuade us that the Judge could not have reached his conclusion as to point of impact upon the balance of probabilities and, in any event, the Judge's error about the appellant's placing of the point of impact gave him a wrong starting point to consider conclusions consistent with the appellant's evidence. We do not accept the appellant's arguments. The evidence of the first and second respondents placed the point of impact on the seaward edge of the road; the appellant's evidence on the inland side. The evidence gave the Judge the choice of two alternatives. The appellant was travelling fast, on his own evidence he did not slacken his speed, the first respondent's injuries were very serious, more consistent with a solid heavy impact than with a glancing blow, both respondents finished up in the gross on the seaward side of the road, as did the motorcycle, and several of the witnesses placed the resting place of the first respondent an appreciable distance to the west of the second respondent and of the motorcycle. In our judgment, the evidence of the resting positions of each respondent and the motorcycle and the evidence of the first respondent's injuries is more consistent with the "objects" hit being propelled in slightly different directions from roadside to resting places by the force of the impact than with the motorcycle being deflected from its course and carrying the respondents from the inland to the seaward side of the road. We do not consider that the Judge's error of some 2 to 3 metres is of any significance.

We conclude that the Judge did not err in the conclusions he drew from the resting positions of each respondent and the motorcycle, nor in his conclusions as to the nature and angle of the collision and the effect of the impact upon the movement of each respondent and the motorcycle. His error about the appellant's evidence does not vitiate his conclusions nor does the evidence of Dr and Mrs Woonton.

A further ground of appeal was to the effect that the Judge was in error to prefer the evidence of the respondents to that of the appellant. Evidence was given by a friend of the first respondent, Mr Timote, who went past the scene of the accident a little later in the morning, of the presence of skid marks of two tyres on the road about where the accident happened. The Judge put the evidence aside. Although he made no positive finding about the credibility of the witness, we have the impression that he was not persuaded of the existence of these tyre marks. It was submitted that Mr Timote's evidence coupled with Miss Puna's "improbable account" of what she saw, cast a "shadow" over the first respondent's evidence. As earlier indicated, the Judge treated Miss Puna's evidence with caution and finally accepted it as consistent, in general terms, with the rest of the evidence. In view of the way in which the Judge dealt with the evidence of these two witnesses, we cannot possibly say that he did not take proper advantage of seeing and hearing the witnesses when he decided to prefer the evidence of the respondents. The appellant also referred to the allegations of negligence made by the first respondent against the second respondent in an amended statement of claim. The Judge commented that it was not clear why the first respondent should have alleged negligence against the second respondent or why he should have joined him as a party because the first respondent's evidence was almost a complete exoneration of the second respondent. One of the particulars of negligence in that amended statement of claim was that the second respondent drove his motorcycle when his capabilities had been affected by alcohol. The Judge commented that although this allegation was pursued by the appellant, it "rather surprisingly" come from the first respondent. It was contended in this Court that these allegations "darkened the shadow" over the evidence of the respondents, Miss Puna and Mr Timote. The Judge was plainly aware of the significance of these allegations and, again, we cannot possibly say that he did not take proper advantage of seeing and hearing the witnesses when he decided to prefer the evidence of the respondents.

Finally on liability, it was argued that the decision of the trial Judge was against the weight of the evidence generally and in particular the evidence that the respondents had been drinking alcohol over an extended period, and the second respondent had not slept for 24 hours prior to the accident, in contrast to the appellant who had consumed no alcohol and had a normal amount of sleep; also, the evidence of the existence of a puddle on the road outside the Puna residence which provided an explanation for the alleged sudden swerve of the motorcycle in contrast to the absence of any other explanation for why the appellant would have driven on his incorrect side of the road.

With regard to alcohol, the evidence of the second respondent was that he had worked a normal 8 hour day on 31 December. In the evening, he went to a New Year's Eve celebration where he drank beer from about 7.30 or 8 pm to about 2 to 3 am. He left that place at daybreak with the first respondent as pillion passenger and they stopped at a shack in Pue for about a half hour where he drank some beer. By the time of the accident, he had not slept for about 24 hours. The first respondent's evidence was that he slept between 5 and 7 pm on 31 December and between 1 and 5.30 to 6 am on the morning of the accident. He drank between 6 and 7 cans of beer before retiring to bed at about 12.30 am and later about 2 large bottles of beer between 6 and 7 am on the morning of the accident. There was no evidence at the trial that the first respondent had been guilty of causative or contributory negligence. In regard to the second respondent, the Judge said he was unable to see any evidence to show that the consumption of alcohol was an act of negligence by him, in the sense that it was the cause or one of the causes of the accident. Given his finding that the accident happened because the appellant was driving on his incorrect side of the road, he said there was nothing the second respondent could have done, whether he was affected by drink or not, to have avoided the accident; his alcohol consumption had not been shown to have been a contributory cause. The Judge was well aware of the amount of alcohol consumed by the second respondent without sleep for 24 hours as plainly appears from his judgment. We have read all the evidence and are not persuaded that the Judge's exoneration of the second respondent is contrary to the weight of the evidence.

So far as the puddle is concerned, the Judge observed, correctly, that there was considerable conflict of evidence about it. Although he said he did not consider it important to resolve the conflicts, he did say that in all probability there was a fairly extensive puddle, but his finding as to the point of impact meant that he was unable to conclude that the second respondent swerved. If there was no swerve, then in our view it is axiomatic that the puddle could not be regarded as having any bearing on the cause of the accident and we agree with the Judge's conclusions to that effect. There was some evidence that the appellant's side of the road was uneven, which may provide a reason for the appellant keeping away from his left and close to the middle line of the road, but we do not think, even if the evidence on that point was clear, it provides a reason for driving on the other side of the road. The Judge attributed the appellant's lapse to inattention which, regrettably, is the cause of many road accidents. We are not persuaded that the elimination by the Judge of the puddle as causative of the accident is against the weight of the evidence.

The appellant also directed submissions to credibility in relation to the consumption by the respondents of alcohol. We were invited to conclude that the second respondent was grossly intoxicated at the time of the accident which would have affected not only his manner of driving but also the clarity of his recollection of the events at the time and when giving evidence some two years later and we were also invited to conclude that the first respondent's lesser consumption of alcohol, including 2 bottles of beer immediately before the accident, would likewise have affected his clarity of recollection. On the other hand, the appellant was completely sober and counsel noted that the Judge preferred the evidence of two drunken men to that of a sober man. There was evidence that the respondents were not intoxicated to a significant extent but, be that as it may, the Judge had a good deal of evidence on the topic; the principal issue as to the point of impact involved credibility and we are not persuaded that he did not take proper advantage of seeing and hearing the witnesses when he decided to prefer the evidence of the respondents.

For the reasons given, we would dismiss the appeal in relation to liability. We must now consider the appeal against the assessment of general damages. When damages have been assessed by a Judge sitting alone, an appellate Court recognises that there is much room for legitimate difference of opinion and, in consequence, will be slow to interfere. The test has been variously stated in the authorities and we think the following passage in Salmond & Heuston on the Law of Torts 19 Ed. 646 is a correct exposition:

"[The appellate Court] must be satisfied either that the Judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. It has been said that the Court would interfere if it said to itself: 'Good gracious me - as high as that',"

The appellant did not argue that the Judge had applied a wrong principle of law; the contention is that the assessment was excessive. Nor was it submitted that the Judge made incorrect findings of fact. Indeed, there was no attack on the medical evidence which was introduced in the form of written reports, except for a small amount of viva voce evidence given by Dr Woonton, nor was there any attack upon the first respondent's evidence relevant to damages. Having ourselves read the evidence, we think that the Judge's summary is entirely satisfactory for the purpose of this appeal and we have decided to reproduce it (at pages 170 - 173 of the record):

"It is necessary first to sort out the nature of the injuries suffered by the Plaintiff. It must be said at once that these were very serious and no attempt has been made to suggest otherwise. The Plaintiff suffered severe compound fractures of the thigh and of both bones in the lower leg as well as dislocation of the pelvis. After about 8 days in the Rarotonga Hospital he was transferred to Middlemore Hospital in Auckland where he remained an inpatient for almost 5 months and an outpatient for a further 2 months. He returned to Rarotonga at the end of August 1987.

While in hospital he underwent 7 operations, several of them of a major nature and required skin and bone grafts. He has been left with a number of permanent disabilities resulting from the accident. Apart from the gross disfigurement to his leg from the multiple scarring both from the injuries and from the operative procedures, he has been left with a 3 centimetre shortening of the right leg, a permanent limitation in the movement of the right knee and deformities of the right pelvis. It is likely that in later life because of the shortening of the leg he will suffer some degree of scoliosis or hunch back and he will almost certainly develop arthritis resulting from the injuries.

At the age now of 21 years the future for the Plaintiff must be described as bleak. Further operation may give him some additional movement of the knee and physiotherapy treatment may help to alleviate some of his difficulties. There is a possibility of some improvement in his condition but I conclude from the medical evidence that it is more probable he will get worse rather than better. This is the background against which I must as best I can assess the damages. I do so under the three general headings which apply to such an assessment.

The first is Pain and Suffering. The degree of pain in this case must be regarded as substantial. Although past pain is generally to be treated with care because it is now over and done with, that does not mean it is to be in any sense disregarded or treated lightly. It is clear that the Plaintiff has had to endure a high level of past pain and suffering and this must be treated as a significant factor. Of more importance however is the fact that he must look forward to a lifetime of continuing pain, particularly in the leg itself at the site of the injuries and also in the back. This may not be constantly acute but it has its acute stages and there must be a limit to which analgesics can help. I do not think I should in any way underrate the extent of pain and suffering in this case.

The second heading is Loss of Enjoyment of Life and Loss of Amenities. Before the accident the Plaintiff led a normally active life. He engaged in sport of various kinds and in social activities. He can no longer do so or at least only to a greatly restricted extent. He experiences embarrassment because of his disfigurement and his general enjoyment of life has been greatly impaired. While he is likely to learn to a certain extent to live with his disabilities and perhaps to engage in non - active pursuits it must be acknowledged that life for him holds a great deal less in prospect than it would otherwise have done. Accordingly this factor also must be regarded as one of considerable significance.

The third heading is Future Economic Loss. Unlike most such cases this is the least significant of the three headings. This is because the Plaintiff before the accident was employed in work of a clerical nature by the Inland Revenue Department. He has been able to return to that employment and there seems no reason why he should not continue in it indefinitely. He is prevented of course from changing to some more active occupation but this cannot be regarded as a major circumstance. The matter of importance is that he has the same employment as before the accident and he can be expected to remain in that employment. It is to be noted that he was able to resume that employment only a week after returning from Auckland. I do not suggest that there is to be no allowance made for future economic loss but I think it must be regarded as very modest, particularly by comparison with the other heads of damages.

I must then put all these matters together and arrive as best I can at a figure which will reflect in a fair way the compensation to which the Plaintiff is entitled bearing in mind that a proper balance should be preserved. I am mindful that the assessment of damages in this country may be somewhat different from what it would be in for example, New Zealand or Australia. I fix the amount of general damages at $40,000."

The heads of general damages in this case are not capable of accurate assessment and so the task of the trial Judge was to give the first respondent fair and adequate compensation. See H. Wear & Son Ltd v Sheppard [1963] UKHL 3; [1964] AC 326, 346. Some measure of uniformity is required so that-

"similar decisions are given in similar cases; otherwise there will be great dissatisfaction in the community, and much criticism of the administration of justice" (Ward v James [1965] 2 WLR 455 per Lord Denning MR at 470).

So far as we are aware, there is no available record of comparable awards made by the High Court of the Cook Islands. Counsel for the first respondent referred the trial Judge and this Court to details of 8 awards made in New Zealand compiled, we understand, by the Auckland District Law Society. These awards were made between 1968 and 1972. In this Court counsel for the appellant referred to two unreported judgments of the Supreme Court of Fiji given in 1985 and 1987: Permal v Kalaam (Cullinan J, 22 February 1985, Lautoka, No 518 of 1981) and Attorney-General v Chand (Rooney J, 24 April 1987, Suva, No 14 of 1985).

The use of awards from other jurisdictions was sanctioned by the Privy Council in Jag Singh v Tong Fong Omnibus Co [1964] 1 WLR 1382, 1385-

"... to the extent to which regard should be had to the range of awards in other cases which are comparable such cases should as a rule be those which have been determined in the same jurisdiction or in a neighbouring locality where similar social, economic and industrial conditions exist."

We do not consider it possible for this Court to compare the social, economic and industrial conditions of New Zealand between 1968 and 1972 with the Cook Islands of today and, therefore, we do not think the New Zealand awards tendered by counsel are of any value. Counsel for the appellant submitted that the maximum awards of $17,000 for permanent disability and $10,000 for loss of enjoyment of life and for pain and suffering under the Accident Compensation Act 1982 of New Zealand reflect the current New Zealand view of the levels of awards for cases of severe injury, but we do not derive assistance from that legislation which is based on principles of compensation foreign to the common law. The Fijian cases relied upon by the appellant raise the question of the comparison of the social, economic and industrial conditions of the two countries, upon which we are not adequately informed. Moreover, we cannot be reasonably satisfied that the two cases, including those cited herein, present a reasonably complete range to provide guidance for this Court. We conclude that we must apply the test set out in Salmond & Heuston (supra) and ask ourselves if the award of $40,000 is so inordinately high that it must be an erroneous estimate of the damages. When account is taken of the severity of the injuries, the bleak prognosis and an adult life of greatly impaired enjoyment, we are not persuaded that the test has been met and we would dismiss the appeal.

The respondents also contended that the Court should exercise its discretion to dismiss the appeal in terms of s 72 of the Judicature Act 1980 - 81, because of the failure of the appellant timeously to give security for the payment of the costs of this appeal. Having decided to dismiss the appeal on the merits, it is unnecessary for us to decide this issue.

The appeal is dismissed. The respondents are entitled to costs which will include the costs of the several interlocutory applications in respect of the appeal. We fix the costs of the first respondent at $2,000 and of the second respondent at $750.

SIR MUIR CHILWELL