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Vaka'uta v Napa'a [1998] TOLawRp 6; [1998] Tonga LR 50 (23 March 1998)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku’alofa

C/App 150/97

Vaka’uta

v

Napa’a

Lewis CJ
October and November 1997, and March 1998; 23 March 1998

Negligence ⎯ duty of care ⎯ vicarious liability Negligence ⎯ forseeability of injury ⎯ pyschological harm

On 20 December 1995 the first defendant was operating a front-end loader and struck and killed the plaintiff’s nine-year-old son. The plaintiff witnessed this. The plaintiff claimed that she suffered psychological harm as a consequence of observing first, the collision and second, the vivid and fatal head and body injuries to her nine-year-old son. The plaintiff claimed damages and costs against the second defendant, the Kingdom of Tonga, and the first defendant, Napa’a the driver, and alleged that Napa’a negligently caused her to suffer a psychological injury.

Held:

1. If it was reasonably foreseeable, in all the circumstances, that the plaintiff may have suffered psychiatric injury because she had seen the fatal incident involving her son, then a duty of care was owed by the defendant to the plaintiff.

2. The doctor’s evidence showed a condition which evidenced a psychological harm which went beyond mere grief at the loss of her son. This psychological disorder was “post traumatic stress disorder”.

3. The argument by the defendants for the estoppel of the plaintiff failed because while her going back on her word may be said to be socially unacceptable in Tongan traditional society, it was not legally unacceptable.

4. The Kingdom of Tonga was vicariously liable for the breach of the duty of care owed to the plaintiff. The very best example of the breach of obligation to the plaintiff was the manifest failure or refusal of the Kingdom to rectify the faulty braking system of the loader which most certainly was a factor contributing to the fatal injury.

5. Judgment was entered for the plaintiff against both the first and second defendants.

6. Plaintiff awarded general damages for past pain, suffering, and loss of the amenity of the enjoyment of her life TOP $20,000.00; damages for future pain and suffering assessed at $30,000.00; interest on those said sums at the rate of 5% per annum from 11 February 1997 (date of issue of Writ) until paid.

NOTE: The defendants subsequently successfully appealed against the amount of the award -- the Court of Appeal judgment is reported at page 159.

Cases considered:

Alcock v Chief Constable of South Yorkshire [1991] UKHL 5; [1992] 1 AC 310; [1991] 4 All ER 907

Cropper v Smith [1884] UKLawRpCh 91; (1884) 26 ChD 700

Jaensch v Coffey [1984] HCA 52; (1984) 54 ALR 417

McLoughlin v O’Brian [1982] UKHL 3; [1983] 1 AC 410; [1982] 2 All ER 298

Statutes considered:

Mental Health Act 1992

Rules considered:

Supreme Court Rules 1991

Counsel for plaintiff: Mr Niu
Counsel for first defendant: Ms Tonga
Counsel for second defendant: Mr Cauchi

Judgment

The plaintiff is 32 years old, a housewife and mother. She claims damages and costs against the second defendant the Kingdom of Tonga, and against the first defendant Napa’a alleging that Napa’a negligently caused her to suffer a psychological injury. The third defendant the Minister of Works is alleged to be vicariously liable for her injury as the employer of Napa’a, the driver of a front-end loader owned and operated by the Ministry of Works which struck and killed her 9-year-old son, Tamiano, in her presence.

The issue in this case is not whether the defendant acted negligently or in a reckless manner in the driving management or control of the front-end loader thereby causing the deceased child’s fatal injury, the issue is whether the defendants were negligent or reckless toward the plaintiff personally and whether they breached a duty of care which they owed to her to ensure that she did not suffer psychological harm by seeing her child fatally injured.

In such an action the onus of proof rests on the plaintiff to prove that the defendants owed her a duty of care, that they breached the duty and that as a consequence of that breach the plaintiff sustained a psychological injury, known in earlier times as “nervous shock”, but more recently characterized as “psychiatric harm”. Psychiatric harm was considered in Alcock v Chief Constable of South Yorkshire [1991] UKHL 5; [1992] 1 AC 310; [1991] 4 All ER 907.

Having read Alcock together with McLoughlin v O’Brian [1982] UKHL 3; [1983] 1 AC 410; [1982] 2 All ER 298 and Jaensch v Coffey [1984] HCA 52; (1984) 54 ALR 417, I take the law to be as presently advised that the determinant of liability in cases of this kind is the forseeability of injury being caused to a plaintiff in the form of psychiatric harm by virtue of the relationship between the plaintiff and the primary victim consisting of close ties of love and affection. The relationship may be found beyond the obvious one of “parent and child”, “husband and wife”.

The plaintiff must prove that she perceived through sight or sound and unaided, the incident itself or the immediate aftermath thereof. Putting it in another way in the context of the present claim, if it was reasonably foreseeable that Mrs Vaka’uta may suffer psychiatric injury because she saw the fatal incident involving her son, in the circumstances in which the incident occurred, then the duty of care was owed by the defendant to the plaintiff.

The husband, children, family, friends and associates of the plaintiff had been at the ‘Api adjacent to the site of the fatal collision for more than 14 days discussing plans to establish a Church. Prayers and discussions had gone on for a great part of that time. While the meeting progressed, the children of those participating played on the vicinity of the road way along which Napa’a drove the Front-end loader. I find that at all material time, but in particular during the mid-morning of December 20, 1995, the second defendant was the owner and operator of a Front-end loader which bore a Government Registration No P2. The defendant Napa’a was driving the loader in an approximately westerly direction along the perimeter road approaching the vicinity of the ‘Api of Kamehameha Faka’osi at the village of Fata’ulua, ‘Eua, heading in the general direction of his place of employment at the Government quarry. One ‘Isileli Maamatui was riding as passenger on the loader. Tamiano Vaka’uta was in company with two other children, one of them was his brother Tevita, near the Southern edge of the perimeter road and about opposite the ‘Api of Faka’osi.

I find that the loader was equipped with a braking system which was faulty, rendering the operation of the braking system inefficient. The first defendant was aware and had been fully aware of the faulty braking system on the loader, and had on a number of previous occasions reported the faulty system to the Ministry’s mechanic, but the fault had not been rectified.

At a point on the perimeter road the defendant saw Tevita Vaka’uta (whom he knew well as the brother of Tamiano) standing away from the road. The first defendant slowed the loader and passed Tevita and was about to pass a tree to his left when he felt the wheel of the loader pass over something. The loader struck the child, I find, probably with the edge or part of the bucket which contacted with the child’s head and the impact caused the child to fall or to be propelled under the wheel or wheels of the vehicle. The first defendant dropped the bucket of the loader in order to stop the loader after striking Tamiano. He was approaching the corner, which he had to turn to the right.

The plaintiff had seen the approach of the loader and called to Tamiano to stand still. She saw the child struck by the loader from a position some approximately 30 metres away. From which position she ran to his body lying on the roadway and saw the head-wound, which he had suffered. As a direct result of the plaintiff having seen the collision and the consequences of it to her son Tamiano, I am satisfied that Lineti Vaka’uta suffered the psychological injury probably, in the nature of a postal-traumatic stress disorder.

I make it plain, that in arriving in the findings in this action, I put from my mind, the fact and consequences of criminal proceedings arising from this incident which were determined sometime before the civil trial in which we have participated to the point of this Judgment.

Napa’a, during cross-examination acknowledged, that on the very day of the collision he had seen women weaving coconut fibres at the ‘Api by the side of the track he was using to travel to the quarry to carry out his duties. He acknowledged that he had seen children running about the vicinity. He did not say that he was certain of seeing people in the area at the time immediately before the collision. I considered Napa’a to be witness of truth. I’m sure that he regretted very much the consequences of his driving of the front-end loader and that his expressions of sorrow and remorse are genuine. Equally, I have no doubt, that the plaintiff is a truthful witness. Her grief was real at the loss of her son in these tragic circumstances. I add, that I’m satisfied that she in no way exaggerated the circumstances of the collision.

First proof of the claim such as the present entails proof by the injured plaintiff of a breach of the duty of care owed by the defendant to the victim. Here I’m satisfied there was breach of that duty which I find was owed to the plaintiff by the defendant.

In claims such as the present, it is never easy to judge the degree of knowledge of recklessness in the alleged tortfeasor. The court must apply objective standards for the existence of negligence or recklessness in arriving at its conclusions. Applying those considerations here, Napa’a admitted awareness of the presence of adults and children in the vicinity of the road where the incident occurred. Indeed, as I found, he knew the child Tevita and recognized him. I’m satisfied that in the circumstances of this claim, any reasonable front-end loader driver would think that those adults in the vicinity would be relatives or close loved ones of the children in the vicinity, and that, to injure or cause fatal injuries to one of the playing children would be likely to cause consequent and consequently related psychiatric harm to loved one or relatives of the injured child.

The front-end loader in this case had a defective braking system. The vehicle examining officer who examined the vehicle found as much, he found that the foot brakes and emergency brakes were inefficient. Napa’a knew the brakes were faulty, I accept that he reported the fault to his employer four or five times.

Napa’a described the method he used to stop the vehicle involving the dropping of the bucket and applying of a reverse gear while the vehicle was moving forward. The defendant submitted that to have used a speed of 10-20 km per hour was not dangerous. I reject the submission. I find that it was reckless speed. Indeed it was reckless to put the machine in motion at all given the condition of the braking system. The speed of 10-15 km per hour which the vehicle was travelling as I found, as it approach the point of the collision on the track, which was viewed by the Court, was in itself a dangerous speed. The track is unpaved and narrow, about 6.5 paces at the point of impact. I have no doubt that in context of this claim the defendant was negligent.

I find that the risk of psychiatric harm to a friend or loved one of Tamiano ought to have been foreseen by Napa’a on an objective basis. And that given the admitted condition of the malfunctioning braking system of the front-end loader, he ought to have been at pains to take care to avoid the very situation which arose by slowing or stopping before moving into the area of adults and children presenting itself in the vicinity of the track ahead of him. He failed to do so, therefore, in my Judgement, is guilty of a breach of the duty of care which he owed to this plaintiff.

I turn now to consider the plaintiff’s case that she suffered a psychological harm as a consequence of observing first, the collision and secondly, the vivid and fatal head and bodily injuries to her 9-year-old son. It must be said, her evidence was the subject of considerable criticism, particularly at the instance of the second defendant. I have weighed those criteria in arriving at findings. I conclude that overall, I can place reliance upon the evidence of the plaintiff. She was examined by Dr Mapa Puloka at the request of counsel for the plaintiff. The interview by Dr Puloka took place in the second half of October 1997. After the commencement of the trial, the management of the plaintiff’s claim by solicitors ideally would require a psychiatric examination to have occurred almost as soon as instructions to litigate were received by the lawyers. It was not arranged. While regrettable, it has not been damaging to the plaintiff’s claim. Although the potential for damage has been there.

What has been properly made the source of complaint is the fact that Dr Puloka spoke with (putting that in its most neutral), a number of lay, witnesses. From them, he frankly recites in Exhibit B4 - his report of 11 November 1997 ⎯ he obtained information. Some of the informants were not called as witnesses by the plaintiff or at all. Others of them were called by the plaintiff as part of their case, but long before Dr Puloka had produced his report and before he gave evidence, so that the defendants were not able to cross-examine the informants on the accuracy of material which Dr Puloka obtained from them and may have used as the basis of his opinion. That situation is one, which although not rendering his Report inadmissible, tends to detract from the right that the others had to know the source of his information.

I conclude that notwithstanding the infirmity to that extent and only to that extent, I am able to accept and to act on his opinion without doing any injustice to the defendants. Dr Puloka refers extensively to the subjective account of the plaintiff. Page 5 of the Report — Exhibit B4, in particular page 6 of Exhibit B4. He reports, “she has experienced physiological responses manifested by left-side headaches, palpitations, chest discomfort, weakness, backache, upset stomach, generalised body ache, peripheral numbness and tingling of body parts, sleep disturbances and hot or cold spells”.

He says, “she has intense psychological distress its exposure to internal and external cues that symbolize and resemble the aspect of traumatic event. She had moved from ‘Eua to Tongatapu as the sight of all things that related to her son’s death exacerbated her symptoms especially of recurrent and intrusive distressing recollection of the events. The sight of a loader and the sound of it’s engines, the hearing of news about any motor vehicle accident are external cues that stimulate or trigger recurrent and intrusive distressing recollection of the event.”

Significantly he concludes: “Lineti has been and still suffering from post traumatic stress disorder. It has been precipitated by the fact she witnessed the nature of the death of her son. She has undergone the normal stage of bereavement after the death of her son but incapacitating symptoms of pre-post traumatic stress disorder has significantly affected her since October 1996. The treatment plan for Lineti is a long-term one, since the prognosis of her psychotic illness is somewhat poor.”

Lineti’s evidence is following the collision she regularly experienced headaches, backaches, weeping and debilitating weaknesses. Her sexual desires are significantly weakened.

I find from his evidence a condition which evidences a psychological harm which goes beyond mere grief at the loss of her son. I am satisfied that she suffered from the psychological disorder known as “post traumatic stress disorder.” While grief is not compensible at the instance of the defendant, post traumatic stress disorder clearly is compensible and is characterized by Dr Puloka as a mental disorder within the meaning of the Mental Health Act 1992. The plaintiff, was gently but firmly cross-examined concerning her symptoms. I paid careful attention to the cross-examination of the plaintiff by counsel and to counsel’s submission concerning this aspect of the evidence. In the end, the overall conclusion I have reached from the evidence of Dr Puloka, is the shock of what she saw brought about the features of post traumatic stress disorder.

I’m satisfied that Dr Puloka is an expert witness in the sense that he can be relied upon to give an opinion from which I’m entitled to draw conclusion of fact, as to the existence or otherwise of psychological harm in the plaintiff. I accept his evidence when he says: “Lineti gives a clear history of Post traumatic stress disorder. Post traumatic stress disorder is an incapacitating disorder that is characterized by the experiencing of an extremely traumatic event accompanied by symptoms of increased arousal and by avoidance of stimuli associated with the trauma. Post traumatic stress disorder is a form of Anxiety Disorder that is also associated with depression. Lineti has been and still is suffering from Post traumatic stress disorder.”

I’m satisfied and I find that post traumatic stress disorder is a form of psychological harm. I find, that with some intensity the plaintiff has continued to experience symptoms of the disorder and at the time of Judgement still suffers from them. There is no expert evidence countering Dr Puloka’s diagnosis. I do not impose any onus of proof on the defendants, but I observed that where there are two hypotheses, it is easier to determine which is the more probable given the circumstances.

Finally, the defendants submitted that the plaintiff should be estopped from receiving any damages from the first defendant since in accordance with customary obligation as a fellow Tongan he offered an apology and gifts to discharge his obligation to the plaintiff and that she should accept his apology and traditional gifts. I have no doubt that the defendant did carry out traditional acts of apology which were accepted. Indeed, on all sides, the evidence of apology appears to be accepted. However, there is no recognition of customary law in this Kingdom which limits or brings to an end the rights of statute law and the Common Law of England possessed by plaintiff in cases such as the present.

While her going back on her word may be said to be socially unacceptable in Tongan traditional society, it is not and cannot be said to be legally unacceptable. The argument by the defendants for the estoppel of the plaintiff must fail.

In assessing the plaintiff’s damages, I have taken into account the sequel of reliving the moment and terrible emotional disarray which post traumatic stress disorder must have repeatedly caused to the plaintiff. Next there is the related episodic symptoms referred to by Dr Puloka which I find are continuing.

Lastly, I hold the Kingdom of Tonga vicariously liable for the breach of the duty of care to the plaintiff. The very best example of the breach of obligation to the plaintiff is the manifest failure or refusal of the Kingdom to rectify the faulty braking system of the loader which most certainly was a factor contributing to the fatal injury suffered by Tamiano. I enter Judgement for the plaintiff against both the first and second defendants in this action for reasons that I have given. I assess damages to the plaintiff for past pain and suffering. I will fix the commencement date for the onset of post traumatic stress disorder as being in or about October 1996. I make some allowance for the months between December 1995 and October 1996 relating to the immediate shock suffered by the plaintiff upon her seeing the collision and its consequences. I make an allowance for the loss by the plaintiff of amenity of enjoyment of life to the present day.

Given the continuing nature of the disorder suffered by plaintiff, doing the best I can, and using a broad brush to do so, I award her damages for future pain and suffering. I reduce the award for plaintiff’s suffering in the future by 30% for contingencies. The plaintiff has claimed $10,000 general damages in the statement of claim. During addresses which were in writing the counsel for the plaintiff submitted the award should be in the sum of $50,000. Earlier today I ruled on the application by the plaintiff on amendment of the statement of claim, increasing the quantum of claim by the plaintiff from $10,000 to $50,000.

Crown counsel and counsel for defendants are most emphatically opposed to any application to amend the recitation of claim of the plaintiff from $10,000 to any higher figure on the basis they had prepared their case on the $10,000 claimed qualification which the statement of claim had notified them to expect was the maximum award available.

I had counsel argue the point fully. In the end Mr Cauchi conceded there was a general discretion in the Court to make such an amendment. The English practice is that the plaintiff simply claims an unliquidated sum of damages to be assessed, Rules of this court provide [Rules of Supreme Court Order 8 Rule 1]: Every statement of claim shall state the material facts on which the plaintiff relies and the relief sought. However, the defendants were not disadvantaged by this application in my opinion. The obligation they carry and the rights they have to defend themselves is to the best of their ability against any claim. And I follow the dictum of Bowen J as in Cropper v Smith [1884] UKLawRpCh 91; (1884) 26 ChD 700.

I set out the award as follows:

• General damages for past pain suffering and loss of the amenity of the enjoyment of her life TOP $20,000.00.

• Damages for future pain and suffering which I assess at $30,000.00.

• Interest on those said sums at the rate of 5% per annum 300 from 11 February 1997 (date of issue of Writ) until paid.

• Costs to be those of the plaintiff against the first and second defendants.