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Vaka'uta v Napa'a [1998] TongaLawRp 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 [1992] 1 AC 310; [1991] 4 All ER 907

Cropper v Smith (1884) 26 ChD 700

Jaensch v Coffey (1984) 54 ALR 417

McLoughlin v O’Brian [1983] 1 AC 410