IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

TOILOLO EGELANI LESATELE
of Faatoia, Retired.
Plaintiff

AND

THE BOARD OF TRUSTEES OF THE METHODIST CHURCH,
a charitable trust having its registered office at Matafele, Apia.
Defendant

AND

AIANO GALI
of Apia Clerk and
PIKI TUALA
of Apia Surveyor
Third Party

Counsel: KM Sapolu for plaintiff
TK Enari for defendant
PA Fepuleai for third party Piki Tuala

Judgment: 5 April 2002

JUDGMENT OF SAPOLU CJ

Introduction

The plaintiff in this case is suing the defendant claiming damages for personal injuries alleged to have been caused to him by the defendant’s negligence. The defendant in its statement of defence denies negligence and says that the proper persons, if any, to be liable to the plaintiff should be the third parties who were in exclusive occupation of the premises where the plaintiff sustained his injury. It further says that it is the third parties who should be liable to the plaintiff in negligence. Accordingly, the defendant issued a third party notice under rule 43 of the Supreme Court (Civil Procedure) Rules 1980 citing Aiano Gali and Piki Tuala as third parties. There is no claim for contribution against the third parties.

Under rule 43(1) a defendant who claims as against a third party that any question or issue in the plaintiff’s action should be determined not only as between the plaintiff and the defendant, but also as between the plaintiff, the defendant and the third party, may move the Court to issue and serve a third party notice. That was done by the defendant. However, the third party Aiano Gali took no part in these proceedings. The evidence adduced before the Court did not show or even suggest that he was an occupier of the premises where the plaintiff sustained his injury. He should therefore be left out from this case. Only the third party Piki Tuala filed a statement of defence to the third party notice. He admits he is the occupier of the premises where the plaintiff sustained injury but denies it was due to any negligence on his part. He seems to put the blame on the defendant. He makes no claim against the defendant for contribution or an indemnity in case he is found to have been negligent.

For convenience, I will deal first with the question of liability, that is, who , if any, of the defendant and the third party Piki Tuala, should be liable to the plaintiff. There is no allegation or suggestion that they should, or could, be jointly or severally liable. I will then deal with the plaintiff’s claim for damages against the party who is liable to the plaintiff. As there was no objection to the way these proceedings were framed, I will deal with these proceedings on the basis the case has been pleaded by all parties. I will start with the facts.

Facts

The defendant, as board of trustees of the Methodist Church, is the owner of a three storey building at Matafele in the centre of Apia. Part of the building which is known as the Wesley Arcade is rented out by the defendant as landlord to tenants. The third party, Piki Tuala, who is a surveyor, is one of the tenants on the ground floor where his survey firm has its office. Directly above the third party’s office is a hall of the Methodist Church which is under the control of the defendant and is legally owned by the defendant. It is used exclusively by the Methodist Church for its activities.

The plaintiff had been the chief survey draughtsman for a number of years in the Department of Lands and Survey, later reconstituted in 1991 as the Department of Lands, Survey and Environment. As such he was responsible for drawing and vetting survey plans for the Department. At the time of the incident where he sustained his injury, he was the deputy director of the Department. At that time, all government surveys of land were sent to the third party to check and the plaintiff would visit the office of the third party at least once a week. Some of these visits were just friendly visits and some were in connection with the work given by the Department to the third party.

On Tuesday afternoon of 25 August 1998, while the office of the third party was closed for lunch, the plaintiff was conversing with someone outside of the third party’s office and eating some ripe bananas. When a member of the third party’s staff arrived and opened the office, the plaintiff immediately followed him in a hurry into the office to go and wash his hands at the tap in the water basin inside the office. At the time there was a pool of water, three yards inside the entrance door to the third party’s office. Neither the plaintiff nor the third party’s employee who was with him saw the pool of water in time to prevent anyone from slipping. Almost immediately after the plaintiff entered, and as he was hurrying past the third party’s employee, he slipped in the pool of water and fell heavily on the concrete floor. He became unconscious. When he regained consciousness about an hour later, he felt severe pain. Later he was assisted to a car which took him to his home. He was later taken to the hospital the same afternoon.

The third party admitted that he is a tenant on the ground floor of the defendant’s building. He said that he started to rent in the defendant’s premises in 1990 but it was not until 1994 that water started to leak from the defendant’s hall into his office. He also said in evidence that the day this accident occurred was a fine day, there was no rain. The third party also testified that he was the last person to leave his office that day for lunch. When he left, there was no pool of water near the entrance door to the office. He also said that before the accident to the plaintiff occurred, there had been leakages of water from the defendant’s hall above his office into his office where his staff have their desks and at the washbasin area. These leakages which first started in 1994 and continued to the time of the accident to the plaintiff, occurred during heavy rains and when the floor of the defendant’s hall was cleaned with water. His staff reported and complained to the defendant’s employees about the leakages but no effective measures was taken to stop the leakages. What happened was that the concrete which separates the third party’s office from the defendant’s hall above it, provides the ceiling of the third party’s office by its lower side and the floor of the defendant’s hall on its upper side. There is a crack in this concrete. During heavy rains water would get into the defendant’s hall through its louvre windows, and when there is too much of such water, some of it would seep through the crack in the concrete to the third party’s office below. Likewise when the hall is cleaned with water, some of the water would seep through the crack in the concrete to the third party’s office. As the day on which the accident to the plaintiff occurred was a fine day, one draws the inference that the leakage of water into the third party’s office on that day could not have been from heavy rain but from cleaning of the defendant’s hall with water.

The witness Fane Peniamina, who had been an employee of the third party until three weeks before the hearing of this case, testified for the plaintiff and gave evidence similar to the evidence given by the party. He said he worked for the plaintiff for five years and, before the accident to the plaintiff, there had been leakages of water from the defendant’s hall into the office of the third party. These occurred during heavy rains or when the defendant’s hall was cleaned with water. He and another member of the third party’s staff complained to the defendant’s employees about the leakages but nothing was done except on one occasion when the crack on the ceiling of the third party’s office was plastered. However, the leakages continued. Further complaints were made to the defendant’s employees but nothing more was done. The last leakage of water before the accident to the plaintiff, occurred two months before the accident. This witness also testified that there is a crack on the ceiling of the third party’s office above his desk. And on the day of the accident to the plaintiff the weather was fine. He went out for lunch and when he returned to the office he opened the entrance door with his key. At that time the plaintiff was following immediately behind him and as the plaintiff was going past him he slipped in a pool of water and fell heavily on the concrete floor. He, himself, did not see the pool of water until the plaintiff slipped and fell. He also said the plaintiff was in a serious condition after he fell on the floor.

The plaintiff in his evidence said that he used to visit the third party’s office at least once a week. On three of those visits he found pools of water at the water basin area inside the third party’s office. At no time before the accident to him did he see a pool of water near the entrance door. He also said he became unconscious when he fell and when he regained consciousness an hour later, he felt severe pain and he could not get up for some time. He was later assisted to a car to take him home. Later on the same afternoon he was taken to the hospital.

A copy of the lease agreement between the defendant and the third party was produced in evidence by the plaintiff. It does not show who is to be responsible for repairing the crack in the concrete which separates the defendant’s hall and the third party’s office. The evidence given for the defendant by the treasurer of the Methodist Church suggests that the Church was willing to do the necessary repairs but the third party never made any complaint to him. This is of course true. But the witness Fane Peniamina testified that the complaints about the leakages were not made to the treasurer but to the defendant’s employees named Opeta and Peti. Fane Peniamina also testified that after one of the complaints the Church plastered the crack on the ceiling of the third party’s office without the third party paying for the repairs. However, the leakage of water from the defendant’s hall still continued. Further complaints did not lead to any more repairs.

From the whole of the evidence it is clear that when the third party started to rent the defendant’s premises in 1990 there was no leakage of water. It was only four years later in 1994 that leakages from the defendant’s hall started to occur. The leakages came about because of water in the defendant’s hall during heavy rains and when the hall is cleaned. There is nothing in the lease agreement as between the defendant as landlord and the third party as tenant as to who has the responsibility to repair the crack in the concrete which forms the floor of the defendant’s hall and the ceiling of the third party’s office and through which the water seeps into the third party’s office. The crack on its own is harmless; it causes no leakage of water. It is when there is water in the defendant’s hall as a result of heavy rains or cleaning of the hall that there is a leakage. The defendant should be responsible for preventing the water in its hall from leaking into the third party’s office. It was notified of the leakages through its employees by members of the third party’s staff but it took no effective measures to stop the leakage.

Who should be liable to the plaintiff?

The plaintiff has sued the defendant in negligence. The defendant says that the third party, being the occupier of the premises where the plaintiff slipped and was injured, should be the party liable to the plaintiff. The third party, on the other hand, says that it is the defendant who should be liable to the plaintiff as it was the leakage of water from its hall which caused the plaintiff to fall and injured himself. The question then is whether it is the defendant or the third party who should be liable to the plaintiff.

Counsel for the defendant submitted that in determining whether the third party should be liable as occupier to the plaintiff, we should go back and apply the common law on occupiers liability as it existed prior to the enactment of the English Occupiers Liability Act 1957. I must reject this submission. The 1957 Act made substantial changes to the English common law to remove some of the difficulties and injustices that were seen to have resulted from the common law. These changes also took recognition of the developments that had arisen in the law of negligence as a consequence of the landmark decision in Donoghue v Stevenson [1932] AC 562; occupiers liability being a particular category of the law of negligence. It will be wrong for us to go back and adopt all of the pre-1957 English common law on occupiers liability when much of it had been repealed or changed by the English Parliament and Courts for sound reasons. It is part of the judicial function to evolve and develop the common law. It will be contrary to the role of the judicial function in developing the common for Samoa law to adopt parts of the English common law which the English people themselves have done away with because they work injustices or create unnecessary difficulties.

We do not have legislation on occupiers liability. Given the developments we now have in terms of stores, supermarkets, hotels, motels, guesthouses, nightclubs, office blocks, high rise buildings, public buildings and so on and the possibility of accidents arising therefrom due to negligence, it is time we have our own legislation on occupiers liability. There is no guarantee this will be the last case where questions of occupiers liability will arise. It will go a long way to facilitating the work of lawyers in advising their clients in appropriate cases if a statute of our own on the subject is readily available. In the meantime, the Courts will just have to continue to develop the Samoan common law on occupiers liability.

Under the English Occupiers Liability Act 1957 as well as the New Zealand Occupiers Liability Act 1962, the common law principles for determining who is the “occupier” of premises are preserved. These principles were restated by Lord Dening in the House of Lords in Wheat v E. Lacon & Co Ltd [1966] AC 552 where, as far as relevant, His Lordship said at pp578-579:

“Where a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an ‘occupier’ and the person coming lawful there is his ‘visitor’: and the ‘occupier’ is under a duty to his ‘visitor’ to use reasonable care. In order to be an ‘occupier’ it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share control with others. Two or more may be occupiers. And whenever this happens, each is under a duty to use care towards persons coming lawfully on to the premises, dependant on his degree of control. If each fails in his duty, each is liable to a ‘visitor’ who is injured in consequence of his failure, but each may have a claim to contribution from the other.

“In Salmond on Torts, 14th ed. (1965), p. 372, it is said that an ‘occupier’ is ‘he who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons’. This definition was adopted by Roxburgh J in Hartwell v Grayson, Rollo and Glover Docks Ltd,“[1947] KB 901, 917 and by Diplock LJ in the present case. There is no doubt that a person who fulfils that test is an ‘occupier’. He is a person who says ‘come in’. But I think that test is too narrow by far. There are other people who are ‘occupiers’ even though they do not say ‘come in’. If a person has any degree of control over the state of the premises it is enough”.

Anyone interested in finding out more about who can be an “occupier” is advised to read the full report of that case.

I am in no doubt that at the material time the third party as tenant had exclusive possession of the office space he has rented from the defendant as landlord. That office space was and still is under his control as tenant. Therefore, the third party was the occupier of that office space at the material time. As such he owes a duty of care to those persons who come lawfully onto his premises as “visitors”. This duty of care requires that the occupier should take such care as in all circumstances is reasonable to see that a visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted to be there. Breach of that duty may result in the occupier being liable in negligence to a visitor. Previously those persons who are invited or permitted by an occupier to come onto his premises were classified as invitees or licencees. That classification has been abolished; all are now called visitors: Wheat v E Lacon & Co Ltd [1966] AC 552.

Under the old classification of invitees and licenses, the plaintiff would be an invitee of the third party when he visited the third party’s office in connection with surveys of land sent by the Department of Lands, Survey and Environment to the third party to check; he would be a licensee when he made a casual or friendly visit. On the day of the accident, the plaintiff was clearly a licensee when he entered the third party’s office with the permission of an employee of the third party to wash his hands in the wash basin. As such he was a visitor under the current law.

Thus at the material time the third party was the occupier of his office premises and the plaintiff was a visitor. As occupier, the third party was under a duty to the plaintiff to use reasonable care to see that his premises were reasonably safe. The question then is whether the third party was in breach of that duty. On the evidence he was not. On the day of the accident to the plaintiff the weather was fine. So the third party could not have suspected any leakage of water from the defendant’s hall into his office due to heavy rains. There was also no evidence that the plaintiff or his staff were aware that the defendant’s hall was being cleaned with water that day so as to alert them to the possibility of any water leakage. When the third party and his staff left their office for lunch there was no pool of water near the entrance door. Previous leakages from the defendant’s hall had also been to areas where the desks of the third party’s staff and the water basin are. These are areas which would generally be reserved for the use of the staff. The plaintiff also said that during his many visits to the third party’s office he had never seen any pool of water at the floor area near the entrance door. It was only at the water basin area that he observed pools of water during three of his previous visits. My impression of the evidence was that the first time there was any leakage of water onto the floor near the entrance door of the third party’s office was when the plaintiff slipped. Thus the third party cannot be said to have had reasonable cause for putting up a warning for visitors to his premises to beware of the possible presence of water on the floor area near the entrance door. I find that the third party was not in breach of his duty of care to the plaintiff.

As for the defence of contributory negligence raised by the defendant, the plaintiff was of course in a hurry when he entered the door of the third party’s office to go and wash his hands. The pool of water in which he slipped was three yards from the door. The plaintiff clearly did not have the time to be able to see the pool of water, as he was entering the office, and take the necessary precaution to avoid slipping. The plaintiff had also previously visited the third party’s office on many occasions and had never seen any water on the floor close to the entrance door. In my view the plaintiff was not negligent. The defence of contributory negligence against the plaintiff must therefore fail.

I turn now to the question of whether the defendant is liable in negligence to the plaintiff. The defendant, not being an occupier of the premises where the accident occurred to the plaintiff, he would not be liable under the law governing the liability of occupiers. However, a person who is not an occupier, should not, in my view, escape liability simply because he is not an occupier of the premises where an accident happened, even though the accident happened due to his negligence. That being so, a landlord who is not an occupier would still be liable for an accident which occurs on the demised premises due to his negligence. In saying this, I am aware that this was not the position under the old English common law for a number of years. However, what I am saying is consistent with the developments in the law of negligence since the landmark case of Donoghue v Stevenson [1932] AC 562.

In Robbin v Jones (1863) 15 C.B.N.S. 221, 240, Erle CJ stated that a landlord who lets a house in a dangerous state is not liable to the tenant’s customers or guests for accidents which happen during the term of the tenancy; for, fraud apart, there is no law against letting a tumble down house. I think that case is distinguishable from the present case. The premises let by the defendant in this case to the third party was not a tumble down house; it is a modern three storey building and it was in a completely safe condition at the beginning of the tenancy until four years later when leakages started to happen because of water seeping from the defendant’s hall during heavy rains and when the hall is cleaned. It will be misleading to describe the defendant’s building as a tumble down house.

In Cavalier v Hope [1906] AC 428, a landlord let a dilapidated house to a tenant and contracted with the tenant that he, the landlord, will repair the house. The landlord failed to repair and as a consequence a third party fell through the defective flooring and injured herself. The House of Lords held that the third party, not being a party to the contract between the landlord and tenant, had no cause of action against the landlord. Lord Atkinson who delivered the leading judgment followed Robbins v Jones. I am of the view that Cavalier v Hope can also be distinguished from the present case where the cause of action is in the tort of negligence and not in contract. We are also not dealing with a dilapidated house in the present case. It is also to be borne in mind that Cavalier v Hope was decided some 26 years before Donoghue v Stevenson [1932] 562 and there have been major developments in the law of negligence since the latter case.

In Donoghue v Stevenson [1932] AC 562, 609 Lord Macmillan referred to Cavalier v Hope [1906] AC 428 as being “in a different chapter of the law”. In Green v Chelsea Borrugh Council [1954] 2QB 127, Denning LJ (as he then was) criticised Cavalier v Hope and said it is a relic of a worn out fallacy that must be kept in close confinement. The Court of Appeal in Rimmer v Liverpool City Council [1985] QB1, 9 agreed with Denning LJ that Cavalier v Hope must be kept in close confinement. Given these criticisms and the fact that Cavalier v Hope can be readily distinguished on the facts from the present case, I do not consider it as a persuasive authority in this case.

The question of whether the defendant is liable to the plaintiff in negligence must, in my view, be decided on principle. It is not uncommon in a building with more than one storey for water to escape from premises on a higher floor to premises on a lower floor causing damage. This sometimes happens due to a fault or defect in the plumbing work in the premises on the higher floor. Sometimes it is caused by someone on a higher floor turning on a tap when there is no water and then forgetting to turn it off before he goes home after work so that if the water comes back at night time, it overflows and usually finds its way down to the premises on the lower floor, to the great annoyance of the occupiers of those premises when they return the following morning. I see no sound reason in principle or as a matter of policy for the occupier of premises in a building not being under a duty to exercise reasonable care to see that water does not leak or escape from his premises and cause damage to the person, staff, property or visitors of an occupier of adjoining premises in the same building. I hold that the defendant in this case was under a duty to exercise reasonable care to see that water did not leak from its hall and cause injury to the third party, members of his staff, his property or visitors who are lawfully on his premises.

Was the defendant in breach of its duty to take reasonable care? I think it was. Water had been leaking from its hall to the third party’s office directly below since 1994 through a crack in the concrete separating the two premises. Despite complaints by members of the third party’s staff to the defendant through its employees, nothing was done to stop the leakages except on one occasion when the crack was plastered but that proved ineffective. Further complaints from the third party’s staff led to no further repairs. Thus the defendant was aware of the leakages into the third party’s office and the cause of those leakages but failed to take any effective measure to stop the leakages. Such failure on the defendant’s part constitutes a breach of its duty to take reasonable care to prevent injury to the third party’s visitors.

Was the injury suffered by the plaintiff caused by the defendant’s breach of duty? I also think it was. It was the pool of water resulting from the leakage from the defendant’s hall which the defendant had failed to repair that caused the plaintiff to slip and injured himself. So the plaintiff’s injury was a consequence of the defendant’s breach of its duty of care.

Was the injury suffered by the plaintiff too remote? I am of the view the injury to the plaintiff was not too remote. The defendant should have foreseen that the water leakages from its hall could easily end up on the floor of the third party’s office, including the floor area near the entrance door, and that someone visiting the third party’s office may not be able to see the water and slip on it and fall down causing injury to himself. The plaintiff’s injury was therefore a proximate consequence of the defendant’s breach of duty and not too remote. All in all then, I find the defendant to have been negligent.

Having determined the question of liability, I come now to the plaintiff’s claim for damages for personal injuries. First I will set out the relevant facts in support of that claim.

Plaintiff’s claim for damages for personal injuries

The plaintiff was employed in the public service as deputy director of the Department of Lands, Survey and Environment earning a gross annual salary of $27,064 pa or $1,040.92 gross a fortnight. After deduction of tax as shown in his payslips produced in evidence, his fortnightly salary was $833.45. He was 60 years at the time of the accident on 25 August 1998; five years beyond the normal statutory retirement age of 55 years for public servants. He finally retired in December 1998.

When the plaintiff slipped and landed on the floor of the third party’s office, he became unconscious for an hour. When he regained consciousness, he felt intense pain. He could not stand up or walk. He had to be assisted to a car which took him home. He was taken the same afternoon to the hospital where he was admitted. His x-ray, taken the same day, showed a fracture of his left thigh bone (femur). He was in great pain and painkiller tablets and injections of pethidine were administered to alleviate the pain. When the effect of the pain killer tablets and the pethidine injections was over, he felt intense pain again until he was administered more tablets and pethidine injections. No doubt the pain from an injury is more intense at the initial stages of an injury, but it progressively diminishes until it ceases as the healing process takes effect. On the eighth day after his hospitalisation, the plaintiff underwent a surgical operation where five screws were affixed to his fractured thighbone. After the operation, the plaintiff’s condition started to improve and the pain gradually diminished. On 19 September he was discharged from the hospital after twenty five days there. The same day the plaintiff returned to work which was not only a sign of his characteristic dedication to his work but of a big improvement in his condition. In a report prepared on the plaintiff on 29 January 1999 by the doctor who is the head of the surgical unit at the hospital, it is stated that the screws were applied to the fracture of the plaintiff’s thighbone to stabilise his condition and he recovered uneventfully and was discharged with crutches. He was mobilising well on his crutches. The doctor further states in his report that the plaintiff is most likely to return to his normal walking capabilities. In his oral testimony, the plaintiff said he felt pain again and on 6 May 1999 he was re-admitted to the hospital. On 3 June he underwent another surgical operation to remove the screws from his thighbone and to replace them with a plastic instrument.

During his hospitalisation, the plaintiff had to take 48 days local leave without pay. He also had to use a taxi to attend to the doctor at the hospital as an out-patient and to travel to other places as he was not able to walk long distances. The taxi fares were estimated, according to the plaintiff’s evidence, to be not less than a $1,000 up to the date of hearing. The plaintiff also testified that he paid $80 for his hospitalisation and $33 for the hire of crutches.

At the time of the hearing of this case, the plaintiff said he now feels a big difference. He was still walking with a slight limp and using a crutch. Fortunately, his condition has continued to make a marked improvement as predicted by the head surgeon at the hospital as he is now sometimes seen in town walking without a crutch. This is indeed a happy development for the plaintiff as he has been one of our competent, dedicated and most hardworking public servants.

Prior to his accident, it was a hobby for the plaintiff to join as a volunteer the workers who clean up the Apia town area by collecting the rubbish. He said he could not collect the rubbish now as a result of his injury but he is still able to act as a supervisor. The collection of rubbish in order to keep the Apia town area clean gives the plaintiff self-satisfaction and self-esteem. He usually talks about it as an important service by him. His injury has partially disabled him from doing all of the rubbish-collection work he was able to do before.

The plaintiff is claiming both special and general damages. Special damages are claimed for pre-judgment pecuniary losses and expenses and general damages for pre-judgment and post-judgment non-pecuniary losses for pain and suffering as well as loss of amenities. I will deal first with the claim for special damages and then with the claim for general damages.

The claim for special damages relates to the plaintiff’s hospital and medical expenses, transportation costs as a consequence of his injury, and lost earnings before judgment. These losses were specially pleaded. As they all crystallised into concrete form before trial, they are easily quantified. In my view the claim for $80 for hospitalisation expenses, $33 for the hire of crutches, and $1,000 for taxi fares should all be allowed. The claim for lost earnings due to the plaintiff’s hospitalisation when he had to take 48 days local leave without pay should also be allowed but by a reduced amount. The plaintiff’s fortnightly pay of $1040.90 after tax as shown in the statement of claim is incorrect. The correct gross fortnightly pay of the plaintiff before tax as shown from his pay slips produced in evidence was $1040.92. The tax on that fortnightly salary was $207.47. Thus his fortnightly pay after tax should be $833.45. His daily pay for ten working days a fortnight after tax would be $83.34. For the forty eight days of local leave without pay that the plaintiff had to take because of his injury, that comes to a total of $4,000.32. I will allow that amount for lost earnings before judgment. I have decided not to take into account the deductions from the plaintiff’s fortnightly salary for NPF, WSLAC life insurance, NPF loan repayments and PSA contribution.

As for the claim for general damages, this is usually assessed under the conventional heads of pain and suffering, loss of amenities and loss of earning capacity. There is no claim for loss of earning capacity or for future economic loss. This must be because the plaintiff was about 60 years of age at the time of the accident which was five years beyond the normal statutory retirement age of 55 years for public servants. And the plaintiff retired in December 1998, four months after the accident. Usually future economic loss forms the most important component of an award in personal injuries cases. However, the particular circumstances of this case have made it unnecessary to make a claim for such loss.

The major component for the general damages claim in this case is clearly for pain and suffering. I make no allowance for pain and suffering for the plaintiff’s unconsciousness for one hour when he slipped, fell and hit the floor. The reason is that when a person is unconscious he is not experiencing any pain or suffering: Wise v Kay [1962] 1 QB 638 per Sellers LJ at pp 652,654; H West & Son Ltd v Sheppard [1964] AC 326, per Lord Reid p.340; per Lord Morris of Borth-y-Gest p.349; per Lord Devlin p.354. Likewise, I make no allowance under the heading of pain and suffering for those times the plaintiff was administered painkiller tablets and injections of pethidine to alleviate his pain. Similarly, no allowance for compensation should be made for pain and suffering if drugs or anaesthetics were administered to make the plaintiff lose consciousness during his two surgical operations: see for instance H. West & Son Ltd v Sheppard [1964] AC 326 per Lord Devlin p.354. Unfortunately, it is not clear from the evidence whether drugs or anaesthetics were administered to the plaintiff at the time of his operations. I will assume that was done as that seems to be the modern surgical practice.

Matters to be allowed under the claim for pain and suffering include the intense pain felt by the plaintiff after he regained consciousness from his fall on the floor and up to the time he was first admitted to the hospital and treated with painkiller tablets and pethidine injections. The pain the plaintiff experienced at times whilst first admitted in the hospital when the effect of the painkiller tablets and pethidine injections was over should also be taken into account. Likewise the pain and discomfort he experienced during and after the two operations he had. So is the pain he experienced which necessitated his readmission to the hospital on 6 May 1999 for a second operation. The mental anxiety and distress that was attendant upon the injury is suffering and should also be taken into account. Likewise the discomfort the plaintiff experienced for sometime from the use of crutches. However, as I have said, pain is usually intense at the initial stages of an injury and then progressively diminishes until it ceases as the healing process takes effect due to medical treatment and the body’s capacity to adjust itself.

For loss of amenities, sometimes referred to as loss of enjoyment of life, the Court of Appeal, in a judgment delivered by Jeffries J, said in Western Samoa Shipping Corporation v Iosefa Feagai (1994) (C.A. 6/93; unreported judgment delivered on 22 March 1994):

“Loss of enjoyment of life is very difficult to measure in terms of money. It is substantially measured by a comparison of lifestyle before and after the accident.”

To put the matter another way, damages for loss of amenities may be measured by asking: to what extent is the victim unable to do those things which, but for the injury, he would have been able to do: Bastow v Bagley & Co Ltd [1961] 1WLR 1484 per Diplock LJ at p.1498.

In the present case, the plaintiff, before the accident, was able to take part in the actual collection of rubbish around the Apia town area; now he can only act as a supervisor which is still a significant involvement in the collection of rubbish. He also used to be able to walk long distances; he is not able to do that now. Even though these inabilities qualify as loss of amenities, they do not constitute a very severe curtailment of the plaintiff’s enjoyment of life. The plaintiff is still able to take part in the collection of rubbish in the Apia town area even though as a supervisor. He is also still mobile and can now walk without crutches. He now also has a car to provide him with transportation for long distances if that becomes necessary. Given the plaintiff’s present age and the fact that he has retired from work, it is doubtful if he would often have to walk for long distances. The evidence is also silent whether it is often necessary for the plaintiff to sit down cross-legged on a mat as Samoans are expected to do during such customary occasions as family or village gatherings. I am also mindful of the report by the head of the surgical unit at the hospital that the plaintiff is most likely to return to his normal walking capabilities.

In the assessment of damages for personal injuries claims, comparison may be made with comparable verdicts in other personal injuries cases. Even then due regard must be had to the particular facts of each case. We have had three recent cases on personal injuries. Two of them were concerned with the loss of an organ of the body, namely, an eye. These cases were Retzlaff v Western Samoa Airport Authority [1980 – 1983] WSLR 464 and Iese Katopau v Samoa Breweries Ltd (2000) (unreported judgment delivered on 13 October 2000). Comparisons of verdicts in similar cases are usually very helpful, particularly if the Court is concerned with loss of the same organ of the body. The present case is not concerned with the loss of an organ or a limb so that the awards in Retzlaff and Iese Katopau are of limited assistance if they are of any assistance at all.

The next case is Western Samoa Shipping Corporation Ltd v Iosefa Feagai (supra) which was concerned with severe injuries to the calf muscles of the plaintiff’s right foot by cutting the nerves, arteries and veins. As a consequence, the plaintiff was left with a permanent limp for the rest of his life due to the permanent paralysis of the elevator muscles of the right foot. Unlike the plaintiff in the present case, the plaintiff in that case was a healthy and energetic young man of 20 years of age with most of his sports and working life still before him. Because of his injury and his resulting permanent inability, he could not take any more part in the sports of marathon running, rugby and volleyball which he used to enjoy. His social life was also adversely affected because his limp made him a figure of fun; as he was a single young man his matrimonial prospects were thereby diminished. His physical inability was also found to put him at a serious disadvantage on the labour market so that he will suffer future economic loss. He was assessed as having a 35% disability. It was also found that he will suffer loss of earning capacity. Even though the Court of Appeal in that case did not disturb the award of $52,000 made by the trial Judge, the view was expressed that the award was on the high side.

The facts of the present case are quite different and not as serious. The plaintiff in this case has not suffered a permanent inability or nearly the same degree of loss of amenities as the plaintiff in Iosefa Feagai. As he was about 60 years of age at the time of his accident, his working life as a public servant was practically over and behind him. He has therefore suffered no future economic loss or loss of earning capacity and he quite properly made no claim for such loss as the plaintiff in Iosefa Feagai did. But future economic loss usually forms the largest component in an award of damages in a personal injuries claim. Furthermore, any sporting life the present plaintiff might have had is also well behind him now. Social life for him is now also insignificant given his age. He also testified that he is not a member of the RSA any more as he has now turned to God. The present plaintiff is also not a figure of fun because of his injury; and the question of whether his injury has adversely affected his matrimonial prospects does not apply to him as it did to the plaintiff in Iosefa Feagai. Thus the extent of the loss of amenities suffered by the plaintiff in Iosefa Feagai was much greater than the loss of amenities suffered by the plaintiff in the present case. Whilst consistency in awards for personal injuries cases is an important consideration, I think justice also requires that an award should be fair and reasonable. I would also think that in cases concerned with the loss of an organ or a limb, it will be easier to arrive at something like a “tariff” level for awards of damages than it is with cases like the present where there is no such loss. Counsel for the defendant mentioned inflation. As the plaintiff makes no claim for future economic loss, I will not consider the question of inflation.

Following on from Iosefa Feagai and Iese Katopau, I will make one lump sum award for general damages instead of allocating separate sums for pain and suffering and loss of amenities and then total them up. The plaintiff is awarded the sum of $12,000.00 for general damages for pain and suffering and loss of amenities. Add to that $5,113.32 for special damages and judgment is given for the plaintiff against the defendant in the total sum of $17,113.32.

Costs of $1,500 are awarded to the plaintiff and $1,000 to the third party plus any disbursements to be fixed by the Registrar.

ADDENDUM

After my judgment was delivered in this case, I came across the judgment of Moran J in Owen Hughes v Tafea Sang Yum (1998) (unreported judgment delivered on 24 July 1998) which was concerned with a car collision. The plaintiff sustained three broken ribs as a result of the collision. He only claimed general damages for pain and suffering. Damages were assessed by the trial Judge at $5000 but reduced to $2,500 due to a finding of contributory negligence on the plaintiff’s part. There was no claim for general damages for loss of amenities or for special damages for pre-trial expenses and lost earnings as the plaintiff in the present case had done.

The facts of Owen Hughes are of course quite different from the facts of the present case. The only relevance of that case to the present is that it goes to show that high awards of general damages are not usually given under the heading of pain and suffering. It is future economic loss, if there is any, that usually forms the largest component of an award for general damages.

CHIEF JUSTICE

Solicitors:
Sapolu & Lussick for plaintiff
Kruse, Enari & Barlow for defendant
Fepuleai & Schuster for third party