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Mareko v Rereieta [2024] KIHC 2; Civil Case 36 of 2018 (2 January 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 36 of 2018

BETWEEN:
TERUBEA MAREKO
Plaintiff

AND:
TOARIRI REREIETA
1^ST Defendant

AND:
KIRIBATI PORT AUTHORITY
2^ND Defendant

Date of Hearing: 20 September 2023,
Date of Judgment: 2 January 2024

Appearances: Mr. Banuera Berina for the Plaintiff
Ms. Elsie Karakaua for the Defendants

JUDGMENT

Brief Facts

1. The plaintiff claims damages for the personal injury that occurred during his work at his workplace. The second defendant agreed to be vicariously liable for the damages for personal injury and paid the plaintiff $2750, pursuant to the Workman Compensation Ordinance. The plaintiff disputes the amount paid as being insufficient compensation.
   
2. The plaintiff was a stevedore at the time of the accident. He lost two fingers as a result of the accident. The doctors amputated his first finger and tried to save the other. He was hospitalised for almost a week. When he was discharged, he was still experiencing intense and severe pain, and the painkillers did not help. He got re-admitted several times because of this pain. In the end, the doctors amputated his second finger.
   

The Issue

3. Is the sum paid by the defendant to the Plaintiff for $2750 sufficient to compensate the Plaintiff for the injuries he suffered during employment?
   

Submissions and Analysis

4. By writ of summons, the plaintiff sues the defendant for a negligence claim. Although he has received some compensation under the Workman Compensation Ordinance, pursuant to section 26 of the same legislation, the plaintiff has the right to commence proceedings independently of this law. Both parties agreed on this.
   
5. As mentioned above, the plaintiff claims the compensation provided under the Workman Compensation Ordinance is insufficient as the plaintiff was only compensated for incapacity since the Ordinance does not provide compensation for pain and suffering.
   
6. The plaintiff claims compensation to be at least equal to the sum awarded in the case of Korieta v Broadcasting And Publication Authority [2011] KIHC 40; Civil Case 08 of 2011, which is $20,000 as general damages. The doctor assessed the victim’s permanent incapacity at 45%.
   
7. Counsel for the plaintiff argued that in Korieta, there was no distinguishing between permanent incapacity and pain and suffering; the award offered was for all heads, such as injury, pain and suffering, inconvenience, etc. The defendant’s case is that the plaintiff should only receive $4,800, the value of 11% since the court in Korieta gave $20,000 for 45%.
   
8. Having read Korieta, it shows that the $20,000 awarded covers the four heads like (i) the nature and extent of the injuries sustained, (ii) the nature and gravity of the resulting physical disability, including disfigurement, (iii) the pain and suffering which had to be endured, and (iv) the loss of amenities suffered. So, the plaintiff is correct that there was no distinguishment between the heads of damages. However, I also noticed that the assessment of 45% was only for the victim’s permanent incapacity. Still, the court did not use this assessment when deciding the fair amount of compensation. If we were to give the value of this 45%, it would have been $11,250 out of $25,000 pursuant to the Workman Compensation Ordinance.
   
9. Therefore, referring back to the defendant’s argument that the plaintiff is only entitled to $4800 as the value of 11% of $20,000 is not correct as this 11% should be taken out of $25,000, the ceiling figure for permanent incapacity as per the Workman’s Compensation Ordinance.
   
10. The plaintiff’s case is for compensation for pain and suffering. The plaintiff did not ask for anything else, and he has already received $2,750 for permanent incapacity, assessed at 11% of $25,000. Korieta awarded general damages at $20,000, which includes permanent incapacity and pain and suffering. Working with $20,000 as the ceiling figure in Korieta, I came up with the following calculation:
    

Example using Korieta’s award: $20,000 = $11,250 (value of 45% of $25,000) + $8,750

Therefore, $20,000 - $2,750 (value of 11% of $25,000) = $17,750

Conclusion

11. Based on the above, I am of the view that the best compensation this court could award to the plaintiff as just and fair is $17,750.00.
    
12. The plaintiff also claims interest and cost; therefore, he will also receive an interest of 5% per annum from the date of the writ to the date of judgment.
    
13. The plaintiff is also entitled to his cost of these proceedings to be agreed upon or taxed.
    

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice