|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
CIVIL CASE No. 189 of 2004
BETWEEN:
ALFRED HINGE
Claimant
AND:
ENTREPRISE ROGER BRAND
Defendant
Coram: Chief Justice Vincent LUNABEK
Counsel: Mr. Jacob Kausiama for the Claimant
Mr. James Tari for the Defendant
Date of Hearing: 13 May 2005
Date of Judgment: 23 May 2005
JUDGMENT
INTRODUCTION
This is a claim for damages for personal injuries. The Claimant is a Ni-Vanuatu who was at the employ of the Defendant Company when he sustained injuries on 26 October 2002. The Defendant Company is a local company and owned by a Ni-Vanuatu businessman. At the early stage of the proceedings, leave was granted to the Defendant to file and serve a Third Party Notice to join Consolidated General Insurance Ltd as a Third Party. The notice was subsequently withdrawn at the request of the Defendant’s counsel. Liability is not in issue but the quantum of damages is. An offer of settlement was signed by the Claimant on 10 November 2003. Despite the settlement, the Claimant filed his claim against the Defendant for damages.
The Claimant claims for the following relief:
3. Interest at the rate of 12% per annum; and
4. Costs.
The defence accepts that the Claimant was at the employ of the Defendant and that he has sustained injuries during his employment on 26 October 2002. They admit and accept that they are liable to compensate the Claimant for his injuries. However, they contended that the Claimant has already received his insurance payment on 10th November 2003. Therefore, the Claimant is estopped from any further proceedings against the Defendant Company.
ISSUES
The issues for the determination by this Court are as follows:
(a) Section 18(1)(2) of the Employment Act [CAP 160]; or
(b) ‘Non est factum plea’ [this is not my deed].
SUMMARY OF FACTS
The factual circumstance leading up to this claim are summarized as follows:
(a) the Claimant sustained a fracture dislocation of the left elbow with 90% disability and limitation of movement restricted to a range of 30 degrees.
(b) The Claimant sustained a Colle’s fracture of the right wrist with 50% disability and limitation of flexion/extension movements.
(c) The Claimant sustained damages to the left wrist causing minor deformity of the left wrist – in the region of the Pisiform with 30% disability.
(d) The Claimant sustained a soft tissue injury to the left knee.
(e) The Claimant sustained a loss of the Left Incisor Upper Tooth and this is a permanent loss.
(f) The Claimant sustained a partial avulsion of the left lower incisor teeth.
“Medical Report
Re: Alfred Hinge
M/44
UR: 87319
Further to my report of 17th January I have again examined the above named with regards to the degree of permanent disability resulting from his previous injuries.
The following disabilities persist and I regard them as permanent:
The above result in a 50% of loss of use of the right hand, 90% loss of use of the left elbow & 30% loss of use in the left wrist.
These estimates are the degree of permanent disability as assessed by me on 25th February, 2003.
Radiologically there is evidence of early arthritic change in the right wrist & extensive capsular calcification around the left elbow.
It is likely that the above changes will be progressive with time & it is possible for the degree of disability to worsen if this is the case.
Basil McNamara FRACS
Consultant Surgeon
Vila Central Hospital
25th February 2003”
17 June, 2004
“...Medical Report
Re: Alfred Hinge
M/44
UR: 87319
This is a Final Report re the above.
I examined him again today & confirmed the findings of 25th February 2003. He has the following permanent disabilities:
The above result in a 50% loss of use of the right hand, 90% loss of the use of the left elbow & 30% loss of use of the left wrist.
These estimates are the degree of permanent disability as reassessed by me on 17th June 2003.
Radiologically there is evidence of early arthritic change in the right wrist & extensive calcification of the capsule of the left elbow.
It is likely that the above changes will be progressive with time & it is possible for the degree of disability to worsen if this is the case.
The patient has been discharged from further medical care.
Basil McNamara FRACS
Consultant Surgeon
Vila Central Hospital”
The offer of settlement reads:
“CJI
Insurance
OFFER OF SETTLEMENT
Claim Number 30025 Policy No. 03W 0030596
I/We Alfred Hinge agree to accept from Consolidated General Insurance Limited, One Hundred Thousand Eight Hundred Vatu (Vatu 100,800) inclusive of VAT (the settlement figure) being an ex gratia payment in full and final settlement of all claims for all partial and/or total disablement arising from all injuries sustained in Work Place Accident while under the employ of Dinh Gilbert trading as Entreprise Roger Brand occurring on or about the (26/10/2002).
I/we further agree and declare that:
Signed: ...........................
Date: ...........................”
21 June, 2004
“...TO WHOM IT MAY CONCERN
MEDICAL REPORT ON ALFRED HINGE
I examined him as of today 21/06/04 the disabilities recorded in letter of 17th June 2003 has not improved.
In fact they have gotten worse.
The disabilities are permanent.
For your information.
Dr Santus Wari
Act Consultant Surgeon – VCH
MBBS, Post Grad. Diploma Surgery”
EVIDENCE
The Claimant filed a sworn statement in support of his claim dated 14 February 2005. He gave also oral evidence and was cross-examined by the defence counsel. The Defendant provided two (2) statements one filed by Ms Mariella Delaplane on 23 February 2005 and another one by Mr Gilbert Dinh Van Than, the owner of the Defendant Company on same date. The defence counsel applies to withdraw the sworn statement of Mr Gilbert Dinh Van Than. It was then withdrawn.
What follows is the summary of the evidence of the Claimant and the Defendant’s witness, Ms Mariella Delaplane on the main point of dispute which is the circumstance under which the Claimant signed the Offer of settlement and his understanding of the document on 10 November 2003.
The evidence of the Claimant is to the following effect:
He signed a paper (paper blong insurance). He said the staff of the Defendant called on him to go and sign a paper. Rosalie was the one who called him to go inside and sign the paper. He signed the paper inside the office of Dinh Van Than. When they called him, he was outside of the workplace. Rosalie came in a hurry and told him “hey, yu kam collectem money blong yu”. Then he went inside the office. He went inside the office and saw a paper on the table there. It was in English language. At that time, there was no explanation as to what is in the paper. At that time, Dinh told him “yu saenem!” The Claimant said he stood there and then “oli pushum paper ia ikam long mi blong mi saenem”. There were four (4) persons inside the office. He said his highest education level was class 4. He can read newspapers but in Bislama. He said he signed the paper because he provided the Defendant with a list of expenses he made as a result of his injuries. He gave the list to Mariella Delaplane. He said before he signed the paper he did not get any legal advice from a lawyer. After he signed the paper he got the money and sought advice from the Labour Office. They told him his case is closed. And if he wishes to pursue further he must get a lawyer. When she signed the paper he did not understand what was inside the paper and nobody advises him to get advice before he signed it.
He was cross-examined. He said among the four (4) persons inside the office, there was a person from the Insurance Company. He saw him for the first time. He said the Insurance person put the document on the table and Dinh Van Than told him to sign. He confirmed he had a list of expenses with a total of VT214,800 which included part of his salaries from the period of accident 26 October 2003 to 4 June 2003 which was a period before he got the insurance payment. He also said while he was out of work the Defendant paid his salaries. He made the list before he received the payment. The list is about his expenses while he was in the hospital. He confirmed that he can write his name but he does not understand English words on the paper. He was then confronted by the Defendant’s counsel whether he finished school at class 4 or class 6. The Claimant said he thought class 6 is the true answer as stated in his sworn statement.
Finally, he confirmed that when he was inside the office to sign the document, he did not understand the meaning of the document. The people inside the office did not explain the content of the document to him. He signed it because he has given a list of his expenses to the Defendant.
Mariella Delaplane gave evidence for the Defendant. Her evidence is to the effect that she was the one who read the offer of settlement to the Claimant on 10 November 2003. She said she read the document and explained to him that this was the payment for the injuries he sustained. She said the Claimant just said he understood that it is for full and final payment for his injuries. She said the Claimant signed the offer of settlement in front of them and got a cheque of 100,800VT. After the payment of his injuries the Claimant continued working for the Defendant Company until the Defendant Company terminated him for gross-misconduct sometime in 2004.
She was cross-examined. She agreed that on 10 November 2003, she called Alfred Hinge in the office. She said there were five (5) people. She denied the fact that when the Claimant came inside the office, no one explained the document and its content to him. She said she explained the document to him. She said words to this effect that the payment is for compensation for his injuries. She denied that she had ever told the Claimant before the payment was made that the payment was only for his expenses but not for his injuries. She said she read the paper one time and she explained it to him. She asked him twice if he agrees to sign the document. She said she read the paper and explained to him generally what the paper is about. She denied that Mr. Dinh Van Than told the Claimant to sign the offer of settlement. She said her recollection was that when Alfred Hinge signed the paper she was at the office of the Deputy Director with two (2) persons from Insurance Company. She said Dinh Van Than was not there. He is in his office. She agrees with the Claimant’s counsel that the injuries sustained by the Claimant during his employment were very severe ones.
DISCUSSION ON EVIDENCE: FACTS AND CREDIBILITY
The Claimant, Mr Alfred Hinge, was a primary school leaver finishing at class 6. He can write his name and could read the local newspaper in Bislama. He does not understand English language. The offer of settlement dated 10 November 2003 was written in English language and had legal consequences.
Apart from a minor contradiction in his evidence when he said his highest level of education was class 4 while under cross-examination he said class 6 is the true answer, he was firm in his evidence that on 10 November 2003, Rosalie called him to go in the office to collect his money. Once in the office he saw the document on the table. There was no explanation as to the content of the document he was told to sign by the owner of the Defendant and as the Claimant stood there for a while, the document was pushed to him for his signature.
It is a fact that the document is in English language with legal consequences. The claimant did not appreciate and understand the very nature of the offer of settlement when he signed it on 10 November 2003. This is reflected in his evidence when he said he signed the document because he gave them a list containing his expenses (although it was refused). The list of his expenses was given to Ms Mariella Delaplane sometime before the signing of the offer of settlement. The Claimant is a credible witness.
It is difficult to believe that part of the evidence of Ms Mariella Delaplane to the effect that at the time of the signing of the document, Mr Dinh Van Than was not present as he was in his office. The Court accepts the evidence that Mr Dinh Van Than was inside the office in which the offer of settlement was signed. He told the Defendant to sign the offer of settlement. They pushed the document for him to sign and he signed it.
This finding is supported by other facts contained in the Claimant’s sworn statement of 14 February 2005 in support of his claim. Before the Insurance payment, the Defendant owner, Mr Dinh Van Than, asked the Claimant to provide medical reports on his injuries. The Claimant provided three (3) Medical Reports to the Defendant’s owner. On one occasion (at paragraph 28 of Claimant’s sworn statement), the Defendant’s owner, Mr Dinh Van Than offered the Claimant a ride in his vehicle to Tagabe and back to the office. During that ride, Mr Dinh made a statement to the Claimant to this effect: “Doctor ia ating hemi wan good friend blong yu’’. The Claimant responded by saying that he did not know the doctor personally as the doctor was an Australian expatriate doctor working at the hospital. This part of evidence is not challenged. On balance, the Court accepts the version of facts put by the Claimant and rejects the evidence of the Defendant.
The offer of settlement was signed in the factual circumstances as found by the Court and the Claimant did not obtain legal advice before he signed it. None of the persons present inside the office of the Defendant on 10 November 2003 explained the document nor made any suggestion to the Claimant about the possibility of obtaining advice before he signed the offer of settlement although, they knew that the offer once signed has legal consequences. Finally it is more probable than not that as the employer of the Claimant, the Defendant’s owner and people present knew about the Claimant’s English illiteracy.
THE LAW AND ITS APPLICATION
The following is the legal principle on estoppal arising out of a “signed document” circumstance:
Counsel for the Claimant made two (2) limb submissions:
The first limb of the Claimant’s submissions is that the Claimant’s signature on the offer of settlement dated 10 November 2003 does not estop the Claimant to pursue with his legal action before the Court by virtue of section 18(1) (2) of the Employment Act [CAP 160].
The defence counsel submitted that section 18(1)(2) of the Employment Act is not applicable in this case because that section deals with the contract of employment and the remuneration.
Section 18(1) (2) provides:
“18. (1) No statement such as “received in full settlement of all claims” made by the employee, whether during the period of his contract or after is termination, shall have the effect of waiving any rights he may have under the said contract.
(2) The acceptance without protest or reservation by an employee of a pay document shall not be held to imply renunciation on his part of the claim for all or any part of remuneration which may be due to him and such acceptance shall not be held to imply the settlement of all claims.”
By perusing the language of section 18, it is apparently clear that it relates to remuneration and/or pay of an employee. The evidence in this case is that the offer of settlement is about the compensation for the Claimant’s personal injuries. There is no evidence of outstanding pay or remuneration of the Claimant. I accept the Defendant’s submission that Section 18(1) (2) is not applicable in the present case and cannot assist the Claimant. The Claimant’s submission on section 18 of the Employment Act [CAP 160] cannot stand and is rejected.
The second limb of the Claimant’s submission is based on ‘non est factum plea’. [This is not my deed.]
The Claimant says he is a primary school leaver (class 6). He does not read nor write English. He reads local newspapers in Bislama. He did not understand the content of the document which is written in English and nobody explain to him about the legal consequences of his signing the offer of settlement. He thought he signed a document for the expenses he incurred during his 3 weeks medical treatment at the Vila Central Hospital. The Defendant’s owner told him to sign the document. The document was pushed for him to sign. He signed it in such a circumstance. He did not obtain legal advice and none of the persons present suggested to him whether he needed time and help before he signed the document on 10 November 2003.
The defence counsel submitted that the Claimant was aware of the content of the offer of settlement on 10 November 2003. It was read and explained to him. He was asked twice (2) before he signed the document. The Claimant was aware of the content of the document to be full and final settlement of his injuries. He is therefore estopped to take further legal proceedings.
The Claimant relies on the ‘non est factum plea’ which is an exception to a ‘signed document’ being binding upon the signature. The ‘non est factum plea’ was considered in the English Case of Gallie v. Lee (1969) 2 Ch and Sanders v. Anglia Building Society (1971) AC 1004.
In Sanders v. Anglia Building Society (1971) AC 1004, the Members of the House of Lords accepted that the plea requires proof of three elements: (1) that the signer be under disability; (2) that there be a sufficient difference between the document as it is and as the signer believed it to be; and (3) that the signer should not have been careless.
In Sanders Case, the plea of ‘non est factum’ could not assist because there was no radical or fundamental difference between what she had actually signed and what she believed she had signed. Both were transfers and the sole difference was the beneficiary of the assignment. The reasoning in Gallie v. Lee was subsequently approved and applied by the Australian High Court in: Petelin v. Cullen (1975) CLR 355. The brief facts of that case are that:
Petelin, who could neither read nor write English, gave Cullen an option to purchase his property in exchange for a payment of $50. The option had to be exercised within six months. At the expiry of the six-month period, the option had not been exercised and it lapsed. Petelin then received a cheque for a further $50 and was later confronted by Cullen who asked him to sign what Cullen said was a receipt for the second payment. It was in fact an extension of the option and during the extended period, Cullen purportedly exercised it. Petelin entered a plea of ‘non est factum’.
The High Court of Australia held that:
“Specific performance was refused. The document signed by Petelin was radically different from that which he had thought it to be and thus a plea of ‘non est factum’ was open to defeat Cullen’s action.”
In Petelin v. Cullen the High Court, whilst approving Gallie v. Lee, laid down three conditions which it said had to be fulfilled before a plea of ‘non est factum’ could be successful. The three conditions are:
(a) the claimant has to belong to a class of persons who have to rely on others for advice as to what they are signing because of an inability to read resulting from either blindness or illiteracy, or because, through no fault of their own, they are unable to have any understanding of the particular document;
(b) the claimant has to show that the document was signed in the belief that it was radically different from that which it was in fact; and
(c) at least as against innocent third parties, the failure to read and understand the document must not have been due to carelessness on the claimant’s part.
Having considered the persuasive authorities of the House of Lords decisions in Gallie v. Lee (1969) and Sanders v. Anglia Building Society (1971) and the judgment of the High Court of Australia in Petelin v. Cullen (1975), I accept and adopt them as my own in the present case.
The “plea of non est factum” (this is not my Deed) requires clear and positive evidence before it can be established. The onus of proof lies on the party (here the Claimant) seeking to disown the signature. The plea requires the proof of three elements:
First, the signer be under disability. This means that the Claimant has to belong to a class of persons who have to rely on others for advice as to what they are signing because of an inability to read or illiteracy or they are made to have any understanding of the particular document.
In the present case, the offer of settlement is in English language. The terms of the document have intended legal consequences. The Defendant was called in the office of the Defendant by rush. He was told to sign a document. He did not speak English or read English, although, he is a primary class 6 leaver. He reads local newspaper in Bislama. No explanation was given to the Claimant on 10 November 2003 before he signed the document. The document was on the table. The defendant stood there for a while. The owner of the Defendant Company, Mr Dinh Van Than, told the Claimant to sign it. He said they pushed the document to him for his signature. On the facts, the Claimant belongs to the class of persons who relies on others for advice as to what he signed because of his inability to read English language and as he said he is an illiterate in that sense. The document has legal consequences. He is unable to understand them. The first condition is satisfied.
Second, the Claimant has to show that the document was signed in the belief that it was radically different from that which it was in fact.
The Claimant signed the document on the belief that it was for the expenses he had incurred while he spent 3 weeks in the hospital. The expenses related to the costs of getting his brother from Pentecost to Vila to assist the Claimant’s wife to look after him at the hospital and other expenses. Before the payment, the owner of the Defendant advised the Claimant to provide medical reports for the payment of his injuries. The Claimant waited but no payment was made. He then approached Ms Mariella Delaplane who works for the Defendant Company about the payment. Ms Mariella informed the Claimant that the payment is not about the payment of his injuries but for his expenses. The Claimant then provided a list of his expenses to Ms Mariella. She refused it. Nothing eventuated until 10 November 2003. The fact that she refused them is irrelevant. The point is that the Claimant had his expenses in his mind when he signed the document as reflected in his evidence. The offer of settlement which was signed was about the personal injuries. It was not about his expenses. There is a fundamental difference between the offer of settlement which is about the substantive compensation of the injuries (document signed) and the expenses (the document he has in mind when he signed it). The second element is also satisfied.
Third, the failure of the signer to read and understand the document must not have been due to carelessness on the Claimant’s part.
The Claimant does not read English language. He could not understand the document and its legal consequences. The circumstances of the case through evidence as found and accepted by the Court show that the Claimant was told by the owner of the Defendant Company to sign the document in the presence of other persons inside his office. From the evidence the Claimant is a man who works outside the office. He referred to other staff of the Defendant to be “olgeta we oli wok insaed long office”. When he speaks to them, he speaks in Bislama only. The evidence through his sworn statement shows that he would not approach the owner of the Defendant directly, but through other staff. It is important to appreciate and translate that evidence into the practical realities and understanding of the Claimant. So here, he was told to sign the document by the owner of the Defendant in the presence of others including representative of the Insurance Company. Then, the document was pushed to him for his signature. He signed it. He is a person of full age but not understanding in the circumstance of this case. He was not advised as to whether or not he would need time to think or obtain legal advice. Is it carelessness on his part in such a circumstance, he was facing? The answer must be in the negative in the particular circumstance of this case. The third element of ‘non est factum plea’ is satisfied.
The Claimant’s claim for damages must stand. The Claimant cannot be estopped in the circumstance of this case. The document signed by the Claimant was radically different from which he had thought it to be and thus a plea of ‘non est factum’ is open to defeat the estoppal argument.
ASSESSMENT OF DAMAGES
I must now assess the damages as claimed and the Claimant by counsel made submissions to this effect. Two (2) Supreme Court judgments were referred to this court for reliance. [CC 3 of 1984 – Rejane Lansonneur (Pl) v. Pierre Barge (1st Dft) and Lowndes Lambert Pacific Ltd (2nd Dft) Van.L.R. Vol 1, 1980-88; Richard Solzer v. Pierrot Garae and Vanuatu Government (CC 117 of 1992) Van. L.R. 528 (1980-1994).
The defence counsel made no submissions on damages. That is a matter for the defence counsel’s judgment on the defence case.
On the evidence before the Court, the latest Medical Report produced by the Claimant for his injuries was the report dated 21 June 2004 made by Dr Santus Wari who examined the Claimant reported (Annexure “E” of sworn statement of Claimant).
“21 June, 2004
TO WHOM IT MAY CONCERN
MEDICAL REPORT ON ALFRED HINGE
I examined him as of today 21/06/04 the disabilities recorded in letter of 17th June 2003 has not improved.
In fact they have gotten worse.
The disabilities are permanent.
For your information.
Dr Santus Wari
Act Consultant Surgeon – VCH
MBBS, Post Grad. Diploma Surgery”
That Medical Report made reference to the substantial Medical Report of 17 June 2003. Dr Basil McNamara reported [Annexure “C” sworn statement of Claimant):
”17 June, 2004
Medical Report
Re: Alfred Hinge
M/44
UR: 87319
This is a Final Report re the above.
I examined him again today & confirmed the findings of 25th February 2003. He has the following permanent disabilities:
The above result in a 50% loss of use of the right hand, 90% loss of the use of the left elbow & 30% loss of use of the left wrist.
These estimates are the degree of permanent disability as reassessed by me on 17th June 2003.
Radiologically there is evidence of early arthritic change in the right wrist & extensive calcification of the capsule of the left elbow.
It is likely that the above changes will be progressive with time & it is possible for the degree of disability to worsen if this is the case.
The patient has been discharged from further medical care.
Basil McNamara FRACS
Consultant Surgeon
Vila Central Hospital”
As a result of those Medical Reports, I consider them carefully. I have finally decided in view of the injuries received and their continuing worsened degree of disabilities as shown by the Medical Reports to assess disabilities together with pain and suffering. I assess the General Damages in Vatu 5,000,000. I also assess the Special Damage on the evidence of the Claimant. I set out below the breakdown of the General and Special Damages:-
A – General Damage
and 90%) at ...................................................... 4,500,000 VT
___________
TOTAL (A) ................................................................ 5,000,000 VT
B – Special Damage (on the Claimant’s evidence) at ......... 36,000 VT
___________
TOTAL (A + B) ................................................ 5,036,000 VT
==========
The Claimant is entitled to interest on 12% but limited from the date of issue of the claim i.e. 6 October 2004 to the date of action
i.e. 23 May 2005. The interest covers a period of 8½ months which is 8.5/12 x 12 = 8.5% of the total. I work out the interest
figure to be 428,060 Vatu.
ORDER
DATED at Port-Vila this 23rd day of May 2005
BY THE COURT
Vincent LUNABEK
Chief Justice
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/vu/cases/VUSC/2005/71.html