28/10/2021

Businessman ordered to pay more than VT177 million for injury compensation

An expatriate businessman was ordered to pay up to more than 34 million vatu following an accident he was involved in that nearly killed a biker.

Justice Andrée Wiltens said Nicholas Ritsinias was driving to his workplace, Vila Marine, on Mele Road and to enter the work premises, he failed to negotiate a left turn.

Justice Wiltens said Ritsinias suddenly turned into the gate and cut across an on-coming motorcycle ridden by Ory Covo causing him to crash into the Toyota truck driven by Mr Ritsinias.

Covo endured 22 serious injuries as a result of Mr Ritsinias’ negligent driving and sued for damages by way of an Amended Claim filed on 18 February 2017.

The Amended Claim sought damages in respect of, personal injuries, attendant care costs, loss of income (past), loss of income (future); and medical expenses.

The judge said that responsible counsel has resolved those claims but for the claims in respect of personal injuries and loss of income (future). Therefore his court will make its decision based on the remaining heads of claim which is still in dispute.

Justice Wiltens said that there is no issue as to Mr Ritsinias’ liability. That was initially determined by Justice Fatiaki in his judgment of December 6, 2018, and confirmed by the Court of Appeal in its judgment of 10 May 2019.

Although the hearing of this matter took place, briefly, on 30 April 2019 with the production of the statements and reports referred to above, there was still in play at that time an offer of settlement.

The court said that the medical reports must carry more weight than the statements by members of Mr Covo’s family and friends as they are independent and without emotional attachment.

Mark Hurley on behalf of Covo submitted the damages to be properly awarded amounted to between GBP 145,545 and GBP 280,685. He then further submitted that the differences between UK and Vanuatu warranted a reduction from the guidelines by something closer to 50% than 33%. Finally, he submitted a further reduction on the basis of a global consideration of reasonableness as per the authority of Sadler v Filipiak [2011] EWCA Civ 1728.

The submission was considered by the court that each award must be considered from both perspectives, i.e. the claimants and the defendants. In the end, the result must be a reasonable award having regard to both perspectives.

He then deals with the 22 individual injuries identified.

1.                 Brain 32,500
2.                 Chest – Aorta 70,000
3.                 Chest – haemothorax 3,500
4.                 Ribs 3,500
5.                 Liver 4,000
6.                 Spleen 4,000
7.                 Vertebrae 6,500
8.                 Scapula 13,000
9.                 Clavicle 13,000
10.             Left arm 32,500
11.             Left upper arm 32,500
12.             Right wrist 15,500
13.             Left middle finger 13,000
14.             Right hand (5th metacarpal) 2,000
15.             Right Distal 6,000
16.             Right elbow 22,500
17.             Left knee 32,500
18.             Right foot 35,000
19.             Left foot 35,000
20.             Nasal 2,200
21.             Scars 15,000
22.             Minor injuries 1,500

GBP 395,200

Annually Mr Covo earnt US$42,000 which equates to VT 4,561,200 p.a. He further earnt VT 4,200,000. Those sums accumulate to VT 8,761,200 p.a.

The court also said that 89% of that sum equates to VT 7,797,468. That must be multiplied by 14.75 years, which comes to VT 115,012,653.

That sum then needs to be added to buy 100% loss of VT 8,761,200 times 10 years. This second amount comes to VT 87, 612,000; and together the sums total to VT 202,624,653.

That amount then needs to be reduced by 3% p.a. which the UK Ogden Tables (8th Edition), appended to Mr Warmington’s second report, requires multiplication by -17.08%. That calculation comes to a reduction of VT 34,608,290 in round figures. Deducting that from the previous total comes to an interim total of VT 168,016,363.

Finally, the 15% for vicissitudes of life also needs to be deducted. That is VT 25,202,454, and when deducted leaves a total amount of VT 142,813,909.

“I fully accept my calculations may be erroneous, which is why they are set as laboriously as they are”, the judge said.

“I am acutely conscious that I have no actuarial training or skills. Accordingly leave is given to both counsels to revert to the Court regarding my attempts at coming to the appropriate figure.

“There is no doubt that the damages now awarded accrued from the date of the accident, namely 23 November 2013. The Court has done its best to assess the appropriate quantum of damages, and whether that was complex and/or imprecise does not, in my view require yet further assessment of the interest properly payable to Mr Covo from the date of the accident”.

Counsel agree that the costs of and incidental to this litigation be paid by Mr Ristsinias. The amount of those costs, if not agreed between counsel, is to assess by the Master.

Mr Covo was awarded damages in the sum of VT 34,272,000 in respect of his personal injuries resulting from this accident. He is also entitled to interest on that sum at the rate of 5% p.a. from 23 November 2013 until the damages have been paid in full.

Mr Covo is awarded the sum of VT 142,813,909 as damages for loss of future earnings arising from this accident. He is entitled to interest on that sum at the Supreme Court rate of 5% p.a. as from the date of this judgment until that amount is paid in full.

Mr Covo is entitled to his costs. Once settled, by agreement between counsel or by the Master, they are to be paid in 21 days.

There will be a further conference at 8.30 am on 12 August 2021 for Mr Ritsinias to advise the Court that the awards have been paid or that arrangements have been entered into to enable that to occur.

“For that reason, a copy of this judgment must be served on Mr Ritsinias with a proof of service filed in due course”, the court concluded.