Tikil v Western Highlands Provincial Government [2004] PGDC 51; DC398 (22 June 2004)

DC398

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 27 OF 2004

Anis Tikil
Complainant

V

Western Highlands Provincial Government
Defendant

Mt. Hagen: M.M. Pupaka
2004: 02nd June

Damages claim – Personal injuries – Motor vehicle accident – Complainant passenger in vehicle owned by defendant which was driven by employee of defendant – Issue – whether vehicle driven in the course of duties – Lack of defence not admission of liability – Court to decide if liability established – Assessment of damages – Inflation a factor

Practice and procedure – Ex parte hearing – Direction – Complainant present evidence in affidavit form proper in the interests of an expeditious disposition of the case – Defence right to apply for set aside unaffected etc.

Cases referred to:
Kokonas Kandapak v Independent State of Papua New Guinea [1980] PNGLR 573
Kaka Kopun v Independent State of Papua New Guinea [1980] PNGLR 557
Kosi Bongri v Independent State of Papua New Guinea [1987] PNGLR 478
Pep v Independent State of Papua New Guinea [1987] PNGLR 485
Lee Transport Co Ltd v Watson [1940] HCA 27; (1940) 64 CLR 1
Winnie Vava –v- Egon Vava (1998) DC42
Motor Vehicles Insurance Trust v Salio Tabanto [1995] PNGLR 214 SC480

Counsel
In Person: Complainant
In Person: Defendant

22nd June 2004

M. M. PUPAKA: This matter now comes before me for ex parte hearing after the defendants have failed completely to defend the suit. In the absence of the defendants the complainant was granted leave to proceed ex parte and was directed to file affidavit evidence for the Court to consider. I was of the view that this approach to dealing with the matter is not improper. I think it is an expeditious way of dealing with uncontested matters. In the end the defendants’ right to apply for set aside of any ex parte relief granted remains unaffected, subject to their due compliance with appropriate requirements such as those in the case of Green & Co Pty Ltd v Green [1976] PNGLR 73, which is of course another matter. However for the current purposes, the mode adopted is fair.

Consequently the complainant has filed two affidavits, one his own (dated 26th April 2004) and another of a Dr. Benjamin Yapo, (dated 28th May 2004). When asked in court, as to whether he wanted to file or adduce any further evidence, the complainant said he had done enough. He then requested the Court to decide his case on the bases of the available evidence. Therefore I have perused the two affidavits together with their respective annexures, in the light of the statement of claim.

On the Injury & Liability

After perusal of the evidence I am fairly satisfied, within the constraints of these ex parte hearings of course, that the complainant was injured as alleged and that he was hospitalized and treated accordingly.

I must, again in these restricted circumstances, find that liability has been established. Paragraph 3 of the complainant’s affidavit contains reasons why he, who is not an employee of the defendant, was in the subject vehicle at the time. Under contested circumstances such reasons may not suffice but then again the defendant has not denied liability. Further, whilst the lack of a defence is no admission of liability, the assertion that the driver of the vehicle was acting in the normal course of his duties is not negated. The defendant was apparently served. It should have made attempts to defend but it has failed to do so. I should mention one other matter too. I have perused certain correspondences filed as annexures in the complainant’s affidavit and I note that the Provincial Government lawyers Messrs Paul Mawa Lawyers had, in response to an official request for advice in relation to the complainant’s claim, opined to the appropriate person in the defendant to pay the complainant. The soundness of their "considered opinion" is not open for scrutiny by this Court so I say no more than mention in passing that this suit seems to be not defended, apparently as a matter of choice.

On Damages

Dr. Benjamin Yapo, who seems to have examined the complainant, has assessed 35% loss of palmer flexion of his left hand and what I presume to be a consequential 25% loss in the functional use of that hand. The complainant has not provided other details of how old he is, what other loss he suffered, and what he does for a living, but he seems to have been picked up from Moika Village on the day of the accident so I presume he is at least a villager. Therefore the loss to the complainant, an apparently middle-aged villager, is 25% functional use of the left hand due to a localized 35% palmar flexion of that hand.

I am unable to locate any comparable precedent, which is on all fours with this instant case. However there are many known cases, which generally concerned injured hands. The Supreme Court appeal case of Motor Vehicles Insurance Trust v Salio Tabanto [1995] PNGLR 214 [SC480] is one such. In that case the respondent received injuries to his left hand when he was thrown out of the back tray of a Toyota Dyna Truck when the Truck skidded on a corner and hit a cement culvert. The appeal raised issues inter alia, of the accuracy in assessment and of measure of damages. Whilst confirming the findings of facts by the National Court, the Supreme Court said thus in relation to the submission that an award of K12, 000.00 for general damages by the National Court was excessive:

"We cannot disturb the damages awarded by the trial judge unless we are of the view that the amount awarded is so inordinately high that it is a wrong estimate of the damages.

We consider that the case which is most closely related to this case is Ambo Clung v The Motor Vehicles (PNG) Trust (unreported judgment of the National Court dated 19 March 1990, N824). In that case, a woman aged between 45 and 50, a subsistence farmer received a fracture of the right thumb and a fracture of her left wrist. These injuries resulted in stiffness and disability in both hands and therefore reduction in efficient use of both hands. The Court awarded K8000.00 for general damages.

The injuries in the present case are not as serious as the case referred to above. The respondent is right handed and has an injury to his left hand. Taking into account inflation, we consider that the appropriate award for this case would be K8000.00. We would allow the appeal on this ground."

My colleague and friend, the former Chief Magistrate and currently Acting Judge, Justice George Manuhu had occasion to deal with another case, the case of Winnie Vava –v- Egon Vava (1998) DC42, at Kimbe. The facts therein were not quite similar to this instant case, but Justice Manuhu discussed some of the more commonly cited cases in this jurisdiction in relation to hand injuries. His honour made a comparative analysis of relevant precedents, which I think I should cite. He said therein and I quote:

"In Kokonas Kandapak v Independent State of Papua New Guinea [1980] PNGLR 573 Kandapak suffered a compound fracture of the right humerus with damages to the ulna nerve causing a claw hand and deformity. His treatment included bone plating and grafting. The end result is that he suffered 50 per cent loss of the effective use of his right hand and therefore he had difficulties with lifting and gripping. He was awarded K10, 000 for pain and suffering. In Kaka Kopun v Independent State of Papua New Guinea [1980] PNGLR 557 Kopun's principal injuries were fractures of the left forearm and wrist resulting in a permanent deformity because of misalignment in union. He was awarded K18, 000. In Kosi Bongri v Independent State of Papua New Guinea [1987] PNGLR 478 Bongri in his late forties suffered a comminuted fracture dislocation of the right elbow, which healed leaving a 100 per cent loss of efficient use of the elbow for heavy manual labor. He was awarded K7, 500 for pain and suffering. In Pep v Independent State of Papua New Guinea [1987] PNGLR 485 the principal injuries were severe fractures of the left arm bones which took a long time to heal and required a bone graft four years later. The residual disabilities included a deformed arm with about 50 per cent reduction in usefulness. Pep was awarded K15, 000 for pain and suffering.

All these cases arose out of motor vehicle accidents. The least award was for K7, 500 in Kosi Bongri v Independent State of Papua New Guinea (supra)."

I think the case of Motor Vehicles Insurance Trust v Salio Tabanto [1995] PNGLR 214 [SC480] is factually closer to this case than the cases referred to in Winnie Vava –v- Egon Vava (1998) DC42. To my mind a general award in the range of between K6, 000.00 to K8, 000.00 for cases like this instant one, is within the bounds of reason and the precedents. I also think a case could be made for the need to factor in inflation whilst assessing appropriate awards. I think one Kina (K1.00), in the times of these precedents is now not worth its purchasing power of that time. Justice Manuhu cited the case of Lee Transport Co Ltd v Watson [1940] HCA 27; (1940) 64 CLR 1 wherein it was said that: "the figures to which in former times courts grew accustomed ought not to govern our notions of what should be awarded in the terms of the money of today with its reduced purchasing power". I think I would prefer to simply say I allow for inflation though, and having so allowed I would say K10, 000.00 for pain and suffering for the kind of injuries suffered by this complainant is not unrealistic nowadays. Consequently, in the circumstances, I would grant and enter judgment for the complainant in the sum of K10, 000.00.

Economic Losses & Specially Damages

Neither economic losses nor special damages have been sought and there is no evidence given of these here too so I must not venture any further then the mere mention of them, and that only for the purposes of completeness only. In any event the general award for pain and suffering is already up to the limits of this Court’s jurisdiction so whether any other award would have been made herein is purely academic anyway.

Ergo I enter judgment for the complainant in the sum of K10, 000.00. He shall have his nominal costs and, if the judgment is not satisfied within a month from the date of service of the this order, he shall have 8% interests paid thereon, which is to be computed from the date of commencement of these proceedings to the date of settlement.

In Person: Complainant
In Person: Defendant