Dagu v Independent State of Papua New Guinea [1995] PGNC 15; N1316 (5 April 1995)

Unreported National Court Decisions

N1316

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 303 OF 1994
BETWEEN:
SALE DAGU
And:
INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Salika J
5 April 1995

INJURY TO EYE - 90 to 95% incapacity to right eye - General restriction on plaintiffs activities - Assessment of damages.

Cases Cited:

J Kennedy v Nalau & State [1981] PNGLR 543

T Murray v Kinamur [1983] PNGLR 446

J Rohrlach v Evangelical Lutheran Church [1985] PNGLR 185

S Opa v State [1987] PNGLR 469

R Aura v Papuan Airline Transport Limited [1963] PNGLR 272

Counsel:

Mr Kamburi for the Plaintiff

Mr Maeokali for the Defendant

5 April 1995

SALIKA J: This matter is befois Cour Court only for the assessment of damages. Liability has determined.&ned. The State (dent) has been been found liable for damage together with interest and costs.

The plaintiff had claimed damages for ins susd in a motor vehicle accident on the 13th Octobertober 1990. Heained injuries toes to h to his knee, head and face and subsequently underwent surgery to the cataract of his right eye. He wasears old at the time time of the accident.

Evidence at the plaintiff a securityurity officer was a passenger on a moving motor vehicle, an Isuzu station wagon along the Waigani Drive neub Germania. A motor otor vehicned by t by the defendant registration number ZGL 575 driven by a police constable named Mathew Hebe bumped into the rear of the vehicle the plaintiff was travelling in. As a result of the imthe Ithe Isuzu station wagon ran off the road and overturned several times. The plaintiff was t out ofut of the vehicle and landed on the side of the road0; He could not recall anything after that as he was unconsnconscious and regained consciousness in the hospital. The plaintiffbleedeavily fily from his hhis head, face and knees. He suffered deeerations ofns of about one to two centimetres to the head.& He also suffered laceration of three to 4 centimetres deep below the right eye. The The laceratione cleancleaned and stitched0; He suffered eye irritatiitation which was treated with eye ointment.

The plaintiff was unconscious from the impact for abou/2 hours. He was in pain when hainedained consciousneousness. ye irritation continued aned and worsened. He left work in Janu992 an92 and on 23rd January the eye was operated on and the cataract was removed.

Medical evidence from Dr Kerek anKorimnfirmed that the the plaintiff developed traumatic cataract of the right eye which reducedduced his vision dramatically. They rm that the eye was owas operated on to remove the cataract. Thht eye now has a vision sion of 1.5/60 to 6/60. This sents a 905% visual iual incapacity to his right eye and there is nothing more that can be n be done medically to improve that.; Theo 95% incapacity city represents a near blindness stage in so far as the right eye is conceconcerned.

This means also that thentiff cannot do some things that he used to do. He resigned fro work becaubecause of e of the difficulty he had working with only one eye. He is unable to drimotor vtor vehicle as he used to before the incident. He is not to work in his ghis g to grow vegetables and cutd cut firewood as he used to. He no longer enjhe companympany of his friends and cannot now participate iial activities that he once enjoyed. The plaintiff isff is now wholly dependant on friends and relatives. Furthermore now he effect vely has only only one eye he will have to be very careful in what he does to protect the remaining eye.

Mr Kamburilawye the plaintiff ciff cited a number of comparable “eye” cases such as Jacquelineeline Kennedy v Jerry Nalau and the State [1981] PNGLR 543 where a female child of 9 months suffered facial cuts and lacerations following impact with the dashboard of the car. The lacerations wergicallycally repaired but she continued to suffer from irritation to the eye which was susceptible to the wind and dust. The plff was awarded K10,6K10,600.00 in general damages including K1,200.00 for future economic loss and K500 for future medical costs. He also cited Takie Murray v Norman Kinamur [1983] PNGLR 446 where a middle aged married woman suffered an injury to the left eye as a result of an assault upon her. The eye was surgicallyved oved and an artificial as inserted which created ited irritation, disfigurement and psychological distress. She was awarded000.00 in g in general dama#160; Mr Kamburi also referred the Court to the case of Janf Jane Rohrlach v Evangelical Lutheran Church [1985] PNGLR 185 where the piff’s child was blinded in one eye by a staple fired ired by a fellow student child whilst at school. Damages in that cas agreedgreed to and settled in the sum of K52,452.86.

I also find some assistance in the case of Seke Opa v Independent SOf Papua New Guinea [1987] PNGLR 469 where the plaintiff a village man in his mid thirties ties suffered amongst other severe injuries, injury to his right eye resulting in blindness. He suffa severe head injurinjury, loss of ability to eat, a left arm totally paralysed and his left leg partially paralysed. He was aw K60,000.00 for pfor pain, suffering and loss of amenities.

The cases which have beee been cited are of course different in nature in that the circumstances and extent of injuries suffered afferent. They are usee useful ipinglping the Court to decide a just award.

The plaintiff in this case was a security officer earning K95.00 per fortnight. Because of the injury he sustained he resigned. He is now uoyed.

I

I am satisfied that prior to the accident the plaintiff was a robust and active person with no disability in his eyes. I am furthersfied the ght ight irrt irritates his eyes and that constantly dtly disturbs and annoys him which in turn makes it difficult for him to seany employment. He is almost bln his rightright eye.

God created mankind, anim animals, fishes, birds and insects with two eyes each for good purpose. ntly bulk of mankind are bare born with two good eyes. The eyesprecious. In0; In 1963 Smithers cons considering damages for a 20 year old plaintiff who had a 50% visual incapacity in the case of Rouney Aura v Papuan Ae Trat Limited (1963) PNGLR 272 said:

“It20;It must never be forgotten that each eych eye is a precious possession - precious because of its capacity, and as one of man’s links with the outside world, an essential part of a man’s body.”

I agree with what was said then and I think it should be said again now that eyes are indeed very precious. One oas to be blindfolded lded to appreciate the value of both eyes.

Mr Kamburi has suggested that the Court award:

(a); K18,000.00 for general damages pain and suffering and loss of amef amenities;

(b) & K2,000.,000.00 for economic loss;

(c) ҈ 7.,33int0 interest rest of 8% from issue of writ to date of judgment.Mr Mli thyer oord from the Attorney-Generalnerals Office has failed to submit any figy figures.ures.

Mr Kamburi’s figures are based on comparison to the cases of Takie Murray (supra) and Jane Rohrlach (supra). I ask myself how much intaonetary terms is the loss of 90 to 95% loss of sight to the plaintiff’s right eye? The nstant cases referred rred to are 1983 and 1985 cases respely.

I am of the view that the fair and reasonable amle amount for pain and suffering and loss of amenities is K20,000.00 and Irder.

Interest is cais calculated from the date of issue of the Writ (17th May 1994) to the date of Judgment (7.04.95). est is K1390.47 over a pera period of 10 months 3 weeks.

I would allow K2,000.00 for economic loss.

I assess damag the following manner:

Total award

a.	Damages for pain and suffering and loss of amenities	K20,000.00
b.	Interest of 8% from issue of Writ to date of Judgment	K1,390.47
c.	Economic loss	K2,000.00
	K23,390.47

I award costs to be assessed to the plaintiff.

Lawyers for the Plaintiff:

Lawyers for the Defendant: