Dikini v Wamel [1997] PGNC 61; N1562 (19 May 1997)

Unreported National Court Decisions

N1562

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 808 OF 1992
JOSEPH DIKINI - PLAINTIFF
V
JOHN WAMEL - DEFENDANT

Waigani

Sevua J
2 April 1996
4 April 1996
7-8 May 1996
19 May 1997

NEGLIGENCE - Contributory negligence - Personal injury - injury to Plaintiff’s eye - Assault on plaintiff by defendant - Defendant assaulted by plaintiff in retaliation - Plaintiff struck with beer bottle half an hour later by the defendant - Whether contributory negligence applicable in the circumstances - Liability

DAMAGES - Personal injury - injury to eye - Particular awards of general damages - Blind in right eye - No perception of light or vision - 100% loss of vision - unemployed adult - Award of K35,000.00 general damages

Cases Cited

Robert Brown v Motor Vehicles Insurance (PNG) Trust [1980]PNGLR 409

Rouney Aura v Papuan Airline Transport Ltd [1963] PNGLR 272

Jacqueline Kennedy v Jerry Nalau & State [1981] PNGLR 543

Takie Murray v Norman Kinamur [1983] PNGLR 446

Jane Rohrlach v Evangelical Lutheran Church of New Guinea Property Trust [1985] PNGLR 185

Seke Opa v The State [1987] PNGLR 469

Melinda Baduk v The State & Ors [1993] PNGLR 250

Sale Dagu v The State, (unreported) N1316

Jack Lundu Yalao v Motor Vehicles Insurance (PNG) Trust (unreported) N1488

Counsel

E Kambure for Plaintiff

Defendant in person

19 May 1997

SEVUA J: This is a trial on liability and assessment of damages in a suit by the plaintiff claiming damages for negligence as a result of injuries sustained on his right eye after he was struck on the right eye with a half full beer bottle by the defendant at 6 Mile Settlement, Port Moresby on 16th September, 1992.

The defendant, who was previously represented by the Public Solicitor, had filed a defence and basically, he claimed that the plaintiff had been negligent, acted in a threatening manner, physically assaulted him (defendant) on the mouth and provoked a fight. The defendant therefore denied liability.

The evidence is this. On 16th September, 1992, the plaintiff was drinking with his friend, Benai Beniama at the 6 Mile Settlement. The plaintiff and some others including two of his witnesses had been drinking for three days and three nights up to and including 16th September, 1992. They were drinking in two separate groups approximately ten metres apart. As the drinking continued, a man from Central Province drove into the settlement.

The plaintiff’s friend, Benai Beniama, went to fight the Central Province man so the plaintiff followed Beniama to prevent him from fighting and to talk him out of it. The the defendant, who had nothing to do with that incident, approached, and pulled the plaintiff’s shirt then pushed the plaintiff. The plaintiff then slapped the defendant’s mouth with an open palm causing a superficial laceration and bleeding. They were separated and that was the end of the altercation.

Approximately, half an hour later, the plaintiff walked to a nearby shop and whilst he stood there, the defendant came from behind and struck the plaintiff with a half full beer bottle on the right eye which broke into pieces on impact. The plaintiff was then taken to Port Moresby General Hospital where he was admitted. I will deal with the medical evidence later, however, at this juncture, let me mention that, after the plaintiff’s discharge from hospital, the defendant made two offers of compensation in the sum of K1,800.00 (K1,200.00?) and K2,200.00 respectively which he rejected.

The defendant did not dispute using the beer bottle and admitted what had occurred. He maintained that the plaintiff had assaulted him first and he retaliated by hitting the plaintiff with the beer bottle. He admitted the offers of compensation and further admitted that he had been drinking for three days and three nights. This was supported by two of his witnesses.

In determining the issue of negligence and liability, I accept the evidence of the plaintiff. Having observed the demeanour of all the witnesses in this trial, I consider that the plaintiff was more impressive than the defendant and his witnesses. The defendant and his three wtinesses were very evasive and each said the same thing. I was not impressed at all about their demeanour and I consider that they were not witnesses of truth.

There are two reasons I do not accept their evidence. Firstly, by their own admissions, they had been drinking for three days and three nights up to and including 16th September, 1992. Obviously, and I have no doubt at all that, they were adversely affected by alcohol. I consider that their minds and judgment including vision were severely impaired through intoxication that they were not in a better position to recall clearly what had transpired.

Secondly, this incident occurred a little over three and half years ago prior to trial, yet they said on oath they clearly recall what had occurred. As I said earlier, they all said the same things on oath and I consider that they had rehearsed what they were going to say in Court. The defendant in particular, was very evasive, he exhibited an angry mood in the witness box, he spoke well in examination in chief, however, during cross examination, one could hardly hear him. In my view, he had coached his witnesses in what to say in Court. I therefore reject his evidence including that of his witnesses.

I find as facts the following: Firstly, the defendant pulled the plaintiff by the shirt and pushed him. The plaintiff did not provoke the defendant but the defendant had provoked the plaintiff by assaulting him, therefore the plaintiff retaliated by slapping the defendant’s mouth. Approximately, half an hour later, the defendant smashed a half full beer bottle onto the plaintiff’s right eye thereby causing injuries to that eye. The defendant inflicted the injuries which consequently resulted in total blindness.

Did the plaintiff act negligently as claimed by the defendant or was the defendant negligent? Did the action of the plaintiff amount to contributory negligence? In the course of counsel’s address, I raised the issue of contributory negligence since it was obvious the defendant had raised provocation in his evidence and I queried whether the defendant was raising contributory negligence. Counsel submitted that contributory negligence is not a complete defence, but a statutory defence which only goes to assessment of damages, refer: s. 40(1), Wrongs (Miscellaneous Provisions) Act Ch. 297. Counsel further submitted that the facts of this case did not give rise to contributory negligence and he referred to the meaning of fault and contributory negligence which I wish to address, if only, briefly.

Section 39 of Wrongs (Miscellaneous Provisions) Act Ch. 297 defines fault as, “negligence, breach of statutory duty or other act or ommission that gives rise to a liability in tort or would...give rise to the defence of contributory negligence.” In Brown v Motor Vehicles Insurance (PNG) Trust [1980] PNGLR 409 at 416, Bredmeyer, AJ said, “contributory negligence is a man’s carelessness in looking after his own safety”.

Without discussing the evidence in any greater detail, let me say this, in my view, neither the plaintiff was at fault nor did he contribute to the injuries he sustained by his own carelessness. The evidence is clear, the defendant had nothing to do with the commotion. He was an uninvited guest and an intruder, who assaulted the plaintiff without any provocation by the plaintiff. The plaintiff was therefore justified in retaliating against the defendant’s assault. What transpired later then was completely a new turn of events. The defendant’s smashing of a half full bottle of beer on the plaintiff’s right eye, approximately half an hour later, was obviously an intended act by the defendant which, in my opinion, amounted to fault as defined above.

It is my judgment therefore that the plaintiff cannot be said to have contributed to his injuries, hence, the question of contributory negligence does not apply in this case. The plaintiff was not at fault. The defendant was at fault therefore, he must be held liable for damages for negligence to the plaintiff. His conduct was unlawful and negligent and accordingly, he did make two offers for compensation to the plaintiff which were rejected. The offers, in my view, amounted to admission of liability.

As I have found the defendant liable, I need to assess the damages. In assessing damages, I wish to refer to a number of cases on comparable verdicts on eye injury as a ready reference for both the Court and lawyers. I set out these cases briefly hereunder:

1. Rouney Aura v Papuan Airline Transport Ltd [1963] PNGLR 272. A 20 year old trainee telephone technician earning 3 pounds a week was injured when flying glass cut upper part of his face and portion of it cut the cornea of the left eye. Vision diminished by more than 50%. Damages awarded 1,150 pounds - 7 June, 1963.

2. Jacqueline Kennedy v Jerry Nalau & State [1981] PNGLR 543. Female child, 8 yrs 8 months who suffered facial injuries resulting in permanent facial scarring requiring future cosmetic surgery and a scarred eye in a motor vehicle accident in February, 1977. General damages - K10,6000.00 inclusive of future economic loss and future medical expenses. Total award including interest and special damages, K12,736.00 - 22nd January, 1981.

3. Takie Murray v Norman Kinamur [1983] PNGLR 446. Married woman who suffered injury to left eye as a result of assault. Eye surgically removed and artificial eye inserted. Created irritation, disfigurement and psychological distress. General damages - K20,000.00 - 26th August, 1983.

4. Jane Rohrlach v Evangelical Lutheran Church of New Guinea Property Trust [1985] PNGLR 185. Fifteen year old student blinded in one eye by a staple fired by a fellow student. Settlement figure of K52,452.86 approved by Court. After deduction for legal costs and medical expenses, the balance of K47,089.39 was invested for and on behalf of the infant - 17th May, 1985.

5. Seke Opa v The State [1987] PNGLR 469. Villager in mid twenties (mid-thirties at date of trial) suffered severe head and other injuries including a eye injury resulting in total blindness disfiguring and paralysed eyelid. Damages for pain and suffering and loss of amenities of life - K60,000.00 - 5th October, 1987.

6. Melinda Baduk v The State & Ors [1993] PNGLR 250. Nine year old, Grade 4 pupil at Waigani Community School on 2nd February, 1989, had a sharp pointed lead pencil thrown at her right eye poking it and causing severe injuries consequently resulting in the removal of the eye. 100% loss of vision of right eye. False eye inserted. General damages - K35,000.00 plus K500.00 special damages, totalling K35,000.00, - 1st July, 1993.

7. Sale Dagu v The State (Unreported) N1316. Thirty-four year old security officer sustained injuries to his knee, head and face including his right eye. He suffered eye irritation which developed traumatic cataract of the right eye consequently reducing his vision dramatically. The cataract was removed and plaintiff suffered a 90 to 95% visual incapacity which represented near blindness. Damages for pain and suffering and loss of amenities - K20,000.00, interest K1,390.47 and economic loss K2,000.00, totalling K23,390.47 - 5th April, 1995.

8. Jack Lundu Yalao v Motor Vehicles Insurance (PNG) Trust (Unreported) N1488. Security officer suffered injuries to his right eye as a result of motor vehicle accident. 95% visual disability. General damages - K31,000.00 - 28th June, 1996.

The facts of these cases differed and general damages awarded varied due to the different nature and extent of injuries in each case. In the present case, the plaintiff is completely blind in the right eye. Dr Jambi Aringa, the Opthamology Registrar at Port Moresby General Hospital, who examined the plaintiff reported that, the plaintiff had lacerations of the right cornea (windscreen of the eye). He could not see with the right eye so repairs of the laceration was done. The plaintiff was discharged on 21st September, 1992. On review on 25th September, 1992, no improvement to the eye was discovered and the plaintiff was confirmed blind on the right eye with no perception of light or vision. His eye is prone to recurrent redness and it will progressively get smaller. He has a total loss of vision (100%) of the right eye. In layman’s term, the plaintiff is totally blind on the right eye.

I have adverted to comparative damages awarded by the National Court since 1963 and it is obvious that over the years, the quantum of damages have increased. Of course, it is impossible to put a monetary value on an injured part of the human body.

In this case, the plaintiff has lost 100% use of right eye. He is totally blind, and as time passes by, his eye would get smaller. His injury is permanent. Human eyes are very precious, for without one or both, one cannot appreciate the outside world and I wish to quote Smithers, J in Rouney Aura v Papuan Airline Transport Ltd (supra) at 274 whom, my brother Salika, J also quoted in Sale Dagu v The State:

“It must never be forgotten that each 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 the man’s body.”

Mr Kambure, counsel for the plaintiff has not suggested any figure, however, the awards referred to in the cases cited are of some assistance to this Court in assessing damages. Times have changed over the years and with constant inflation, awards of general damages must, I believe, be at par with the rising costs of inflation. I consider that a fair and reasonable amount of damages for pain and suffering and loss of amenities would be K35,000.00. Accordingly, I award the sum of K35,000.00 as general damages and order that the defendant pays the amount to the plaintiff.

There is no evidence that the plaintiff was employed at the time of injury. I consider therefore that he is neither entitled to economic loss nor interest. Although, there is evidence that the plaintiff was admitted to the hospital for a few days, there is no evidence of any medical expenses therefore, I make no award as to special damages.

In conclusion, damages for pain and suffering and loss of amenities is assessed at K35,000.00. I order that the defedant pays the plaintiff’s costs of the proceedings.

Lawyer for Plaintiff: Habuka Lawyers

Defendant in Person