Tom v The Independent State of Papua New Guinea [1999] PGNC 89; N1932 (12 October 1999)

Unreported National Court Decisions

N1932

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 1152 OF 1995
BETWEEN: MAKAI TOM
PLAINTIFF
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
DEFENDANT

Wabag

Hinchliffe J

12 October 1999

ASSESSMENT OF DAMAGES – Policeman injured in a motor vehicle accident – Facial and back injuries – K22,000 general damages.

Counsel

M. Thoke for the Plaintiff

J. Kumura for the Defendant

12 October 1999

HINCHLIFFE J: The plaintiff filed a writ in the National Court claming damages for personal injuries sustained as a result of a motor vehicle accident at Erap bridge, Morobe Province on the 14^th March 1992. The Defendants failed to file a defence within the required period and the Plaintiff successfully applied for a default judgement on the 11^th March 1997. The matter came for hearing at Wabag National Court on the 12^th Marchh 1999 for assessment of damages only. The Affidavits of the Plaintiff and Dr. John McKup were tendered to the court without obejction aas the Defendant or its lawyer was not present to cross-examine them.

The plaintiff was about 26 years old at the time of the accident on the 14^th march 1992. He is now about 33 years old and is married with a child. He was recruited to work as a policeman in 1989 after completing his training at the Bomana NCD and served as a policeman for the last 10 years. he is currently receiving a salary of K217.11 per fortnight.

At the time of the accident on the 14^th Macrh, 1992, he sustained injuries to his face and neck. He was admitted to Angau Memorial Hospital on the same day where he was treated and hospitalised for two (2) months.

In his medical report of the 18^th October, 1995 Dr. John McKup of the Family Medical Centre noted the following:

(1) Chronic sinus on upper jaw

(2) Facila deformity being flattening of the nose at base

(3) Chronic nasal discharges

(4) Tenderness on jaw movements with limitations

(5) Some limitations on back movements

(6) Scar on right posterior auricle

(7) X-Ray show old fracture of Zygomatice complex right and nasal compels high in super Zygomatic area

He further concluded by making the following comments;

“There strong medical evidence to suggests that:

(1) Chronic ostecomylits with sinus on jaw

(2) Masticatofy functional impartment from Arthritus Jaws

(3) Cosmetic disfigurement as a result of nasal fractures

(4) Recurrent Nasal Infections/Nasal function impairment as well.

(5) Spinal functional impairment and all contributes to a major disability to this fairly young man”.

And he finally assessed 40% functional disability as a result of the above findings.

The plaintiff assessed 40% functional disability as a result of the above findings.

The plaintiff is now 33 years of age and he clearly has suffered severe head and neck injuries. His head injuries are particularly to the facial area. He was hospitalized for a lengthy time and was in considerable pain.

On page 2 of his affidavit of the 10^th day of September, 1997, the plaintiff says the following:

“09. I was admitted with my eyes closed and blood flowing from mouth, eyes, and ears. This continued for about two (2)weeks. My eyes were closed until the second week I then asked my Doctor Dagam to release me so that I could come to Wabag and continue my treatment because there was no guardian to look after me at Lae. I returned to Wabag and continued my treatment for about another three (3) weeks because blood was still coming out from my ears, nose and mouth. I crave leave to refer to the medical report of Dr. John McKup sworn on the 20^th February 1997, as this report sets the details of the injuries I sustained and treatment given.

1. Currently I am facing the following problems:

(a) I am facing very strange problems which I did not have it before. My upper Right Jaw sometimes gets swollen producing very smelly yellowish stuff (liquid). It takes me about one to two weeks before breaking open discharging the stuff and during that time I did abstain from my duties. This becomes worse when I performed normal duties at Bougainville and other areas in the country.

(b) I am also facing a bit of problem with my back bone . I do not sit for long periods to time when performing my normal duties . Sometimes I cannot perform duties for long periods of time. I normally feel backache and very weak to do any work.

(c) Due to the flattening of the base of my nasal bone a lot of mucus gets blocked making it hard for me to breath and smell. Usually this happens when I get flu or cold or sometimes when I have severe headaches.

(d) My facial appearance was completely changed and look ugly. Prior to the accident, I wasn’t looking like this.

(e) Sometimes when eating or chewing, I feel that my jaws get very tired quickly and I can not eat or chew anymore. In other words, I take more time to eat and chew anything.

11. I am very concerned about the sickness I am now facing because I do not have such sickness before. My facial appearance and shape of my nose were changed and not like the way they were before. My facial beauty has been greatly affected and this will continue for rest of my life”.

No case particular similar have been presented by counsel so I must assess it myself.

The plaintiff has received severe injuries and still suffers to this day and will continue to suffer. He is embarrassed about how he looks and it would appear that those looks will remain. He suffered 40% functional disability.

I am of the view that for general damages the appropriate figure is K22,000.

The plaintiff is still employed as a policeman and I am not satisfied that it has been proved that he has suffered any economic loss as far as salary/ wages are concerned

In respect to special Damages, I agree with the plaintiff’s lawyer and I award K3183.00.

I order that there be judgment for the plaintiff as follows;

General damages for pain and suffering and loss of amenities of life -- K22,000.00

Special damages -- K3,183.00

TOTAL -- K25,183.00

Interest at 8% from 8/12/95 to 12/10/99 -- K7,745.22

TOTAL -- K32928.22

I further order that the defendant is to pay the plaintiff costs. If not agreed then they are to be taxed.

Orders accordingly.

Lawyer for the plaintiff: Michael c. Thoke Lawyers

Lawyer for the defendant: Solicitor General