Kuni v Mapi [2000] PGNC 27; N1980 (22 June 2000)

N1980

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS No. 795 of 1996(H)

Between:

PAUL KUNI
-Plaintiff-

And:

SAMSON MAPI
-First Defendant-

And:

THE COMMISSIONER FOR POLICE
-Second Defendant-

And:

INDEPENDENT STATE OF PAPUA NEW GUINEA
-Third Defendant-

Mt. Hagen: Hinchliffe J.
2000: 22 June

ASSESSMENT OF DAMAGES - Plaintiff shot by police through wrongful identification - Gun shot wounds to the right pelvic area - Injuries permanent - General damages K27,000.

22 June, 2000.

Hinchliffe J: This is an assessment of damages, liability is not at issue. Default Judgment was entered on the 21st February, 1997:

The plaintiff claims damages for gun shot wounds he received when he was wrongfully identified and shot by unidentified policemen while assisting police in pursuit of rascals at Kamuka Village in the Tambul District in the Western Highlands Province on the 22nd August, 1990.

The plaintiff relies on his own affidavit dated the 30th December, 1997 together with affidavits of Alphonse Tay dated the 5th February, 1998 and John McKup dated also on the 5th February, 1998.

Alphonse Tay is a medical doctor and at the time of swearing his affidavit was the Medical Superintendent of the Mount Hagen General Hospital. At paragraph 3 he swears as follows:

"3. According to our records the plaintiff Paul Kuni was admitted to Mount Hagen Hospital on the 22nd August 1990 with a history of having suffered injuries to his body parts as a result of a gun shot in his village by a policeman. He was discharged on the 24th September, 1990."

The deponent refers to a Medical Report by Dr. Jacob Ollapallil dated the 19th October, 1990 which is annexure "A" to the said affidavit of Alphonse Tay. The Report says, inter alia, as follows, "This gentleman -------------- sustained a deep wound on the right ilium with soft tissue loss of 15 cm x 10 cm. The wound was debrided and as it became clean skin grafting was done. There was no fracture.

I have examined him on the 19.10.90 and the wound has healed well though there is an unsightly scar. The nature of the injury was serious."

Annexure "B" to the same affidavit is a medical Report dated 26 November, 1990 of Dr. Westin S. Seta, Surgeon who said, inter alia, as follows:

"............ gunshot injury to the right iliac region ................. He required multiple debridement, antibiotics and a skin graft. He was discharged well on the 24th of September, 1990. When seen on the 16th November the wound had healed up well. However the healed scar was consistent with the loss of about 10% of the iliac crest.

Whilst he will still be able to move around, the pains from the effects of the injury will definitely curtail his activities.

I will give him a disability of 15% taking into account the fact that he is a villager and the great demand on him posed by his immediate environment."

About six (6) years later, on the 30th September, 1996 the said John McKup, a medical doctor, medically examined the plaintiff. He said, in his said affidavit, inter alia, as follows:-

"B. Current Symptoms:

Post injury he suffers from the following major symptoms being:-

1. Nasty looking scar on the right hip area.

2. Difficulty in walking/running etc.

3. Painful in legs/hips on affected leg.

4. Unable to carry loads ie weight bearing loss.

5. Right leg is said to be getting smaller in size.

6. Some degree of weakness in right leg.

C: MEDICAL EXAMINATION

This young adult with the history of a bullet wound has positive evidence by way of the following signs:-

1. Right Hip/Thigh

Gaping wound in the right hip and thigh area extending to the pelvis bone (Iliac Crest) right side.

Excessive/Scarring of wound seen.

Gross wasting of buttock muscle right side very obvious compared to left side.

Right leg - Wasting, smaller in size confirmed to his left leg eg..

Right mid thigh 49 cms. Compared to 51 cms left thigh.

Left/right leg difference of 2 cms as well 26/28 cms respectively.

Power: Reduced power noted in right leg.

Movements: Gross limitation to hip movements as well as knee/ankle movements of his right leg.

An X-ray was ordered which shows evidence of pellets insitu as well as arthritic changes on pelvis bone.

2. SEQUEL TO ACCIDENT:

This young adult with a near fatal bullet wound has left this man disabled. He still has good evidence of his injury clinically.

Functional loss of his right hip/pelvis and leg has greatly been reduced as result of this injury.

I find gross limitation of allowed normal hip/knee/ankle movements in his affected leg.

I after a careful assessment find a functional loss of his affected leg at forty (40%) percentage.

These findings are unlikely to change for any better even with Physiotherapy & Plastic Surgery to the progressive changes in the bony tissues and aging."

On the 30th December, 1997, the plaintiff swore an affidavit and said, inter alia, as follows:-

"1. I am aged 35 years and a subsistence village farmer from the Komka tribe of the Tambul District in the Western Highlands Province.

9. .................................... I was unconscious from the moment I was shot and began recalling events after arriving at the hospital.
   
10. I spent about one (1) month in the hospital where I received treatment and later was discharged on 24th September, 1990. On the 19th October, 1990 and 26th November, 1990, I obtained medical reports from Dr. Jacob Ollapillil and Dr. Westin S. Seta of Mount Hagen Hospital respectively. On 30th September, 1996, I attended at the Family Medical Centre Pty Ltd and undertook a review of my injury.
    
13. I suffered great pain and agony to my right thigh. Even, today, I still encounter difficulties and pain to walk properly or walk long distance and carry heavy weight. I have been restricted from doing my normal heavy duties activities at home including carrying heavy firewood loads, making gardens, cultivating cash crops etc.
    
14. The wound on my belly area is very nasty and makes me feel horrible and ugly.
    
15. ...................................... I suffered a lot of pain from the injuries I received as a result of being shot by the police. I feel I should be compensated for the injuries I received."
    

That was the evidence presented by the plaintiff which was not subjected to cross-examination. The defendants did not file any affidavit material or call any witnesses. However they did provide written submissions.

In relation to general damages the plaintiff and the defendants cited various past cases to assist the Court in arriving at a decision. As I have said before, past cases are helpful but every case is different.

The cases submitted by Counsel included the following:

David Yalu Pumbu v. Teta Taiken [1986] PNGLR 289; Peter Amini v. The State [1987] PNGLR 465, Pangis Toea v. Motor Vehicle Insurance (PNG) Trust [1986] PNGLR 294, Jones v. Motor Vehicle Insurance (PNG) Trust [1988-89] 611; Kiap v Tora Enterprises Pty Ltd and the Motor Vehicle Insurance (PNG) Trust [1986] PNGLR 265; Korrolly, Torue and Kolit v. Motor Vehicle Insurance (PNG) Trust [1991] PNGLR 415, Palga v Motor Vehicle Insurance (PNG) Trust [1991] 446.

Some of those cases show more severe injuries and pain and suffering than the present case whilst others show less injury and pain and suffering. However what does come out of those cases is a range of general damages which may be applicable to this case, somewhere between K18,000 to K40,000. Interestingly enough the plaintiff’s lawyer suggested a figure of K40,000 whilst the defendants’ lawyer has suggested a figure of K18,000.

Of the abovementioned cases the defendants have suggested that the most similar case to the present is Palga v Motor Vehicle Insurance (PNG) Trust (supra) in which the trial Judge awarded K18,000 for general damages. Although I agree that there are some similarities with the present case, I am of the view, with respect, that the award was far too low even back in 1991. I am also of the view that the damages awarded in Korrolly, Torue Kolit v Motor Vehicle Insurance (PNG) Trust (supra), with respect, were too low.

The plaintiff in this case has suffered very serious injuries which were almost fatal. His injuries are permanent and obviously he still suffers pain and it would appear that his condition will get worse as he gets older. He is now about 38 years of age. He is a villager and subsistence farmer and the gun shot wound he received to the right hip area, buttock and thigh has caused him not only to have permanent and ugly disfigurement but he is now not able to perform his duties properly as a subsistence farmer. He is severely restricted and has a functional loss in his right leg of 40%. The plaintiff clearly is embarrassed and unhappy about the "unsightly" scarring and wasting of his leg and that is something that will continue, apart from the pain and partial inability to perform his work duties. Life is not easy living in a village and to have disabilities such as the plaintiff makes it even more difficult.

I also take note that the abovementioned cases are now 10 to 15 years old. In that time I think that we are all aware that the buying power of the kina has declined considerably and I propose to consider that when assessing damages.

It would seem to me, taking everything into account, that the appropriate figure for general damages is K27,000 and I so order.

Economic Loss

The plaintiff suggests a figure of K20,000 whilst the defendants are of the view that K8000 is appropriate.

This assessment is not easy because there is no wage to work from so it is necessary to consider a figure for a village subsistence economy. There are no figures before me at all and therefore I really do not know anything about the plaintiff’s earning capacity in the past. I do know that he is not completely incapacitated and that he can still work, but to a lesser degree. I am able to see some similarities between this case and Wie Kuntu v Motor Vehicles Insurance (PNG) Trust 1991 PNGLR 440 and I am of the view that K8000 is an appropriate figure for economic loss and I so Order. Past economic loss I assess at K3000. I should say, that the plaintiff did not claim for economic loss in his Writ but the defendants have not disputed it and in fact they suggested the figure that I subsequently arrived at thereby agreeing with them.

Exemplary Damages

This is a situation where the police, because of a misunderstanding and mistaken identity fired at, and shot, the plaintiff when in fact the plaintiff was assisting the police at the time in searching for dangerous criminals. It was all a terrible mistake and the police probably fired because they thought that their life was in danger. I say that because the criminals that they were chasing had recently murdered an Engan businessman. I am of the view that this is not a case for exemplary damages.

Special Damages

There is no evidence of special damage.

Interest.

It would seem to me that the plaintiff is entitled to interest at 8% per annum on the general damages and 4% per annum on the past economic loss.

I summarise as follows:-

General Damages K27,000
Past economic loss K 3,000
Future economic loss K 8,000
Interest at 8% on general damages K 5,520

Interest at 4% on past economic loss K 460
K43,980

I order that there be judgment for the plaintiff in the sum of K43,980. I further order that the third defendant is to pay the plaintiff’s costs. If they are not agreed then they are to be taxed.

Orders accordingly.
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