N2060

PAPUA NEW GUINEA

[In the National Court of Justice]

APPEAL CIA NO. 322 of 1999

Between:

NEVIN NEAME
(Appellant)

And:

OVIN NAMBA
(Respondent)

LAE: Injia, J.
2000: November 8, December 4

District Court – Appeal – Personal injury claim - Assessment of general damages for personal-injury - Damage to ear - Need to properly assess general damages in accordance with established principles.

Cases cited:
Costello v. Talair [1985] PNGLR 61.
Kuro Birim v. Jovane Mohamed & PNG [1981] PNGLR 545.
Nita Pyakalo v. MVIT N1092 (1992).

Counsel:
Appellant in person
Respondent in person

4 December, 2000

Injia, J.: This is an appeal against the decision of the District Court at Lae made on 4/10/99 in which the Court awarded the sum of K300.00 to the appellant for general damages for injuries to her left ear inflicted by the respondent. As liability was not in issue in the District Court, this appeal relates only to the assessment of damages. The appellant’s only ground of appeal is that the damages were not adequate to compensate her for the serious injury and that she now says a sum of between K2,000 - K3,000 would have been reasonable.

The appellant’s case before the District Court was that on 16/8/98, she had an argument with the respondent, in which the respondent accused her of having an affair with her husband. In the course of the argument, the respondent picked up a stone and hit her on her left ear. She also hit her with a piece of iron on her eye-brow. Between 16/8/98 - 2/9/98, her ear was medically examined by Dr. Manape of Angau General Hospital and he found that there was profuse bleeding from the left ear despite pressure dressing. She also had a large laceration of the forehead and temple area. She had swollen bilateral ears. The bleeding stopped around 2/9/98 but was still tender. Also the right ear was infected and the left her had a perforation. She had bilateral moderate hearing loss sloping to severe high frequency. In his conclusions he said she is partially deaf at low frequency and completely deaf at high frequency. "She suffered a severe injuries and in the long run, she may become completely deaf as result of the assault". The respondent paid K200.00 to cover for the appellant’s medical treatment costs. She now says the K300 plus the K200 already paid to her is not adequate for the serious injuries she suffered which has left permanent injury to her ear.

The respondent’s case was that the appellant had a pre-existing ear problem and she was known as "ear pass" by everyone in the block community. The medical doctor exaggerated the injury because he was a wantok doctor of the appellant. Similar arguments were raised before me in this appeal by the respondent.

The learned Magistrate heard the case presented by each party and ruled "Judgment in favour of the complaint in the sum of K300". As no reasons were given as to how he assessed the K300.00, it is difficult to say if the Magistrate considered the case presented before him in a judicial manner. It seems to me strange that despite the existence of wealth of case law precedent on the principles on assessment of damages for personal injuries in this jurisdiction, the magistrate made no effort to assess damages in accordance with those established principles in order to arrive at a fair amount. It seems the magistrate just plucked a figure out of the air and made the order. This is not the proper way to assess damages for personal injury. The task of a judge or magistrate in assessing general damages for personal injury is a difficult one because there is no pre-fixed mathematical formula allocating specific amount for specific injuries. He needs to consider all relevant factors in arriving at an amount which will fairly compensate the plaintiff for pain, suffering and loss of amenities of life by using the best of conservative estimates. In assessing damages for personal injury in this case, many relevant things needed to be considered and these include:

1.	The reasons for the attack and the viciousness of the attack and the weapons used, if any.
	
2.	The nature and extent of the injury and the permanent disabilities, if any, arising from the injury.
	
3.	Whether the medical report support the nature of the injury and permanent disabilities claimed by the plaintiff. Even at the present time, the appellant complaints of facing serious hearing problems with her ear. Therefore, a	
	final medical opinion is necessary to verify this claim.
	
4. 	Whether the injury aggravated any pre-existing illness.
	
5.	Whether the amount is consistent with the awards made by the Courts in similar personal injury cases. I refer to a few cases on ear damage which might be relevant for assessment of damages: Costello v. Talair [1985] PNGLR 61, Nita Pyakalo v. MVIT N1092 (1992), Kuro Birim v. Jovane Mohamed & PNG [1981] PNGLR 545.
	
6.	The defendant’s means or ability to afford the amount of damages awarded.	

Sitting as the appellate Court, I am not sufficiently equipped with all the relevant factual circumstances and relevant fresh medical evidence to deal with all the relevant matters raised above. Therefore, it is not proper for me to assess damages de novo. That task should be best left to the presiding magistrate.

For these reasons, I allow the appeal, quash the order of 4/10/99 and refer the matter back to the District Court for assessment of damages in accordance with this opinion.
_____________________________________________________________________
Lawyer for the appellant	:	In person
Lawyer for the respondent	:	In person