Manda v Akipe [2001] PGNC 112; N2117 (31 July 2001)

N2117

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. No. 180 of 2000

BETWEEN:

JOHN LUCAS MANDA

Plaintiff

AND:

TERRY AKIPE

First Defendant

THE STATE

Second Defendant

Mt. Hagen: Hinchliffe J
2001: 7 May and 31 July

Counsel:
P. Dowa for the plaintiff.

31 July, 2001

Hinchliffe J: This is an assessment of damages in relation to the plaintiff losing an eye in an incident that occurred at his school on the 27th September 1999. The school was the Avia Community School, in Morea Village, Pangia. in the Southern Highlands Province. At the time the plaintiff’s class was unsupervised and some students were misbehaving in the absence of the teacher. The plaintiff was poked in the left eye with the tip of a ball – point pen by another student and thereby being left totally blind in that eye.

Even though the defendants were served with the writ of summons they elected not to file a Notice of Intention to Defend, or a Defence.

Because of the failure of the defendants to respond to the Writ of Summons a Default Judgment was ordered on the 7th June, 2000, with damages to be assessed at a later date.

The plaintiff, in his said writ seeks general damages, damages for economic loss and special damages. In support of his claim he has filed his own affidavit dated the 16th January, 2001 together with that of Peter Manda which is also dated the 16th January,2001.

Peter Manda is the brother of the plaintiff and also a village leader. Paragraphs 4,5 & 6 of his affidavit read as follows:

"4. John Manda was born with normal eyesight to both eyes until September, 1999 when he lost his left eye.

5. Because of this incident, he left school and (has) not continued his education.
   

6. It has cost us and John’s parents up to K1,7000 for medical and related costs".

In the plaintiff’s affidavit he states, inter alia, as follows:-

"1. I am...........a former student, aged about 18 years and come from Morea Village, Pangia District in the Southern Highlands Province.

2. On 27th September, 1999 I was a grade 6 student at the Avia Community School, Pangia District in the Southern Highlands Province.
   
3. Ipae Lae poked my left eye with the end of a biro injuring the left eye. I did not expect it and I was taken by surprise. As soon as he poked my eye, it was bleeding heavily and I fainted and fell down. I was taken to Pangia Health Centre for treatment. I was on medication for almost a month. I was told that I had completely lost my left eye.
   

4. As a result, I lost my left hand eyesight completely at 100%. I also have a corneal capacity with coring of the sclera.

5. As a result, I am 100% blind in my left eye which is also affecting my over all vision.
   

6. As a result I lost my left hand eyesight completely at 100%. I also have a corneal capacity with coring of the sclera.

As a result, I am 100% blind in my left eye which is also affecting my over all vision.

As a result of the injures and the permanent disability, I left school. And as a result I have lost an opportunity to further my education and thereby suffered and will continue to suffer (loss of) income. I was doing well in my school and had it not been for the incident referred above. I would have advanced in my education and obtained an average clerical job.

12. At present, I am embarrassed by the corneal and blindness brought about by this incident, and this affects my general physical and mental out look."
    

Counsel has referred me to some similar past cases which are useful guidelines but I remind myself that they can only be guidelines as all cases are different to each other. Here the range is between K20,000.00 and K60,000.00. I should say that latter figure involved many other injuries apart from the loss of an eye.

I am satisfied that, on the evidence, the plaintiff was about 16 years of age when he lost all sight in his left eye. He is now about 18 years of age. He left school when the unfortunate incident occurred and he has never returned. He was in grade 6 at the time and he is now embarrassed as to his looks. He is of the opinion that the incident prevented him from continuing his education and thereby obtaining a clerical type job in the future. I am of the view that he underestimates himself a little because the fact that he only has sight in one eye does not necessarily mean that he cannot go on with his education and subsequently seek employment. It may well be that he might need to get eye glasses although there is no suggestion that he has a faulty right eye.

After taking everything into consideration including past cases and the decline in the purchasing power of the kina in recent years, I am satisfied that a fair and reasonable figure for pain and suffering and loss of amenities of life is K40,000.00, and I so order.

Further, interest should be calculated at 8 percent from the date of the service of the Writ, (10 March, 2000) to the date of trial: See Pinzger v- Bougainville Copper Ltd [1985] PNGLR 160. Therefore interest on the said K40,000.00 will be K3,733.33 over a period of one year and two months.

Economic Loss: I refuse to award damages under this heading . The plaintiff was a 16 years old unemployed school boy at the time of the incident. There is insufficient evidence before me to indicate that he would not be able to find employment in the future. I am unable to find that he has suffered any damage under this heading. Anyway, there were no figures put to me, in evidence, to indicate what he would have lost

Special Damages.

I accept the evidence of Peter Manda that K1,700.00 was spent on medical and related costs. In accordance with Pinzger –v- Bougainville Copper Ltd (supra) interest on special damages should be awarded at 4 percent from the date of injury to the date of trial. That is interest of K109.52 over one year 7 months and 10 days.
I order that there be Judgment for the plaintiff in the sum of K45,542.85 made up as follows.

Pain, suffering and a loss of amenities K40,000.00

Interest thereon K 3, 733.33

Special damages K 1, 700.00

Interest thereon K 109. 52
Total K45,542.85

I further order that the second defendant pays the plaintiff’s taxed costs.

Orders accordingly.
____________________________________________________________________________

Lawyer for the plaintiff: Paulus M. Dowa