Wai v Motor Vehicles Insurance Ltd [2006] PGNC 193; N2974 (21 February 2006)

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

NEGLIGENCE – motor vehicle accident – contributory negligence – onus of proof

The driver of a PMV bus was injured in a motor vehicle accident. It was claimed that he stopped the bus on a narrow stretch of road to let a truck travelling uphill in the opposite direction pass and that the driver of the truck negligently bumped his bus as it went past, pushing the bus over the edge of a cliff. The plaintiff claims that he suffered serious head injuries and is now permanently mentally impaired. The defendant admitted liability but argued that the plaintiff was guilty of 50% contributory negligence. As to the amount of damages, the defendant challenged the medical evidence, which was that the plaintiff had lost 100% of his mental functions.

Mt – Mount
MVA – motor vehicle accident
MVIL – Motor Vehicles Insurance Limited
MVIT – Motor Vehicles Insurance ((PNG) Trust
OIC – officer-in-charge
PMV – public motor vehicle
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
PSC – Police Station Commander

This was an action in which the plaintiff sought damages for personal injuries suffered as a result of a motor vehicle accident.

1. CANNINGS J: INTRODUCTION: The plaintiff seeks damages for injuries he claims he received as a result of a motor vehicle accident. He says that he was the driver of a PMV bus that was pushed off the side of a mountain by another vehicle, which was driven negligently. He claims that he suffered serious injuries and that he is now permanently mentally impaired. The defendant, Motor Vehicles Insurance Ltd (MVIL), denies that it is liable to the extent claimed by the plaintiff. There was a motor vehicle accident, but the driver of the other vehicle was not solely to blame. The plaintiff contributed substantially to the accident. Both drivers were equally to blame. The plaintiff may have some mental impairment but not to the extent claimed. The case is therefore about both liability and quantum of damage.

2. The accident that allegedly caused the plaintiff's injuries occurred on the Porgera Highway at Yagenda, near Laiagam, Enga Province on 31 December 1989. The plaintiff claims that he was the driver of an Isuzu bus, registration No AGE 365, which was hit negligently by another vehicle, a Hino truck, registration No AGE 696.

3. On 27 November 1995 DL O'Connor, Lawyer of Mt Hagen, filed a writ of summons on behalf of the plaintiff. The Motor Vehicles Insurance (PNG) Trust (now known as MVIL) was the sole defendant.

4. The statement of claim attached to the writ alleged that the truck that struck the vehicle driven by the plaintiff was driven by Kupi Sam and owned by Joe Tomerop. Both vehicles were insured with the defendant. Kupi Sam drove negligently by failing to keep a proper look out; driving at excessive speed; failing to drive with due care; and failing to avoid a collision. Kupi Sam's negligence caused the plaintiff to suffer injuries, including shock, loss of consciousness, head injuries, lacerations and bruises. The plaintiff claimed damages generally.

5. On 12 December 1996 the defendant filed its defence, denying liability. It did not know and could not admit that the plaintiff was injured, as pleaded. If he was injured, it claimed that it was his own negligence that caused his injuries.

7. On 2 January 2002 the defendant filed a motion to dismiss the proceedings for want of prosecution. It was refused by an order of the National Court on 23 September 2002. On 7 March 2003 Amet CJ, sitting as a single judge of the Supreme Court, refused an application for leave to appeal against that order. The matter was reconsidered by a three-member Supreme Court bench on 3 February 2004. The defendant's application was again refused and the case returned to the National Court for trial.

8. This is a common law action for negligence brought within the statutory framework of the Motor Vehicles (Third Party Insurance) Act 1974. The plaintiff is required to bring the action against MVIL, as he asserts that the vehicle that struck him was insured with MVIL under that Act.

Subject to Subsection (2), any claim for damages in respect of the death of or bodily injury to any person caused by, or arising out of the use of—

(c) a motor vehicle on a public street where the identity of the motor vehicle cannot after due inquiry and search be established,

shall be made against the successor company [defined by Section 1 of the Act as MVIL] and not against the owner or driver of the motor vehicle and, subject to Subsection (5), any proceedings to enforce any such claim for damages shall be taken against the successor company and not against the owner or driver of the motor vehicle.

10. For the plaintiff, nine documents were admitted into evidence. The first eight (exhibits A-H) were affidavits and five deponents were subject to cross-examination. The ninth document (exhibit I) was a Tok Pisin to English translation of an order of the Village Court dissolving the plaintiff's marriage.

11. The evidence is summarised in table 1. Column 1 gives the exhibit number, column 2 describes the deponent and date of the affidavit (in the case of exhibits A to H) and column 3 summarises the contents.

Exhibit	Description	Content
A	Angolo Peter, passenger, 06.03.04	States that he is an eyewitness – was a passenger on the bus driven by the plaintiff – there were three other people on the bus – the plaintiff was driving downhill at Yagenda – the bus was travelling from Mulitaka to Wabag – a fully loaded Hino truck, with logs sticking out of it, came up the hill – the plaintiff stopped his bus and waited at the side of the road for the Hino to pass – the road is very narrow – just as the Hino passed, it pushed the plaintiff's bus over the cliff and it rolled three or four times. The witness said he was admitted to hospital and later lodged a claim with MVIL, which was settled out of court for K3,400.00.
B	Kakas Muikin, Police Station Commander (PSC), Laiagam, 24.03.04	States that a police accident report No 17/89 was prepared and the original is kept at Laiagam Police Station – annexed a copy of the report, which indicates that the driver of the Hino truck was charged with negligent driving.
C	Amos Lapet, businessman, 07.10.04	States that he has been appointed as the plaintiff's "next friend" by an order of the court – he owned the Isuzu bus driven by the plaintiff – he employed the plaintiff as a driver, but after the accident the plaintiff became reserved and could not speak properly and his condition deteriorated.
D	Lupe Nana, Village Court Clerk, 08.03.02	States that in 1998 there was a Village Court hearing at Langitapus between the plaintiff and his wife – the Court dissolved their customary marriage and ordered that the bride price of K500.00 paid by the plaintiff be reimbursed.
E	Joe Tomerop, villager, 21.06.04	States that in 1989 he was the owner of the Hino truck, registration No AGE 696 – the registration and insurance was current during the period from 20 December 1989 to 20 December 1990 – insurance certificate attached.
F	Judy Nandape, lawyer, 19.05.04	Deposes to the steps taken to locate the registration and insurance certificates for the two vehicles involved in the collision.
G	Dr John McKup MB, BS, DCH, DGO, examining doctor, 29.04.04	States that he is a medical doctor and director of the Family Medical Centre – examined the plaintiff on 24 October 2001 and established that he was mentally affected and had lost 70% effective use of his mental function – a medical report is annexed to his affidavit, the first part of which states that the patient was injured in a MVA on 31/12/1989 and that he was admitted to Sopas Hospital and was given appropriate surgical management at Sopas. The second part of the report states: "this man has gone berserk – long-long – and cannot do his day to day living/activities well; disoriented and confused man" – concludes that he has lost 70% mental function.
H	Dr John McKup MB, BS, DCH, DGO, examining doctor, 17.06.04	States that this is a supplementary affidavit – he examined the plaintiff again on 22 March 2004 and established that he was 100% mentally insane – a medical report is annexed to his affidavit, in similar terms to the report annexed to exhibit G. The second part of the report states: "he cannot orient himself to place, person and even time; he has complete unsoundness of mind and he clinically has evidence of psychosis: long-long" – concludes that he has lost 100% mental function.
I	Village Court order, 13.05.98	States: "Mr Andrew Wai [the plaintiff] sustained injuries in a PMV bus accident. His head is confused and his leg and skin is weak and he cannot sleep with is wife and bear children too therefore his marriage is dissolved. Woman, the man is not capable of looking after you, his head is confused and his skin is also weak and he removes you [sic]. You are to repay K500.00 bride-price to the man only."

12. I have prepared a glossary of the medical terms used in the evidence and the judgement, sourced mainly from the Concise Oxford English Dictionary, Oxford University Press, 1998. The meaning given to the terms represents the court's understanding of various terms used in the evidence.

brain – an organ of soft nervous tissue contained in the skull, functioning as the coordinating centre of sensation and intellectual and nervous activity.
bruises – injuries appearing as areas of discoloured skin on the body, caused by blow(s) or impact(s) rupturing underlying blood vessels.
cervical – of or relating to the cervix
concussion – temporary unconsciousness or confusion caused by a blow on the head.
consciousness – state of being awake, aware of and responding to one's surroundings
CT scan – also referred to as computer tomography scan or 'catscan'.
deteriorating – become progressively worse
diagnose – identify the medial problem of someone
disability – a physical or mental condition that limits a person's movements, senses, or activities
disoriented – cause someone to lose their sense of direction or feel confused
epilepsy – a neurological disorder marked by sudden recurrent episodes of sensory disturbance, loss of consciousness or convulsions
haematoma – a solid swelling of clotted blood within the tissues
haematoma – clot of blood on or in the brain causing pressure damage
hemiplegia – paralysis of arm and leg
hemiplegia – paralysis of one side of the body
impaired – having a disability of a specific kind
infirmity – physical or mental weakness
insane – in or relating to an unsound state of mind
lacerations – tear or deeply cut the flesh or skin
memory – the faculty by which the mind stores and remembers information
mental – of, done by, or relating to the mind
psychiatrist – a medical practitioner specialising in the diagnosis and treatment of mental illness
psychoneurosis – mental disturbance the cause of which is not known
psychosis – s severe mental disorder in which thought and emotions are so impaired that contact is lost with external reality
retarded – less advanced in mental, physical, social development than is usual for one's age
scar – a mark left on the skin or within body tissue after the healing of a wound or burn
shock – low blood pressure caused by profound disturbance to the central nervous system
surgery – the branch of medicine concerned with treatment of injuries or disorders of the body by incision or manipulation, especially with instruments
symptoms – a feature that indicates a condition of disease
tomography is a technique for displaying a cross section through a human body or other solid object using X-rays or ultrasound
unconscious – not awake, aware of or responding to one's surroundings

13. The first witness for the plaintiff was Angolo Peter. He adopted his affidavit in examination-in-chief. He was a passenger in the Isuzu bus being driven by the plaintiff and saw what happened. He calls the plaintiff "Michael Wai"; and he is the same person as Andrew Wai.

14. In cross-examination Angolo Peter stated he was sitting on the doorway of the truck but he could see what happened. He stood up when he realised that a highway truck was approaching. He was about two metres away from the driver. The bus was not carrying any cargo. The truck that approached the bus was a big truck. The road was very narrow. The bus stopped to give way. When the truck went past it pushed the bus over the edge of the cliff. The accident did not happen on a corner. The road was straight and narrow. The truck was not speeding. The driver of the bus was not drunk.

15. In re-examination Angolo Peter repeated that the place where the driver stopped the bus was a narrow stretch of road, on the edge of a cliff.

16. The second witness for the plaintiff was Kakas Muikin. He adopted his affidavit in examination-in-chief. He has been the PSC at Laiagam since 2000. He has served 24 years in the Police Force. He has searched the records of the police station and located the original police accident report.

17. In cross-examination Kakas Muikin stated that the copy of the report annexed to his affidavit is a true copy. It was prepared by the then OIC of the Laiagam Traffic Section in 1989.

18. In re-examination Kakas Muikin repeated that the police accident report was a true copy of the original.

19. The third witness for the plaintiff was Amos Lapet. He adopted his affidavit in examination-in-chief. He was the owner of the bus driven by the plaintiff. On the morning of 31 December 1989 he got news, over breakfast, that his bus had been involved in an accident. He drove his Landcruiser to the scene and took the plaintiff, who was still unconscious, and another person to the hospital. He knew the plaintiff by the name "Michael Wai Yangun". When the plaintiff was released from hospital he did not re-employ him as he never recovered properly. In the hospital he looked like a different person. Nobody else employed him either.

20. In cross-examination Amos Lapet stated that he had first employed the plaintiff about two months before the accident. He was paying him K180.00 per fortnight. He has no pay-slips. He operates only a small business, with three buses. He pays no tax.

22. The fourth witness for the plaintiff was Lupe Nana. He adopted his affidavit in examination-in-chief. He is the kuskus (clerk) of the Langitapus Village Court.

23. In cross-examination Lupe Nana stated that the plaintiff comes from Langitapus village.

25. The deponents of exhibits E and F, Joe Tomerop (the owner of the Hino truck) and Judy Nandape (the plaintiff's lawyer) did not give oral evidence. Ms Nandape's evidence in her affidavit of 19 May 2004 was non-contentious. As to Mr Tomerop, his affidavit was contentious, as it annexed a copy of the insurance certificate for the Hino truck covering the date of the accident. I ruled that the affidavit and therefore the certificate could be admitted in the absence of the deponent.

26. The fifth and final witness for the plaintiff was Dr John McKup. He adopted his affidavit in examination-in-chief. He has been practising medicine for 23 years. He considered that he is in a good position to diagnose a person with a mental illness. There is no psychiatrist in Mt Hagen. In PNG the only mental hospital is in Port Moresby and that is the place where all psychiatric specialists are based.

27. In cross-examination the defendant's counsel, Mr Titus, asked Dr McKup what he meant in his report by the word "psychosis". He replied that in layperson's terms it means that the person is a madman or long-long. Mr Titus told Dr McKup that he had recently met the plaintiff, shaken his hand and asked him some questions, which he answered. Would a madman respond in that way and walk around without assistance?, he was asked. Dr McKup said some madmen can walk around but when the plaintiff was taken to his surgery he had to be assisted.

28. Mr Titus asked what it is that controls a person's movement. "The brain", replied Dr McKup. So isn't there some of the brain working in the plaintiff's case?, Mr Titus asked. 'Yes' responded Dr McKup.

29. Dr McKup said that there was no CT scanning ('catscan') equipment available to carry out tests on the plaintiff's brain. However, he reached his conclusion that the plaintiff had a 100% mental incapacity from his medical experience as well as his clinical examination of the plaintiff. He also looked at the way that the plaintiff dressed, his mood and his responses to various questions. In carrying out such examinations it is important for the examining doctor to study whether the patient's answers are relevant and normal.

30. Dr McKup conceded that his first examination of the plaintiff was in 2001, which was 12 years after the motor vehicle accident that was said to have caused his mental infirmity. He had no material before him to what happened between 1989 and 2002. He depended entirely on the history that was given to him by the people who brought the plaintiff in, plus a report from Sopas Hospital. (That report was not admitted into evidence.) Dr McKup said he could not trace precisely what had happened to the plaintiff, though he did notice a scar on his forehead. Dr McKup did not refer the plaintiff to a psychiatrist.

31. Mr Titus quizzed Dr McKup on what he meant in his report by a 100% mental impairment. Dr McKup replied that he did not mean to say that the plaintiff has no brain function, but that the way he behaves and talks is not normal. His brain still works but he has a 100% loss of mental functions. The plaintiff is able to talk to some extent, but he mumbles and is difficult to understand.

32. Mr Titus put to Dr McKup that he had insufficient knowledge of the plaintiff's history to conclude that his present condition was caused by a motor vehicle accident. Dr McKup responded that it would be difficult for any doctor, even a psychiatrist, to work out exactly how the plaintiff came to be mentally impaired.

33. In re-examination Dr McKup stated that the type of psychosis from which the plaintiff is suffering is not something that develops overnight. It can take considerable time after the event that caused it for the symptoms to develop. It is difficult to tell what really happened within the plaintiff's brain. No one but God can say with certainty. A person is diagnosed based on their outward appearance and responses to questions.

34. Amos Lapet was then recalled to the witness box. In examination-in-chief he said that in 2004 he had gone to Sopas Hospital to look for the doctor who treated the plaintiff when he was admitted to hospital, Dr Gibson. However, the hospital had been closed down due to landowner problems.

35. In cross-examination Amos Lapet said the fight that led to Sopas Hospital being closed was continuing. He had been unable to track down Dr Gibson in Port Moresby.

36. Ms Nandape then tendered the medical report apparently prepared by Dr Gibson in 1990. Mr Titus objected. I refused to admit it, as I considered that the plaintiff's lawyers had had ample time to regularise this aspect of the evidence.

40. First, was the plaintiff guilty of contributory negligence? In his final submissions, Mr Titus conceded liability, ie he conceded that the requirements of Section 54(1) of the Motor Vehicles (Third Party Insurance) Act were met by the plaintiff. He conceded that the plaintiff's injuries and disability arose out of the use of a motor vehicle and that the motor vehicle was insured with MVIL. However, Mr Titus submitted that the drivers of both vehicles were equally to blame. Therefore the plaintiff was 50% contributorily negligent.

41. Secondly, what degree of mental impairment does the plaintiff suffer from? And was this caused by the motor vehicle accident?

42. Ms Nandape submitted that the evidence should leave the court in no doubt as to the circumstances in which the motor vehicle accident occurred. The plaintiff's case is supported by the eyewitness account of Angolo Peter and the police road accident report. The driver of the Hino truck, Kupi Sam, was clearly negligent. The plaintiff had stopped the bus he was driving, to give way to the truck driven by Kupi Sam. The police obviously took the same view as Kupi Sam was charged with negligent driving. No action was taken against the plaintiff.

43. The plaintiff did all that he could reasonably be expected to do to avoid an accident of the type that happened. He was not 'careless in looking after his own safety', which is the often-quoted explanation of contributory negligence given by Bredmeyer AJ, as he then was, in Brown v MVIT [1980] PNGLR 409. The defendant has the onus of proving contributory negligence (David Goiye v The State (1987) N624, National Court, King AJ). The defendant failed to adduce any evidence and therefore failed to discharge the onus of proof.

44. Ms Nandape relied here on the affidavit and oral evidence of Amos Lapet, Lupe Nana and Dr John McKup.

45. Amos Lapet was the owner of the bus being driven by the plaintiff. He arrived at the scene soon after the accident and took the unconscious plaintiff to hospital. He observed the deterioration in his condition.

46. Lupe Nana is the Village Court clerk. His evidence supports the proposition that the plaintiff's marriage has been dissolved, as he has gone long-long.

47. Dr McKup's evidence was clear and straightforward. Dr McKup is an experienced medical practitioner. The fact that he is not a psychiatrist should not prevent the court relying on his assessment of the plaintiff's mental condition. The court must take account of the realities of PNG, where obtaining specialist psychiatric assessments and evidence is difficult. The court should adopt the approach taken by Woods J in Yapi Koka v MVIT [1995] PNGLR 294. In that case there was a dispute about the extent of brain damage suffered by the plaintiff. His Honour stated:

As has often been said, it is very difficult to accurately assess the impairment of a person who lives and works in a village environment, where there are often no foundation criteria from which to work. And with brain injuries and concussion, there are no specialist-trained psychiatrists available or with the time and opportunity to assist in any assessment. In this situation, the courts find that general practitioners who have had experience in the country and, in particular, contact with the rural people, do become experienced in the social behaviour and patterns of the people and are able to give assessments of behaviour expectations and patterns. The court is presented with different percentages of impairment and disability. All medical witnesses agree that only after extensive psychiatric testing would it be possible to ascertain with total conviction the extent of disability; however, such is not possible.

48. Ms Nandape submitted that the total award should be assessed as K440,335.43, comprising general damages (K150,000.00), economic loss (K78,420.15) and interest (K211,915.28).

49. Mr Titus submitted that the court should not draw the conclusion that only the driver of the Hino truck caused the accident. The two drivers were equally negligent. The plaintiff had sufficient opportunity to reverse his bus or get out of the way. He should be assessed as being guilty of contributory negligence to the extent of 50%.

50. Mr Titus submitted that the evidence of neither Amos Lapet nor Lupe Nana could be used to show the condition of the plaintiff or the extent of his injuries or the extent of economic loss. As to Dr McKup's evidence, it is very unreliable. He is not a psychiatrist. His evidence was internally inconsistent. His report assessed the plaintiff as having a 100% loss of brain function but in cross-examination he had to concede that that was not correct as the plaintiff is able to move around and talk. Dr McKup first examined the plaintiff 12 years after the accident and admitted that he was no position to say what caused the mental infirmity. He was relying purely on what he had been told by others.

51. Mr Titus submitted that the amount of general damages should reflect the unsatisfactory state of the evidence. There was no reliable evidence that the plaintiff was seriously mentally impaired or that that injury was caused by this accident. The claim for economic loss was too vague. There were no records to indicate that the plaintiff was employed or how much he was paid.

53. This issue has to be determined in light of Section 40(1) of the Wrongs (Miscellaneous Provisions) Act Chapter No 297, which states:

... where a person suffers damage as the result partly of his own fault and partly of the fault of any other person, a claim in respect of the damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect of it shall be reduced to such extent as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage.

54. I accept that the defendant has the onus of proof on this issue. It has to prove that the plaintiff was careless in looking after his own safety or, in the words of Section 40(1), that the plaintiff suffered damage as the result of his own fault.

55. That onus has not been discharged in this case. An eyewitness account of the accident is in evidence. The police accident report supported the view that the accident was caused solely by the negligence of the driver of the Hino truck, Kupi Sam. The plaintiff stopped his bus on the side of the road. The truck moved past. Kupi Sam was clearly negligent. I do not think it is reasonable to expect the plaintiff to have done any more than what he did. It should have been apparent to Kupi Sam that there was not enough room for the truck to pass safely. He should have stopped the truck. Or reversed. Or got out of the vehicle to sum up the situation. He seems to have taken a crash-or-crash-through approach, to the detriment of the plaintiff.

56. I conclude that the plaintiff was not guilty of any contributory negligence.

WHAT DEGREE OF MENTAL INFIRMITY DOES THE PLAINTIFF SUFFER FROM? AND WAS IT CAUSED BY THE MOTOR VEHICLE ACCIDENT?

57. This has been a difficult issue to determine for two reasons. First there was no specialist psychiatric assessment of the plaintiff that was in evidence; and there is no evidence that any such assessment has ever been done. Secondly, the plaintiff was not called to give evidence. The court did not sight him at all.

58. Ms Nandape attempted to meet the first difficulty by relying on the evidence of Dr McKup. She argued that he was an experienced medical practitioner, well placed to make an assessment of the degree of mental impairment suffered by the plaintiff. There was some strength in that point. Ms Nandape rightly pointed to the common sense approach taken by Woods J in Koka's case. However, I still thought Mr Titus's cross-examination of Dr McKup demonstrated that the doctor's assessment of the plaintiff was very subjective, intuitive and rather vague. I think it is reasonable to expect an experienced practitioner to arrive at a more discrete and specific description of a person's mental state than that he is a 'madman' or long-long. Another problem with the medical evidence exposed during the cross-examination was that Dr McKup was examining a person 12 years after the accident that allegedly caused his condition. It could not be said with a high degree of certainty that it was the accident that caused the mental impairment.

59. I was therefore not satisfied that the plaintiff is suffering a 100% mental incapacity. I am, however, prepared to conclude on the balance of probabilities that he is suffering a 50% mental disability. Considering the circumstantial evidence, I also conclude that, despite the shortcomings in the evidence, this condition has arisen as a direct result of the accident.

60. This head of damage was pleaded in the statement of claim and represents pain and suffering and loss of amenities of life and loss of expectation of life associated with the plaintiff's mental infirmity. Ms Nandape cited a number of previous cases to demonstrate a fair figure. I accept her submission that the effects of inflation have to be considered when comparing awards of damages in previous cases. (See Tumunda Toropo v Jack Awabe and The State (2001) N2116, National Court, Hinchliffe J.)

61. I will summarise some cases in which the courts in Papua New Guinea have assessed general damages for plaintiffs who have suffered brain damage.

TABLE 2: ASSESSMENT OF GENERAL DAMAGES
FOR PLAINTIFFS WHO HAVE SUFFERED BRAIN DAMAGE

No	Case	Details	Assessment
1	Basil Lam v Micca Walaun and Others [1979] PNGLR 637, National Court, Wilson J judgment given 18.12.79	The plaintiff, a 19-year old customs clerk, aged 24 years at trial, suffered head injuries with loss of consciousness for two weeks, requiring surgery for removal of a right-sided haematoma, causing brain damage with impaired intellect. Disabilities included a right-sided facial weakness, slurring of speech, blurred vision, and significant personality change.	K10,000.00
2	Brendon Aspinall v The State [1979] PNGLR 642, National Court, Wilson J, judgment given 18.12.79	An eight year old boy was injured in a motor vehicle accident. He suffered brain damage – permanent impairment of intellect and mild mental retardation – loss of memory and concentration powers, outing him at severe disadvantage in the normal school environment. His work prospects lay in the area of labouring or semi-skilled work.	K9,000.00
3	Brian John Lewis v The State [1980] PNGLR 219, Supreme Court, Greville-Smith J, Andrew J, Miles J judgment given 29.08.80	A 21-year old male airport ramp officer, aged 28 at trial, suffered permanent brain damage due to a motor vehicle accident involving a government truck in Port Moresby. The brain damage was symptomised by confusion, progressive memory disturbance, psychoneurosis, lack of concern for his own condition and uncontrollable laughter in company. He also suffered a serious injury to his cervical spine.	K25,000.00
4	Anna Pose v The State [1981] PNGLR 556, National Court, Pratt J, judgment given 28.07.81	A two-year old female child was injured in an explosion on a boat. She suffered a fractured skull causing brain damage, resulting in right-sided hemiplegia, from which she had partially recovered by the time of trial.	K9,000.00
5	James Robert Colbert v The State [1988-89] PNGLR 590, National Court, Cory J, judgment given 28.10.87	A 36-year old experienced technical teacher was hit in the head by a criminal intruder at Idubada Technical College, in the night. He successfully sued the State for negligence. He suffered brain damage, intellectual impairment and was rendered unfit for work due to memory loss, epilepsy and a speech defect.	K70,000.00
6	John Francis Reading v MVIT [1988] PNGLR 266, National Court, Woods J, judgment given 25.03.88	A five-month old baby girl was injured in a motor vehicle accident. She suffered permanent brain damage. She was ten years old at trial. Totally dependent on others.	K75,000.00
7	Sapa Landao v The State [1988] PNGLR 279, National Court, Hinchliffe J, judgment given 11.04.88	A man in his 50s was knocked down on the road by a police vehicle. He suffered a head injury and was unconscious for five days. He recovered well but continued to have difficulty walking long distances and keeping balance.	K9,000.00

62. In the present case the plaintiff now faces a difficult life. Ms Nandape submitted that the sum of K150,000.00 should be assessed. I do not think that is reasonable. The figure will be much less than that. As for the defendant, Mr Titus did not propose any particular sum, which was less than useful.

63. Having considered all the above cases the one that stands out as the most suitable precedent is Lewis, decided by the Supreme Court in 1980. The sum of K25,000.00 was awarded to a young man who suffered brain damage due to a motor vehicle accident. He also suffered a cervical spine injury. I will reduce the K25,000.00 by K5,000.00, to make the starting point K20,000.00. I will discount that sum by 50% to take account of the unsatisfactory nature of the medical evidence concerning the plaintiff's degree of mental impairment. So the base amount becomes K10,000.00. I take into account that Lewis was decided more than 25 years ago. The reduced purchasing power of the kina must be considered. I consider it appropriate to treble the amount assessed by reference to Lewis.

64. This has been inadequately particularised in the statement of claim and the evidence in support of this aspect of the claim is weak. The only evidence of the plaintiff's qualifications or earning capacity has come from the owner of the bus he was driving, Amos Lapet. He states that he employed the plaintiff for about two months prior to the accident and paid him K180.00 per fortnight. There is no documentary evidence to support what Mr Lapet has said. He conceded that he keeps next to no business records and pays no tax. Another problem with the evidence is that there is no clear evidence of the plaintiff's age. Ms Nandape's submission is that he was about 35 years old when the writ was issued (in 1995) and that at the date of trial (2004), he was aged about 53. It is hard for the court to accept that a person could age 18 years in the space of nine years, especially when the plaintiff has not even been sighted by the court.

65. In these circumstances it would not be unreasonable to award a zero amount for economic loss. However, I am prepared to conclude that the plaintiff's counsel has just scraped over the line of proving on the balance of probabilities that the plaintiff was employed and could have continued to be employed if he had not been injured in the accident. I base the calculation on the following parameters:

Therefore his total economic loss is: K180.00 x 12 months x 20 years = K43,200.00.

68. It is normal practice in a case in which damages are awarded to also award interest under the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Section 1(1) is the relevant provision. It states:

... in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

69. As Bredmeyer J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, this section confers a four-fold discretion on the Judge: (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run.

1 A plaintiff should in the normal course of events receive interest. There is nothing that takes this case out of the ordinary in that regard. Interest will be included in the sum for which judgment is given.

2 The standard rate of interest being used these days by the courts is 8%. In view of prevailing interest rates in the country 8% could be considered generous. However the defendant concedes that 8% is appropriate so it is, I think, the proper rate of interest.

3 Interest should be payable on the total of the pre-judgment components, if any, of the various categories of damages that have been assessed. The governing principle is that interest is not intended to be compensation but an award of money paid to the plaintiff for being kept out of money that ought to have been paid to him. In Pinzger v Bougainville Copper Ltd [1985] PNGLR 160, Pratt J, Amet J, Woods J, the Supreme Court acknowledged the sound arguments in favour of dividing up damages for pain and suffering and loss of amenities of life into components for past and future and confining interest awards to the component for past pain and suffering and loss of amenities. It follows that if a head of damage is compensation for future losses, eg damages for loss of future earnings, it will not attract any interest. I identify the pre-judgment and post-judgment components of the various categories of damages in the following table.

The pre-judgment and post-judgment general damages and economic loss have been calculated from the date of accident to the date the plaintiff will reach the age of 55. I estimate his age was 35 at the date the accident, in 1989. The date of judgment in 2006 will be approximately 17 years after the accident. Another three years remain for the plaintiff to reach the age of 55 years. Thus only two categories of damages will attract interest: pre-judgment general damages (K30,000.00 x 17 divide by 20 = K25,500.00) and pre-judgment economic (K43,200.00 x 17 divide by 20 = K36,720.00).

4 The appropriate period for which interest is to run is also the subject of Supreme Court guidelines in Pinzger. It varies according to the category of damages. For general damages and economic loss it is from the date of service of the writ to the date of trial. For special damages (which have not been awarded in this case) it is from the date of the accident to the date of trial. In other cases the date of judgment has been substituted for the date of trial (eg Reading v MVIT [1988] PNGLR 266, National Court, Woods J; affirmed on appeal in MVIT v Reading [1988] PNGLR 236, Supreme Court, Kidu CJ, Amet J, Cory J). I consider that the date of judgment is a fairer end-mark for the period. As that lies within the boundaries of my discretion, I set it at that. In the present case the date of service of the writ is 14 November 1996. The date of this judgment is 21 February 2006. Interest will run on general damages and economic loss (at 8%) from 14 November 1996 to 21 February 2006, a period of 9.28 years.

71. I calculate the amount of interest by applying, in relation to each category of damages attracting interest, the following formula:

73. I will order that there be included in the sum for which judgment is given, interest of K46,192.13.

74. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.

Judgment accordingly.
___________________________________________________
Tamutai Lawyers: Lawyers for the Plaintiff
Mirupasi Lawyers: Lawyers for the Defendant

1 –	summary of documentary evidence
2 –	assessment of general damages for plaintiffs who have suffered brain damage
3 –	pre-judgment and post-judgment components of damages

No	Category	Pre-judgment	Post-judgment	Total
1	General damages	K25,500.00	K4,500.00	K30,000.00
2	Economic loss	36,720.00	6,480.00	43,200.00
Total		K62,220.00	K10,980.00	K73,200.00

National Court of Papua New Guinea

Wai v Motor Vehicles Insurance Ltd [2006] PGNC 193; N2974 (21 February 2006)