Tony v Independent State of Papua New Guinea [2008] PGNC 132; N3477 (11 September 2008)

N3477

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1263 OF 2004

BETWEEN

ANDREW TONY
Plaintiff

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Mount Hagen: Makail, AJ
2008: 11 September
: 4 September

DAMAGES - assessment of damages - for physical injuries, pain and suffering - injury to left eye - 100% loss of vision of left eye - arising from collapsed foot bridge - general damages - increase in amount - based on and commensurate with inflation - economic loss - proof of - adult male villager - based on earnings of subsistence farmer.

Cases Cited

Papua New Guinea Cases:

Ronnie Aura -v- Papuan Airline Transport Limited [1963] PNGLR 272
Takie Murray -v- Norman Kinamur [1983] PNGLR 446
Jane Rohrlach -v- Evangelical Lutheran Church of New Guinea Property Trust [1985] PNGLR 185
Seke Opa -v- The State [1987] PNGLR 469
Melinda Baduk -v- The State & Ors [1993] PNGLR 250
Yange Lagan -v- The State (1995) N1369
Jonathan Mangope Paraia -v- The State (1995) N1343
Sale Dagu -v- The State (1995) N1316
Jack Lundu Yalao -v- Wiri Kauli -v- The State: WS No 1209 of 2007 (Unnumbered & Unreported Judgment of 21 July 2008)

Overseas Cases:

Pickett -v- British Rail Engineering Ltd (1978) 3 WLR 955

Counsel:

Mr P. Kopunye, for the Plaintiff
Ms J. Tindiwi, for the Defendant

JUDGMENT

11 September, 2008

1. MAKAIL AJ: This is a very tragic case as the Plaintiff was one of the victims of a foot bridge disaster at Waghi River in the Nondugl District of the Western Highlands Province on 5 November 1999. It was recently built by the Department of Works but the irony of it all is that, after it was officially opened by the then member for Parliament for North Waghi, Honourable Fabian Pok a few minutes earlier, the people in their jubilation and excitement walked across in numbers and it collapsed under their weight sending many of them including the Plaintiff into the river. The Plaintiff was seriously injured. He seeks inter alia damages for physical injuries, pain and suffering.

2. Liability against the Defendant has been determined by entry of default judgment on 6 June 2005. Thus, the matter comes before me for assessment of damages only.

3. At the close of all evidence, I invited both counsel to make submissions on the appropriate amount of damages I should award to the Plaintiff. Mr Kopunye of counsel for the Plaintiff presented a Written Submission and made brief oral submissions. Ms Tindiwi of counsel for the Defendant also presented Written Submission as well as making brief oral submissions. I reserved my decision to 11 September 2008. This is my decision.

EVIDENCE

4. The Plaintiff relies on the following Affidavits to support his claim for damages which were admitted into evidence without objection from the Defendant:

1. Affidavit of Andrew Tony sworn on 19 November 2004 and filed on 26 November 2004 (Exhibit "P1");

2. Affidavit of Micca Kaieng sworn on 8 July 2008 and filed on 28 July 2008 (Exhibit "P2"); and

3. Affidavit of Dr Allan Kulunga sworn on 21 September 2004 and filed on 5 October 2004 (Exhibit "P3").

5. Except for Micca Kaieng and Dr Allan Kulunga, counsel for the Defendant only cross examined the Plaintiff on his Affidavit evidence. The Defendant offered no evidence, thus much of the evidence of the Plaintiff and his witnesses remained unchallenged and not rebutted. Thus, from these Affidavit materials of the Plaintiff and his witnesses, it is the evidence of the Plaintiff and his witnesses that:

1. He is about 34 years old at the date of trial and comes from Nogoi Three village in the Banz District of the Western Highlands Province. At the relevant time, he was a Grade 9 student at Togoba High School. He was one of the many people on the foot bridge that tragic day when it collapsed and was seriously injured.

2. He was admitted to Nondugl Health Centre for a week for medical treatment. According to the Medical Report from Nondugl Health Centre of 25 November 1999, he sustained bruises, swollen body distended abdominal inhalation of water, swollen red eye, several wounds on his right lower limbs and 2 deep cuts to left lower ribs.

3. The only injury that he complains of now is the injury to his left eye which was confirmed by Dr Allan Kulunga in his Medical Report of 24 December 2003 where he gave 100% permanent loss of the Plaintiff’s left eye. The other minor injuries according to Dr Kulunga have healed over time.

4. Due to the injury to his left eye, he stopped going to school and did not complete his education. He lives in the village and owns coffee blocks and vegetable gardens. From the sale of coffee and vegetables, he makes about K 600.00 to K 700.00 per annum.

5. As a result of the injuries, the Plaintiff’s ability to do subsistence farming and other manual work has been greatly reduced as he cannot see with the left eye. He is now married and has one child.

ASSESSMENT OF DAMAGES

6. It must be borne in mind that although the Plaintiff has obtained default judgment against the Defendant, hence liability is not in issue, the Plaintiff still bears the onus to prove his damages as a result of the injuries sustained from the foot bridge collapse. See the cases of Yange Lagan -v- The State (1995) N1369 and Jonathan Mangope Paraia -v- The State (1995) N1343.

7. The Plaintiff claims the following damages:

1. General damages	K42,000.00
2 Economic loss	K 10,000.00
3 Special damages	K 260.00;
4 Out of pocket expenses	-
5 8% Interest	-
6. Costs	-

8. I consider each of the head of damages below.

General damages

9. The Plaintiff makes a claim for general damages. He claims K48,000.00.

10. Mr Kopunye of counsel for the Plaintiff in his written submissions under this head of claim refers to a number of past cases and awards made for eye injury. Like wise, Ms Tindiwi also refers to the same cases which I will refer to shortly to make a comparison with this present case to determine a fair and reasonable award for the Plaintiff.
I set out these cases briefly hereunder:

1. Rouney Aura -v- Papuan Airline Transport Ltd [1963] PNGLR 272. This is a case where the Plaintiff, a 20 year old trainee telephone technician earning 3 pounds a week was injured when a flying glass cut the upper part of his face and a portion of it cut the cornea of the left eye. His vision was diminished by more than 50%. The Court awarded general damages of 1,150 pounds. The decision was made on 7 June 1963.

2. Jacqueline Kennedy -v- Jerry Nalau & State [1981] PNGLR 543. In this case, the Plaintiff, a female child of 8 years and 8 months suffered facial injuries resulting in permanent facial scarring requiring future cosmetic surgery and a scarred eye in a motor vehicle accident in February 1977. The Court awarded general damages of K 10,000.00 inclusive of future economic loss and future medical expenses. Total award including interest and special damages was K 12,736.00. This decision was made on 22 January 1981.

3. Takie Murray -v- Norman Kinamur [1983] PNGLR 446. In this case, the Plaintiff, a married woman suffered injury to her left eye as a result of an assault. Her eye was surgically removed and artificial eye inserted. It created irritation, disfigurement and psychological distress. The Court awarded general damages of K 20,000.00 on 26 August 1983.

4. Jane Rohrlach -v- Evangelical Lutheran Church of New Guinea Property Trust [1985] PNGLR 185. The Plaintiff, a 15 years old student was blinded in one eye by a staple fired by a fellow student. A settlement figure of K 52,452.86 was approved by Court. After deduction for legal costs and medical expenses, the balance of K 47,089.39 was invested for and on behalf of the infant. This decision was made on 17 May 1985.

5. Seke Opa -v- The State [1987] PNGLR 469. In this case, the Plaintiff, a villager in mid 20’s (mid 30’s at date of trial) suffered severe head and other injuries including an eye injury resulting in total blindness, disfigurement and paralysed eyelid. The Court awarded K 60,000.00 in general damages for pain and suffering and loss of amenities of life on 5 October 1987.

6. Melinda Baduk -v- The State & Ors [1993] PNGLR 250. In this case, the Plaintiff was a 9 years old Grade 4 pupil at Waigani Community School. On 2 February 1989, another pupil threw a sharp pointed lead pencil at her right eye and it poked her eye thus, causing severe injuries resulting in the removal of the eye. It was assessed that she suffered 100% loss of vision of right eye and a false eye was inserted. The Court awarded K 35,000.00 in general damages plus K500.00 in special damages giving a total K 35,500.00 on 01 July 1993.

7. Sale Dagu -v- The State (1997) N1316. The Plaintiff was a 34 years old security officer who sustained injuries to his knee, head and face including his right eye. He suffered eye irritation which developed traumatic cataract of the right eye consequently reducing his vision dramatically. The cataract was removed and he suffered a 90 to 95% visual incapacity which represented near blindness. The Court awarded K20,000.00 in general damages for pain and suffering and loss of amenities plus interest of K1,390.47 and economic loss K 2,000.00, totalling K 23,390.47. This decision was made on 5 April 1995.

8. Jack Lundu Yalao -v- MVIT (1997) N1488, the Plaintiff, a security officer suffered injuries to his right eye as a result of motor vehicle accident. It was assessed that he suffered 95% visual disability. The Court awarded general damages of K 31,000.00. This decision was made on 28 June 1996.

9. Dorothy Kensley Tupa -v- The State (1997) N1581, the Plaintiff, a student suffered injury to her right eye when one of her class mate threw a piece of stick and struck her on her right eye. She suffered 84% loss of efficient use of her right eye. The Court awarded K 20,000.00 in general damages. The decision was made on 14 April 1997.

10. Joseph Dikini -v- John Wamel (1997) N1562, the Plaintiff, an unemployed male adult sustained an injury to his right eye. He was completely blind with no perception of light or vision and the Court awarded K 35,000.00 in general damages. This decision was made on 19 May 1997.

11. John Skup -v- CIS & The State (1997) N1564, the Plaintiff, a CIS officer suffered 100% loss of sight of the right eye, 25% loss of efficient use of left arm and 10% disfigurement. The Court awarded general damages of K 55,000.00. It was not stated in the decision how much was awarded for the eye injury but it appeared that the award was for all the injuries. This decision was made on 27 May 1997.

11. Mr Kopunye submits that those cases show that the Court has awarded general damages for eye injury leading to loss of vision between 1,150 pounds and K 55,000.00 but as these awards are some 10-30 years old, the award in this case should be increased to between K 45,000.00 and K 65,000.00.

12. Apart from the fact that those awards were made some 10-30 years ago, he did not give me any reasons to support his submission for an increase in the award nor did he refer me to any recent case authorities to show that the awards have been increased by the Court for this kind of injury.

13. Ms Tindiwi for the Defendant submits on the other hand that an award of K 20,000.00 would be a fair and reasonable amount to be awarded when considered in light of such cases as Dorothy Kesley Tupa (supra) where K 20,000.00 was awarded for 84% loss of vision of one of the eyes and Joseph Dikini (supra) where the Plaintiff was awarded K35,000.00 in general damages for being completely blind in his right eye with no perception of light or vision.

14. I was able to find just one recent published Judgment for eye injury in the case of Linda Stanley -v- Mathew Kawa & The State (2005) N2865 where the Plaintiff, an adult female bystander was shot by a policeman when he negligently discharged his gun and injured the Plaintiff on her left eye at Kindeng outside Mt Hagen. She suffered 50% loss of vision in her left eye. The Court awarded general damages of K 25,000.00 on 25 July 2005 after taking into account inflation.

15. The facts of these cases differ and general damages awarded varied from case to case due to the different nature and extent of injuries in each case. In the present case, whilst there is no evidence of an Opthamology Report from an eye specialist to verify the loss of eye injury, I am prepared to accept the Medical Report of Dr Allan Kulunga as evidence of the Plaintiff suffering 100% loss of vision of the left eye. I say this because, first there is no other evidence suggesting otherwise. Secondly, I had the benefit of observing closely the left eye of the Plaintiff at the trial and I can say that it has been damaged.

16. Further, when I asked him to close his right eye by blocking it with his right hand and asked him to look at me with his left eye and tell me what kind of object (yellow stick on pad) I was holding up for him to see, he could not say what it was. For these reasons, I have no reason to disbelieve his evidence and the evidence of Dr Kulunga. I accept 100% loss of vision of the Plaintiff’s left eye.

17. I have adverted to comparative damages awarded by the National Court since 1963 and it is obvious that over the years, the quantum of damages have increased. Of course, it is impossible to put a monetary value on an injured part of the human body, but a value must be given nonetheless.

18. In this case, the Plaintiff has lost 100% use of left eye. He is totally blind and his injury is permanent. Human eyes are very precious, for without one or both, one cannot appreciate the outside world and I wish to quote His Honour Smithers J in Rouney Aura’s case (supra) at 274 whom, His Honour Salika, J also quoted in Sale Dagu’s case (supra):

"It must never be forgotten that each eye is a precious possession - precious because of its capacity, and as one of man’s links with the outside world, an essential part of the man’s body."

19. As I noted earlier, Mr Kopunye suggested an award of K48,000.00. Apart from the fact that those awards were made some 10-30 years ago, he did not give me any reasons to support his submission for an increase in the award nor did he refer me to any recent case authorities to show that the awards have been increased by the Court for this kind of injury. But times have changed over the years and with constant inflation, awards of general damages must, I believe, be at par with the rising costs of inflation.

20. And so, I am of the view that the amount of general damages I will award should be higher than those awards made some 10 - 30 years ago. I say this because I consider that inflation is a relevant consideration in the assessment of general damages. The object of such consideration is best explained in the English case of Pickett -v- British Rail Engineering Ltd (1978) 3 WLR 955, thus:

"Increase for inflation is designed to preserve the "real" value of the money; interest to compensate for being kept out of that "real" value. The one has no relation to the other. If the damages claimed remained, nominally the same, because there was no inflation, interest would normally be given. The same should follow if the damages remain in real terms the same".

21. This English case has been cited with approval in the case of Aundak Kupil -v- State [1983] PNGLR 350. See also Lin Wan Xin -v- Wau Yanhong (2001) N2160, Shelly Kupo -v- MVIT (2002) N2282, and Roselyne Cecil Kusa -v- MVIT (2003) N2328. In Andrew Moka -v- MVIL (2004) SC 729, a 2004 personal injury case, the Supreme Court emphasized the effect of inflation on assessment of general damages in the following manner:

"We are of the opinion that in the light of high rate of inflation existing at the present time the Courts ought to consider that as a factor in considering awards for general damages for pain and suffering. We consider that due to inflation, the award for general damages for pain and suffering ought to be much higher now than what the Court was awarding in 1988 and 1998.... Accordingly, our view is that, general damages for pain and suffering should be higher than claimed in this case."

22. In the present case, the Plaintiff sustained injuries on 5 November 1999 which is nearly 9 years ago. There is no doubt that the value and the buying power of the kina has dropped significantly over the last 9 or so years. And so bearing in mind inflation in light of what the Supreme Court said in Andrew Moka’s case (supra), I proceed to assess a fair and reasonable amount of damages for the Plaintiff. This will depend on how much I will award as the starting point and increase it to cover for inflation.

23. Thus, bearing in mind these cases where the Court has taken into account inflation in assessing an appropriate amount of damages, I will start with K 35,000.00 as was awarded by the Court in Melinda Baduk’s case (supra) for 100% loss of vision of her right eye and will increase it from there.

24. The latest award for an eye injury as far as I can is the case of Linda Stanley (supra) where the Court awarded K 25,000.00 for 50% loss of vision of one of the eyes of the Plaintiff. For 100% loss of vision of one eye, the only recent awards would be found in the cases of John Skup (supra) where for a 100% loss of sight of the right eye, 25% loss of efficient use of left arm and 10% disfigurement, the Court awarded general damages of K 55,000.00 and Joseph Dikini (supra) where the Court awarded K 35,000.00 in general damages for 100% loss of vision of the right eye of the Plaintiff. As I said earlier, it is not clear from that decision of John Skup (supra) how much was awarded for the eye injury but it appears that the award was for all the injuries.

25. I distinguish the case of John Skup (supra) from the present case where it appears that K 55,000.00 was awarded as general damages for not only the eye injury but other injuries as well and will award K50,000.00 in this case on the basis that the Plaintiff only seeks damages for loss of vision of his left eye. This amount would be an increase of K25,000.00 from the award of K35,000.00 that was awarded in the case of Melinda Baduk’s 15 years ago. Further, it would be an increase of K25,000.00 if compared with the award of K35,000.00 in the case of Joseph Dikini (supra) decided just a little over 11 years ago.

26. In the circumstances, I consider that a fair and reasonable amount of damages for pain and suffering and loss of amenities would be K50,000.00. Accordingly, I award the sum of K50,000.00 as general damages.

Economic loss

27. The Plaintiff makes a claim for economic loss of between K7,000.00 and K10,000.00. Mr Kopunye submits that based on Kaka Kopun -v- The State [1980] PNGLR 557 where the Court awarded K7,000.00 for economic loss and Nentepa Paim -v- The State [1988-89] PNGLR 651 where the Plaintiff was awarded K5,000.00 for economic loss for injuries to his teeth, head, right knee, thigh and developed abscess on his right knee with a 15% loss of use.

28. Ms Tindiwi urges me to award only K500.00 based on the Dorothy Kensley Tupa’s case (supra) where the Court awarded K500.00 to the Plaintiff for economic loss.

29. Economic loss is one form of compensatory damages and it is intended to compensate the Plaintiff for the loss of earnings as a result of the injuries. 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. Even then, in a subsistence economy like in this case, it is quite difficult to accurately workout the loss of earnings of the Plaintiff. Thus, the Court is required to do the best it can to assess a fair and reasonable amount of damages for the Plaintiff.

30. The Plaintiff submits that he is a subsistence farmer and relies on gardening and planting coffee to earn a living in the village. Since the accident, he has been restricted in his work on the land like gardening and planting coffee. He says that he earns about K 600.00 to K 700.00 per annum from the sale of vegetables and coffee. This equates to about K27.00 per fortnight. At least there is some evidence of the Plaintiff’s earning capacity in the past. As I said above, I also do know that he is not completely incapacitated and that he can still work, but to a lesser degree.

31. He also says that he lost his education as a result of the eye injury as he did not return to school after the incident. The Defendant disputes that he was a student at the time of the incident. Ms Tindiwi submits that as the Plaintiff did not produce any evidence of a letter from Togoba High School to verify that he was a student at that time, I should find that he was not a student at that time.

32. I do not see any difference if the Plaintiff was a student or a villager back then because its his evidence and I so find that even though he was a student, he made gardens and grew coffee to generate money to pay for his school fees back then. After the incident, he would have performed the same work at a reduced capacity due to the loss of vision of one eye. He would have done so especially in light of being a married man and a father of one child. And so I make no finding in respect to that issue.

33. I am able to see some similarities between this case and the case of Make Kewa -v- The State [1986] PNGLR 279 where the Court awarded K10,000.00 to a villager for injuries sustained in a motor vehicle at K540.00 per annum for the next 32 years until the age of 55. I am of the view that K10,000.00 is an appropriate figure for economic loss and I so order. Past economic loss from 5 November 1999 to 11 September 2008 I assess a round off sum of K3,000.00 based on K27.00 per fortnight.

34. I award a total sum of K13,000.00 for economic loss.

Special damages & Out of Pocket Expenses

35. First, the Plaintiff also claims K260.00 as special damages for medical costs. There is evidence from the Plaintiff that he incurred this amount by way of receipts annexed to his Affidavit. The Defendant does not dispute this amount and I award this amount.

36. Secondly, the Plaintiff claims out of pocket expenses for transportation costs to pursue this claim against the Defendant. This he says is for the expenses incurred for numerous trips to and from his village to follow up his claim with his lawyers. He is unable to produce receipts of payments as PMV owners do not provide them. Here, I note the Plaintiff is from Nogoi Three village located in the Banz District of the Western Highlands Province. Surely, he would have paid for PMV to get to Mt Hagen and for his return journey in order to pursue this claim thus far.

37. But he does not give an amount and so going by what I have awarded in the case of Wiri Kauli -v- The State: WS No 1209 of 2007 (Unnumbered & Unreported Judgment of 21 July 2008) I award K300.00.

8% Interest

38. I add general damages, economic loss, special damages and out of pocket expenses and they equate to K 63,560.00. I calculate 8% interest based on the principal judgment of K 63,560.00 from date of issue of Writ of Summons of 20 September 2004 to the date of Judgment of 11 September 2008 which is a total of 1,448 days is K 20,170.64.

Costs

39. I also award costs to the Plaintiff to be taxed if not agreed.

SUMMARY

40. In summary, I award the following:

1. General damages	K 50,000.00;
2 Economic loss	K 13,000.00;
3 Special damages	K 260.00
4. Out of Pocket Expenses	K 300.00
5 8% Interest	K 20,170.64
6 Costs
Total	K 83,730.64

ORDERS

I formally order as follows:

1. Judgment is entered against the Defendant in the total sum of K 63,560.00.

2. The Defendant shall pay 8% interest calculated from the date of issue of the Writ of Summons to the date of Judgment at K 20,170.64.

3. The Defendant shall pay the Plaintiff’s costs of the proceeding to be taxed if not agreed.

4. Time for entry of these Orders be abridged to the date of settlement by the Registrar which shall take place forthwith.

__________________________________

Kopunye Lawyers: Lawyers for the Plaintiff:
Acting Solicitor General: Lawyers for the Defendant