Topo v Independent State of Papua New Guinea [2008] PGNC 133; N3478 (11 September 2008)

N3478

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1261 OF 2004

BETWEEN

NGANTS TOPO
Plaintiff

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

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

DAMAGES - assessment of damages - for physical injuries, pain and suffering - right foot deformed - 65% loss of use of right leg - 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 cited:
Kaka Kopun -v- The State [1980] PNGLR 557
Anis Wambia -v- The State [1980] PNGLR 567
Koko Kopele -v- MVIT & The State [1983] PNGLR 223
Aundak Kupil -v- State [1983] PNGLR 350
George Kiak -v- Tora Enterprises Pty Ltd & MVI T [1986] PNGLR 265
Alfred Moia -v- The State [1988] PNGLR 299
Thomas Tambi -v- The State [1988-89] PNGLR 648
Nentepa Paim -v- The State [1988-89] PNGLR 651
Wenam Elkum & Iwai Gebi -v- The State [1988-89] PNGLR 662
Ambua Kulange -v- MVIT (1990) N842
Korrolly, Tovue & Kolita -v- MVIT [1991] PNGLR 415
Mol Kapia -v- MVIL (1991) N1024
Cecilia Dir -v- MVIT [1991] PNGLR 433
John Etape -v- MVIT [1992] PNGLR 191
Kuli Gokam -v- The State (1990) N826
Anna David -v- MVIT [1993] PNGLR 356
Rose Terema -v- MVIT [1994] PNGLR 41.
Alphonse Kopi -v- CIS & The State [1994] PNGLR 475
Yange Lagan -v- The State (1995) N1369
Jonathan Mangope Paraia -v- The State (1995) N1343
Richard Tom Mandui -v- CIS & The State [1996] PNGLR 187
Lin Wan Xin -v- Wau Yanhong (2001) N2160
Shelley Kupo -v- MVIT (2002) N2282
Roselyne Cecil Kusa -v- MVIT (2003) N2328
Andrew Moka -v- MVIL (2004) SC729
MVIL -v- Maki Kol (2007) SC902
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. The foot bridge 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 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 submission. Ms Tindiwi of counsel for the Defendant did not have a Written Submission ready and I directed her to file and serve one on the Plaintiff by or before Friday 5 September 2008. I reserved my decision to 11 September 2008 for the benefit of the Defendant and she has done that. 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 Ngants Topo sworn on 2 November 2004 and filed on 4 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 6 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 remains unchallenged or not rebutted. Thus, from these Affidavit materials filed by the Plaintiff, it is the evidence of the Plaintiff and his witnesses that:

1. He is about 49 years old at the date of trial. He is married and has 3 children. He is a subsistence farmer and lives in the village. He was one of the many people on the foot bridge that tragic day when it collapsed and was seriously injured.

2. He was standing at the foot of the bridge when it collapsed and the metal post of the bridge fell on top of him and he sustained serious injuries. He was admitted to Nondugl Health Centre for 2 weeks where he received medical treatment. He sustained injuries to his nose, left small finger and right foot. As a result, the lower right foot was deformed.

3. According to Dr Allan Kulunga’s Medical Report of 2 July 2003, the Plaintiff suffered deep and degloving lacerations to right lower leg at the foot, severed distal 5th phalange of left hand and minor generalized abrasions. He assessed 65% permanent disability of the Plaintiff’s right leg.

4. He owns coffee blocks, pigs and vegetable gardens and makes about K 200.00 to K 400.00 per annum from his coffee sales including sale of vegetables from his vegetable gardens. He sells pigs for K 1,000.00.

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 walks in an unnatural position on his right foot. Again, according to Dr Kulunga, the Plaintiff’s right foot is abnormal and he walks with difficulty because of the deformity. He is unable to carry heavy load and also unable to walk long distance. Further, he complains of pain during and after walking.

ASSESSMENT OF DAMAGES

6. In terms of assessment of damages, it must be borne in mind that although the Plaintiff has obtained a 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 collapsed foot bridge incident. 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	K 40,000.00
2. Economic loss	K 7,000.00
3. Special damages	K 291.50
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 K40, 000.00.

10. Mr Kopunye of counsel for the Plaintiff in his written submissions under this head of claim has not referred me to any recent decisions of this Court or the Supreme Court for personal injuries of amputation of fingers which have awarded general damages in excess of K 40,000.00.

11. He only relies on the following cases to support his submission of K 40,000.00 for arm injuries:

12. Mol Kapia -v- MVIL (1991) N10204 where the Court awarded K26, 000.00 in general damages to the Plaintiff who suffered a comminute fracture of the left tibia and fibula where a surgical bone pin was inserted to stabilize the fracture where it was assessed to have a 65% permanent disability in the effective use of her ankle joint.

13. Cecilia Dir -v- MVIT [1991] PNGLR 433 where the Court awarded K 35,000.00 in general damages to the Plaintiff who suffered laceration to her left forehead, left posterin foot, dislocated fracture of her left shoulder, displaced comminuted fracture of left distal tibia and fibular and the ankle joint was found to be totally disrupted with overall pieces of bones resulting shortening of the leg by an inch. Despite surgery, she had 60% loss of efficient use of her left leg.

14. John Etape -v- MVIT [1992] PNGLR 191 where the Court awarded K 27,000.00 in general damages to the Plaintiff who suffered severe fracture of the right hip and fracture of the left humerus. As a result, he had a shorten right leg with 50% disability in the efficient use of that leg.

15. Kuli Gokam -v- The State (1990) N826 where the Court awarded K16,000.00 to the Plaintiff who suffered fracture of tibia and fibular and partial tear of collateral ligament of knee and where there was 45% loss of use of knee and 2 cm shortening of the leg.

16. Mr Kopunye submits that those cases show that the Court has awarded general damages for this kind of injury between K 16,000.00 and K 35,000.00 but as these awards are nearly 20 years old, the award in this case should be increased to K 40,000.00.

17. Apart from the fact that those awards were made nearly 20 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.

18. Ms Tindiwi for the Defendant submits on the other hand that an award of K 10,000.00 would be a fair and reasonable amount to be awarded when considered in light of such cases as Alphonse Kopi -v- CIS & The State [1994] PNGLR 475, Anis Wambia -v- The State [1980] PNGLR 567 and Koko Kopele -v- MVIT & The State [1983] PNGLR 223.

19. In Alphonse Kopi’s case (supra), the Plaintiff, a prisoner suffered permanent loss to his achillis tendon when he was shot by CIS officers. This affected the efficient use of his leg by 15%. The Court awarded K14,000.00 in general damages.

20. In Anis Wambia’s case (supra), the Plaintiff a highlands coffee farmer aged 20 years sustained a fractured femur of his right leg and was awarded K 5,000.00 in general damages while in Koko Kopele’s case (supra), the Plaintiff suffered a fractured femur which resulted on a permanent loss of mobility of his leg. The Court awarded K 12,000.00 in general damages.

21. On my part I refer to comparable awards of first Alfred Moia -v- The State [1988] PNGLR 299, where a 36 year old Plaintiff (39 at trial) and employed as a bus driver, suffered fractures to his tibia and fibula to both of his legs. His disabilities included a shortening of his left leg, wasting and some scarring. The medical evidence estimated a 75% and 50% loss of efficient use respectively of both his legs (left and right) both below the knee for heavy manual labour. That was due to a non-union of the fractures. He was awarded K 20,000.00 in general damages.

22. The second case is Thomas Tambi -v- The State [1988-89] PNGLR 648, where the Plaintiff a male, aged 32 (36 at trial) employed as a driver, and sometimes working in his village garden suffered a fracture of his femur which required pinning and was slow to heal. He suffered muscle wasting and osteoarthritis changes and a 35% loss of the efficient use of his leg. He was unable to continue his employment as a driver and was severely restricted in his gardening activities. He was awarded K15, 000.00 for general damages.

23. The next case is, George Kiak -v- Tora Enterprises Pty Ltd and MVIT [1986] PNGLR 265, where the Plaintiff a Grade 1 Magistrate aged 35 years suffered a penetrating injury to his leg causing a severe compound fracture to his lower third of the left fibula and tibia. There was substantial skin loss with damages to the muscles, arteries and veins. The Plaintiff underwent 8 operations with the leg being saved from amputation. He suffered a permanent disability of about 50% with serious scarring and prognosis of arthritis and arthrodesis of the ankle joint. He was required to wear a built up shoe and calipher. At the time of the trial, he walked with a stick and limp. He was awarded K29, 000.00 in general damages.

24. The other is the case of Anna David -v- MVIT [1993] PNGLR 356 where the Plaintiff, an adult female bystander was hit by a motor vehicle that ran off the road and struck her. She sustained ankle and foot injuries. There were some residual disabilities and the Court awarded her K9,000.00 in general damages.

25. Next is Andrew Moka -v- MVIL (2004) SC 729 where the Supreme Court after upholding the appeal of the Appellant (Plaintiff) in that it found the Respondent (Defendant) liable for the personal injuries suffered by the Plaintiff went on to assess general damages for pain and suffering at K35,000.00. In that case, the Plaintiff, a male security guard of 32 years was injured in a motor vehicle accident in Lae and suffered comminuted fracture of the left tibia and fibula and minor head injury with no disability. It was estimated that he lost 40% efficient use of his left leg.

26. Finally, I have been able to find a very recent decision of the Supreme Court in MVIL -v- Maki Kol (2007) SC 902 made on 28 November 2007 where it dismissed part of the appeal by MVIL against the decision of the National Court to award K 60,000.00 in general damages to the Respondent (Plaintiff) for 80% to 100% loss of efficient use of his left leg as a result of a motor vehicle accident.

27. Having referred to those cases where the Plaintiffs have suffered leg injuries from fractures or broken femurs, tibia and fibular to ankles, I note in the present case, the Plaintiff suffered a fractured lower right foot. But there are also more serious leg injury cases where the Plaintiffs in those cases suffered a 100% loss of the efficient use of a leg or both of the legs. Cases, which fall into this category, are amputee cases, both below and above the knee. They attract general damages at K 40,000.00 maximum as in Richard Tom Mandui -v- CIS & The State [1996] PNGLR 187 where the Plaintiff also suffered other injuries and disabilities and as well as other set backs in his life. At the lower end of awards in leg amputation cases is K 25,000.00 as in Korrolly, Tovue & Kolita -v- MVIT [1991] PNGLR 415 and K26,000.00 as in Rose Terema -v- MVIT [1994] PNGLR 41.

28. In assessing an appropriate amount of general damages for the Plaintiff in this case, I note that the injuries and disabilities suffered by the Plaintiffs in Richard Tom Mandui’s case (supra), Korrolly’s case (supra) and Rose Terema’s case (supra), Alfred Moia’s case (supra), Kiak’s case (supra) and Alphonse Kopi’s case (supra) are more serious. These cases represent awards at the higher end of the scale and for more serious injuries, disabilities and losses.

29. In the present case, based on the Medical Report of Dr Allan Kulunga of 7 July 2003, I find that the Plaintiff has fully recovered from the nose and finger injuries. His only disability is the 65% estimated loss of the efficient use of his right foot. The Plaintiff accepts that position in his submissions which proceeds on the basis of a 65% permanent disability in the effective use on the right leg. Besides, the Defendant did not challenge the assessment of Dr Kulunga of 65% loss of use of the lower right foot. Hence, I will accept and assess his damages on that basis.

30. Further, from the evidence of Dr Kulunga which I accept, he states that the Plaintiff’s right foot is abnormal and he walks with difficulty because of the deformity. He is unable to carry heavy load and also unable to walk long distance. The Plaintiff also complains of pain during and after walking.

31. This is consistent with the evidence of the Plaintiff who says that, he is now unable to walk properly and his capacity to do manual work as a subsistence farmer has been greatly reduced. For example, he argues that his pre accident activities have been curtailed and he is unable to do gardening and look after his coffee gardens including raising pigs. Furthermore, he submits that, his enjoyment of amenities of life has been severely curtailed.

32. I consider the present case does not fall into any one of the cases I have referred to but that does not mean that I cannot use them as a guide to assist me to make a decision. After all, as the Supreme Court said in Mark Kol’s case (supra) at page 5,

".......it is accepted that, an order for payment of money cannot possibly restore a condition of physical injury or loss by a person. In other words, assessing damages for personal injuries is not a matter of mathematics. It is rather an estimate in money terms, what one’s loss or injury is, with the aim of, trying to restore the loss as nearly as is possible to do".

33. And so, I consider that this case comes close to Anna David’s case (supra), Alphonse Kopi’s case (supra) and also Andrew Moka’s case (supra). Hence, I consider that an appropriate amount of damages for general damages in this case has to be between K9,000.00 and K35,000.00. In saying this, I also note that the highest award so far for leg injuries is K60,000.00 in the very recent Supreme Court case of Maki Kol (supra) made on 28 November 2007 where there was 80% to 100% loss of efficient use of the Respondent’s left leg. But in my view that was a more serious case.

34. Nonetheless, I am of the view that the amount should be increased from those awards in Anna David’s case (supra) and Alphonse Kopi’s case (supra) which were decided nearly 20 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".

35. 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, Shelley Kupo -v- MVIT (2002) N2282, and Roselyne Cecil Kusa -v- MVIT (2003) N2328. In Andrew Moka’s case (supra) 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."

36. 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 doing the best I can in relying on those past awards I have referred, I bear in mind what has been said about increases in awards due to inflation and the need to make awards consistently with the current economic situation of our country as averted to by the Supreme Court in Andrew Moka’s case (supra) and His Honour Salika J in Shelley Kupo’s case (supra) where he stated:

"I am of the view that the injuries by the plaintiff are similar to Ron Tinpul. In that regard taking into account the current economic situation in the country and the value of the currency now and the inflation level I am prepared to go toward an amount double that awarded to Ron Tinpul. In the circumstances I award K80, 000.00 for general damages."

37. In the circumstances, I consider that K 30,000.00 should be a fair and reasonable award to compensate the Plaintiff for the pain and suffering and loss of amenities and I so order.

Economic loss

38. The Plaintiff also 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 to a village subsistence farmer and coffee seller who suffered a fractured left forearm and lower wrist resulting in an inability to grip and grasp objects and was fit for light work only 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.

39. Ms Tindiwi urges me to award only K1,000.00 based on the Wenam Elkum & Iwai Gebi -v- The State [1988-89] PNGLR 662 where the Court awarded K2,000.00 to the first Plaintiff and the K1,000.00 for economic loss respectively. In that case, the first Plaintiff, a villager aged 19 years sustained pelvic fracture involving the urethra, minor eye injury and 10% loss of function of the leg with onset of osteoarthritis. The second Plaintiff sustained leg and arm injuries of fractured tibia and right elbow and ligamentous knee damage. The loss of efficient use of leg was assessed at 5%.

40. 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.

41. 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 collapsed foot bridge incident, his ability to work on the land to do gardening and planting coffee has been reduced. He says that he earns about K 200.00 to K400.00 per annum from doing gardening and selling coffee including selling pigs. This equates to about K15.00 per fortnight. At least there is some evidence of the Plaintiff’s earning capacity in the past in a village economy setting. I also do know that he is not completely incapacitated and that he can still work, but to a lesser degree.

42. I am able to see some similarities between this case and Kaka Kopun’s case (supra) from a village economy perspective and I am of the view that K7, 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 K15.00 per fortnight.

43. I award a total sum of K10, 000.00 for economic loss.

Special damages & Out of Pocket Expenses

44. The Plaintiff also claims K170.00 as special damages as medical costs. There is evidence from the Plaintiff that he incurred medical cost by way of receipts annexed to his Affidavit but for only K170.00. The Defendant does not dispute this amount and I award K170.00.

45. 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 Tolpa Olo 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.

46. But he did 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

47. I add general damages, economic loss and special damages and they equate to K40, 470.00. I calculate 8% interest based on the principal judgment of K40, 470.00 from date of issue of Writ of Summons of 20 September 2004 to the date of Judgment of 11 September 2008 which gives a total of 1,448 days at K12, 843.76.

Costs

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

SUMMARY

49. In summary, I award the following:

1.General damages	K 30,000.00;
2.Economic loss	K 10,000.00;
3.Special damages	K 170.00
4.Out of Pocket Expenses	K 300.00
5.8% Interest	K 12,843.76
6.Costs
Total	K53, 313.76

ORDERS

I formally order as follows:

1. Judgment is entered against the Defendant in the total sum of K40,470.00.

2. The Defendant shall pay 8% interest calculated from the date of issue of the Writ of Summons to the date of Judgment at K12, 843.76.

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