N3948

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1775 OF 2004

MILIA YONGOLE KURI
Plaintiff

V

WALTER KAPTY, ACTING MANAGING DIRECTOR,
NATIONAL HOUSING CORPORATION
First Defendant

NATIONAL HOUSING CORPORATION
Second Defendant

Madang: Cannings J
2007: 19 October;
2008: 20 February

JUDGMENT

NEGLIGENCE – assessment of damages – personal injuries caused by landlord's negligent failure to keep dwelling house in good order and repair – occupier of house suffering broken leg – tenant spent own money on repairs.

The plaintiff lives in a rented house. The plaintiff's husband is the tenant. After moving into the house the plaintiff's husband complained on numerous occasions about the poor condition of the house, to no avail, and spent his own money making basic repairs. Four years after moving into the house, the plaintiff was having a shower when the floor collapsed beneath her, causing her to fall through it. She suffered a broken right leg and was hospitalised for 18 days. She has permanently lost 45% use of her leg and walks with a limp. She sued the landlord, the National Housing Corporation, seeking damages for negligence. Liability was established through entry of default judgment and a trial was conducted to assess damages.

Held:

(1)	General damages were assessed to compensate the plaintiff for the pain and trauma of the incident, the inconvenience of the period of hospitalisation, ongoing pain and suffering and the permanent loss of functionality of her leg and associated dysfunctions; and a global sum of K50,000.00 awarded.

(2)	Special damages were assessed in two categories: (a) medical expenses (K920.00) and (b) maintenance costs for the house (K16,163.30).

(3)	The total amount of damages awarded was K50,000.00 + K920.00 + K16,163.30 = K67,083.30.

(4)	In addition, interest of K8,995.83 is payable, making the total judgment K76,079.13.

Cases cited

The following cases are cited in the judgment:

Alfred Moia v The State [1988] PNGLR 299
Anis Wambia v The State [1980] PNGLR 567
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
Egobia Ibabe v The State (1990) N897
George Kiak v Tora Enterprises Pty Ltd [1986] PNGLR 265
Kar Kirai v The State [1990] PNGLR 563
MVIT v Reading [1988] PNGLR 236
Pendagi Ban v The State (1990) N827
Pinzger v Bougainville Copper Ltd [1983] PNGLR 436
Pinzger v Bougainville Copper Ltd [1985] PNGLR 160
Reading v MVIT [1988] PNGLR 266
Takip Kiap v MVIT (1994) N1236
Tumunda Toropo v The State (2001) N2116

TRIAL

This is a trial on assessment of damages.

Counsel

W Akuani, for the plaintiff
No appearance for the defendants

20 February, 2008 

1. CANNINGS J: The plaintiff, Mrs Milia Yongole Kuri, has successfully sued the National Housing Corporation for negligence. She was injured when having a shower in the house that she and her husband were renting from the NHC. The bathroom floor was rotten and suddenly collapsed beneath her, causing her to fall through it. She suffered a broken right leg and was hospitalised for 18 days. She has permanently lost 45% use of her leg and walks with a limp.

2. Liability was established through entry of default judgment on 15 March 2006. This judgment is about assessment of damages. I am not satisfied that the first defendant, Mr Walter Kapty (the acting managing director of the NHC at the time of service of the writ) has been given proper notice of these proceedings. So I will only assess damages against the second defendant, the NHC.

3. The plaintiff seeks general damages for pain, suffering and inconvenience connected with the incident and her injuries; plus special damages, covering medical expenses and maintenance costs for the house, which the plaintiff says she and her husband have had to pay.

GENERAL DAMAGES

4. This is intended to compensate the plaintiff for the pain and trauma suffered at the time of the incident; the inconvenience of the period of hospitalisation, ongoing pain and suffering and the permanent loss of functionality of her leg and associated dysfunctions.

5. The plaintiff is the wife of District Court Magistrate Tanga Kuri, who was posted to Madang in 1999. They were allocated a NHC house in Kalibobo, Madang town, which was in very poor condition. Mr Kuri lodged numerous complaints with the NHC over the condition of the house. On 18 August 2003 he wrote a lengthy letter to the NHC's Madang manager, Mr Gregory Babia, pointing out the maintenance required. Mr Babia agreed with what Mr Kuri was saying and drew the matter to the attention of NHC headquarters in a memo dated 11 September 2003, pointing out that the house had been built in the 1960s and required urgent maintenance. Nothing was done.

6. The incident in which the plaintiff was injured happened on 29 December 2003, when she was 50 years old. It was the middle of the day when she went to have a shower. Her left leg fell through the floor but her right leg remained on top of the floor, twisted and then broke. The plaintiff screamed for help and fortunately her daughter and niece were in the house. An ambulance arrived half an hour later. She was admitted to the surgical ward at Modilon Hospital, operated on and discharged on 16 January 2004. She remained in traction, at home, until 8 February 2004, then was on crutches until May 2004. More than three years later she still cannot walk properly. She has a limp and has difficulty carrying heavy weights and performing household tasks.

7. The nature and effect of her injuries are explained in a medical report by Dr John Mackerell dated 23 October 2006:

A recent x-ray reveals the fracture healed with a slight malalignment of the distal fragment which is angulated dorsally.

On examination she walks with a slight limp. Both legs are of equal length. Flexion of the right knee is limited to 90 degrees by pain and stiffness. Flexion of the right hip is limited to 90 degrees by pain and stiffness. Both external and internal rotation of the right hip are limited by 50% by pain and stiffness.

I would estimate the permanent loss of the efficient use of her entire right leg to be 45%.

In addition to the above, Mrs Yongole now suffers from significant sexual dysfunction due to the pain experienced in both right hip and right knee during sexual intercourse.

8. In determining an appropriate amount of general damages I have looked at a number of previous National Court cases, in which the plaintiff has suffered a broken leg due to the defendant's negligence. The cases are shown in the following table.

TABLE 1: ASSESSMENT OF GENERAL DAMAGES – BROKEN LEGS

No	Case	Details	Assessment	
1	Anis Wambia v The State
[1980] PNGLR 567, Miles J	Plaintiff suffered a broken leg that took more than a year to heal but incurred no permanent disability.	K5,000.00	
2	George Kiak v Tora Enterprises Pty Ltd [1986] PNGLR 265, McDermott AJ	A 35-year-old magistrate suffered a compound fracture of his leg when his motor vehicle's propeller shaft came adrift and penetrated the floor of the vehicle due to its negligent repair – the plaintiff endured eight operations and suffered a 75% loss of function of the leg.	K29,000.00	
3	Alfred Moia v The State
[1988] PNGLR 299, Bredmeyer J	The plaintiff was a 36-year-old bus driver who suffered factures of the tibia and fibula of both legs – immobilised for 12 weeks – shortening of left leg – loss of efficient function of both legs for heavy manual labour – difficulty in driving manually geared vehicles.	K20,000.00	
4	Kar Kirai v The State 
[1990] PNGLR 563, Woods J	A 21-year-old male pedestrian was knocked down by a motor vehicle and suffered an uncomplicated fracture of the right leg – immobilised for three months – healed with a possibility of arthritis in later life.	K5,000.00	
5	Pendagi Ban v The State (1990) N827, Woods J	A schoolgirl was knocked down by a motor vehicle and suffered a broken leg – complications of osteomyelitis – some angulation and shortening of the leg.	K14,000.00
	
6	Egobia Ibabe v The State (1990) N897, Woods J	A ten-year-old boy was knocked down by a motor vehicle while crossing the road – suffered a compound fracture of the right leg that did not heal properly, complicated by secondary osteomyelitis – spent three months in hospital – will have minor disability for rest of his life.	K14,000.00	

7	Takip Kiap v MVIT (1994) N1236, Woods J	A widowed village woman was knocked down by a motor vehicle suffering a broken leg – permanent 25% disability of the leg.	K18,000.00	
8	Tumunda Toropo v The State (2001) N2116, Hinchliffe J	A male passenger's leg was broken in a motor vehicle accident – 15% loss of efficient function.	K9,500.00	

9. Most of the cases are rather old and the buying power of the kina has diminished significantly over time. So the actual kina amounts that were awarded are not particularly useful benchmarks to use nowadays. However, the cases are useful in so far as they show the sorts of considerations taken into account when assessing the amount of damages. With leg fractures it is relevant to consider:

•	whether it is a simple or compound fracture;
•	the periods of hospitalisation and convalescence;
•	whether the injury has healed well;
•	whether there are post-operative complications;
•	whether the injury has caused any permanent disability;
•	the extent (usually expressed as a percentage of function loss) of permanent disability.

10. In the present case, the considerations I regard as mitigating, in terms of tending to reduce the amount of damages, are that:

•	it was a single, not compound, fracture of the leg;
•	there were no significant post-operative complications.

11. By contrast the aggravating circumstances of the case are:

•	the lengthy periods of hospitalisation and convalescence;
•	the injury has healed less than perfectly (as evidenced by Dr Mackerell's report of the malalignment of the distal fragment);
•	the plaintiff suffers a permanent disability, which causes ongoing discomfort and embarrassment;
•	she has suffered a substantial (45%) loss of efficient use of her leg;
•	the very high degree of trauma and distress suffered by the plaintiff (and her husband and family) in view of the concerted efforts her husband had made to get the house repaired;
•	the ancillary loss of enjoyment of life due to the significant sexual dysfunction referred to in Dr Mackerell's report.

12. The court must consider that this was a significant, life-changing event for the plaintiff. It was an entirely unnecessary injury, the result of abject neglect by the National Housing Corporation; and the fact that the injury and its consequences were so clearly avoidable has inevitably added to the plaintiff's anguish. She will live with the inconvenience and loss of amenities of life, for the rest of her life. She must be awarded a sum that goes somewhere towards compensating her for what she has endured so far and what she will continue to suffer. That sum must be significantly higher than what has been awarded in the cases cited earlier. I will assess general damages at K50,000.00.

SPECIAL DAMAGES: MEDICAL EXPENSES

13. The plaintiff claims the sum of K920.00 and there is ample evidence in support of this claim so that is the amount I assess.

SPECIAL DAMAGES: MAINTENANCE COSTS OF HOUSE

14. The plaintiff claims the sum of K16,163.30, which she says is the amount she and her husband have paid out of their own pockets for repairs and maintenance. There is ample evidence in support of this claim so that is the amount I assess.

SUMMARY OF DAMAGES AWARDED

15. I make no deduction from the amounts assessed on account of contributory negligence or failure to mitigate losses. The NHC has not filed a defence so neither of these issues has been raised; but even if they had been, the evidence does not warrant any deduction. The amounts awarded are those assessed:

General damages = K50,000.00
Medical expenses = K920.00
House maintenance = K16,163.30

Total damages = K67,083.30.

INTEREST 

Discretion

16. 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.

17. 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. 

Exercise of discretion

18. I exercise that discretion in the following way:

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%. It has been decided in some cases that awards of special damages should attract interest at only half of the standard rate (eg Pinzger v Bougainville Copper Ltd [1983] PNGLR 436, National Court, Bredmeyer J; approved on appeal in Pinzger v Bougainville Copper Ltd [1985] PNGLR 160, Supreme Court, Pratt J, Amet J, Woods J). I will follow that approach. 

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. In Pinzger 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.

TABLE 2: PRE-JUDGMENT AND POST-JUDGMENT COMPONENTS OF CATEGORIES OF DAMAGES

No	Category	Pre-judgment	Post-judgment	Total	
1	General damages	K25,000.00	K25,000.00	 K50,000.00	
2	Medical expenses	920.00	0	920.00	
3	House maintenance	16,163.30	0	16,163.30	
	Total	K42,083.00	K25,000.00	 K67,083.00	

Thus three categories of damages will attract interest: general damages (K25,000.00) and special damages (K17,083.30).

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 it is from the date of service of the writ to the date of trial. For special damages it is from the date of the incident 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 the incident is 29 December 2003. The date of service of the writ is 21 January 2005. The date of this judgment is 20 February 2008. Interest will run on general damages (at 8%) from 21 January 2005 to 20 February 2008, a period of 3.08 years. Interest will run on special damages (at 4%) from 29 December 2003 to 20 February 2008, a period of 4.15 years.

Calculation

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

•	D x I x N = A

Where:

•	D is the amount of damages assessed;

•	I is the rate of interest per annum;

•	N is the appropriate period in numbers of years;

•	A is the amount of interest.

Therefore:

•	interest on general damages = K25,000.00 x 0.08 x 3.08 = K6,160.00; 

•	interest on special damages = K17,083.30 x 0.04 x 4.15 = K2,835.83. 

20. I will order that there be included in the sum for which judgment is given, interest of K8,995.83.

JUDGMENT

21. I direct entry of judgment in the following terms:

1	damages, payable by the second defendant to the plaintiff, of K67,083.30;

2	interest payable by the second defendant to the plaintiff, of K8,995.83;

3	being a total judgment lump sum of K76,079.13 to be paid within 30 days after the date of entry of this judgment;

4	costs of the proceedings shall be paid by the second defendant to the plaintiff on a party-party basis, to be taxed if not agreed.

Judgment accordingly.
_____________________________

William Akuani lawyers: Lawyers for the plaintiff
Lawyers for the defendants: Nil