Kwi v Tande [2011] PGNC 241; N4910 (16 April 2011)

N4910

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 780 OF 1996

BETWEEN:

NAGI YUAK KWI
Plaintiff

AND:

FRANCIS TANDE
First Defendant

AND:

THE STATE
Second Defendant

Kimbe: Kawi, J
2011: 8th, 16th April

PERSONAL INJURIES – motor vehicle accident – plaintiff ruptured his spleen in the accident – pain in the hip and abdomen areas – Permanent losses arising from vehicle accident – Losses include 40% loss of efficient use of his right hip – 20% loss of efficient function of his spleen – possibility of osteoarthritis of right hip – Economic loss to be considered once economic capacity of injured person to participate in cash economy shown to be reduced.

The plaintiff sustained bodily injuries in a motor vehicle accident. It was estimated that he sustained 40% permanent loss of the efficient use of his right hip and 20% permanent loss of efficient function of his spleen. In an action for damages:

Held:

(1) General damages for pain and suffering is assessed at K11,000.00.

(2) Once it is demonstrated that the plaintiff's ability to participate in the cash economy has been reduced as a result of the injuries sustained in the accident, the court cannot just ignore this. It must do the best it can and award a global amount of money for economic losses.

(3) A block holder of an oil palm block is a subsistence farmer. Apart from working on his block, he is also engaged in gardening or hunting and performing other subsistence activities where engaging in manual jobs is a permanent feature of his life. The court just cannot ignore this. Even where there is very little evidence to support this economic activity, the court must do the best it can to award damages for this head of claim.

(4) The plaintiff has a duty to mitigate his losses, particularly the aggravating effects of his bodily injuries. He could do this by showing that he has been getting regular medical treatment, such that his injuries have healed well.

(5) The plaintiff did not produce any medical evidence to show that either the effects of his injuries have reduced significantly or have increased significantly. This failure by the plaintiff to mitigate the aggravating or mitigating nature of his injuries is a factor that I will take into account in computing his general damages.

Cases cited
Papua New Guinea Cases

Martha Limitopa and Poti Hiringe –v– The State [1988-89] PNGLR 364
June Bonnie –v–MVIT (1994) PNGLR 390
Joseph Nuntz Kulung –v–MVIT & The State (1990) N930
Peter Amini –v– The State [1987] PNGLR 465
Kaka Kopun –v– The State [1980] PNGLR 557
Kerr's case [Kerr –v– MVIT] [1979] PNGLR 251

Overseas Cases

Baird –v– Roberts [1977] 2 NSWLR 389 at 398

Counsel

Mr. Doko Kari, for the plaintiff.
No Appearance for the Defendants.

20th April 2011

1. KAWI J: This was a trial for assessment of damages. Liability was determined with the entry of default judgment on the 22nd May 1998. In this trial for assessment of damages, the plaintiff relies on his own affidavit which he deposed to and filed on the 23rd of November 2005.

Facts

2. The plaintiff states that he was travelling on a PMV 15-seater bus registration number P656N from Kimbe to Kapore in the Hoskins area when a State owned vehicle driven by the first defendant collided into the rear of the bus causing the passengers to hit each other as well as collide onto the tray of the vehicle and in the process sustained personal bodily injuries. The plaintiff was among the passengers and he also sustained serious bodily injuries in this collusion. He was admitted to the Kimbe General Hospital on the 26th of January 1996 and remained in hospital until the 7th of February 1996. Thus, he was hospitalised for 12 days. The motor vehicle accident occurred on the 26th January 1996.

PERSONAL INJURIES SUSTAINED – MEDICAL EVIDENCE

3. Dr Louis Warangi of the Kimbe General Hospital who examined the plaintiff upon admission issued a Medical Report dated 1st March 1996 in which he noted the following injuries.

1. Tenderness of left upper quadrant.
   
2. Tenderness of the left hip which resulted in a sprained right hip.
   

100. Ruptured spleen confirmed by X-ray.
     

4. Another medical report was given by Dr Blasius Tonar of the West New Britain Clinic dated 20th March 1996. In his report Dr Tonar noted the following:

1. That an ultrasound scan of the abdomen revealed a ruptured spleen.
   
2. X-ray of the hip did not show any fracture or dislocation of the hip joints or the bones.
   

100. Repeat X-ray three week later still did not show any fracture or dislocation of the hip joints.
     

4. A repeat ultrasound scan of the ruptured "spleen showed good healing".
   

PERMANENT DISABILITY

5. On the 20th March 1996, Dr Tonar again examined the plaintiff and estimated the following permanent disabilities:

(a) 40% loss of efficient use of his right hip;

(b) 20% loss of efficient function of his spleen.

6. Dr Tonar estimated that the long term prognosis for the life of the plaintiff is good, but osteoarthritis of the right hip due to the accident is going to be a real and a major problem. Coupled with that Dr Tonar was also of the opinion he is possibly prone to rupture of the spleen through acute malaria or trauma in future.

7. Since these two reports were issued in March 1996, the plaintiff has not produced an updated medical report to demonstrate that he has been receiving regular medical treatment to reduce the effects of the injuries. In my view, the plaintiff has a duty to mitigate his losses, particularly the aggravating effects of his bodily injuries. He could do this by showing that he has been getting regular medical treatment, such that, his injuries have healed well. The plaintiff did not produce any medical evidence to show that either the effects of the injuries have reduced significantly or have increased dramatically. Hence in my view the plaintiff's failure to mitigate the serious aggravating or mitigating nature of his injuries is a factor that I will take into account when computing his general damages.

The Damages Claimed

8. The plaintiff claimed:

(a) General damages

(b) Economic loss – loss of earning capacity

(c) Interests

(d) Costs

9. When the trial on assessment of damages commenced, counsel for the plaintiff, Mr Kari informed the court that he will not pursue the claims for economic loss. Despite this, the court will still consider economic loss. Once it is demonstrated that the plaintiff's ability to participate in the modern cash economy has been reduced as a result of the injuries sustained in the accident. The court cannot just ignore this.

1. General Damages
   

10. General damages is awarded to compensate an injured party for the pain and suffering, and the inconveniences he suffered as a result of the accident. Apart from being compensated for the bodily injuries he sustained, an injured party has to be compensated also for the shock and distress caused by the accident. The purpose of an award for general damages is to compensate a person, that is to put the person as far as possible in monetary terms in the same position that he would have been in, but for the accident which resulted in him sustaining bodily injuries. Consequently an award for general damages is not intended to be a reward or a penalty against the party responsible – See Martha Limitopa and Poti Hiringe –v– The State 1988-89] PNGLR 364. Neither is it meant to unjustly enrich the other party.

11. In assessing what I consider to be an appropriate award for the pain and suffering and loss of amenities of life, I will be guided by past National Court awards some of which are:

1. June Bonnie –v–MVIT (1994) PNGLR 390
   

The plaintiff, a twenty four (24) year old village woman, was travelling in a PMV when the PMV ran off the road and passengers in the vehicle were thrown about in the interior of the vehicle and thus the plaintiff injured her pelvis and hips. She was rendered unconscious. She was taken to the hospital and was hospitalised and treated. The court in assessing damages took into account, that the plaintiff was a subsistence farmer and expected to perform manual duties.

The plaintiff also gave evidence that she was experiencing constant pains in the hip and unable to walk on rough terrain. The court awarded the sum of K13,000.00 in general damages to compensate for pain and suffering and for the loss of amenities of life.

2. Joseph Nuntz Kulung –v–MVIT & The State (1990) N930
   

The plaintiff was a 24 year old male Dental Orderly. He sustained injuries in a motor vehicle accident including hip injuries and it was estimated that he suffered a 15% disability to the hip. He was found to experience pain in the right hip joint due to osteoarthritis. He was assessed as having a permanent loss of the efficient use of the right hip joint. The court awarded K8,000.00 in general damages.

100. Peter Amini –v– The State [1987] PNGLR 465
     

The plaintiff, a 27 year old male police constable sustained abdominal injuries resulting in the removal of his spleen. He suffered chronic pain and required pain killers. He was also diagnosed as having a chance of future complications. The court awarded a sum of K18,000.00 in general damages for pain and suffering.

12. In the present case in assessing an amount for general damages, I take into account inflation and its effects on the value of the kina.

13. Going by the past comparable verdicts and taking a comparative approach, I would assess general damages in the sum of K11,000.00. Owing to the plaintiff's failure to mitigate his losses, I would reduce the amount awarded for general damages by 5%. This works out to be K550.00. This amount is then reduced from the amount awarded for general damages which works out to be K10,450.00. Hence I would award K10,450.00 as general damages for pain and suffering, and loss of amenities of life.

Economic Loss

14. Counsel for the plaintiff advised the court that he was abandoning his pursuit of the claim for economic loss particularly the claim for loss of earning capacity. In my view, once it is shown that there has been a reduction in a person's economic capacity, he should be compensated. In my view the basic facts showing this is that the plaintiff is a male adult of 24 years old at the time of the accident. He states that he was an oil palm block-holder. The evidence of his farming is very minimal as well as his average minimum weekly losses. A block holder is a subsistence farmer. Apart from working on his block he is also engaged in gardening and other subsistence activities where performing manual jobs is a permanent feature of his life. I just cannot ignore this aspect. Miles J in the case of Kaka Kopun –v– The State [1980] PNGLR 557 stated that once it is established that that there has been a reduction in the economic capacity of a person, the court must award some compensation. The court just cannot ignore this aspect. His Honour made this pertinent comments which I respectfully adopt as being relevant here:

"On the calculation of loss of earning capacity, it will often be the case that the court will have very little evidence to work upon when the plaintiff is engaged in gardening or hunting with little participation in the cash economy. In the present case, and others on which I have reserved judgment, there is some evidence of a general nature, but in addition to acting on that evidence, I think it is appropriate to adopt the approach of Mahoney J in Baird –v– Roberts [1977] 2 NSWLR 389 at 398 which was approved in Kerr's case [Kerr –v– MVIT] [1979] PNGLR 251 at page 251, namely that once a reduction of economic capacity is established, even if there is no evidence as to pre and post accident earnings, a trial Judge must, in general assess some compensation in this regard, he cannot ignore the loss."

15. In this case the plaintiff could not produce evidence of his weekly or monthly losses. However I cannot just ignore the fact that there has been some reduction in his economic capacity either doing manual jobs in his oil palm block or gardening or hunting.

16. Doing the best I can, I would assess economic loss by making a global award. This I do by making a global award of K5,000.00 for economic loss.

Interests

17. Pursuant to Section 1 of the Judicial Proceedings (Interests on Debts and Damages) Act, I fix the rate of interests at 8%. I further determine that the interest will run from 26th January 1996 (the date of accident) to the 30th April 2011, when the Judgement is supposed to have been fully satisfied.

18. This would give us a period of fifteen years and 3 months. In terms of days this would give us 5,565 days. At 8% interest this works out as follows:

8/100 x 15,450	=	K1,236.00 (interests per year
Interests per day	=	K1,236/365 days per year
	=	K3.39 (interest per day)

For 5,565 days (15 years and 3 months)

K3.39 x 5,565 (daily interest)

= K18,844.77

19. I would award both pre and post judgment interest at K18,844.77.

20. Finally cost of proceedings is awarded to the plaintiff.

Summary

(a) General damages -	K10,450.00
(b) Economic Loss -	K 5,000.00
(c) Interests (both pre and post Judgment -	K18,844.77
(d) Costs
	K34,294.77

21. I therefore order and make a total award of K34,294.77 in compensatory damages to the plaintiff.

_________________________________________________
Public Solicitor: Lawyer for the plaintiff
No appearance for the Defendants