N4795

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 294 OF 2011

ROBIN UPANA
Plaintiff

V

JOE FIAHE – HEADMASTER
Rintebe High School
First Defendant

AND

UNI KEISETO- CHAIRMAN
Board of Governors - Rintebe High School
Second Defendant

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Goroka: Ipang AJ
2012: 11 & 21 September

DAMAGES – Assessment of – Right leg injury – 60% loss efficient use of – plaintiff a student at a high school was physically assaulted by Headmaster – booted the plaintiff on plaintiff's right leg – plaintiff sustained serious injuries requiring hospitalization and several surgeries performed.

Cases Cited

Motor Vehicles Insurance Ltd v Maki Kol SCA No. 69 of 200d6 SC 902 
Cecilia Dir v Motor Vehicle Insurance Trust [1991] PNGLR 433
Richard Tom Mandui v Commissioner of Corrective Institution Services and The State [1996] PNGLR 187
Andrew Moka v Motor Vehicles Insurance Limited (2004) SC 729

Counsel

Mr.D. Umba, for the Plaintiff

JUDGMENT

21 September, 2012

1.	IPANG AJ: On the 09th December, 2011, Default Judgment has been entered against the Defendants. This matter returns back to this Court today for trial on assessment of damages.

2.	 On the 23rd of August, 2012 this matter was re-listed for trial on the 11th of September, 2012 at 1.30pm. Three Affidavits of Service were filed. Notice of Appointment of Hearing was served on the respective defendants. This court is satisfied Defendants were aware that this matter was set for trial on assessment of damages. Mr. Umba of Counsel for the Plaintiff applies to proceed ex parte. Court grants his application. Mr. Umba applies to have the Second Defendant removed as a party as the second defendant could not be sued individually on his own name as it is the Board of Governors of the said school which should be sued. Plaintiff's application was granted and second defendant was removed as a party.

3.	 The brief back ground giving rise to this case are as follows: On Tuesday the 11th of March, 2008 at Rintebe High School, the First Defendant rounded up the male students at one of the Boys dormitory to question them and to find out about the vandalism of a newly refurbished male dormitory. The male students had already gathered at that dormitory when the First Defendant entered the dormitory. The First Defendant without warning started to assault the male students which caused the male students to run out of the dormitory. 

4.	Plaintiff who gave sworn evidence also filed an affidavit in support. Plaintiff's affidavit is sworn and filed on the 22nd March, 2012. Plaintiff says that the Headmaster Joe Fiahe upon receiving a report on a minor damage done to the fly wire in a dormitory in which the Plaintiff was one of the occupants came to investigate. 

5.	 The plaintiff said the First Defendant without asking to find out, started swearing, attacked and assaulted the students who were inside the dormitory. Out of fear and panic, the students fled the dormitory by running away. 

6.	 Plaintiff said he was innocent, he sat on his bed in the dormitory. He said the First Defendant approached him, with his heavy duty working boot fiercely and forcefully kicked him on his right knee. Plaintiff said he was unprepared and the kick was powerful. 

7.	After been assaulted, plaintiff said his right knee was affected and started to develop severe pains and swelling over the medial (inner) part, just above his right knee. He said the swelling increased in size and the pain became unbearable, limiting his mobility. He said he visited Goroka Base General Hospital at the same time attend school. During his hospital visits he was advised by medical personnel on the possibility of getting his affected leg amputated and he said this has caused him to worry and panic. 

8.	Between 21st to 26th January, 2006, the plaintiff was admitted to Goroka Base General Hospital but was released to go to school as the academic year approached. He was released to go to school with some medication and was told to go back for review later during the year. Plaintiff was selected and attended Aiyura National high School that year.

9.	While a student at Aiyura National High School, he disturbed his knee when he tried to cross a drain. This resulted in his knee problem worsening so he was rushed to Kainantu Hospital on the 26th October, 2009. 

10.	Plaintiff gave the following summary of his visits to the hospitals and the operations he went through as follows:

26.10.09			Kainantu Hospital
27.10.09	Referred by Kainantu Hospital to Goroka Base General Hospital
27.10.09-31.09.09		Admitted to Surgical Ward of Goroka Base General Hospital
31.09.09	Transferred to Kundiawa Hospital due to problems in the Theatre Room at Goroka Base General Hospital

11.	After the plaintiff undergone two major operations on his knee, he was confined to crutches until he did his grade 12 at Aiyura National High School. Plaintiff said his education has been affected. He said he had potential and ability to perform and excel to higher levels. However, he said his grades were affected due to his frequent admissions to hospitals for surgeries. He said he struggled to upgrade his grading and as a result he has been offered a place at Goroka Technical College, this year 2012.

12.	There are two medical reports before this court. The first medical report is dated 29 April, 2009 by Dr. Leonard Kaupa, the Deputy Chief Surgeon for Highlands Region based at Goroka Base General Hospital. The second medical report is dated 20th April, 2010. This medical report is by Dr. Bohu Urakoko, the Consultant Surgeon based at Kundiawa General Hospital.

13.	The first medical report by Dr. L. Kaupa revealed the following results: 

•	Diagnosis: Post Traumatic bone Cyst of Distal Medical Femoral Condyle of Right Femur confirmed by repeated X-rays Nos. B8471, B11279, C594 of 22.09.08m 01.12.08 and 19.01.09 respectively.

•	Physiotherapy of Right Lower Limb repeatedly.

•	Pain Reliefs: He needs a lot of pain relief medications because as the bony swelling increases in size, the pressure and at times there will be bleeding inside the Bone Cyst and these gives rises to episodes of severe pain.

•	Admitted to the surgical ward of Goroka Base General Hospital in January, 2009 to undergo a major Orthopedics (Bone) Operation but due to School's Academic Year starting in February, 2009, this has now been deferred to November or December, 2009 when he will have the operation done and the huge BONE CYST will be excised with BONE GRAFTS taken from his Iliac Crest bone and put into the operation site to promote bone healing and strengthening.

14.	The second medical report prepared by Dr. Bohu Urakoko revealed the following:

"When seen at Kundiawa Hospital, there was obvious swelling of the right knee joint, tenderness, and restricted movements of the knee joint. X-ray of the joints showed cystic swelling of the distal end of right femur bone, cortical destruction and reactive involucrum. From clinical and radiograph evidences put together, he was diagnosed as Giant Cell Tumours of the femur bone.

He underwent a major operation in which, the tumor was excised and the knee joint reconstructed by placement of two K wires. The wound healed well and was discharged home. And advise for further physiotherapy at Goroka Base Hospital.
 
FUNCTIONAL DISABILITY

1.	There is obviously both functional disability and comestic deformity. 
There is reduction in flexion and extension movements at knee joint by 50 degrees with valgus deformity.

2.	Due to the pathology, the cruciate ligament and collateral ligaments are 
damaged. These ligaments are vital for stability of the knee joint during walking, running and turning. These manouvres can be performed effectively for the rest of his life.

3.	He is therefore awarded 60% overall functional disability.

15.	There are number of applicable principles that courts have relied on them in dealing with assessment of damages especially for personal injuries arising from motor vehicle accidents. These principles are also relevant to other cases dealing with assessment of damages like this instant case. The principles are appropriate and like I said relevant so I find no difficulty in applying in this case.

16.	These principles are: 

(i)	General Damages for Pain and Suffering
In considering this head of damages, the law looks at awarding damages in monetary terms not more or not less than what has actually been suffered or lost.

(ii)	The need to take into account the prevailing circumstances, especially the economic conditions at the time of the assessment of damages in the country as well as the views of the community as to what is fair and reasonable compensation. 
 
(iii)	The need to take into account, awards in previous similar or comparable cases and arrive at an award of damages that are similar to the awards in the comparable verdicts. Courts are duty bound to take into account such things like rise in inflation and changes in the economy since the awards in the previous cases. 

17.	In the case of Motor Vehicles Insurance Limited v Maki Kol SCA No. 69 of 2006 SC 902, the Respondent Maki Kol was initially awarded K60,000.00 for general damages, K2000.00 for special damages, K19, 257.00 for past economic loss and K75, 400.00 for future economic loss by the National Court. Respondent had suffered a serious injury to his left leg resulting in an estimated residual disability ranging between 80 percent and 100 percent. 

18.	 On appeal, the Supreme Court confirmed the National Court award of K60, 000.00 for general damages, set aside the National Court award of K19, 257.00 for past economic loss and reduced K75, 400.00 for future economic loss and substituted it with K20, 000.00. 

19.	In Cecilia Dir v Motor Vehicle Insurance Trust [1991] PNGLR 433, the plaintiff who is a widow with a high school son, suffered shoulder and leg injuries, from which she recovered but with an estimated 60% residual disability in the efficient and effective use of her hips and legs. The court found that the plaintiff was not able to return to any form of income generating activity to support herself and her son. Court awarded K35, 000.00 in general damages. The award of K35, 000.00 was in 1991 for these types of injuries. 

20.	In 1996, the court in Richard Tom Mandui v Commissioner of Corrective Institution Services and The State [1996] PNGLR 187 awarded K40, 000.00 in general damages. Plaintiff suffered serious injury in which there is a 100% loss of the efficient use of a leg.

21.	In 2004, in Andrew Moka v Motor Vehicle Insurance Limited (2004) SC 729, the plaintiff suffered both head and leg injuries. He recovered from head injury but not with the leg injury. He was estimated to have residual disability of 40 percent loss of efficient use of his affected leg. On appeal from the National Court, the Supreme Court increased the award of K23, 000.00 to K35, 000.00.

22.	The Supreme Court in MVIL v Maki Kol (supra) agreed with Andrew Moka v MVIL (supra) that the awards in the 1980s and 1990s are outdated and had increased the awards in personal injury claims by over 134 percent. Thus, the court in MVIL v Maki Kol (supra) made these observation:

"On our part, we consider this necessary in light of changes in the economy where costs of living have become far higher or expensive, with the purchasing power of the kina substantially reduced. Dwelling on the kind of awards made in the 1980s and 1990s will no doubt place injured people like Maki Kol in a disadvantage position in two respects. First, they will be left to live with their injuries and disabilities for the rest of their live. Secondly, the amount of compensation instead of restoring their losses as much as money is able to, it will leave and stands to loose as a result of the injuries and the disabilities."

23.	I find from the cases cited, the case which comes closer to this instant case is MVIL v Maki Kol (supra). Both plaintiffs in MVIL v Maki Kol (supra) and the instant case are students. In Maki Kol case he suffered injuries to his left leg from which he recovered but with an estimated 80% to 100% residual disability. In the instant case, the plaintiff suffered injuries to his right leg. Even though he recovered, he is estimated to have 60% residual disability. The decision in Maki Kol's case was delivered on the 28 November, 2007. This is 5 years ago. Taking into consideration the number of years passed and comparing the percentage loss of residual disability in Maki Kol he suffered 80% to 100% and was awarded K60, 000.00. 

24.	Plaintiff says prior to the assault and the injury, he was normal energetic and active sports man, taking part in body contact and other sports. He was a self reliant person who used to work hard in his coffee garden and engaged in fund raising activities to earn money to pay for his school fees as well as maintain his livelihood. Plaintiff in his affidavit filed deposed that his biological mother passed away in 2002 when he was doing Grade 4. He said his father deserted his mother and him so he was raised up by his grandmother and later by his uncle. I am of the view that the plaintiff is entitled to some compensation for risk of rendering him incapable of fully providing for himself in future in view of his injuries and estimated residual disability. I am of the view that the appropriate amount would be K60, 000.00.

25.	I would award K5, 000.00 for general damages for stress, anguish, pain and discomfort.

26.	I would award K10, 000.00 for exemplary and punitive damages.

27.	I also grant orders for costs and interests. Costs to be agreed if not to be taxed. Interest to be calculated from the date of filing of the Writ to the date of this judgment.

______________________________

Mr. D. Umba Lawyers: Lawyer for the Plaintiff
Lawyer for the Defendants: No Appearance