N9661

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.533 OF 2017

GURE VALI
Plaintiff

v
MOTOR VEHICLES INSURANCE LIMITED
Defendant

Waigani:  David, J
2022:   30th May,1st & 7th June

DAMAGES – measure of – personal injuries sustained by pedestrian – motor vehicle accident – statutory limit on liability K150,000.00 – Motor Vehicles (Third Party Insurance) Act, Section 49(2) – damages awarded with interest and costs.

Cases Cited:

Papua New Guinean Cases

Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz [1975] PNGLR 262
State v McLeary [1976] PNGLR 321
Kerr v MVIT [1979] PNGLR 251
Kaka Kopun v The State [1980] PNGLR 557
Aundak Kupil and Kauke Kensi v The State [1983] PNGLR 350
George Kiak v MVIT [1986] PNGLR 265
Make Kewe v Thomas Kudjip [1986] PNGLR 279
Pangis Toe v MVIT & The State [1986] PNGLR 294
Harding v Teperoi Timbers Pty Ltd [1988] PNGLR 128  
MVIT v Reading [1988] PNGLR 236
Pyayakan Yomo v The Independent State of Papua New Guinea [1990] PNGLR 554
Joe Naguwean v The Independent State of Papua New Guinea [1992] PNGLR 367  
Rom Tinpul v Moses Yere & Mt Hagen Golf Club [1996] N1648
Peter Na’al v Michael Debege (2000) N1958
Nelson Uro v The State (2001) N2056
Andrew Moka v MVIL (2001) N2098
Peter Aigilo v The Independent State of Papua New Guinea (2001) N2102
Bosip Oka v MVIL [2001] N2122
Shelley Kupo v MVIT (In Liquidation) [2002] PNGLR 240
Andrew Moka v MVIL (2004) SC729
Mewori Patrick Paobi v PNG Electricity Commission (2004) N2511
William Mel v Coleman Pakalia (2005) SC790
Jack Dinogo v MVIL (2005) N2839
Steven Naki v AGC (Pacific) Ltd (2006) N5015
MVIL v Maki Kol (2007) SC902
Rodao Holdings Ltd v Sogeram Development Corporation Ltd (2007) N5485
Westcott v MVIL (2008) N3565
Kurapei Dei v The State (2009) N3767
Alois Kawa v Hans Yob (2010) N3923
UPNG v Jerry Duwaino (2011) SC1119
Fred Angoman & Papaco No.1 Limited v Independent Public Business Corporation of Papua New Guinea & Glen Blake as the Managing Director of the Independent Public Business Corporation of Papua New Guinea (2011) N4363
Likui Trading Ltd v Joseph Selna (2011) N4530
Numabo Kawage v MVIL (2016) N6351
John Tuman v MVIL (2017) N6923
Rosa Gabriel v Motor Vehicles Insurance Ltd (2017) N6777
Samot v Yame (2020) N8256
Daniel Pomat v Consort Express Lines Limited (2020) N8300
Giheno v Uvovo (2020) N8528
Gure Vali v MVIL (2022) N9654

Overseas Cases

Livingstone v Rawyards Coal Co (1880) App Cas 25

Treatise cited:

McGregor on Damages, London, Sweet & Maxwell 2003, 17th Edition

Counsel:

Emeteria Waeda, for the Plaintiff
Beryl Kumo, for the Defendant

JUDGMENT

7th June, 2022

1.	DAVID, J: INTRODUCTION:  The plaintiff was standing at or along the gate to the Car Club along Waigani Drive when he was struck by a vehicle insured by the defendant.  He was helped by bystanders and rushed to the Port Moresby General Hospital in a taxi where he was hospitalised and given appropriate medical attention. The plaintiff suffered multiple injuries including a torn rectum and anus, raptured left testicle and a fractured pelvis which resulted in permanent limb shortening of the right leg.  He sued the defendant and secured a judgment in his favour on 7 April 2022 following a contested trial (Gure Vali v MVIL (2022) N9654). The case came on for trial on assessment of damages. 

2.	The plaintiff claims that he now suffers and continues to suffer from the following disabilities; 30% of bodily disruptions and effective functional loss of the rectum and anus; 90% loss of function of right lower limb and leg; 100% loss of left testicle; 50% loss of male reproductive function; 20% loss of effective functional loss of urine flow; 40% loss of psychological trauma created by recollection of events; and 80% loss of normal gastrointestinal function secondary to anal injury.  The injuries he has suffered resulted in; the loss of his employment, he is unable to secure employment which requires manual labour; and he no longer has the effective use of his hips and back which have effectively inhibited his ability to do household work and other outdoor activities including gardening, fishing and sporting activities.

3.	The plaintiff therefore claims against the defendant; general damages, economic loss for past and future; damages for loss of amenities, special damages; damages for distress; interest pursuant to statute and costs of the proceedings.

EVIDENCE

4.	The plaintiff’s evidence consists of the following:

1.	Affidavit of the plaintiff himself sworn on 24 August 2018 and filed on 28 August 2018 (Exhibit A);
2.	Affidavit of Dr. Ikau Mataio Kevau sworn on 7 June 2021 and filed on 8 June 2021 (Exhibit B);
3.	Affidavit of Dr. Jenny Tovu sworn on 12 July 2021 and filed on 13 July 2021 (Exhibit C);
4.	Affidavit of Lynette Goa sworn on 10 February 2022 and filed on 25 February 2022 (Exhibit D); 
5.	Affidavit of Nathaniel George sworn on 14 March 2022 and filed on 15 March 2022 (Exhibit E).
6.	Affidavit of Dr. Siwi Wawe sworn and filed on 18 May 2022 (Exhibit F); and 
7.	Affidavit of Lynette Goa sworn on 19 May 2022 and filed on 20 May 2022 (Exhibit G). 

5.	The defendant offered no evidence.

6.	No cross-examination was conducted.

LEGAL ISSUE FOR TRIAL

7.	The only issue for trial is what amount of damages should the plaintiff be awarded. 

LAW

8. 	Section 49(2)(a)(i) of the Motor Vehicles (Third Party Insurance) Act imposes a limit of an amount not exceeding K150,000.00 on the liability of the defendant in respect of the death of or bodily injuries to any one person caused by or arising out of a motor vehicle accident in circumstances set out under s.54(1) of the Motor Vehicles (Third Party Insurance) Act.  That amount is exclusive of interest and costs:  MVIT v Reading [1988] PNGLR 236.	

9.	The objective of an award of damages is to put the injured party in the same position as he/she would have been in, but for the injury suffered:  UPNG v Jerry Duwaino (2011) SC1119.

10.	In this regard, I note the speech of Lord Blackburn in Livingstone v Rawyards Coal Co, (1880) App Cas 25 at 29 where His Lordship defined the measure of damages as:

“that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.” 

11.	The Supreme Court in William Mel v Coleman Pakalia (2005) SC790 and the National Court decision of Cannings, J in Steven Naki v AGC (Pacific) Ltd (2006) N5015 summarise or identify a number of legal principles that are applicable in assessing damages where liability is established either following a trial or after the entry of default judgment and these are:

•	The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)
•	Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.) 
•	The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.) 
•	The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)
•	If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.) 
•	Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)
•	The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)
•	The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)
•	The person who has been wronged has a duty to mitigate their losses; though it is the defendant who has the onus of proving failure to mitigate (Dia Kopio v Employment Authority of Enga and Others (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182, National Court, Kandakasi J.)

GENERAL DAMAGES

12.	As a general principle, a person who is injured by another person’s wrong will be entitled to general damages.  They are not capable of precise quantification, but it will be at the discretion of the Court to determine what amounts it considers appropriate.

13.	In assessing general damages for personal injuries, usually pain and suffering and loss of amenities of life are considered together (Kerr v MVIT [1979] PNGLR 251).  However, as the claim for damages for loss of amenities in life is claimed as a separate head of damages in this case, this assessment excludes that head of damages.  Thus, the assessment under this head is confined to pain and suffering. 

14.	The plaintiff was presented to the Emergency Department of the Port Moresby General Hospital on 18 May 2014 between 01:00 am and 02:00 am.

15.	The major injuries sustained by the plaintiff were:

1.	Torn rectum and anus (annexure A, Exhibit C, Dr Tovu’s Medical Report dated 3 June 2014);
2.	Raptured left testicle (annexure A, Exhibit C, Dr Tovu’s Medical Report dated 3 June 2014); and
3.	Fractured pelvis (annexure A, Exhibit C, Dr Tovu’s Medical Report dated 3 June 2014).

16.	Dr. Tovu’s Medical Report discloses multiple injuries to his bowel and genitalia as well as skeletal injuries to his pelvis.  

17.	Local examination of the injuries sustained showed that; the pelvis was bruised, legs were externally rotated, the right side shorter than the left leg; the anus and rectum were torn open and bleeding profusely; the left testis had burst open from the containing fascia (skin); and the right groin had an open wound with expanding surgical emphysema. 

18.	 The x-ray of the pelvis revealed a fracture of both the superior and inferior ramus of the pelvic bone, a displaced symphysis pubic, fractured right acetabular and disrupted right sacroiliac joint.  

19.	Medical attention administered included:

1.	An exploratory laparotomy conducted on 18 May 2014. This is a general surgical operation in which the abdomen is opened and the abdominal organs are examined for injury (annexure A, Exhibit C, Dr Tovu’s Medical Report dated 3 June 2014 and para 7 and annexure A Exhibit F).  
2.	A diverting colostomy procedure was undertaken when the colon was diverted to the left side of the abdomen (para 8 and annexure A Exhibit F).  
3.	A Steinmann pin was inserted for traction of the fracture of the pelvis (para 9 annexure A, Exhibit F).  
4.		Left testis was shattered and non-viable and as nothing else could be done, it was only debrided (para 10 annexure A, Exhibit F). 
5.	Diverting colostomy was closed (para 12 annexure A Exhibit F).
  
20.	The plaintiff was discharged on 25 July 2014.

21.	The plaintiff was re-admitted to the Port Moresby General Hospital on 5 November 2014 and had the diverting colostomy closed.  He was discharged on 17 November 2014.

22.	The plaintiff was physically examined twice after his medical treatments.   

23.	The first one was conducted by Dr. Wawe on 12 February 2015 and the results of the examination are contained in the Medical Report (annexure A, Exhibit F and annexure E, Exhibit A).  The examination revealed:

1.	A depressed looking young man;
2.	A very pronounced limping gait which will affect his hip and back in the long run;
3.	A lower limb discrepancy of more than 5 cm on the right side compared with the left side;
4.	Surgical scars on the abdomen healed with disfiguring scars;
5.	Rectal and anus injuries healed with strictures; and
6.	Scrotal injuries had healed. 

24.	At the time of presentation, the plaintiff complained of pain, difficulty passing stool and dysuria (painful urination).

25.	The second one was conducted by Dr. Kevau on 15 October 2015 (annexure A, Exhibit B).   The examination revealed:

1.	Psychological disturbance created by recollection of events;
2.	Significant loss of function of the lower right leg due to major sacroiliac joint injury causing a Trendelenburg gait (abnormal, weak and unbalanced walking pattern) with significant migration superiorly;
3.	Male reproductive functional loss due to loss of a testis; and
4.	Normal gastrointestinal functional loss secondary to anal injury leading to diverting colostomy and its long term complications.      
  
26.	Dr. Kevau had opined that the plaintiff’s long-term quality of life was bound to be miserable and bleak.  He also observed that although the colostomy was closed after some time to allow the natural process to take its course, the plaintiff never regained his normal functional motion of his gastrointestinal system.  He also observed that the plaintiff was incontinent at times and often ran into major constipation crisis alternating with major diarrhoeal episodes for which he would ingest milk  and other related laxatives to assuage his condition.

27.	Dr. Wawe computed the extent of the plaintiff’s permanent impairments or problems as follows:

1.	Cosmetics - disfiguring  multiple scarring 		20%
2.	Anatomical disruptions and effective functional
loss of rectum and anus					30%
3.	Anatomical disruptions and effective functional
loss of pelvis and right lower limb			85%
4.	Loss of left testis						100%
5.	Urethral stricture – Effective functional loss
of urine flow							20%

28.	Dr. Kevau computed the extent of the plaintiff’s permanent impairments or problems as follows:

1.	Psychological disturbance created by recollection of events	40%
2.	Loss of function of the lower right leg due to major
sacroiliac joint injury causing a Trendelenburg gait
(abnormal, weak and unbalanced walking pattern)
with significant migration superiorly				90%
3.	Male reproductive functional loss due to loss of a testis	50%
4.	Normal gastrointestinal functional loss secondary to anal
injury leading to diverting colostomy and its long term
 		complications							80%  

29.	The plaintiff claims K100,000.00 for the injuries sustained and their long-term effect on his life.   He supports his claim by referring the Court to a number of comparable awards which are summarised in the table below.

	Cases	Description	Amount awarded	
1	State v McLeary [1976] PNGLR 321
Frost CJ, Prentice DCJ and Williams J
	Appeal from the State against award of excessive damages for personal injuries to the respondent who was married with two kids and aged 33 at the time of the motor vehicle accident-spinal injury, aggravation of pre-existing congenital condition-severely restricted agility-chronic low grade re-active depression- Marriage breakdown advanced- sexual impotency	Award of K40, 000.00 for general damages substituted for award of K77, 000.00 general damages
	
2	Pangis Toe v MVIT & The State [1986] PNGLR 294- Los J
	The plaintiff, a village woman in her mid forties suffered leg and arm injuries which were; a fracture to her left arm and left humerus, compound fracture to the left wrist, a fracture to the left femur, a fracture and dislocation of left hip and a cut on her forehead. Her permanent disabilities included totally useless and wasted left arm with a claw hand at 70% loss of the efficient use of her left leg with probability of future osteoarthritis.	K35, 000.00 for general damages	
3	George Kiak v MVIT [1986] PNGLR 265 –McDermott AJ
	The plaintiff was a Grade 1 Magistrate aged 35 years at the time of the motor vehicle accident and suffered a compound fracture of left leg and required wear a built up shoe and walking stick to walk with permanent disability of 50 % loss of efficient use of left leg which was almost amputated	General damages assessed at K29, 000.00 for pain, suffering and loss of amenities of life.	
4	Rom Tinpul v Moses Yere & Mt Hagen Golf Club [1996] N1648

Injia J(as he then was)	The plaintiff, a young village boy aged 21 with no fixed income who had a crush injury to the upper tibia of his right leg wherein future amputation was inevitable.	K40, 000.00 general damages assessed.
K18,500.00 as global sum for past and future economic loss	
5	Nelson Uro v The State (2001) N2056- Injia J(as he then was)
	The plaintiff sustained injuries to his right leg and right hip when the motor vehicle he was driving collided with another vehicle.	K20, 000.00 for general damages for 20% loss of efficient use of left leg, right leg being shortened by a few centimetres and a distinct limp.	
6	Bosip Oka v MVIL [2001] N2122	The plaintiff, a male carpenter aged around his mid thirties at the time of the accident had abrasions to his head, abdomen and pelvis, he fractured his right femur, skeletal traction followed by reduction and K-nailing of the fractured femur- right leg may have shortened by a few centimetres- walks with a distinct limp- major surgical scan on right thigh- muscle atrophy, 20% loss of efficient use of the left leg	K35, 000.00 for general damages	
7	Andrew Moka v MVIL[2001] N2098
Kandakasi J(as he then was)

This judgment was appealed – Andrew Moka v MVIL (2004) SC 729	The male plaintiff aged 32 years old at the time of the motor vehicle accident wherein another car collided into him resulting in him suffering personal injuries of comminuted fracture of left tibia and fibula and minor head injury with no disability, 40 % estimate loss of efficient use of left leg	K23, 000.00 for general damages for pain loss and suffering but after allowing for 50% contribution for contributory negligence, General damages was assessed at K11, 500.00.
On appeal, in upholding the appeal, the Supreme Court awarded K35,000.00 for general damages for pain and suffering. 	
8	Shelley Kupo v MVIT (In Liquidation) [2002] PNGLR 240
Salika J (as he then was)	The plaintiff, married working woman aged 36 years old suffered multiple injuries to her left tibia and face, elbow and foot. She was trapped in the cabin for several hours- distressed pain and suffering- nervous shock, 9 % loss of efficient use of left foot, 30 % loss of efficient use of right ankle, ugly scars on 75% of the right thigh, ugly scars on 90% of left left.	General damages assessed at K80, 000.00 for pain and suffering and loss of amenities. 	
9	Jack Dinogo v MVIL (2005) N2839
Injia DCJ(as he then was)	The plaintiff, a 50 year old unemployed male urban settler suffered 25% total disability of the lower limb and 5% for dysfunctional disability with 30% directly attributed to other spinal injuries as a result of a motor vehicle accident.	Damages assessed at K24, 610.00 after 15% appointment for contributory negligence.
General damages was assessed at K25, 000.00 and this considered to be fair and reasonable compensation for the plaintiff’s initial injury and resulting physical disabilities.	
10	MVIL v Maki Kol [2007] SC902
Kandakasi, Lenalia & David JJ	The respondent suffered a serious injury to his left leg in a motor vehicle accident resulting in an estimated residual disability ranging between 80% and 100%.  The National Court awarded K60,000.00 for general damages, K2,000.00 for special damages, K19,257.00 for past economic loss and K75,400.00 for future economic loss.  MVIL appealed against the damages assessed except for that awarded for special damages.	Appeal against award of K60,000.00 for general damages dismissed and the order by National Court confirmed.
Appeal against award of K19,257.00 for past economic loss set aside and appeal against K75, 400.00 for future economic loss upheld, reduced and substituted with the sum of K20, 000.00	
11	Westcott v MVIL [2008] N3565
Davani J
	The plaintiff, aged 19 years was injured in a motor vehicle accident (motor cycle and truck) resulting in 80 % loss of use of his right leg, right leg shortening - 100% change, scarring of skin and muscles at 50% loss, quality of life, pain and loss of full use of the right leg at 60% loss, osteomyelitis (inflammation of the bone) at 25 % and psychological trauma at 40 %	General damages assessed at K90,000.00	
12	Daniel Pomat v Consort Express Lines Limited (2020) N8300
Makail J	The plaintiff, a seaman or seafarer employed by the defendant, in his mid-twenties, at the time of the accident while on board the defendant’s vessel, sought damages for a work-place related injury.  He was injured when a loose container shoe on one of the hatches fell and struck him on his head rendering him unconscious. Apart from his head injury, he also suffered 10% loss of muscle strength on his left upper limb, 20 % loss of strength on the left lower limb and a 37.5% permanent loss of functional status.	K35, 000.00 general damages	

30.	The plaintiff submitted that the comparable awards demonstrated the apparent increase in awards over a period of 44 years between 1976 and 2020 which, it was submitted, was due to the “inflation factor” as discussed by Kandakasi J (as he then was) in Andrew Moka v MVIL (2001) N2098.  In addition, the plaintiff contended that there were similarities between the present case and Shelley Kupo v MVIT (In Liquidation) [2002] PNGLR 240 and the Westcott v MVIL (2008) N3565 which were awards made well over twenty years ago and so taking into account inflation, an award of K100,000.00 was justified.

31.	The defendant submitted that an award of K81,900.00 be made under this head as the plaintiff was not confined to a chair or unable to walk (not a paraplegic).  It relies on several comparable awards, two of which namely, MVIL v Maki Kol (2007) SC902 and Andrew Moka v MVIL (2004) SC729 have been summarised already.  I summarise the others in the table below. 

	Cases	Description	Amount awarded	
1	Kerr v MVIT [1979] PNGLR 251	The plaintiff, a 26-year old Australian and salesman, was rendered a paraplegic and confined to a wheelchair as a result of a motor vehicle accident.  His injuries included a dislocated fracture of the T12 vertebra and a dislocated shoulder.  He appealed to the Supreme Court against an assessment of damages by the National Court on the ground of inadequacy. The appeal against the assessment of K35,000.00 for pain and suffering and loss of amenities of life was upheld and the award increased to K60,000.00.	K60,000.00 in general damages.	
2	Aundak Kupil and Kauke Kensi v The State (1983) PNGLR 350	The two plaintiffs, male villagers, were each rendered a paraplegic as a result of a motor vehicle accident.
Aundak, aged about 35 years had three wives and six children.  The injuries sustained included a major fracture and dislocation of the spine at T12-L1.   At the time of the accident, Aundak received income from the sale of firewood and a tradestore and contributed his labour to the activities run by his wives involving vegetables and pigs. 
Kauke, aged 30 years had one wife and a child.  The injuries sustained included a fracture of the spine.   At the time of the accident, Kauke received income from his involvement in coffee production from two plots he owned, sale of firewood, vegetables and pigs. 	Aundak was awarded K90,000.00 in general damages.
Kauke  was awarded K75,000.0 in general damages.	
3	Pyayakan Yomo v The Independent State of Papua New Guinea [1990] PNGLR 554	The plaintiff, a male aged 35 years, married with three children and a village subsistence gardener claimed damages for personal injuries as a result of a motor vehicle accident. The plaintiff suffered spinal cord injuries with paralysis in both legs and loss of bladder and bowel control. He was hospitalised for two and a half months and left hospital using crutches. The plaintiff suffered 70% loss of the use of the spine and lower limbs with continuing probability of urinary tract infections; his working capacity and social life were destroyed.	K35,000.00 in general damages.	
4	Mewori Patrick Paobi v PNG Electricity Commission (2004) N2511	The plaintiff claimed damages for nervous shock caused by electrocution when he stepped on a live power line. He sought damages in the total sum of K92,500 consisting of K50,000 for general damages, K20,000 for economic loss, K17,500 for special damages and K5,000 for exemplary damages.	A global sum of K20,000.00 was awarded in general damages for nervous shock and post traumatic stress, etc.	

32.	I have also considered Kurapei Dei v The State (2009) N3767. There, the plaintiff suffered serious injuries including lacerations to the nose and mouth, dislocation of the left hip and fracture of the clavicle in a motor vehicle accident involving a privately-owned bus and a State vehicle.   The State-owned vehicle was found to be the offending vehicle as the driver had driven it negligently.  Medical evidence showed that the plaintiff had a 22% impairment of the lower extremity which translated into about 9 percent of the whole person.   The plaintiff was awarded damages in the sum of K65,000.00 for pain and suffering for past, present and future.

33.	I propose to make an award between K60,000.00 and K90,000.00 and in this regard, the awards in Shelley Kupo v MVIT (In Liquidation) [2002] PNGLR 240, MVIL v Maki Kol [2007] SC902, Westcott v MVIL [2008] N3565 and Kurapei Dei v The State (2009) N3767 will be useful.   I award K80,000.00.

ECONOMIC LOSS (PAST & FUTURE)

34.	In MVIL v Maki Kol (2007) SC902 at [26], the Supreme Court made the following remarks in relation to the principles to apply when dealing with claims for damages for past and future economic loss:

“The principles on which both past and future economic loss can be awarded is clear, so much so that, there is no need for us to cite any particular authority on point.  One of the most important principles is that, a plaintiff must establish his economic loss, before the Court can make an award for any such losses.  This is not a difficult thing to do.  If the plaintiff was engaged in an income earning activity as at the time of his or her sustaining the injuries, he or she must produce evidence of both the income generating activity and its monetary value, the amounts he or she has lost and stands to lose as a result of the injuries and the disabilities.  Where a plaintiff produces such evidence, the Court is duty bound to assess the plaintiff’s past and future economic losses. On the other hand, if a plaintiff fails to produce any such evidence, the Court can either make no award or make a nominal award having regard to the reduction in the plaintiff’s income earning capacity to support him or herself and his or her dependants.”

35.	The principles enunciated in the cases of Make Kewe v Thomas Kudjip [1986] PNGLR 279 and Kerr v MVIT (1979) PNGLR 251 are also relevant.

36.	In Make Kewe v Thomas Kudjip [1986] PNGLR 279, Woods J in adopting and applying the observation of Miles J in Kaka Kopun v The Independent State of Papua New Guinea (1980) PNGLR 557 at 564, from head-note (2), held:

“In assessing damages for economic loss in respect of inability to perform normal village work and activities, local circumstances should be taken into account and where there is no evidence of specific loss but evidence of economic capacity, a fair and reasonable assessment must be made." 

37.	In Kerr v MVIT (1979) PNGLR 251, at 251 head-note (1), the Supreme Court in adopting and applying the principles laid down by the majority in Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz [1975] PNGLR 262 held:

“In assessing general damages for personal injuries under the heading, pain and suffering, loss of amenities etc., the assessment should be made having regard to the prevailing condition of the plaintiff at the time of injury, and the general standards prevailing in the community.”

38.     In Kaka Kopun v The State [1980] PNGLR 557, at 564 Miles J held:

“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 where 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 251, namely that once a reduction of economic capacity is established, even if there is no evidence as to pre and post accident possible earnings, a trial judge must, in general, assess some compensation in this regard, he cannot ignore the loss.”

39.	The defendant submits that the plaintiff be awarded damages in the sum of K15,000.00 relying on Numabo Kawage v MVIL (2016) N6351 and John Tuman v MVIL (2017) N6923.

40.	In Numabo Kawage v MVIL (2016) N6351, the claimant, a married male aged 65 years at the time of the accident, suffered fractures to his ribs.  He was diagnosed with a 15% permanent disability in the effective use of his chest and affected his carrying of heavy loads as a result of post traumatic arthritis.  He was awarded K8,000.00 for economic loss. 

41.	In John Tuman v MVIL (2017) N6923, the claimant suffered injuries to his neck and chest.   The loss of the effective use of the neck was assessed by a number of doctors as between 20% and 35 %.   The loss of the effective use of the chest was between 5% and 20 %.  The claimant claimed K20,000.00 for both past and future economic loss.  He was awarded K12,000.00.

42.	The plaintiff has urged the Court to award K15,000.00 proposed by the defendant. 

43.	The evidence shows that plaintiff generally is a villager in all aspects of his life pre and post accident.  He resides in the village at Gaire, Hiri Koiari District, Central Province with his family.  In my view, the amount proposed by the defendant of K15,000.00 is fair and reasonable.  I award K15,000.00 under this head.

LOSS OF AMENITIES

44.	A claim for loss of amenities is capable of an independent existence as a separate head of damage, but may be considered together with the all embracing “pain and suffering” head of damage or under general damages:  McGregor on Damages, London, Sweet & Maxwell 2003, 17th Edition at paras 1.029 to 1.034 and 35-210 to 35-237. 

45.	Loss of amenities of life as a separate head of damage is described at McGregor on Damages, London, Sweet & Maxwell 2003, 17th Edition at para 35-215 as follows:

“This head of damage concentrates on the curtailment of the claimant’s enjoyment of life not by the positive unpleasantness of pain and suffering but, in a more negative way, by his inability to pursue activities he pursued beforehand. Birkett L.J. put it thus in Manley v Rugby Portland Cement Co.
	
‘There is a head of damage which is sometimes called loss of amenities; the man made blind by the accident will no longer be able to see the familiar things he has seen all his life; the man who has had both legs removed and will never again go upon his walking excursions – things of that kind – loss of amenities.

Loss of impairment of any one or more of the five senses is compensated under this head and also loss resulting from interference with the claimant’s sexual life or with particularly a female claimant’s prospect of marriage, from the break-up of the claimant’s marriage or from inability to play with his children; even loss of enjoyment of the holiday upon which the claimant was embarking or had embarked at the time of the injury has been taken into account in the non-pecuniary award.  Nor is this element of loss confined to interference with leisure activities, so that damages may be awarded for deprivation of the ability to pursue an enjoyable occupation or for having to contend with housekeeping in an injured state without domestic help.”  

46.	The plaintiff claims K20,000.00 because he states that his capacity for enjoyment of life has been grossly impaired by the multiple injuries he has suffered. He was formerly an active physical man, playing sports, enjoying a good marital family (including looking after his wife and daughter) and working life including making gardens, going fishing and hunting, unable to find a decent job anywhere and no longer employed with SP Brewery and therefore he can no longer obtain the satisfaction and enjoyment he derived from all the things he would formerly do prior to the accident.

47.	The defendant submitted that the plaintiff be awarded nothing because general damages covered non-pecuniary damage such as loss of amenities of life. 

48.	I award K10,000.00.
  
SPECIAL DAMAGES

49.	The plaintiff claims K5,552.85 for; total medical expenses (K727.85), traffic accident report (K25.00), Final Medical Report (K500.00), Second Medical Report (K300.00), and vehicle fares and accommodation (K4,000.00).   Evidence is contained in the affidavits of the plaintiff (Exhibit A) and Lynette Goa (Exhibit G). The defendant submits that the plaintiff is only entitled to out of pocket expenses specifically pleaded with particulars amounting to K1,552.85. 

50.    There is a problem with the claim for K4,000.00 for vehicle fares and accommodation.  The plaintiff has not complied with Order 8 Rule 33(g), 34 and 35 of the National Court Rules. He has not pleaded the details of his claim with particulars in the amended statement of claim filed on 18 May 2018.  Instead, he averred that they would be provided at trial.  These rules are framed in mandatory terms. I concur with the defendant’s submission.  I award K1,552.85.  

DISTRESS 

51.	Damages for mental distress are awarded in this jurisdiction:  By way of comparable awards, I have considered those made in Harding v Teperoi Timbers Pty Ltd (1988) PNGLR 128 (K1,000.00); Joe Naguwean v The Independent State of Papua New Guinea (1992) PNGLR 367 (K1,000.00); Peter Na’al v Michael Debege (2000) N1958 (K15,000.00); Peter Aigilo v The Independent State of Papua New Guinea (2001) N2102 (K20,000.00); Rodao Holdings Ltd v Sogeram Development Corporation Ltd (2007) N5485 (K50,000.00); Fred Angoman & Papaco No.1 Limited v Independent Public Business Corporation of Papua New Guinea & Glen Blake as the Managing Director of the Independent Public Business Corporation of Papua New Guinea (2011) N4363 (K5,000.00); Likui Trading Ltd v Joseph Selna (2011) N4530 (K15,000.00); and Samot v Yame (2020) N8256 (K6,000.00).  

52.	The plaintiff claims K10,000.00 for the distress and frustration he endured as a result of the multiple injuries he has sustained involving a vehicle insured by the defendant. The defendant submitted that the plaintiff be awarded nothing.   The plaintiff has provided evidence demonstrating that that he has suffered great inconvenience, hardship, distress and anxiety.  He has also provided evidence to show that he has tried to have the matter settled out of court, but the defendant has either been uncooperative or has made offers which were far too low and not commensurate with the types of injuries sustained.

53.	I am of the opinion that an award of a sum of K5,000.00 is reasonable in the circumstances of this case.   I award K5,000.00.

SUMMARY OF DAMAGES ASSESSED

54.	I summarise the damages awarded as follows:

1.	General damages: 				K80,000.00
2.	Economic loss (past and present):	K15,000.00
3.	Loss of amenities: 				K10,000.00
4.	Special damages 				K1,552.85
5.	Mental distress  				K 5,000.00
						`	K111,552.85
INTEREST

55.	Ms. Kumo for the defendant submits that the Court should not award interest as the plaintiff did not plead the law upon which interest is sought.  Counsel referred the Court to Giheno v Uvovo (2020) N8528 where the plaintiff sought 8% interest without pleading the Judicial Proceedings (Interest on Debts and Damages) Act.  At paragraph 11 of the judgment, Thompson J said:

“In relation to para 10 (b), it is a requirement of pleadings that they clearly set out any statute on which a claim is based. The Plaintiff has not pleaded the Judicial Proceedings (Interest on Debts and Damages) Act. It could be implied into para 10 (g) of the statement of claim, which is a claim for “interests pursuant to law”. The decision to award such interest is at the discretion of the Court.”

56.	I am not bound by the National Court decision with respect.  The plaintiff has sought interest at 8% pursuant to statute and I think that is sufficient.  

57.	The Judicial Proceedings (Interest on Debts and Damages) Act (Chapter 52) (repealed statute) was repealed by the Judicial Proceedings (Interest on Debts and Damages) Act 2015 (new statute) by virtue of Section 7 of the new statute.  The new statute was certified on 26 October 2015 and came into operation in accordance with a notice dated 9 March 2016 published in the National Gazette G138 on 16 March 2016.  Section 8 of the new statute relevantly states:

“No effect on previous acts and decisions.

Nothing in this Act affects the validity of any act or decision done or made under the repealed Act, before the coming into operation of this Act, and every such act and decision shall be taken to be valid and effectual and to have continuing effect notwithstanding anything in this Act.”

58.	These proceedings were commenced on 1 June 2017 after the new statute came into operation.  Therefore, the new statute will apply to the question of what rate of interest is to be applied.

59.	 I have considered s.4 of the new statute that essentially states that interest at the rate not exceeding 2% yearly shall apply to awards made against the State.  Section 4(1) permits the Court, in the exercise of its discretion, to order interest for the whole or part of the period between the date when the cause of action arose and the date of judgment.  I have also considered Section 2 of the new statute which states that the new statute applies to all Court orders made against the State on or after 1 January 2014.

60.	I think the defendant falls within the meaning of the State going by the National Court decision of Rosa Gabriel v Motor Vehicles Insurance Ltd (2017) N6777.   I will therefore assess interest at the rate of 2% yearly. 

61.	I have decided to award interest for three years up to today.  Interest on K111,552.85 calculated at 2% yearly will be K6,693.15.   

COSTS

62.	The plaintiff claims K10,000.00 as costs of and incidental to these proceedings.  At the trial, the defendant agreed that the plaintiff be awarded the amount claimed.  I award K10,000.00.   

ORDERS

63.	The Court directs entry of judgment in the following terms:

1.	Damages payable by the defendant, Motor Vehicles Insurance Limited to the plaintiff, Gure Vali in a lump sum of K111,552.85.
2.	Interest for three years payable by the defendant, Motor Vehicles Insurance Limited to the plaintiff, Gure Vali in a lump sum of K6,693.15.
3.	Costs of and incidental to the proceedings of K10,000.00 shall be paid by the defendant Motor Vehicles Insurance Limited to the plaintiff, Gure Vali.
4.	Time is abridged.

Judgment and orders accordingly.
______________________________________________________________
Public Solicitor:	Lawyers for the Plaintiff			
Jema Lawyers: Lawyers for the Defendant