N9667

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 335 OF 2020

BETWEEN:
VERONICA PIORO
First Plaintiff

AND:
MARGARET KAUMIN
Second Plaintiff

AND:
MOTOR VEHICLE INSURANCE LTD
Defendant

Waigani: Wurr AJ
2022: 10th March, 23rd May

DAMAGES – Assessment of – Personal injuries – medical reports adduced into evidence contrary to Section 37 of the Evidence Act- less weight given rather than no weight based on photographs and clinical notes - interest of justice paramount consideration – inflation relevant consideration - global award- Award of K30, 000.00

Cases Cited:

Papua New Guinean Cases

Amaiu v Yalbees (2020) SC2046
Andrew Moka v MVIL (2004) SC729
Cheon Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
Jacob Sibuaken v Neville Egari (2009) N3824
Kuman v Digicel (PNG) Ltd (2013) SC1232 
Motor Vehicle Insurance (PNG) Trust -v- Pupune [1993] PNGLR 370
Motor Vehicle Insurance Limited v Maki Kol (2007) SC902
Papua New Guinea Banking Corporation (PNGBC) v Tole (2002) SC694

Overseas Cases

Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 (HL), at 39

Counsel:

S. Wanis, for the Plaintiffs
E.Nalea, for the Defendant

JUDGMENT
23rd May, 2022

1.	WURR, AJ:  This was a trial on damages as liability was entered against the defendant on 16 November 2021 on account of the defendant’s failure to comply with Court Orders and failure to appear in Court ready to prosecute the matter to trial pursuant to Order 10, Rule 9A (15)(2) of the Listings Rules in the National Court Rules, term 4 of the orders of 7 September 2021, and relevant case law on point per case of John Wasis & Ors v Margaret Elias & Ors (2016) SC1465.

2.	The plaintiffs are claiming damages for personal injuries sustained as a direct result of a motor vehicle accident which occurred on 29 June 2019 at about 3:00pm in the afternoon at the traffic light next to National Development Bank at Waigani, National Capital District. They were both passengers traveling on a double cab Toyota Hilux utility white in color bearing registration number BFP 476. The other vehicle which caused the accident was a Toyota Land Cruiser Station Wagon, Blue in color and bearing registration number BEA 274. 

3.	Only the plaintiffs adduced evidence. There was no evidence from the defendants. 

PARTIES ARGUMENTS 

4.	The plaintiffs submit that they have proven their claim on the balance of probabilities and based on their various medical reports, photographs and clinical notes which are in evidence. The first plaintiff seeks K40, 000.00 for general damages, K10, 000.00 for past economic loss,  K32, 900.00 for future economic loss and K1, 000.00 for special damages. In total the first plaintiff seeks K83, 900.00. The second plaintiffs seeks K50, 000.00 for general damages, K5,000.00 for past economic loss, K66, 000.00 for future economic loss and K1, 000.00 for special damages- a total of K122, 000.00.

5.	The defendant on the other hand argued quite strongly that the court should not place any weight on the medical reports adduced into evidence as they did not comply with Section 37 of the Evidence Act. The medical reports were annexed to the plaintiffs’ affidavits and not that of the doctor who authored those reports who in this case was Dr Sonny Kibob. The defendant relied on the case of Simbuaken v Egari (2009) PGNC254; N3824 to advance its argument on this point. In that case the National Court held that medical reports must be attached to the affidavit of the medical practitioner who prepared the report and if not done, it will be declared inadmissible; and that in the event it was tendered into evidence, the Court should not place weight on it. The defendant submits that since the Court has allowed the medical reports into evidence, little or no weight should be placed on them. 

6.	Therefore the defendants argued that nothing be awarded to the plaintiffs, however should the Court wish to make an award to each plaintiff, then it should award an amount between K3, 000.00 – K6, 000.00 to the first plaintiff for general damages and nothing for past economic loss because the details of date and place of birth were not pleaded in the statement of claim. Further an amount between K2, 000.00 - K4, 000.00 be awarded for future economic loss and nothing for special damages. In total the defendant submits that an amount between K5, 000.00 to K10, 000.00 be  awarded to the first plaintiff. As for the second plaintiff, the defendant submits that nothing be awarded for general damages, special damages and past economic loss because of lack of pleadings. As for future economic loss, the defendant submits that an amount between K1, 000.00 to K3, 000.00 be awarded to her.  

ASSESSMENT OF EVIDENCE

7.	The defendant did not adduce any evidence. The plaintiffs’ evidence consist of their own affidavits. There is no affidavit from Doctor Sonny Kibob who is the doctor who examined both plaintiffs and authored the medical reports which they rely on. 

8.	Upon close examination of the plaintiffs’ evidence, the Court found no medical reports for the second plaintiff; what is annexed to her affidavit are medical reports for Veronica Pioro, the first plaintiff, dated 2 November 2019 and 16 May 2020 respectively. The clinical notes also belong to the first plaintiff. It may have been a fatal oversight on the plaintiff’s part. The first plaintiff has failed to meet the required standard of proof to establish her claim.

9.	Both plaintiffs in their evidence claim to be subsistence farmers who sell vegetables at the market every month and earn around K8, 000 per year in the case of the first plaintiff, and K5, 000.00 for the second plaintiff. However there is no documentary or further evidence from other witnesses to corroborate this claim. 

RELEVANT ISSUES 

10.	The relevant issues are:

a.	Whether the claim should be dismissed for lack of pleadings
b.	Whether both plaintiffs have proven their claim for damages on the balance of probabilities 
c.	Whether the plaintiffs have proven their claim to be awarded damages, and if so how much should be awarded?

LAW AND LEGAL PRINCIPLES 

11.	The plaintiffs bear the onus of proving their case on the balance of probabilities (Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260, Vincent Kerry v The State (2007) N3127).

12.	Section 37 of the Evidence Act requires experts to provide their evidence by affidavits. 

WHETHER THE CLAIM SHOULD BE DISMISSED FOR LACK OF PLEADINGS 

13.	Mr. Nalea for the defendant argued that the details of the plaintiff were not pleaded hence the claims ought to be dismissed for lack of pleadings. The Supreme Court in the case of Kuman v Digicel (PNG)Ltd  (2013)  SC1232 at page 14 said this about pleadings “..whilst desirable, it is not essential that every element of every cause of action be expressly pleaded in a statement of claim. What is essential is that the statement of claim read as a whole discloses a cause of action in sufficiently clear terms to put the defendant on notice as to the claim that it has to meet.” 

14.	In the recent Supreme Court case of Amaiu v Yalbees (2020) SC2046, the Supreme Court adopted and applied the principle in the case of Kuman v Digicel (supra) and went further to hold that these matters overcome any insufficiency in the explicit pleading of the duty of care. The Supreme Court  in the case of Amaiu v Yalbees (supra) adopted the observations of Gavara-Nanu J in Richard Manui v ANZ Banking Group (PNG) Ltd (2008) N3405 where His Honour held at [27]:
“[T]here were further particulars provided by the plaintiff regarding (the) defendant's alleged negligence. Thus the defendant had been fully informed of the claim of negligence against it and the basis of such claim. This overcomes any insufficiency in pleading negligence in the statement of claim by the plaintiff.”
15.	 Guided by those cases, and the principle that pleadings are only a means to an end and not an end in themselves, I am convinced that when read as a whole, the pleadings are clear and give rise to a valid cause of action. I am therefore not persuaded by the defendants’ arguments that no damages should be awarded only because the plaintiffs did not plead their respective dates of birth and places of birth. Defendant has been fully informed of the proceedings and the claim made against it, and this overcomes any insufficiencies such as this as raised by the defendant. 

16.	Another reason this argument lacks merits is because the defendant has not filed a defence. Going by the principle established in the Supreme Court case of Papua New Guinea Banking Corporation (PNGBC) v Tole (2002) SC694, what has not been pleaded cannot be raised and relied on either in evidence or in submissions.   

17.	I also reject this argument because no complaint was raised about any lack of pleading at any stage of the proceeding. This is a belated argument. The defendant never filed an application to dismiss this claim for want of pleadings or requested for better particulars of the claim. This is the first time at trial on damages that the defendant has raised this issue. 

18.	It is for all these reasons that I reject the defendant’s argument. 

WHETHER BOTH PLAINTIFFS HAVE PROVEN THEIR CLAIM FOR DAMAGES TO BE AWARDED?

a.	General Damages

19.	It is clear from the evidence that the plaintiffs have not as part of their evidence adduced any affidavit from Dr Kibob in compliance with Section 37 of the Evidence Act. Instead, they have annexed the Medical Reports to their own affidavits, which is contrary to the Evidence Act. According to case law on point as alluded to by the defendant namely Simbuaken v Egari ((supra) amongst others, it is up to the Court to give little or no weight at all to such evidence. 

20.	I will deal with the second plaintiff’s claim first. She was injured on various parts of her body according to her own affidavit however there are no medical reports or photographs before the court to prove that she did suffer those injuries as a result of the accident. The medical reports and clinical notes annexed to her affidavit belong to the first plaintiff. This may have been an oversight on her or her lawyer’s part however as I stated earlier, it is fundamental to prove her claim. Neither of the parties raised or addressed this issue which gives me the impression that the lawyers did not diligently look at the evidence when preparing submissions. Or the plaintiff’s lawyer did not diligently check the affidavit before filing it in Court. Be that as it may there is no evidence at all for the second plaintiff therefore this Court cannot make any assessment on her claim. There are no photographs, clinical or treatment notes in evidence to assist the Court to verify her claim. The Court is always mindful of vague claims. Taking all those factors into account, I decline to make an award to the second plaintiff. 

21.	The first plaintiff has at least proven her claim by annexing the medical reports to her affidavits. However, the issue now is whether I should place little or no weight at all on her evidence in light of the issues I raised and addressed earlier. 

b.	Economic loss

22.	The evidence adduced by both plaintiffs in support of their claim under this head of damage is vague, and not corroborated. I am not satisfied that they have each proven their loss on the balance of probabilities hence nothing will be awarded under this head. 

SHOULD THE PLAINTIFFS BE AWARDED DAMAGES? IF SO HOW MUCH?

23.	The second plaintiff will not be awarded anything as she has failed to prove her claim for general damages and economic loss on the required standard. 

24.	 As for the first plaintiff, she annexed two medical reports by Dr Kibob dated 2 November 2019 and 16 May 2020, some clinical notes and a photograph of herself standing on crutches. Although the doctor did not file an affidavit to verify the medical reports as required by the Evidence Act, I note that she has also annexed evidence of photographs and clinical notes as well which are in evidence. 

25.	The law is that a plaintiff must produce evidence establishing his damages even after liability has been established- either by default or after a trial. If no evidence is produced, the Court will have to decline to assess any damages. 

26.	In assessing damages in personal injury cases, I agree with counsels that courts have made assessment on the common law principle of restitution in integram. This principle was developed in the case of Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 (HL), at 39. This principle was adopted and applied by the Supreme Court in the case of Motor Vehicle Insurance Limited v Maki Kol (2007) SC902, and is in the following terms:

“ where any injury is to be compensated by damages, in settling the sum of money to be given for…damages you should as nearly as possible get at the 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”. 

27.	The defendant’s main argument is that this court should not rely on the medical reports to assess damages for the plaintiff because the reports are hearsay evidence as they fail to comply with Section 37 of the Evidence Act. The defendant strongly argued that no weight should be given to all the reports. I uphold the defendant’s submission on this point. The National Court has held in many cases, including Sibuaken v Egari (supra), that where medical reports are attached to a plaintiff’s affidavit instead of the doctor who authored the report, it amounts to hearsay evidence hence less or no weight at all should be placed on such evidence. 

28.	 The first plaintiff has failed to explain in her evidence or submissions why she has not complied with section 37 of the Evidence Act. A similar situation occurred in Simbuaken v. Egari (supra) whereby the plaintiff's lawyer in that case did not explain how and why they were not able to produce the doctor in Court for purposes of cross-examination. The report prepared by a doctor was attached to the plaintiff's affidavit. Although, the State raised objections in relation to its tendering, the Court accepted it, ruling that it would give it the appropriate weight.

29.	This Court accepted the first plaintiff’s evidence without any objection by the defendant. It is now up to the court to give it the appropriate weight. The defendant has submitted that I do not give any weight and dismiss the claims,  and in the alternative award a minimal amount in compensation,  which it submits should be between K5, 000.00 to K10, 000.00

30.	I agree with the defendant that the medical reports in evidence are hearsay and I cannot assess the extent of the injuries sustained by the plaintiff, but based on the photographs, clinical and treatment notes I am satisfied that the first plaintiff has satisfactorily proved her claim to some extent. The difficulty I have now is I cannot ascertain the extent of the injuries as provided in the medical reports as not much weight can be placed on the reports according to law. I will have to assess damages generally. 

31.	In doing so, I must reject the plaintiff’s submission on general damages because all cases relied upon to advance her argument on quantum are cases where the medical reports were given due weight and relied upon by the Court to assess damages. In this case, not much weight is given to the medical reports . The defendant has suggested a global amount between K5, 000 – K10, 000.00. I will award K10, 000.00. 

32.	Inflation is a relevant consideration this court will take into account. In Andrew Moka v MVIL (2004) SC729 the Supreme Court on appeal from a decision of the National Court, increased an award of K23,000 to K35,000. That represented an increase by over 134 percent from an award of K15,000 in the earlier case of Tambi -v- The State[1988-89] PNGLR 648 which the trial judge in the Andrew Moka case relied upon to arrive at the assessment of K23,000.00. The National Court in that case, took into account, the rise in inflation and the decrease in the purchasing power of the Kina since the award in Tambi’s case.

33.	 In the case of MVIL -v- Maki Kol (supra) the Supreme Court endorsed what the court in the case of Andrew Moka and said this;
23. This Court’s decision in the Andrew Moka case makes it clear that, the awards in the 1980s and 1990s are outdated and had increased the awards in personal injuries claims by over 134 percent. We agree with the observations of the Supreme Court in that case. On our part, we consider this necessary in the 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 disadvantaged position in two respects. First, they will be left to live with their injuries and disabilities for the rest of their lives. Secondly the amount of compensation instead of restoring their losses as much as money is able to, it will leave them in a position where they will have no adequate compensation for their losses and may have to look elsewhere for their survival.

24. The award by the learned trial judge in this case, increased the award by well short of even a one hundred percent (100%) increase from the comparable verdicts His Honour considered. We do not consider the amount awarded by the National Court as reasonable compensation especially in today’s economic environment. We note that, without any formal cross appeal by Maki Kol, is seeking an increase of the award by the National Court up to K90,000. If there was a formal and proper cross appeal on foot, we would not hesitate to increase the award to K80,000 but because there is no such cross appeal, we are disinclined to increasing the award. In the circumstances, we are prepared to confirm the award by the National Court and dismiss the appeal against the award of general damages.” 

34.	That decision was made in 2007, well over 14 years ago, and the cost of living has increased since then. I take into account and am guided by what supreme court said in both cases said about inflation. The economy of our country today is worse than it was 14 years ago. I will therefore increase the award by 200% . The calculation would be; K10, 000.00 + (200% x K 10, 000)  which is  K30, 000.00. I accordingly award the first plaintiff K30, 000.00 under this head. 

35.	For the claim for economic loss, nothing is awarded. 

INTEREST
36.	The plaintiff seeks interest at a rate of 8% annually pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act, from filing of the writ of summons which is 19 November 2020, to the date of judgement in this matter, 23 May 2022. 

37.	The awarding of interest under the Judicial Proceedings (Interest on Debts and Damages) Act is discretionary: Cheong Supermarket Pty Ltd v Pery Muro (1987) PNGLR 24. In the exercise of my discretion, I will award interest at the rate of 8% annually on the total amount awarded of K45, 000 .00 from the date of filing of the writ of summons on 19 November 2020 to the date of judgment, 23 May 2022, which is a total of 1 years, 6 months and 4 days.  (1.4 9 years x 8% x K30, 000.00 = K3, 577.00).  I assess and award interest at K3, 577.00.

COST

38.	Cost will follow the event, that is the defendant shall pay the first plaintiff’s costs on a party-party basis, which shall, if not agreed, be taxed.

JUDGMENT

39.	The formal orders of the Court are:

1.	The second plaintiff’s claim is dismissed in its entirety.
2.	The defendant shall pay to the first plaintiff damages in the sum of  K30, 000.00 in total damages, plus interest of K3, 577.00 being a total sum of K33, 577.00.
3.	The defendant shall pay the first plaintiff’s costs on a party-party basis, which shall, if not agreed, be taxed.
4.	File is closed.

Judgment accordingly
________________________________________________________________
Solomon Wanis Lawyers: Lawyers for the Plaintiffs 		
Paul Othas Lawyers: Lawyers for the Defendant